Wills and Estates – Disclaimer of Property Interest – New Jersey
Devisee, beneficiary or appointee under testamentary instrument, or heir; whole or fractional share
Any person who is a devisee or beneficiary under a testamentary instrument, or appointee under a power of appointment exercised by a testamentary instrument, including a person succeeding to a disclaimed interest, or an heir may disclaim in whole or in part the right of succession to any property or interest therein, including a future interest, by filing a disclaimer under this act. A disclaimer may be of a fractional share, expressed as either a percentage or dollar amount, or any limited interest or estate.
Title 3-A, §3A:25-40.
L.1979, c. 484, s. 2 eff. Feb. 28, 1980.
Instrument; formalities; contents
The instrument disclaiming shall be in writing, signed and acknowledged by the person disclaiming, and shall (1) describe the property or interest disclaimed, and if real property, the municipality and county wherein the real property is situated (2) declare the disclaimer and extent thereof.
Title 3A, §3A:25-41.
L.1979, c. 484, s. 3 eff. Feb. 28, 1980.
Decedent, minor or mentally-incompetent by personal representative or guardian
A disclaimer on behalf of a decedent, minor or mentally-incompetent person may be made by the personal representative of the decedent or the guardian of the estate of the minor or mentally-incompetent person. Such disclaimer shall not be effective unless, prior thereto, the personal representative or guardian has been authorized to disclaim by the court having jurisdiction of the estate of the decedent, minor or mentally-incompetent person, after finding that it is advisable and will not materially prejudice the rights of creditors, devisees, heirs or beneficiaries of the decedent, the minor or mentally-incompetent person or his creditors, as the case may be.
Title 3A, §3A:25-42.
Time of filing of instrument
a. The instrument disclaiming a present interest shall be filed not later than 9 months after the death of the decedent or of the donee of the power.
b. The instrument disclaiming a future interest shall be filed not later than 9 months after the happening of the event which determines the taker’s right to possession, use or enjoyment of the property or interest.
c. The time within which a disclaimer shall be filed may be extended by the court for reasonable cause, and on notice to such persons and in such manner as the court may direct.
Title 3A, §3A:25-43.
L.1979, c. 484, s. 5 eff. Feb. 28, 1980.
Place of filing; delivery of copy to personal representative, fiduciary of decedent or donee of power or holder of legal title; real estate; recordation; book of “Disclaimers”
a. The disclaimer shall be filed in the office of the surrogate or Superior Court in which proceedings have been commenced or will be commenced for the administration of the estate of the decedent or deceased donee of the power. A copy of such disclaimer shall also be delivered in person or mailed by registered or certified mail to any personal representative, other fiduciary of the decedent or donee of the power or to the holder of the legal title to which the interest relates.
b. If real property or any interest therein is disclaimed, the surrogate or clerk of the superior court, as the case may be, shall forthwith forward a copy of the disclaimer for filing in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. Each county clerk or register of deeds and mortgages shall provide a book to be entitled “Disclaimers”, so arranged that he may record therein:
(1) The name of the disclaimant;
(2) The name of the decedent or the name of the donee of the power of appointment;
(3) The location of the property;
(4) The file number of the county clerk’s office or the office of register of deeds and mortgages indorsed upon each disclaimer filed;
(5) The date of filing the disclaimer.
The county clerk or the register of deeds and mortgages shall maintain in said record an alphabetical index of the names of all disclaimants stated in any disclaimer file, and also keep in his office for public inspection, all disclaimers so filed therein.
Title 3A, §3A:25-44.
L.1979, c. 484, s. 6 eff. Feb. 28, 1980.
Devolution of disclaimed property or interest; relation back to date of death
Unless the decedent or donee of the power has otherwise provided, the property or interest disclaimed devolves (a) as to a present interest, as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power, and (b) as to a future interest as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his interest indefeasibly vested. A disclaimer relates back for all purposes to the date of death of the decedent or the donee of the power.
Title 3A, §3A:25-45.
L.1979, c. 484, s. 7 eff. Feb. 28, 1980.
Bar of right to disclaim
The right of a person to disclaim property or any interest therein is barred if the property or interest is seized under judicial process issued against the person before the expiration of the period in which he is permitted to disclaim; or if before the expiration of the period in which he is permitted to disclaim, the person (1) accepts or exercises control as beneficial owner over all or any part of such property or interest; or (2) voluntarily transfers or encumbers or contracts to transfer or encumber all or any part of such property or interest; or (3) disclaims or attempts to disclaim all or any part of such property or interest in fraud of his creditors as set forth in the Uniform Fraudulent Conveyance Law (R.S. 25:2-7 et seq.); or (4) executes a written waiver of the right to disclaim.
Title 3A, §3A:25-46.
L.1979, c. 484, s. 8 eff. Feb. 28, 1980.
The disclaimer or the written waiver of the right to disclaim shall be binding upon the disclaimant or person waiving and all persons claiming by, through or under him.
Title 3A, §3A:25-47.
L.1979, c. 484, s. 9.
Existence of right notwithstanding limitation
The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
Title 3A, §3A:25-48.
L.1979, c. 484, s. 10 eff. Feb. 28, 1980.
Continuance of rights under other statutes
This act does not abridge the right of a person to waive, release, disclaim or renounce property or an interest therein under any other statute.
Title 3A, §3A:25-49.
L.1979, c. 484, s. 11 eff. Feb. 28, 1980.
Interests in property existing on effective date of act
An interest in property existing on the effective date of this act as to which, if a present interest, the time for filing a disclaimer under this act has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within 9 months after the effective date of this act.
Title 3A, §3A:25-50.