Not every person who receives an inheritance is able to accept and keep the property. A person may seek to avoid an inheritance because of the tax implications of accepting it, to avoid the difficulties that may be associated with reselling the gift, or because the gift is not worth much to him or her. A person may also want to refuse an inheritance in order for a different person to be able to inherit it. For whatever reason applies, a person who decides that it is not in his or her best interest to keep property granted in a will or trust can choose to legally give it up.

The legal term used to describe the act of giving up property that is given through a will, trust, or other estate planning instrument is disclaimer. A beneficiary can disclaim part of or all of his or her interest in property under Michigan law. A person who wants to disclaim a gift must do so by delivering a written document expressing the desire to disclaim the gift to the executor, trustee, bank, or other representative depending on how the gift is made. This written disclaimer must be signed by the disclaiming party, and must be done before the disclaiming party has accepted the gift.

A gift cannot be legally disclaimed if the beneficiary of the gift has already accepted full ownership interest in the gift, has signed a waiver of disclaimer, or has tried to sell the gift. The disclaimer must also be done within a certain time after the death of the testator, and a failure to disclaim the gift in time can defeat the beneficiary’s right to disclaim.

For those who choose to disclaim a gift in order for another person to receive the gift, they should only do so if they are reasonably certain the person they hope gets the gift in their place is the only other heir. This is because the person disclaiming a gift has no control over who gets it in his or her place. If a parent wants to disclaim a gift in order for the gift to go directly to his or her child, this may not happen if the parent has siblings who can be named beneficiaries instead.

In determining who gets a disclaimed gift, the law assumes that the person disclaiming the gift died before the deceased testator. If the will or trust has provisions for how the property should be handled if the beneficiary predeceases the testator, then these provisions will be followed in the event of disclaimer. Otherwise, Michigan law will be followed in terms of determining who gets the disclaimed gift.

Contact an Experienced Attorney

If you want to disclaim a gift and are concerned about how to do so without affecting another person’s rights, you should speak to an experienced estate planning attorney. An attorney can advise you on whether or not disclaiming the gift is in your best interest, and discuss alternatives to disclaimer for specific gifts. For more information, contact Resnick Law, P.C., to consult the skilled estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

(image courtesy of Jerry Kiesewetter)