Legal Question in Wills and Trusts in New Jersey
Is there a NJ law or a legal precedent that says how a disclaimer affects a share of an estate which gets poured into a trust? I understand that disclaimant B is no longer a beneficiary, but is there any law or precedent about whether a disclaimer triggers the clause of the trust that says what the trustee must do after B's death? Let's say, for example, that this clause mandates distributions to B's children after B's death. Is there any law or precedent which says that a disclaimer doesn't activate this clause and the trustee doesn't have to make distributions unless the grantor specified in the trust agreement that he wanted a disclaimer to have this effect? Do B's children have to prove that the grantor would have wanted them to get the distributions if his father disclaimed? Does a trustee who wants to refuse them have to prove that the grantor wouldn't have wanted them?
1 Answer from Attorneys
You've been asking similar questions on here before. I strongly suggest you seek legal help. That being said, a Disclaimer can't direct where money goes. A disclaimer filed within 9 months of date of death a Decedent (or date of gift or grant of power), will treat the Disclaimant as if he died before the Decedent (or gift or grantor of power), including for tax purposes. This is known as a qualified disclaimer. (This 9 month period can be extended in certain circumstances, such as for minors)
A person making a disclaimer after this 9 month period is making a non qualified disclaimer. The result is primarily the same except that it won't qualify for beneficial tax treatment. If the purpose is to hasten money being distributed from a trust, it should most likely accomplish that.
NJ Disclaimer laws are found in N.J.S.A. 3B:9-1 through 3B:9-14.
There should be no proof aspects. Just treat the Disclaimant as if they had died prior to a relevant period depending upon what is being disclaimed and how the disclaimer is written.
Kevin A. Pollock, J.D., LL.M.
www.PollockAtLaw.com
P: (609) 818-1555
Licensed to practice law in Florida, New Jersey, New York and Pennsylvania.
Also, visit my blog at: http://WillsTrustsEstates.blogspot.com/
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