What is a disclaimer?
A disclaimer is an estate planning tool that allows you to redistribute transfers of assets or property by refusing to accept a gift, bequest, or other form of property transfer. A disclaimer is an heir's legal refusal to accept a gift or a bequest. The disclaiming party does not have the authority to direct who inherits their share. If you properly execute a disclaimer, the asset disclaimed will pass to whoever would have received it had you died before the person who left the asset to you. (In Administrations, disclaimers do not move "sideways" to other beneficiaries, they move down the bloodline. For example, if a father leaves his son and daughter each $1,000 and his daughter disclaims, then her children get her $1,000 --- not her brother.)
Once disclaimed, the property is then distributed to the next recipient. The person disclaiming the property, a disclaimant, is not regarded as having received the property, or having transferred the property.
In general, there is no deadline to file a disclaimer.
However, there is a 9-month deadline (from the date of death) to file a "qualified" Disclaimer for tax purposes.
Who can Disclaim? 3B:9-2. Disclaimer of an interested party
a. Any person who is an heir, or a devisee or beneficiary under a will or testamentary trust, or appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, may disclaim in whole or in part any property or interest therein, including a future interest, by delivering and filing a disclaimer under this chapter.
b. Any person who is a grantee, donee, surviving joint tenant, surviving party to a P.O.D. account or a trust deposit account, person succeeding to a disclaimed interest, beneficiary under a nontestamentary instrument or contract, appointee under a power of appointment exercised by a nontestamentary instrument, or a beneficiary under an insurance policy, may disclaim in whole or in part any such property or interest therein by delivering, and if required by N.J.S.3B:9-7, by filing, a written disclaimer under this chapter.
c. A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship without regard to the extent, if any, the surviving joint tenant contributed to the creation of the joint property interest.
d. A disclaimer may be of a pecuniary or a fractional share, expressed as either a percentage or dollar amount, specific property or any limited interest or estate.
What needs to be in a Disclaimer? 3B:9-3. Requirements of a disclaimer
See our Disclaimer Sample here: Disclaimer Sample (PDF)
a. A disclaimer shall be in writing, signed and acknowledged by the person disclaiming, and shall:
(1) Describe the property , interest, power or discretion disclaimed; (Will need lot, block # for property)
(2) If the property interest disclaimed is real property, identify the municipality and county in which the real property is situated; and
(3) Declare the disclaimer and the extent thereof.
b. The disclaimer shall be made within the time prescribed by section 68 of P.L.2004, c. 132 (C.3B:9-4.2).
How / who is it delivered to? 3B:9-6. Delivering and filing disclaimer
*Note there is $5.00 per page filing fee
a. The disclaimer of an interest by an intestate heir, or a person who is a devisee or beneficiary under a will or a testamentary trust or who is an appointee under a power of appointment exercised by a will or testamentary trust, including a person succeeding to a disclaimed interest, shall be filed in the office of the surrogate or clerk of the 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 of appointment. A copy of the disclaimer shall also be delivered to any personal representative, or other fiduciary of the decedent or to the donee of the power or to the holder of the legal title to which the interest relates. The fiduciary shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.
b. The disclaimer of an interest in property, other than property passing under or pursuant to a will or testamentary trust shall be delivered to the fiduciary, payor or other person having legal title to or possession of the property or interest disclaimed or who is entitled thereto in the event of disclaimer. Any fiduciary, payor or other person having title to or possession of the property or interest who receives such disclaimer shall promptly notify the person or persons who take the disclaimed interest, although any such failure to provide the notice required herein shall not affect the validity of the disclaimer.
c. In the case of a disclaimer by a fiduciary of a power or discretion:
(1) If such disclaimer is made after court authorization, the fiduciary shall deliver a copy to such person or persons and in such manner as shall be directed by the court; or
(2) If such disclaimer is made without court authorization pursuant to N.J.S.3B:9-4(a), the fiduciary shall deliver a copy to all co-fiduciaries, but if there are none, then to all persons whose property interests are affected by the disclaimer.
d. In the case of a will or testamentary trust or power of appointment under a will or testamentary trust, 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. In the case of a nontestamentary instrument or contract, if real property or any interest therein is disclaimed, the original thereof shall be filed in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated.
e. For the purposes of this section, delivery may be effected: (1) in person; (2) by registered or certified mail; or (3) by another means which is reasonably likely to accomplish delivery.