30.1-10.1 Disclaimer of Property Interests

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CHAPTER 30.1-10.1DISCLAIMER OF PROPERTY INTERESTS30.1-10.1-01. (2-1102) Definitions. In this chapter:1.&quot;Beneficiary designation&quot; means an instrument, other than an instrument creating a<br>trust, naming the beneficiary of an insurance or annuity policy; an account with a<br>designation for payment on death; a security registered in beneficiary form; a<br>pension, profit-sharing, retirement, or other employment-related benefit plan; or any<br>other nonprobate transfer at death.2.&quot;Disclaimant&quot; means the person to whom the disclaimed interest or power would<br>have passed had the disclaimer not been made.3.&quot;Disclaimed interest&quot; means the interest or share to which the disclaimant would<br>have been entitled had the disclaimer not been made.4.&quot;Disclaimer&quot; means a refusal to accept an interest in, or power over, property.5.&quot;Distribution time&quot; means the time when the disclaimed interest would have taken<br>effect in possession or enjoyment.6.&quot;Fiduciary&quot; means a personal representative, trustee, an agent acting under a power<br>of attorney, or other person authorized to act as a fiduciary with respect to the<br>property of another person.7.&quot;Future interest&quot; means an interest that takes effect in possession or enjoyment, if at<br>all, after the time of its creation.8.&quot;Jointly held property&quot; means property held in the name of two or more persons<br>under an arrangement in which all holders have concurrent interests and under<br>which the last surviving holder is entitled to the whole of the property.9.&quot;Record&quot; means information that is inscribed on a tangible medium or that is stored<br>in an electronic or other medium and is retrievable in perceivable form.10.&quot;Signed&quot; means, with present intent to authenticate or adopt a record, to execute or<br>adopt a tangible symbol, or attach to or logically associate with the record an<br>electronic sound, symbol, or process.11.&quot;State&quot; means a state of the United States, the District of Columbia, Puerto Rico, the<br>United States Virgin Islands, or any territory or insular possession subject to the<br>jurisdiction of the United States.The term includes an Indian tribe or band, orAlaskan native village, which is recognized by federal law or formally acknowledged<br>by a state.12.&quot;Trust&quot; means an express trust, charitable or noncharitable, with additions,<br>whenever and however created; and means a trust created pursuant to a statute,<br>judgment, or decree which requires the trust to be administered in the manner of an<br>express trust.30.1-10.1-02. (2-1105) General provisions.1.A person may disclaim, in whole or in part, any interest in or power over property,<br>including a power of appointment. A person may disclaim the interest or power even<br>if its creator imposed a spendthrift provision or similar restriction on transfer or a<br>restriction or limitation on the right to disclaim.Page No. 12.Except to the extent the fiduciary's power to disclaim is expressly limited by another<br>statute of this state or by the instrument creating the fiduciary relationship, a<br>fiduciary may disclaim, in whole or in part, any interest in or power over property,<br>including a power of appointment, whether acting in a personal or representative<br>capacity. A fiduciary may disclaim the interest or power even if its creator imposed a<br>spendthrift provision or similar restriction on transfer or a restriction or limitation on<br>the right to disclaim, or an instrument other than the instrument that created the<br>fiduciary relationship imposed a restriction or limitation on the right to disclaim.3.A partial disclaimer may be expressed as a fraction, percentage, monetary amount,<br>term of years, limitation of a power, or as any other interest or estate in the property.4.A disclaimer must be in a writing or other record, declare the disclaimer, describe<br>the interest or power disclaimed, be signed by the person making the disclaimer,<br>and be delivered or filed in the manner provided in section 30.1-10.1-09.5.A disclaimer becomes irrevocable upon the later to occur of its delivery or filing as<br>provided in section 30.1-10.1-09, or when it becomes effective as provided in<br>sections 30.1-10.1-03 through 30.1-10.1-08.6.A disclaimer made under this chapter is not a transfer, assignment, or release.30.1-10.1-03. (2-1106) Disclaimer of interest in property.1.Except for disclaimers governed by sections 30.1-10.1-04 and 30.1-10.1-05,<br>subsections 2 through 5 apply to a disclaimer of an interest in property.2.The disclaimer takes effect as of the time the instrument creating the interest<br>becomes irrevocable, or, if the interest arose under the law of intestate succession,<br>as of the intestate's death.3.The disclaimed interest passes according to a provision in the instrument creating<br>the interest providing for the disposition of the interest, should it be disclaimed, or of<br>disclaimed interests in general.4.If the instrument does not contain a provision described in subsection 3 and if the<br>disclaimant is an individual, the disclaimed interest passes as if the disclaimant had<br>died immediately before the distribution time.However, if by law or under theinstrument the descendants of the disclaimant would share in the disclaimed interest<br>by any method of representation had the disclaimant died before the distribution<br>time, the disclaimed interest passes only to the descendants of the disclaimant who<br>survive the time of distribution. If the disclaimant is not an individual, the disclaimed<br>interest passes as if the disclaimant did not exist.5.Upon the disclaimer of a preceding interest, a future interest held by a person other<br>than the disclaimant takes effect as if the disclaimant had died or ceased to exist<br>immediately before the distribution time, but a future interest held by the disclaimant<br>does not accelerate in possession or enjoyment.30.1-10.1-04. (2-1107) Disclaimer of rights of survivorship in jointly held property.1.Upon the death of a holder of jointly held property, a surviving holder may disclaim in<br>whole or in part the greater of a fractional share of the property determined by<br>dividing the number one by the number of joint holders alive immediately before the<br>death of the holder to whose death the disclaimer relates or all of the property<br>except that part of the value of the entire interest attributable to the contribution<br>furnished by the disclaimant.Page No. 22.The disclaimer under subsection 1 takes effect as of the death of the holder to<br>whose death the disclaimer relates.3.An interest disclaimed by a surviving holder of jointly held property passes as if the<br>person whose interest is being disclaimed predeceased the holder to whose death<br>the disclaimer relates.30.1-10.1-05.(2-1108) Disclaimer of interest by trustee. If a trustee disclaims aninterest in property that otherwise would have become trust property, the interest does not<br>become trust property.30.1-10.1-06. (2-1109) Disclaimer of powers of appointment and other powers notheld in fiduciary capacity.1.If a holder disclaims a power of appointment or other power not held in a fiduciary<br>capacity and if the holder has not exercised the power, the disclaimer takes effect as<br>of the time the instrument creating the power becomes irrevocable.2.If a holder disclaims a power of appointment or other power not held in a fiduciary<br>capacity and if the holder has exercised the power and the disclaimer is of a power<br>other than a presently exercisable general power of appointment, the disclaimer<br>takes effect immediately after the date of the last exercise of the power.3.If a holder disclaims a power of appointment or other power not held in a fiduciary<br>capacity, the instrument creating the power is construed as if the power ceased to<br>exist when the disclaimer became effective.30.1-10.1-07.(2-1110) Disclaimer by appointee, object, or taker in default ofexercise of power of appointment.1.The disclaimer by an appointee of a power of appointment takes effect as of the time<br>the instrument by which the holder exercises the power becomes irrevocable.2.A disclaimer by the object or taker in default of an exercise of a power of<br>appointment takes effect as of the time the instrument creating the power becomes<br>irrevocable.30.1-10.1-08. (2-1111) Disclaimer of powers held in fiduciary capacity.1.If a fiduciary disclaims a power held in a fiduciary capacity which has not been<br>exercised, the disclaimer takes effect as of the time the instrument creating the<br>power becomes irrevocable.2.If a fiduciary disclaims a power held in a fiduciary capacity which has been<br>exercised, the disclaimer takes effect immediately after the last exercise of the<br>power.3.A disclaimer under this section is effective as to other fiduciaries if the disclaimer so<br>provides and the fiduciary disclaiming has the authority to bind the estate, trust, or<br>other person for whom the fiduciary is acting.30.1-10.1-09. (2-1112) Delivery.1.In subsections 2 through 11, delivery of a disclaimer may be effected by personal<br>delivery, first-class mail, or any other method likely to result in its receipt.2.In the case of an interest created under the law of intestate succession or an interest<br>created by will, other than an interest in a testamentary trust, a disclaimer must be<br>delivered to the personal representative of the decedent's estate, or if a personalPage No. 3representative is not then serving, it must be filed with the court having jurisdiction to<br>appoint the personal representative.3.In the case of an interest in a testamentary trust, a disclaimer must be delivered to<br>the trustee then serving, or if a trustee is not then serving, to the personal<br>representative of the decedent's estate, or if a personal representative is not then<br>serving, it must be filed with a court having jurisdiction to enforce the trust.4.In the case of an interest in an inter vivos trust, a disclaimer must be delivered to the<br>trustee then serving, or if a trustee is not then serving, it must be filed with a court<br>having jurisdiction to enforce the trust, or if the disclaimer is made before the time<br>the instrument creating the trust becomes irrevocable, it must be delivered to the<br>settlor of a revocable trust or the transferor of the interest.5.In the case of an interest created by a beneficiary designation made before the time<br>the designation becomes irrevocable, the disclaimer must be delivered to the person<br>making the beneficiary designation.6.In the case of an interest created by a beneficiary designation made after the time<br>the designation becomes irrevocable, a disclaimer must be delivered to the person<br>obligated to distribute the interest.7.In the case of a disclaimer by a surviving holder of jointly held property, the<br>disclaimer must be delivered to the person to whom the disclaimed interest passes.8.In the case of a disclaimer by an object or taker in default of exercise of a power of<br>appointment, the disclaimer must be delivered to the holder of the power or to the<br>fiduciary acting under the instrument that created the power, or if a fiduciary is not<br>then serving, it must be filed with the court having authority to appoint the fiduciary.9.In the case of a disclaimer by an appointee of a nonfiduciary power of appointment,<br>to the holder, personal representative of the holder's estate, or to the fiduciary under<br>the instrument that created the power, or if a fiduciary is not then serving, it must be<br>filed with the court having authority to appoint the fiduciary.10.In the case of a disclaimer by a fiduciary of a power over a trust or estate, the<br>disclaimer must be delivered as provided in subsection 2, 3, or 4, as if the power<br>disclaimed were an interest in property.11.In the case of a disclaimer of a power by an agent, the disclaimer must be delivered<br>to the principal or the principal's representative.30.1-10.1-10. (2-1113) When disclaimer barred or limited.1.A disclaimer is barred by a written waiver of the right to disclaim.2.A disclaimer of an interest in property is barred if before the disclaimer becomes<br>effective the disclaimant accepts the interest sought to be disclaimed; the<br>disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the<br>interest sought to be disclaimed or makes a contract to do so; or, a judicial sale of<br>the interest sought to be disclaimed occurs.3.A disclaimer, in whole or part, of the future exercise of a power held in a fiduciary<br>capacity is not barred by its previous exercise.4.A disclaimer, in whole or part, of the future exercise of a power not held in a fiduciary<br>capacity is not barred by its past exercise unless the power is exercisable in favor of<br>the disclaimant.Page No. 45.A disclaimer is barred or limited if so provided by law other than this chapter.6.A disclaimer of a power over property which is barred by this section is ineffective. A<br>disclaimer of an interest in property which is barred by this section takes effect as a<br>transfer of the interest disclaimed to the persons who would have taken the interest<br>under this chapter had the disclaimer not been barred.7.Notwithstanding any other provision of this chapter, if as a result of a disclaimer or<br>transfer the disclaimed or transferred interest is treated pursuant to the provisions of<br>title 26 of the United States Code or regulations promulgated under that title, as<br>never having been transferred to the disclaimant, then the disclaimer or transfer is<br>effective as a disclaimer under this chapter.30.1-10.1-11.(2-1115) Recording of disclaimer.If an instrument transferring aninterest in or power over property subject to a disclaimer is required or permitted by law to be<br>filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Failure to<br>file, record, or register the disclaimer does not affect its validity as between the disclaimant and<br>persons to whom the property interest or power passes by reason of the disclaimer.30.1-10.1-12. (2-1116, 2-1117) Applicability.1.This chapter does not limit the right of a person to waive, release, disclaim, or<br>renounce property or an interest in or power over property under any law other than<br>this chapter.2.This chapter applies to any interest in or power over property, whenever created.3.Except as otherwise provided in section 30.1-10.1-10, an interest in or power over<br>property existing on August 1, 2001, as to which the time for delivering or filing a<br>disclaimer under law superseded by this chapter has not expired may be disclaimed<br>after August 1, 2001.4.This chapter modifies, limits, and supersedes the federal Electronic Signatures in<br>Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify,<br>limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize<br>electronic delivery of any of the notices described in section 103(b) of that Act<br>[15 U.S.C. 7003(b)].Page No. 5Document Outlinechapter 30.1-10.1 disclaimer of property interests