30.1-10.1 Disclaimer of Property Interests

Statutes > North Dakota Statutes > Chapter 30.1 Uniform Probate Code > 30.1-10.1 Disclaimer of Property Interests

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CHAPTER 30.1-10.1DISCLAIMER OF PROPERTY INTERESTS30.1-10.1-01. (2-1102) Definitions. In this chapter:1."Beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of an insurance or annuity policy; an account with a designation for payment on death; a security registered in beneficiary form; a pension, profit-sharing, retirement, or other employment-related benefit plan; or any other nonprobate transfer at death.2."Disclaimant" means the person to whom the disclaimed interest or power would have passed had the disclaimer not been made.3."Disclaimed interest" means the interest or share to which the disclaimant would have been entitled had the disclaimer not been made.4."Disclaimer" means a refusal to accept an interest in, or power over, property.5."Distribution time" means the time when the disclaimed interest would have taken effect in possession or enjoyment.6."Fiduciary" means a personal representative, trustee, an agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.7."Future interest" means an interest that takes effect in possession or enjoyment, if at all, after the time of its creation.8."Jointly held property" means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property.9."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.10."Signed" means, with present intent to authenticate or adopt a record, to execute or adopt a tangible symbol, or attach to or logically associate with the record an electronic sound, symbol, or process.11."State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.The term includes an Indian tribe or band, orAlaskan native village, which is recognized by federal law or formally acknowledged by a state.12."Trust" means an express trust, charitable or noncharitable, with additions, whenever and however created; and means a trust created pursuant to a statute, judgment, or decree which requires the trust to be administered in the manner of an express trust.30.1-10.1-02. (2-1105) General provisions.1.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.Page No. 12.Except to the extent the fiduciary's power to disclaim is expressly limited by another statute of this state 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.3.A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of a power, or as any other interest or estate in the property.4.A disclaimer must be in a 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 section 30.1-10.1-09.5.A disclaimer becomes irrevocable upon the later to occur of its delivery or filing as provided in section 30.1-10.1-09, or when it becomes effective as provided in sections 30.1-10.1-03 through 30.1-10.1-08.6.A disclaimer made under this chapter is not a transfer, assignment, or release.30.1-10.1-03. (2-1106) Disclaimer of interest in property.1.Except for disclaimers governed by sections 30.1-10.1-04 and 30.1-10.1-05, subsections 2 through 5 apply to a disclaimer of an interest in property.2.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 intestate's death.3.The disclaimed interest passes according to a provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.4.If the instrument does not contain a provision described in subsection 3 and if the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the distribution time.However, if by law or under theinstrument the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the distribution time, the disclaimed interest passes only to the descendants of the disclaimant who survive the time of distribution. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.5.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 distribution time, but a future interest held by the disclaimant does not accelerate in possession or enjoyment.30.1-10.1-04. (2-1107) Disclaimer of rights of survivorship in jointly held property.1.Upon the death of a holder of jointly held property, a surviving holder may disclaim in whole or in part the greater of a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates or all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.Page No. 22.The disclaimer under subsection 1 takes effect as of the death of the holder to whose death the disclaimer relates.3.An interest disclaimed by a surviving holder of jointly held property passes as if the person whose interest is being disclaimed predeceased the holder to whose death the disclaimer relates.30.1-10.1-05.(2-1108) Disclaimer of interest by trustee. If a trustee disclaims aninterest in property that otherwise would have become trust property, the interest does not become trust property.30.1-10.1-06. (2-1109) Disclaimer of powers of appointment and other powers notheld in fiduciary capacity.1.If a holder disclaims a power of appointment or other power not held in a fiduciary capacity and if the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.2.If a holder disclaims a power of appointment or other power not held in a fiduciary capacity and if the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the date of the last exercise of the power.3.If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the instrument creating the power is construed as if the power ceased to exist when the disclaimer became effective.30.1-10.1-07.(2-1110) Disclaimer by appointee, object, or taker in default ofexercise of power of appointment.1.The disclaimer by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.2.A disclaimer by the object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.30.1-10.1-08. (2-1111) Disclaimer of powers held in fiduciary capacity.1.If a fiduciary disclaims a power held in a fiduciary capacity which has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.2.If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised, the disclaimer takes effect immediately after the last exercise of the power.3.A disclaimer under this section is effective as to other fiduciaries if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.30.1-10.1-09. (2-1112) Delivery.1.In subsections 2 through 11, delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.2.In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, a disclaimer must be delivered to the personal representative of the decedent's estate, or if a personalPage No. 3representative is not then serving, it must be filed with the court having jurisdiction to appoint the personal representative.3.In the case of an interest in a testamentary trust, a disclaimer must be delivered to the trustee then serving, or if a trustee is not then serving, to the personal representative of the decedent's estate, or if a personal representative is not then serving, it must be filed with a court having jurisdiction to enforce the trust.4.In the case of an interest in an inter vivos trust, a disclaimer must be delivered to the trustee then serving, or if a trustee is not then serving, it must be filed with a court having jurisdiction to enforce the trust, or if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.5.In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation.6.In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer must be delivered to the person obligated to distribute the interest.7.In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.8.In the case of a disclaimer by an object or taker in default of exercise of a power of appointment, the disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power, or if a fiduciary is not then serving, it must be filed with the court having authority to appoint the fiduciary.9.In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, to the holder, personal representative of the holder's estate, or to the fiduciary under the instrument that created the power, or if a fiduciary is not then serving, it must be filed with the court having authority to appoint the fiduciary.10.In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection 2, 3, or 4, as if the power disclaimed were an interest in property.11.In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.30.1-10.1-10. (2-1113) When disclaimer barred or limited.1.A disclaimer is barred by a written waiver of the right to disclaim.2.A disclaimer of an interest in property is barred if before the disclaimer becomes effective the disclaimant accepts the interest sought to be disclaimed; the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or makes a contract to do so; or, a judicial sale of the interest sought to be disclaimed occurs.3.A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.4.A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary capacity is not barred by its past exercise unless the power is exercisable in favor of the disclaimant.Page No. 45.A disclaimer is barred or limited if so provided by law other than this chapter.6.A disclaimer of a power over property which is barred by this section is ineffective. A disclaimer of an interest in property which 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.7.Notwithstanding any other provision of this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of title 26 of the United States Code or regulations promulgated under that title, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.30.1-10.1-11.(2-1115) Recording of disclaimer.If an instrument transferring aninterest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.30.1-10.1-12. (2-1116, 2-1117) Applicability.1.This chapter does not limit the right of a person to waive, release, disclaim, or renounce property or an interest in or power over property under any law other than this chapter.2.This chapter applies to any interest in or power over property, whenever created.3.Except as otherwise provided in section 30.1-10.1-10, an interest in or power over property existing on August 1, 2001, as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after August 1, 2001.4.This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].Page No. 5Document Outlinechapter 30.1-10.1 disclaimer of property interests

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30.1-10.1 Disclaimer of Property Interests