Is it possible to disclaim the pledged property under Virginia law?
Full Question:
I inherited some property from my father through intestate succession. I have to pledge the property. Is it possible under Virginia law to disclaim the property after it is released?
06/05/2017 |
Category: Wills and Es... ยป Disclaimer o... |
State: Virginia |
#38656
Answer:
The relevant provisions related to the disclaimant of the property is as follows:
Va. Code Ann. § 64.2-2611 When disclaimer barred or limited
A. A disclaimer is barred by a written waiver of the right to disclaim.
B. A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective: (i) the disclaimant accepts the interest sought to be disclaimed; (ii) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or (iii) a judicial sale of the interest sought to be disclaimed occurs.
C. A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
D. A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant.
E. A disclaimer is barred or limited if so provided by law other than this chapter.
F. A disclaimer of a power over property that is barred by this section is ineffective. A disclaimer of an interest in property that is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.
Va. Code Ann. § 64.2-2603 Power to disclaim; general requirements; when irrevocable
A. A person may disclaim in whole or in part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
B. Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of the Commonwealth or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.
C. A custodial parent of a minor for whom no guardian of the property has been appointed may disclaim, in whole or in part, an interest in or power over property, including a power of appointment, that, but for the custodial parent's disclaimer, would have passed to the minor as the result of another disclaimer. The custodial parent may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.
D. To be effective, a disclaimer shall be in writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in § 64.2-2610. In this subsection, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
E. A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of power, or any other interest or estate in the property.
F. A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 64.2-2610 or when it becomes effective as provided in §§ 64.2-2604 through 64.2-2609, whichever occurs later.
G. A disclaimer made under this chapter is not a transfer, assignment, or release.
Va. Code Ann. § 64.2-2604 Disclaimer of interest in property
A. In this section:
"Future interest" means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation.
"Time of distribution" means the time when a disclaimed interest would have taken effect in possession or enjoyment.
B. Except for a disclaimer governed by § 64.2-2605 or 64.2-2606, the following rules apply to a disclaimer of an interest in property:
1. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate's death.
2. The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.
3. If the instrument does not contain a provision described in subdivision 2, the following rules apply:
a. If the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution. However, if by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive at the time of distribution.
b. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.
4. Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment.
