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Disclaiming inheritance
I should have also mentioned that your potential client has an absolute right to see a copy of the trust and its amendments See Trustees Duty to
Report Information and Account to Beneficiaries [Probate Code 16060 - 16069]
It is vitally important to see a complete copy of the trust and obtain as much information as possible about the net assets of the trust before making
any decisions regarding disclaimer or filing a bankruptcy petition. Obviously, it depends on the level of organization and complexity of the father's records, the trustee's level of sophistication and of course the assets
remaining after deducting all the father's outstanding liabilities and
trust expenses.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 1/12/2017 1:45:56 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Yes he can disclaim all or part of the distribution prior to filing a
bankruptcy petition.
I paste the applicable section of the MCLE course material Pat Greene andI presented to CDCBAA in 2012 (can't believe its been that long). I am not
aware of any changes, but I have not sheppardized the case law recently. :
E. Disclaimer (Probate Code 260-295)
1. Legal fiction whereas a beneficiary of an interest from a decedent is
presumed to have predeceased the decedent.
2. Disclaimant has no say where disclaimed assets go. It is a function ofthe instrument setting forth the distribution to the disclaimant or if noalternate provision under intestate succession.
3. The beneficiary or person acting on beneficiarys behalf in writing
declines, refuses, renounces or disclaims any interest, in whole or in part,
that would otherwise be taken by a beneficiary stemming from the death ofanother.
4. Generally must undertake election w/in 9 months of decedents death.
(Probate Code 279)
5. Done later, disclaimant has burden to establish it was done in a
reasonable time.
6. Otherwise it would constitute a gift triggering fraudulent conveyance analysis.
7. Probate Code 295 also incorporates 26 U.S.C.2518, such that any
disclaimer qualifying under that section also qualifies under CA law.
8. Disclaimer is irrevocable by disclaiming beneficiary, disclaiming
beneficiarys creditors or heirs.
9. No Disclaimer allowed after acceptance of the interest. Probate Code
10. Disclaimer is not a fraudulent transfer.
a. Probate Code 283
b. In Re Costas 555 F.3d 790 (9th Cir., 2009)
Federal law determines whether there was a transfer. State law determineswhether there is a property right. AZ disclaimer statute says no propertyinterest. Affirmed In Re Bright 241, B.R. 664 (9TH Cir BAP, 1999) WA
disclaimer law saying no property interest. CA statute basically identical in
that regard.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
In a message dated 1/12/2017 12:59:49 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Hello all:
Another issue came up recently, and I seek guidance.
Potential client owes $80,000 to IRS, but stands to receive $100,000 in
inheritance from his recently-deceased father. He has not been notified bythe estate's executor about the terms of the inheritance: trust, spendthrift
trust, etc., so his portion may be drastically different, but he's
expecting about $100,000.
May he disclaim the inheritance at this point, and then file bankruptcy toget rid of his dischargeable IRS debt?
All my research tells me that he can. But it just doesn't feel right.
[Unable to display image]- John D. Faucher
818/889-8080
I should have also mentioned that your potential client has an absolute
right to see a copy of the trust and its amendments See Trusteeto Report Information and Account to Beneficiaries [Probate Code 16069]
It is vitally important to see a complete copy of the trust and obtain as
much information as possible about the net assets of the trust before making any
decisions regarding disclaimer or filing a bankruptcy petition. Obviously, it depends on the level of organization and complexity of the
father's records, the trustee's level of sophistication and of course
the assets remaining after deducting all the father's outstanding liabilities
and trust expenses.
Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)
In a message dated 1/12/2017 1:45:56 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
Yes he can disclaim all or part of the distribution prior to filing a
bankruptcy petition.
I paste the applicable section of the MCLE course material Pat Greene and I presented to CDCBAA in 2012 (can't believe its been that
long). I am not aware of any changes, but I have not sheppardized
the case law recently. :
E. Disclaimer (Probate Code
260-295) 1. Legal fiction whereas a beneficiary of an
interest from a decedent is presumed to have predeceased the decedent.
2. Disclaimant has no say where disclaimed assets
go. It is a function of the instrument setting forth the distribution to
the disclaimant or if no alternate provision under intestate succession. 3. The beneficiary or person acting on beneficiary behalf in writing declines, refuses, renounces or disclaims any interest, in
whole or in part, that would otherwise be taken by a beneficiary stemming from
the death of another. 4. Generally must undertake election
w/in 9 months of decedents death. (Probate Code
279) 5. Done later, disclaimant has burden to establish
it was done in a reasonable time. 6. Otherwise it would
constitute a gift triggering fraudulent conveyance
analysis. 7. Probate Code 295 also incorporates 26
U.S.C.2518, such that any disclaimer qualifying under that section also
qualifies under CA law. 8. Disclaimer is irrevocable by
disclaiming beneficiary, disclaiming beneficiarys creditors or heirs.
9. No Disclaimer allowed after acceptance of the
interest. Probate Code 285 10. Disclaimer is not a
fraudulent transfer. a. Probate Code
283 b. In Re Costas 555 F.3d 790 (9th Cir.,
2009)
Federal law determines whether there was a
transfer. State law determines whether there is a property right.
AZ disclaimer statute says no property interest. Affirmed In Re
Bright 241, B.R. 664 (9TH Cir BAP, 1999) WA disclaimer law saying no
property interest. CA statute basically identical in that regard.
Mark T.
JesseeLaw Offices of Mark T. Jessee"A Debt Relief Agency"50 W.
Hillcrest Drive, Suite 200Thousand Oaks, CA 91360(805) 497-5868 (805)
497-5864 (Facsimile)
In a message dated 1/12/2017 12:59:49 P.M. Pacific Standard Time,
cdcbaa@yahoogroups.com writes:
The post was migrated from Yahoo.
Reply-To: Chris Gautschi
X-Original-Return-Path: Chris Gautschi
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
Could be a voidable transfer to the other heirs generating huge trustee fee churning which would divert the use of his inheritance from paying the taxes over to enriching the trustee lawyers.
Sent from my iPhone
> On Jan 12, 2017, at 12:59 PM, John Faucher j.d.faucher@sbcglobal.net [cdcbaa] wrote:
>
> Hello all:
> Another issue came up recently, and I seek guidance.
> Potential client owes $80,000 to IRS, but stands to receive $100,000 in inheritance from his recently-deceased father. He has not been notified by the estate's executor about the terms of the inheritance: trust, spendthrift trust, etc., so his portion may be drastically different, but he's expecting about $100,000.
> May he disclaim the inheritance at this point, and then file bankruptcy to get rid of his dischargeable IRS debt?
> All my research tells me that he can. But it just doesn't feel right.
> - John D. Faucher
> 818/889-8080
>
>
>
The post was migrated from Yahoo.
X-Original-Return-Path: Chris Gautschi
To: cdcbaa@yahoogroups.com
X-Yahoo-Newman-Id: groups-system
Could be a voidable transfer to the other heirs generating huge trustee fee churning which would divert the use of his inheritance from paying the taxes over to enriching the trustee lawyers.
Sent from my iPhone
> On Jan 12, 2017, at 12:59 PM, John Faucher j.d.faucher@sbcglobal.net [cdcbaa] wrote:
>
> Hello all:
> Another issue came up recently, and I seek guidance.
> Potential client owes $80,000 to IRS, but stands to receive $100,000 in inheritance from his recently-deceased father. He has not been notified by the estate's executor about the terms of the inheritance: trust, spendthrift trust, etc., so his portion may be drastically different, but he's expecting about $100,000.
> May he disclaim the inheritance at this point, and then file bankruptcy to get rid of his dischargeable IRS debt?
> All my research tells me that he can. But it just doesn't feel right.
> - John D. Faucher
> 818/889-8080
>
>
>
The post was migrated from Yahoo.
Hello all:Another issue came up recently, and I seek guidance.Potential client owes $80,000 to IRS, but stands to receive $100,000 in inheritance from his recently-deceased father. He has not been notified by the estate's executor about the terms of the inheritance: trust, spendthrift trust, etc., so his portion may be drastically different, but he's expecting about $100,000.May he disclaim the inheritance at this point, and then file bankruptcy to get rid of his dischargeable IRS debt? All my research tells me that he can. But it just doesn't feel right.- John D. Faucher818/889-8080
The post was migrated from Yahoo.