Winter Council Meeting PowerPoint Presentation, PPT - DocSlides

Winter Council Meeting

Lake Charles, LA

Disclaimers

Reasons to Disclaim

1. Onerous Burdens

Reasons to Disclaim

1. Onerous Burdens2. Tax Savings

Possible Reasons to Disclaim

1. Onerous Burdens2. Tax Savings3. Avoid creditors, exceptIRSChild supportEC § 122.107

Requirements -- EC § 122.107

1. Disclaimer Documenta. Written, b. Acknowledged, andc. Statement whether disclaimant owes back child support

Requirements -- EC § 122.055

2. Proper Filinga. When = 9 months after decedent’s death

Remove 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.

Requirements -- EC § 122.052

2. Proper Filinga. When = 9 months after decedent’s deathb. Where = in court where probate proceedings pending

Requirements -- EC § 122.056

3. Notice to personal representative by

a. Personal service, or

b. Registered or certified mail.

Basic Disclaimer Principles

1. Wills, life insurance policies, etc. may provide disclaimer methods and designate who receives disclaimed property.

Basic Disclaimer Principles

2. Irrevocable

Basic Disclaimer Principles

3. Partial disclaimers (“cherry-picking”) allowed.

Basic Disclaimer Principles

4. Acceptance precludes later disclaimer.

Basic 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.

Welder v. Hitchcock – p. 53

Situation

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?

Basic Disclaimer Principles

6. Lack of understanding of

effect

of disclaimer (e.g., who receives the disclaimed property) ≠ ground for undoing

Basic Disclaimer Principles

7. Lack of understanding of what

property

is being disclaimed = ground for undoing