Disclaimer of Interest in Property

disclaim-interest

In the law of inheritance, a disclaimer of interest is an attempt by a person to renounce his legal right to benefit from an inheritance (either under a Will or Trust or through intestacy). A disclaimer takes effect when the Will or Trust becomes irrevocable (generally at the grantor’s death) or upon the intestate’s death if there is no Will or Trust. A disclaimed interest will pass according to any provision in the Will or Trust. If there is no provision for disclaimed interests, then the disclaimed interest will pass according to Senate Bill 371:

  • If the disclaimant is an individual, then the interest will pass as if the disclaimant had died before the decedent.
  • If the interest would pass to the descendants of the disclaimant, then the interest will pass to the surviving descendants.
  • If the interest would pass to the estate of the disclaimant, then the interest will pass to the surviving descendants. If there are no surviving descendants, then the interest will become part of the residue.
  • If the disclaimant is not an individual, then the interest will pass as if the disclaimant did not exist.
  • If the disclaimed interest arose as a part of intestacy, then the interest will pass as if the disclaimant had died before the decedent.

The Bill has amended its provision for disclaimed interests of a transfer on death property:

  • If the disclaimant is an individual, then the interest will pass as if the disclaimant had died before the decedent.
  • If the disclaimant is not an individual, then the interest will pass as if the disclaimant did not exist.

If you have been appointed as Executor for a decedent’s estate, our attorneys can assist you in administering the estate – legally and efficiently.

 

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Standby Guardian Designation

standby-guardian

The Indiana legislature has created a process for designating a “standby guardian.” The goal of a standby guardian is to prevent any gap between the point of incapacity or death and the point at which the Court actually appoints a guardian for minor children. A standby guardian will temporarily care for the minor children if the parents become incapacitated or die. Parents can designate a standby guardian by signing a properly drafted document in the presence of a notary. The designation becomes effective upon the parents’ death or incapacity. It lasts for ninety days.

In its recent amendment, Senate Bill 371 specifies that a Court must consider a standby guardian designation when appointing a guardian. However, for purposes of a guardianship appointment, a person designated as a standby guardian is second in priority to a person designated in a durable Power of Attorney. Learn more about guardianships from our other articles:

It’s the New Year – Is Your Estate Plan Up to Date?

new-year

Now that the ball has dropped and toasts have been made, did you make a New Year’s Resolution? While many people resolve to lose weight or to save more money, very few make it their top priority to get their estate plan in order. Even if you have an estate plan in place, situations change – babies are born, marriages are celebrated, loved ones die and divorces happen – these changes merit re-evaluating your estate plan. If you have been procrastinating about estate planning, here are some pointers to get you started.

1. Basic Documents.

At a minimum, every person should have a Last Will and Testament, Power of Attorney and Advance Directives for Health Care documents. A Last Will and Testament is a legal document that lets you decide who should receive your assets after you die. It also lets you choose your executor, who is the person that will be in charge of your estate. The executor rounds up your assets, pays any creditors, files your tax returns and then distributes your assets to who you have named in the Will. You should choose a person that you trust as your executor.

A Power of Attorney is a document where you grant your “attorney-in-fact” the authority to make financial decisions on your behalf. If you get into a car accident, who can pay your bills, talk to your insurance company, etc.? Your attorney-in-fact can step in and manage your finances on your behalf.

Advance Directives for Health Care allows you to name a health care representative to make health care decisions on your behalf if you cannot make those decisions for yourself. It can also include a living will which directs health care providers and care givers the course of treatment you wish to have at the end of life.

2. Choose a Guardian for Minor or Special Needs Children.

What will happen to your children in the unlikely event of your death? If you have not outlined your wishes in your Last Will and Testament, a Court will decide who will take care of your children. It is extremely important to have a conversation with the person(s) that you are considering choosing as guardian for your children. Will the person(s) that you have chosen be able to take care of your children? Do they have the time? Is the prospective guardian old enough or too old? If you have a special needs child, an extra added layer of thought may be required since the guardian may need to take care of your child past the age of 18. (See When Your Special Needs Child Turns 18).

3. Consider Whether You Need a Trust.

Trusts are not just for the wealthy. There are many types of trusts designed for different purposes. You may need a trust for the following purposes:

  • Preventing minors from inheriting property outright when they reach 18
  • Ensuring a special needs person will be taken care of
  • Preserving assets for children from a prior marriage
  • Preventing assets from being eroded from a person you consider a spendthrift or from creditors

For more information, see What is a Trust and What is Included and the Advantages and Dangers of Having a Trust.

4. Review and Update Beneficiary Designations.

Joint ownership and beneficiary designations take precedence over the contents of your Will. For example, if you have a life insurance policy and you appointed a beneficiary, regardless of what your will says, that beneficiary designation will govern distribution of your life insurance policy. It is a good idea to keep a list of accounts and policies for which beneficiaries have been designated and make sure your beneficiary designations coordinate with your Will.

5. Make an Asset List.

It is a good idea to keep all your estate planning documents together and to communicate its location with your executor or power of attorney. It is also a good idea to keep a list of all your assets and your passwords so that if you pass away unexpectedly, your family will know what assets you own and can gain access to your accounts. We have a free form available on our website called “Information for My Heirs” so that you can keep all this information in one place.