How Do I Give Up Property Inherited Under a Will in New York?
Full Question:
Answer:
A renunciation must be in writing, signed and acknowledged by the person renouncing, and filed in the office of the clerk of the court having jurisdiction over the will or trust agreement governing the property of which the disposition would otherwise be made or the court which issued letters of administration, or if there is no probate or administration, then in a surrogate's court provided by law as the place of probate or administration of the decedent's estate, within nine months after the effective date of the disposition. Such renunciation shall be accompanied by an affidavit of the renouncing party that he has not received and is not to receive any consideration in money or money's worth for such renunciation from a person or persons whose interest is to be accelerated, unless payment of such consideration has been authorized by the court. Notice of such renunciation, which shall include a copy of the renunciation, shall be served personally or in such manner as the court may direct upon the fiduciary directed by the will or trust agreement to make the disposition or upon the administrator or such other person who was directed to make the disposition or upon any other person having custody or possession of or legal title to the property, an interest in which is being renounced, and by mail or in such manner as the court may direct upon all persons whose interest may be created or increased by reason of such renunciation.
Please see the following NY statutes to determine applicability:
§ 2-1.11 Est. Powers & Trusts. Renunciation of property interests.[fn*]
[fn*] NB Effective until January 1, 2011
(a) For purposes of this section:
(1) The term "disposition" shall include a disposition created under a
will or trust agreement including, without limitation, the granting of a
power of appointment, a disposition created by the exercise or nonexercise
of a power of appointment, a distributive share under 4-1.1, a transfer
created by a trust account as defined in 7-5.1, a transfer created by a
life insurance or annuity contract, a transfer created by a joint tenancy
or tenancy by the entirety, a transfer under an employee benefit plan
(including, without limitation, any pension, retirement, death benefit,
stock bonus or profit-sharing plan, system or trust), a transfer of a
security to a beneficiary pursuant to part 4 of article 13 of this chapter,
any other disposition or transfer created by any testamentary or
nontestamentary instrument, or by operation of law, and any of the
foregoing created or increased by reason of a renunciation made by another
person.
(2) The effective date of the disposition for purposes of this
section shall be:
A. If the disposition is created by will, the exercise or nonexercise of
a testamentary power of appointment, a distribution pursuant to 4-1.1, the
deposit of money in a trust account as defined in 7-5.1, a life insurance
or annuity contract, a joint tenancy or tenancy by the entirety, or an
employee benefit plan, the date of death of the deceased testator, holder
of the power of appointment, intestate, creator of the trust account,
insured, annuitant, other joint tenant or tenant by the entirety, or
employee, as the case may be;
B. If the disposition is created by trust agreement, the exercise of a
presently exercisable power of appointment, or the renunciation of a
disposition created by another, the date of the trust agreement, exercise
of the power of appointment, or renunciation, as the case may be; and C. If
the disposition is created by any other testamentary or nontestamentary
instrument, or by operation of law, the date of the event by which the
beneficiary is finally ascertained. Notwithstanding the foregoing, the
effective date of a disposition which is of a future estate shall be the
date on which it becomes an estate in possession.
(b) (1) Any beneficiary of a disposition may renounce all or part of his
interest; provided, however, that a surviving joint tenant or tenant by the
entirety may not renounce that portion of an interest in joint property or
property held by the entirety which is allocable to amounts contributed by
him to the interest in such property.
(2) Such renunciation shall be in writing, signed and acknowledged by the
person renouncing, and shall be filed in the office of the clerk of the
court having jurisdiction over the will or trust agreement governing the
property of which the disposition would otherwise be made or the court
which issued letters of administration, or if there is no probate or
administration, then in a surrogate's court provided by law as the place of
probate or administration of the decedent's estate, within nine months
after the effective date of the disposition. Such renunciation shall be
accompanied by an affidavit of the renouncing party that he has not
received and is not to receive any consideration in money or money's worth
for such renunciation from a person or persons whose interest is to be
accelerated, unless payment of such consideration has been authorized by
the court. Notice of such renunciation, which shall include a copy of the
renunciation, shall be served personally or in such manner as the court may
direct upon the fiduciary directed by the will or trust agreement to make
the disposition or upon the administrator or such other person who was
directed to make the disposition or upon any other person having custody or
possession of or legal title to the property, an interest in which is being
renounced, and by mail or in such manner as the court may direct upon all
persons whose interest may be created or increased by reason of such
renunciation. The time to file and serve such renunciation may be extended,
in the discretion of the court, on a petition showing reasonable cause and
on notice to such persons and in such manner as the court may direct. The
time limited in this section for filing and serving such renunciation is
exclusive, and shall not be suspended or otherwise affected by any other
provision of law; such renunciation shall be effective as of the date of
such filing, notwithstanding that notice thereof may thereafter be required
by the court.
(c) A renunciation may be made by:
(1) The guardian of the property of an infant, when so authorized by the
court having jurisdiction of the estate of the infant.
(2) The committee of an incompetent when so authorized by the court that
appointed the committee.
(3) The conservator of a conservatee, when so authorized by the court
that appointed the conservator.
(4) A guardian appointed under article eighty-one of the mental hygiene
law, when so authorized by the court that appointed the guardian.
(5) The personal representative of a decedent, when so authorized by the
court having jurisdiction of the estate of the decedent.
(6) An attorney-in-fact, when so authorized under a duly executed power
of attorney, provided, however, that any renunciation by an
attorney-in-fact of a person under disability shall not be effective
unless it is further authorized by the court with which the renunciation
must be filed under subparagraph two of paragraph (b) of this section,
and provided, further, that a renunciation by an attorney-in-fact of a
person not under disability may be made without court authorization,
unless the property which would have passed under said renunciation is,
by reason of said renunciation, disposed of in favor of such
attorney-in-fact or the spouse or issue of such attorney-in-fact, in
which case such renunciation shall not be effective unless either (A) the
instrument appointing such attorney-in-fact expressly authorizes a
renunciation in favor of such attorney-in-fact or the spouse or issue of
such attorney-in-fact, or (B) such renunciation has been authorized by
the court with which the renunciation must be filed under
subparagraph two of paragraph (b).
(d) Unless the creator of the disposition has otherwise provided, the
filing of a renunciation, as provided in this section, has the same
effect with respect to the renounced interest as though the renouncing
person had predeceased the creator or the decedent or, if the renounced
interest is a future estate, as though the renouncing person had died at
the time of filing or just prior to its becoming an estate in
possession, whichever is earlier in time, and shall have the effect of
accelerating the possession and enjoyment of subsequent interests, but
shall have no effect upon the vesting of a future estate which by the
terms of the disposition is limited upon a preceding estate other than
the renounced interest. If, pursuant to the preceding sentence, there
would occur a per stirpes disposition of the renounced interest or a
disposition or distribution of the renounced interest by representation,
then solely for purposes of applying 1-2.14 or 1-2.16, as the case may
be, the renouncing person shall be treated as having died on the same
date as, but immediately after, the creator or decedent or, if the
renounced interest is a future estate, as having died on the same date
as, but immediately after, its becoming an estate in possession or, if
the time of filing is earlier in time, on the same date as, but
immediately after, such filing. Such renunciation is retroactive to the
creation of the disposition. A person who has a present and a future
interest in property and renounces the present interest in whole or in
part shall be deemed to have renounced the future interest to the same
extent.
(e) A beneficiary may accept one disposition and renounce another, may
renounce a disposition in whole or in part, or with reference to specific
amounts, parts, fractional shares or assets thereof. Notwithstanding the
provisions of paragraph (d) of this section, a renunciation by a surviving
spouse of a decedent of a disposition created by said decedent shall not be
deemed to be a renunciation by such spouse of all or any part of any other
disposition to or in favor of such spouse, regardless of whether the
property which would have passed under said renounced disposition is by
reason of said renunciation disposed of to or in favor of such spouse.
Unless a renouncing person has provided otherwise in his renunciation, the
effect of a renunciation of a fractional part of a disposition is to
renounce such fraction of all property to which the renouncing person is
entitled under the disposition.
(f) A renunciation may not be made under this section with respect to any
property which a renouncing person has accepted, except that an acceptance
does not preclude a person from renouncing all or part of any property to
which he becomes entitled when another person renounces after such
acceptance. For purposes of this paragraph, a person accepts an interest in
property if he voluntarily transfers or encumbers, or contracts to transfer
or encumber all or part of such interest, or accepts delivery or payment
of, or exercises control as beneficial owner over all or part thereof, or
executes a written waiver of the right to renounce, or otherwise indicates
acceptance of all or part of such interest. A written waiver of the right
to renounce shall be binding on the person waiving and all parties claiming
by, through or under him.
(g) A renunciation filed under this section is irrevocable.
(h) This section shall not abridge the right of any beneficiary or any
other person to assign, convey, release or renounce any property or
interest therein arising under any other section of this chapter or other
statute or under common law.
(i) Except as specifically provided in the trust instrument, the will,
any other instrument creating the disposition, or in this section, this
section shall apply to each disposition the effective date of which (as
defined in this section) is on or after the effective date of this section,
except that with respect to the renunciation of a future interest this
section shall apply as well to dispositions created or increased prior to
the effective date of this section.
(j) In determining whether or not a valid disclaimer has been made for
the purposes of the taxes imposed by articles twenty-six and twenty-six-A
of the tax law, the provisions of such law shall be applicable to such
determination, notwithstanding any provisions to the contrary contained in
this section or any other section of this chapter.
(As amended by Laws 2003, ch. 589, Sec. 1, eff. Sept. 1, 2003; Laws 2005,
ch. 325, Sec. 4, eff. Jan. 1, 2006.)
Amendment Notes:
Laws 2005, ch. 325, Sec. 4, eff. Jan. 1, 2006, amended subparagraph 1 of
paragraph (a).
§ 2-1.11 Renunciation of property interests.[fn*]
[fn*] NB Effective January 1, 2011
(a) A renunciation made in compliance with the provisions of this
section shall not necessarily constitute a qualified disclaimer within
the meaning of section 2518 of the Internal Revenue Code of 1986, as
amended, or for the purposes of the taxes imposed by article twenty-six
of the tax law.
(b) For purposes of this section:
(1) The term "disposition" shall include a disposition created under a
will or trust agreement including, without limitation, the granting of a
power of appointment, a disposition created by the exercise or nonexercise
of a power of appointment, a distributive share under 4-1.1, a transfer
created by a trust account as defined in 7-5.1, a transfer created by a
life insurance or annuity contract, a transfer resulting from the creation
of a joint tenancy or tenancy by the entirety, a transfer created by the
death of a joint tenant or tenant by the entirety, a transfer under an
employee benefit plan (including, without limitation, any pension,
retirement, death benefit, stock bonus or profit-sharing plan, system or
trust), a transfer of a security to a beneficiary pursuant to part 4 of
article 13 of this chapter, any other disposition or transfer created by
any testamentary or nontestamentary instrument, or by operation of law, and
any of the foregoing created or increased by reason of a renunciation made
by another person.
(2) The effective date of the disposition for purposes of this
section shall be:
A. If the disposition is created by will, the exercise or nonexercise of
a testamentary power of appointment, a distribution pursuant to 4-1.1, the
deposit of money in a trust account as defined in 7-5.1, the registration
of a security in beneficiary form pursuant to part 4 of article 13 of this
chapter, a life insurance or annuity contract, the death of a joint tenant
or tenant by the entirety, or an employee benefit plan, the date of death
of the deceased testator, holder of the power of appointment, intestate,
creator of the trust account, registered owner of the security, insured,
annuitant, other joint tenant or tenant by the entirety, or employee, as
the case may be;
B. If the disposition is created by trust agreement, the exercise of a
presently exercisable power of appointment, the creation of a joint tenancy
or tenancy by the entirety, or the renunciation of a disposition created by
another, the date as of which the transfer in trust is irrevocable and is a
completed gift for federal gift tax purposes (regardless of whether a gift
tax is imposed on the completed gift), the date of the exercise of the
power of appointment, the creation of a joint tenancy or tenancy by the
entirety, or renunciation, as the case may be; and
C. If the disposition is created by any other testamentary or
nontestamentary instrument, or by operation of law, the date of the event
by which the beneficiary is finally ascertained. Notwithstanding the
foregoing, the effective date of a disposition which is of a future
estate shall be the date on which it becomes an estate in possession.
(c) (1) Any beneficiary of a disposition may renounce all or part of such
beneficiary's interest; provided, however, that a surviving joint tenant or
tenant by the entirety may renounce the interest to which such tenant
succeeds, by operation of law upon the death of another joint tenant or
tenant by the entirety, to the extent such interest could be the subject of
a qualified disclaimer under section 2518 of the United States Internal
Revenue Code of 1986, as amended.
(2) Such renunciation shall be in writing, signed and acknowledged by the
person renouncing, and shall be filed in the office of the clerk of the
court having jurisdiction over the will or trust agreement governing the
property of which the disposition would otherwise be made or the court
which issued letters of administration, or if there is no probate or
administration, then in a surrogate's court provided by law as the place of
probate or administration of the decedent's estate, within nine months
after the effective date of the disposition. Such renunciation shall be
accompanied by an affidavit of the renouncing party that such party has not
received and is not to receive any consideration in money or money's worth
for such renunciation from a person or persons whose interest is to be
accelerated, unless payment of such consideration has been authorized by
the court. Notice of such renunciation, which shall include a copy of the
renunciation, shall be served personally or in such manner as the court may
direct upon the fiduciary directed by the will or trust agreement to make
the disposition or upon the administrator or such other person who was
directed to make the disposition or upon any other person having custody or
possession of or legal title to the property, an interest in which is being
renounced, and by mail or in such manner as the court may direct upon all
persons whose interest may be created or increased by reason of such
renunciation. The time to file and serve such renunciation may be extended,
in the discretion of the court, on a petition showing reasonable cause and
on notice to such persons and in such manner as the court may direct. The
time limited in this section for filing and serving such renunciation is
exclusive, and shall not be suspended or otherwise affected by any other
provision of law; such renunciation shall be effective as of the date of
such filing, notwithstanding that notice thereof may thereafter be required
by the court.
(d) A renunciation may be made by:
(1) The guardian of the property of an infant, when so authorized by the
court having jurisdiction of the estate of the infant.
(2) The committee of an incompetent when so authorized by the court that
appointed the committee.
(3) The conservator of a conservatee, when so authorized by the court
that appointed the conservator.
(4) A guardian appointed under article eighty-one of the mental hygiene
law, when so authorized by the court that appointed the guardian.
(5) The personal representative of a decedent, when so authorized by the
court having jurisdiction of the estate of the decedent.
(6) An attorney-in-fact, when so authorized under a duly executed power
of attorney, provided, however, that any renunciation by an
attorney-in-fact of a person under disability shall not be effective
unless it is further authorized by the court with which the renunciation
must be filed under subparagraph two of paragraph (c) of this section,
and provided, further, that a renunciation by an attorney-in-fact of a
person not under disability may be made without court authorization,
unless the property which would have passed under said renunciation is,
by reason of said renunciation, disposed of in favor of such
attorney-in-fact or the spouse or issue of such attorney-in-fact, in
which case such renunciation shall not be effective unless either (A) the
instrument appointing such attorney-in-fact expressly authorizes a
renunciation in favor of such attorney-in-fact or the spouse or issue of
such attorney-in-fact, or (B) such renunciation has been authorized by
the court with which the renunciation must be filed under
subparagraph two of paragraph (c) of this section.
(e) Unless the creator of the disposition has otherwise provided, the
filing of a renunciation, as provided in this section, has the same
effect with respect to the renounced interest as though the renouncing
person had predeceased the creator or the decedent or, if the renounced
interest is a future estate, as though the renouncing person had died at
the time of filing or just prior to its becoming an estate in
possession, whichever is earlier in time, and shall have the effect of
accelerating the possession and enjoyment of subsequent interests, but
shall have no effect upon the vesting of a future estate which by the
terms of the disposition is limited upon a preceding estate other than
the renounced interest. If, pursuant to the preceding sentence, there
would occur a per stirpes disposition of the renounced interest or a
disposition or distribution of the renounced interest by representation,
then solely for purposes of applying 1-2.14 or 1-2.16, as the case may
be, the renouncing person shall be treated as having died on the same
date as, but immediately after, the creator or decedent or, if the
renounced interest is a future estate, as having died on the same date
as, but immediately after, its becoming an estate in possession or, if
the time of filing is earlier in time, on the same date as, but
immediately after, such filing. Such renunciation is retroactive to the
creation of the disposition. A person who has a present and a future
interest in property and renounces the present interest in whole or in
part shall be deemed to have renounced the future interest to the same
extent.
(f) A beneficiary may accept one disposition and renounce another, may
renounce a disposition in whole or in part, or with reference to specific
amounts, parts, fractional shares or assets thereof. Notwithstanding the
provisions of paragraph (e) of this section, a renunciation by a surviving
spouse of a decedent of a disposition created by said decedent shall not be
deemed to be a renunciation by such spouse of all or any part of any other
disposition to or in favor of such spouse, regardless of whether the
property which would have passed under said renounced disposition is by
reason of said renunciation disposed of to or in favor of such spouse.
Unless a renouncing person has provided otherwise in his renunciation, the
effect of a renunciation of a fractional part of a disposition is to
renounce such fraction of all property to which the renouncing person is
entitled under the disposition.
(g) A renunciation may not be made under this section with respect to
any property which a renouncing person has accepted, except that an
acceptance does not preclude a person from renouncing all or part of any
property to which such person becomes entitled when another person
renounces after such acceptance. For purposes of this paragraph, a person
accepts an interest in property if such person voluntarily transfers or
encumbers, or contracts to transfer or encumber all or part of such
interest, or accepts delivery or payment of, or exercises control as
beneficial owner over all or part thereof, or executes a written waiver
of the right to renounce, or otherwise indicates acceptance of all or
part of such interest. A written waiver of the right to renounce shall be
binding on the person waiving and all parties claiming by, through or
under such person.
(h) A renunciation filed under this section is irrevocable.
(i) This section shall not abridge the right of any beneficiary or any
other person to assign, convey, release or renounce any property or
interest therein arising under any other section of this chapter or other
statute or under common law.
(j) Except as specifically provided in the trust instrument, the will,
any other instrument creating the disposition, or in this section, this
section shall apply to each disposition the effective date of which (as
defined in this section) is on or after the effective date of this section,
except that with respect to the renunciation of a future interest this
section shall apply as well to dispositions created or increased prior to
the effective date of this section.
(As amended by Laws 2003, ch. 589, Sec. 1, eff. Sept. 1, 2003; Laws 2005,
ch. 325, Sec. 4, eff. Jan. 1, 2006; Laws 2010, ch. 27, Sec. 1, eff. Jan. 1,
2011.)
