How Can I Avoid Claims by Heirs Who Don't Respond to Probate Notices?
Full Question:
Answer:
Often, a disclaimer of interest by a beneficiary causes the property disclaimed to transfer to the remaining beneficiaries. A transfer of a trust asset by a beneficiary may prevent a disclaimer from being made. In some cases, where a trust is not economically feasible, the trust may need to be be terminated. We suggest you contact a local attorney who can review all the facts and documents involved.
Please see the following CA statutes to determine applicability:
279. (a) A disclaimer to be effective shall be filed within a
reasonable time after the person able to disclaim acquires knowledge
of the interest.
(b) In the case of any of the following interests, a disclaimer is
conclusively presumed to have been filed within a reasonable time if
it is filed within nine months after the death of the creator of the
interest or within nine months after the interest becomes
indefeasibly vested, whichever occurs later:
(1) An interest created under a will.
(2) An interest created by intestate succession.
(3) An interest created pursuant to the exercise or nonexercise of
a testamentary power of appointment.
(4) An interest created by surviving the death of a depositor of a
Totten trust account or P.O.D. account.
(5) An interest created under a life insurance or annuity
contract.
(6) An interest created by surviving the death of another joint
tenant.
(7) An interest created under an employee benefit plan.
(8) An interest created under an individual retirement account,
annuity, or bond.
(c) In the case of an interest created by a living trust, an
interest created by the exercise of a presently exercisable power of
appointment, an outright inter vivos gift, a power of appointment, or
an interest created or increased by succession to a disclaimed
interest, a disclaimer is conclusively presumed to have been filed
within a reasonable time if it is filed within nine months after
whichever of the following times occurs latest:
(1) The time of the creation of the trust, the exercise of the
power of appointment, the making of the gift, the creation of the
power of appointment, or the disclaimer of the disclaimed property.
(2) The time the first knowledge of the interest is acquired by
the person able to disclaim.
(3) The time the interest becomes indefeasibly vested.
(d) In case of an interest not described in subdivision (b) or
(c), a disclaimer is conclusively presumed to have been filed within
a reasonable time if it is filed within nine months after whichever
of the following times occurs later:
(1) The time the first knowledge of the interest is acquired by
the person able to disclaim.
(2) The time the interest becomes indefeasibly vested.
(e) In the case of a future estate, a disclaimer is conclusively
presumed to have been filed within a reasonable time if it is filed
within whichever of the following times occurs later:
(1) Nine months after the time the interest becomes an estate in
possession.
(2) The time specified in subdivision (b), (c), or (d), whichever
is applicable.
(f) If the disclaimer is not filed within the time provided in
subdivision (b), (c), (d), or (e), the disclaimant has the burden of
establishing that the disclaimer was filed within a reasonable time
after the disclaimant acquired knowledge of the interest.
280. (a) A disclaimer shall be filed with any of the following:
(1) The superior court in the county in which the estate of the
decedent is administered or, if there is no administration of the
decedent's estate, the superior court in any county in which
administration of the estate of the decedent would be proper.
(2) The trustee, personal representative, other fiduciary, or
person responsible for distributing the interest to the beneficiary.
(3) Any other person having custody or possession of or legal
title to the interest.
(4) The creator of the interest.
(b) If a disclaimer made pursuant to this part affects real
property or an obligation secured by real property and the disclaimer
is acknowledged and proved in like manner as a grant of real
property, the disclaimer may be recorded in like manner and with like
effect as a grant of real property, and all statutory provisions
relating to the recordation or nonrecordation of conveyances of real
property and to the effect thereof apply to the disclaimer with like
effect, without regard to the date when the disclaimer was filed
pursuant to subdivision (a). Failure to file a disclaimer pursuant to
subdivision (a) which is recorded pursuant to this subdivision does
not affect the validity of any transaction with respect to the real
property or the obligation secured thereby, and the general laws on
recording and its effect govern any such transaction.
285. (a) A disclaimer may not be made after the beneficiary has
accepted the interest sought to be disclaimed.
(b) For the purpose of this section, a beneficiary has accepted an
interest if any of the following occurs before a disclaimer is filed
with respect to that interest:
(1) The beneficiary, or someone acting on behalf of the
beneficiary, makes a voluntary assignment, conveyance, encumbrance,
pledge, or transfer of the interest or part thereof, or contracts to
do so; provided, however, that a beneficiary will not have accepted
an interest if the beneficiary makes a gratuitous conveyance or
transfer of the beneficiary's entire interest in property to the
person or persons who would have received the property had the
beneficiary made an otherwise qualified disclaimer pursuant to this
part.
(2) The beneficiary, or someone acting on behalf of the
beneficiary, executes a written waiver under Section 284 of the right
to disclaim the interest.
(3) The beneficiary, or someone acting on behalf of the
beneficiary, accepts the interest or part thereof or benefit
thereunder.
(4) The interest or part thereof is sold at a judicial sale.
(c) An acceptance does not preclude a beneficiary from thereafter
disclaiming all or part of an interest if both of the following
requirements are met:
(1) The beneficiary became entitled to the interest because
another person disclaimed an interest.
(2) The beneficiary or other person acting on behalf of the
beneficiary at the time of the acceptance had no knowledge of the
interest to which the beneficiary so became entitled.
(d) The acceptance by a joint tenant of the joint tenancy interest
created when the joint tenancy is created is not an acceptance by
the joint tenant of the interest created when the joint tenant
survives the death of another joint tenant.
Please see also:
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=50922918844+0+0+0&WAISaction=retrieve
http://evans-legal.com/dan/disclaimtr.html
http://retirementlc.com/documents/20090908BeneficiaryDisclaimerp2.pdf
