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Disclaimers Become Tricky

Can a disclaimer be effective? According to the Court of Appeals in Estate of Smith it depends.

Decedent died on August 13, 2011, without a will and with no spouse or children. Her sole heir was her mother, Esther Pearson. Decedent’s estate was opened on November 1, 2011. In April 2013, Ms. Pearson received a partial disbursement from the estate. On June 29, 2013, Ms. Pearson signed a Notice of Disclaimer that was prepared by Ms. Pearson’s daughter’s attorney and was filed by someone other than Ms. Pearson on July 1, 2013. Thereafter, Ms. Pearson sought to revoke her disclaimer by alleging that it was not timely filed and did not comply with T.C.A. ยง 31-1-103.

A disclaimer must be filed with the court within 9 months of the decedent’s death. This requirement is mandatory. The person disclaiming must not have accepted any interest in the estate before disclaiming. And, most interesting, the disclaiming party or the disclaiming party’s representative must file the disclaimer with the court. Further, the appellate court made an interesting reference to who prepared the disclaimer and the fact Ms. Pearson had no input in its preparation. I do not know if the appellate court’s analysis would be different if Ms. Pearson prepared or had input in the disclaimer’s preparation, but I cannot see any other reason why the appellate court would take such care to address these facts. Therefore, if a lawyer prepares the disclaimer for someone else, the lawyer should talk with the person disclaiming and address the ramifications and reasons for the disclaimer.

Estate of Karen Klyce Smtih (Tenn. Ct. App. Sept. 13, 2018)

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