by Virginia N. Hammerle
“I don’t want it” – such a deceptively simple statement. You would never know that it has caused havoc in courtrooms across the nation for over 100 years.In legal terminology, the statement is known as a “disclaimer,” and comes into play when a person who is entitled to receive a gift or inheritance refuses to accept it.
Let’s say that you are named as a beneficiary in a will for $100. If you properly disclaim the $100, then the effect is as if you never owned it. Instead, the $100 goes to the next beneficiary down the line. The law in Texas has been notoriously unfriendly to people trying to disclaim an interest. There havebeen all sorts of traps about sending notice, proper wording, and fiduciaries. So it was a relief when the Texas Legislature adopted the Texas Uniform Disclaimer of Property Interests Act this year.
The new law is effective on September 1, 2015. As a result, there is finally one clear-cut method to disclaim property. An effective disclaimer has to be in writing, state that it is a disclaimer, describe the interest (or power) that is being disclaimed, be signed by the person making the disclaimer, and be delivered (or filed) as described in the new law. A person can make a partial disclaimer. Once the disclaimer is made, it cannot be revoked.
A proper disclaimer is not considered a transfer, an assignment or a release. Why, you may ask, would anyone ever want to disclaim money or property? There are plenty of reasons, but here are a few common ones: to save taxes, to prevent the money from being available to creditors, to refuse a property that is in horrible shape, or to effectively “gift” money to someone else.
Even with the new law, sometimes disclaimers aren’t effective. Someone who is past-due on child support, for example, is prohibited from disclaiming money that could have been used to reduce the child support arrearage.
Give us a call — we can help.
Virginia Hammerle is a Board Certified Civil Trial Attorney by the Texas Board of Legal Specialization and an
Accredited Estate Planner by the National Association of Estate Planners & Councils. She can be contacted at
[email protected]. The information contained in this article is general information only and does
not constitute legal advice. ©2015
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