Presentations text content in Winter Council Meeting
Slide1
Winter Council Meeting
Lake Charles, LA
Slide2Disclaimers
Slide3Reasons to Disclaim
1. Onerous Burdens
Slide4Reasons to Disclaim
1. Onerous Burdens2. Tax Savings
Slide5Possible Reasons to Disclaim
1. Onerous Burdens2. Tax Savings3. Avoid creditors, exceptIRSChild supportEC § 122.107
Slide6Requirements -- EC § 122.107
1. Disclaimer Documenta. Written, b. Acknowledged, andc. Statement whether disclaimant owes back child support
Slide7Requirements -- EC § 122.055
2. Proper Filinga. When = 9 months after decedent’s death
Slide8Remove 9 month requirement?
The new Uniform Act and a drafted but not introduced will would remove the 9 month requirement. Do you agree?
Yes, can disclaim up to time accept.
No, but expand period (e.g., 12 months).
No, keep as is.
No, remove a person’s option to disclaim as it allows creditor avoidance.
Slide9Requirements -- EC § 122.052
2. Proper Filinga. When = 9 months after decedent’s deathb. Where = in court where probate proceedings pending
Slide10Requirements -- EC § 122.056
3. Notice to personal representative by
a. Personal service, or
b. Registered or certified mail.
Slide11Basic Disclaimer Principles
1. Wills, life insurance policies, etc. may provide disclaimer methods and designate who receives disclaimed property.
Slide12Basic Disclaimer Principles
2. Irrevocable
Slide13Basic Disclaimer Principles
3. Partial disclaimers (“cherry-picking”) allowed.
Slide14Basic Disclaimer Principles
4. Acceptance precludes later disclaimer.
Slide15Basic Disclaimer Principles
5. Disclaimed property passes as if
disclaimant
predeceased decedent.
Disclaimant
cannot control where property goes.
Treated as legally dead although biologically alive vis-à-vis the disclaimed property.
Slide16Welder v. Hitchcock – p. 53
Slide17Situation
Husband died intestate survived by his wife and their four children.
All children want wife/mother to receive all husband/dad’s property.
They all execute valid disclaimers.
What fact do you need to know if children’s plan worked?
Slide18Basic Disclaimer Principles
6. Lack of understanding of
effect
of disclaimer (e.g., who receives the disclaimed property) ≠ ground for undoing
Slide19Basic Disclaimer Principles
7. Lack of understanding of what
property
is being disclaimed = ground for undoing
Slide20Slide21Slide22Slide23
Winter Council Meeting
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