California Renunciation and Disclaimer of Joint Tenant or Tenancy Interest
CALIFORNIA CODES test
PROBATE CODE
Division 2 GENERAL PROVISIONS
Part 8 DISCLAIMER OF TESTAMENTARY AND OTHER INTERESTS
Chapter 2
A beneficiary may disclaim any interest, in whole or in part, by
filing a disclaimer as provided in this part. Div. 2, Part 8, Chap. 2,
?275.
A disclaimer on behalf of a conservatee shall be made by the conservator
of the estate of the conservatee pursuant to a court order obtained under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division
4 authorizing or requiring the conservator to execute and file the disclaimer.
Div. 2, Part 8, Chap. 2, ?276.
(a) A disclaimer on behalf of a minor shall be made by
the guardian of the estate of the minor if one has been appointed or, if
none has been appointed, by a guardian ad litem of the minor. A disclaimer
by a guardian is not effective unless made pursuant to a court order obtained
under this section.
(b) A disclaimer on behalf of a decedent shall be made by the personal
representative of the decedent. Except as provided in Part 6 (commencing
with Section 10400) of Division 7, a disclaimer by a guardian or personal
representative is not effective unless made pursuant to a court order obtained
under this section.
(c) A petition for an order authorizing or requiring a guardian
or personal representative to execute and file a disclaimer shall be filed
in the superior court in the county in which the estate of the minor or
decedent is administered or, if there is no administration, the superior
court in any county in which administration would be proper. The petition
may be filed by the guardian, personal representative, or other interested
person.
(d) The petition shall:
(1) Identify the creator of the interest.
(2) Describe the interest to be disclaimed.
(3) State the extent of the disclaimer.
(4) Identify the person or persons the petitioner believes would
take the interest in the event of the disclaimer.
(e) Notice of the hearing on the petition shall be given as follows:
(1) If the petition is for an order authorizing or requiring
the guardian of the estate of a minor to execute and file the disclaimer,
notice of the hearing on the petition shall be given for the periodand
in the manner provided in Chapter 3 (commencing with Section 1460) of Part
1 of Division 4 to all of the persons required to be given notice under
that chapter.
(2) If the petition is for an order authorizing or requiring the
personal representative of a decedent to execute and file the disclaimer,
notice of the hearing on the petition shall be given as provided in Section 1220.
(3) If the petition is for an order authorizing or requiring a guardian
ad litem of a minor to execute and file the disclaimer, notice of the hearing
on the petition shall be given to the persons and in the manner that the
court shall by order direct.
(f) After hearing, the court in its discretion may make an order authorizing
or requiring the guardian or personal representative to execute and file
the disclaimer if the court determines, taking into consideration all of
the relevant circumstances, that the minor or decedent as a prudent person
would disclaim the interest if he or she had the capacity to do so.
Div. 2, Part 8, Chap. 2, ?277.
The disclaimer shall be in writing, shall be
signed by the disclaimant, and shall:
(a) Identify the creator of the interest.
(b) Describe the interest to be disclaimed.
(c) State the disclaimer and the extent of the disclaimer.
Div. 2, Part 8, Chap. 2, ?278.
(a) A disclaimer to be effective shall be filed within
a reasonable time after the person able to disclaim acquires knowledge
of the interest.
(b) In the case of any of the following interests, a disclaimer
is conclusively presumed to have been filed within a reasonable time if
it is filed within nine months after the death of the creator of the interest
or within nine months after the interest becomes indefeasibly vested, whichever
occurs later:
(1) An interest created under a will.
(2) An interest created by intestate succession.
(3) An interest created pursuant to the exercise or nonexercise
of a testamentary power of appointment.
(4) An interest created by surviving the death of a depositor of
a Totten trust account or P.O.D. account.
(5) An interest created under a life insurance or annuity contract.
(6) An interest created by surviving the death of another joint
tenant.
(7) An interest created under an employee benefit plan.
(8) An interest created under an individual retirement account,
annuity, or bond.
(c) In the case of an interest created by a living trust, an interest
created by the exercise of a presently exercisable power of appointment,
an outright inter vivos gift, a power of appointment, or an interest created
or increased by succession to a disclaimed interest, a disclaimer is conclusively
presumed to have been filed within a reasonable time if it is filed within
nine months after whichever of the following times occurs latest:
(1) The time of the creation of the trust, the exercise
of the power of appointment, the making of the gift, the creation of the
power of appointment, or the disclaimer of the disclaimed property.
(2) The time the first knowledge of the interest is acquired by
the person able to disclaim.
(3) The time the interest becomes indefeasibly vested.
(d) In case of an interest not described in subdivision (b) or (c),
a disclaimer is conclusively presumed to have been filed within a reasonable
time if it is filed within nine months after whichever of the following
times occurs later:
(1) The time the first knowledge of the interest is acquired
by the person able to disclaim.
(2) The time the interest becomes indefeasibly vested.
(e) In the case of a future estate, a disclaimer is conclusively presumed
to have been filed within a reasonable time if it is filed within whichever
of the following times occurs later:
(1) Nine months after the time the interest becomes an
estate in possession.
(2) The time specified in subdivision (b), (c), or (d), whichever
is applicable.
(f) If the disclaimer is not filed within the time provided in subdivision
(b), (c), (d), or (e), the disclaimant has the burden of establishing that
the disclaimer was filed within a reasonable time after the disclaimant
acquired knowledge of the interest.
Div. 2, Part 8, Chap. 2, ?279.
(a) A disclaimer shall be filed with any of the following:
(1) The superior court in the county in which the estate
of the decedent is administered or, if there is no administration of the
decedent's estate, the superior court in any county in which administration
of the estate of the decedent would be proper.
(2) The trustee, personal representative, other fiduciary, or person
responsible for distributing the interest to the beneficiary.
(3) Any other person having custody or possession of or legal title
to the interest.
(4) The creator of the interest.
(b) If a disclaimer made pursuant to this part affects real property
or an obligation secured by real property and the disclaimer is acknowledged
and proved in like manner as a grant of real property, the disclaimer may
be recorded in like manner and with like effect as a grant of real property,
and all statutory provisions relating to the recordation or nonrecordation
of conveyances of real property and to the effect thereof apply to the
disclaimer with like effect, without regard to the date when the disclaimer
was filed pursuant to subdivision (a). Failure to file a disclaimer
pursuant to subdivision (a) which is recorded pursuant to this subdivision
does not affect the validity of any transaction with respect to the real
property or the obligation secured thereby, and the general laws on recording
and its effect govern any such transaction.
Div. 2, Part 8, Chap. 2, ?280.
A disclaimer, when effective, is irrevocable
and binding upon the beneficiary and all persons claiming by, through,
or under the beneficiary, including creditors of the beneficiary.
Div. 2, Part 8, Chap. 2, ?281.
(a) Unless the creator of the interest provides for
a specific disposition of the interest in the event of a disclaimer, the
interest disclaimed shall descend, go, be distributed, or continue to be
held (1) as to a present interest, as if the disclaimant had predeceased
the creator of the interest or (2) as to a future interest, as if the disclaimant
had died before the event determining that the taker of the interest had
become finally ascertained and the taker's interest indefeasibly vested.
A disclaimer relates back for all purposes to the date of the death of
the creator of the disclaimed interest or the determinative event, as the
case may be.
(b) Notwithstanding subdivision (a), where the disclaimer is filed
on or after January 1, 1985:
(1) The beneficiary is not treated as having predeceased
the decedent for the purpose of determining the generation at which the
division of the estate is to be made under Part 6 (commencing with Section
240) or other provision of a will, trust, or other instrument.
(2) The beneficiary of a disclaimed interest is not treated as having
predeceased the decedent for the purpose of applying subdivision (d) of
Section 6409 or subdivision (b) of Section 6410.
Div. 2, Part 8, Chap. 2, ?282.
A disclaimer is not a fraudulent transfer by
the beneficiary under Chapter 1 (commencing with Section 3439) of Title
2 of Part 2 of Division 4 of the Civil Code. Div. 2, Part 8, Chap. 2, ?283.
A person who could file a disclaimer under this
part may instead file a written waiver of the right to disclaim.
The waiver shall specify the interest to which the waiver applies.
Upon being filed as provided in Section 280, the waiver is irrevocable
and is binding upon the beneficiary and all persons claiming by, through,
or under the beneficiary.
Div. 2, Part 8, Chap. 2, ?284.
(a) A disclaimer may not be made after the beneficiary
has accepted the interest sought to be disclaimed.
(b) For the purpose of this section, a beneficiary has accepted
an interest if any of the following occurs before a disclaimer is filed
with respect to that interest:
(1) The beneficiary, or someone acting on behalf of the
beneficiary, makes a voluntary assignment, conveyance, encumbrance,
pledge, or transfer of the interest or part thereof, or contracts to do
so; provided, however, that a beneficiary will not have accepted an interest
if the beneficiary makes a gratuitous conveyance or transfer of the beneficiary's
entire interest in property to the person or persons who would have received
the property had the beneficiary made an otherwise qualified disclaimer
pursuant to this part.
(2) The beneficiary, or someone acting on behalf of the beneficiary,
executes a written waiver under Section 284 of the right to disclaim the
interest.
(3) The beneficiary, or someone acting on behalf of the beneficiary,
accepts the interest or part thereof or benefit thereunder.
(4) The interest or part thereof is sold at a judicial sale.
(c) An acceptance does not preclude a beneficiary from thereafter disclaiming
all or part of an interest if both of the following requirements are met:
(1) The beneficiary became entitled to the interest because
another person disclaimed an interest.
(2) The beneficiary or other person acting on behalf of the beneficiary
at the time of the acceptance had no knowledge of the interest to which
the beneficiary so became entitled.
(d) The acceptance by a joint tenant of the joint tenancy interest
created when the joint tenancy is created is not an acceptance by the joint
tenant of the interest created when the joint tenant survives the death
of another joint tenant.
Div. 2, Part 8, Chap. 2, ?285.
The right to disclaim exists regardless of any
limitation imposed on the interest of a beneficiary in the nature of an
expressed or implied spendthrift provision or similar restriction. Div.
2, Part 8, Chap. 2, ?286.
An interest created before January 1, 1984, that
has not been accepted may be disclaimed after December 31, 1983, in the
manner provided in this part, but no interest that arose before January
1, 1984, in a person other than the beneficiary may be destroyed or diminished
by any action of the disclaimant taken pursuant to this part.
Div. 2, Part 8, Chap. 2, ?287.
This part does not limit or abridge any right
a person may have under any other law to assign, convey, or release any
property or interest, but after December 31, 1983, an interest that would
otherwise be taken by a beneficiary may be declined, refused, renounced,
or disclaimed only as provided in this part. Div. 2, Part 8, Chap. 2, ?288.
