Bill Text: MN SF654 | 2011-2012 | 87th Legislature | Introduced
Bill Title: Uniform Disclaimer of Property Interests Act modifications
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-03-09 - Referred to Judiciary and Public Safety [SF654 Detail]
Download: Minnesota-2011-SF654-Introduced.html
1.2relating to probate; changing, updating, and clarifying certain provisions of the
1.3Uniform Disclaimer of Property Interests Act;amending Minnesota Statutes
1.42010, sections 524.2-1103; 524.2-1104; 524.2-1106; 524.2-1107; 524.2-1114;
1.5524.2-1115; 524.2-1116.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 524.2-1103, is amended to read:
1.8524.2-1103 SCOPE.
1.9Sections524.2-1101 to
524.2-1116 apply to disclaimers of any interest in or power
1.10over property, whenever created. Except as provided in section
524.2-1116, sections
1.11524.2-1101 to
524.2-1116 are the exclusive means by which a disclaimer may be made
1.12under Minnesota law regardless of whether it is qualified under section 2518 of the
1.13Internal Revenue Code of 1986in effect on January 1, 2010 as defined in section 291.005,
1.14subdivision 1, clause 3.
1.15 Sec. 2. Minnesota Statutes 2010, section 524.2-1104, is amended to read:
1.16524.2-1104 TAX-QUALIFIED DISCLAIMER.
1.17Notwithstanding any other provision of this chapter, other than section524.2-1106 ,
1.18if, as a result of a disclaimer or transfer, the disclaimed or transferred interest is treated
1.19pursuant to the provisions of section 2518 of the Internal Revenue Code of 1986, asin
1.20effect on January 1, 2010 defined in section 291.005, subdivision 1, clause 3, as never
1.21having been transferred to the disclaimant, then the disclaimer or transfer is effective as a
1.22disclaimer under sections524.2-1101 to
524.2-1116 .
2.1 Sec. 3. Minnesota Statutes 2010, section 524.2-1106, is amended to read:
2.2524.2-1106 WHEN DISCLAIMER IS BARRED OR LIMITED.
2.3(a) A disclaimer is barred by a written waiver of the right to disclaim.
2.4(b) A disclaimer of an interest in property is barred if any of the following events
2.5occur before the disclaimer becomes effective:
2.6(1) the disclaimant accepts the portion of the interest sought to be disclaimed;
2.7(2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the
2.8portion of the interest sought to be disclaimed or contracts to do so;
2.9(3) the portion of the interest sought to be disclaimed is sold pursuant to a judicial
2.10sale; or
2.11(4) the disclaimant is insolvent when the disclaimer becomes irrevocable.
2.12(c) Acceptance of a distribution from a trust shall constitute acceptance of only
2.13that portion of the beneficial interest in that trust that has been distributed, and shall not
2.14constitute acceptance or bar disclaimer of that portion of the beneficial interest in the trust
2.15that has not yet been distributed.
2.16(c) (d) A disclaimer, in whole or in part, of the future exercise of a power held in a
2.17fiduciary capacity is not barred by its previous exercise.
2.18(d) (e) A disclaimer, in whole or in part, of the future exercise of a power not held in
2.19a fiduciary capacity is not barred by its previous exercise unless the power is exercisable
2.20in favor of the disclaimant.
2.21(e) (f) A disclaimer of an interest in, or a power over, property which is barred by
2.22this section is ineffective.
2.23 Sec. 4. Minnesota Statutes 2010, section 524.2-1107, is amended to read:
2.24524.2-1107 POWER TO DISCLAIM; GENERAL REQUIREMENTS; WHEN
2.25IRREVOCABLE.
2.26(a) A person may disclaim, in whole or in part, any interest in or power over
2.27property, including a power of appointment. A person may disclaim the interest or power
2.28even if its creator imposed a spendthrift provision or similar restriction on transfer or a
2.29restriction or limitation on the right to disclaim.
2.30(b) With court approval, a fiduciary may disclaim, in whole or in part, any interest in
2.31or power over property, including a power of appointment when acting in a representative
2.32capacity. Without court approval, a fiduciary may disclaim, in whole or in part, any interest
2.33in or power over property, including a power of appointment, if and to the extent that the
2.34instrument creating the fiduciary relationship explicitly grants the fiduciary the right to
2.35disclaim. With court approval, a custodial parent may disclaim on behalf of a minor child
3.1for whom no conservator has been appointed, in whole or in part, any interest in or power
3.2over property, including a power of appointment, which the minor child is to receive.
3.3(c) To be effective, a disclaimer must be in writing, declare the writing as a
3.4disclaimer, describe the interest or power disclaimed, and be signed by the person or
3.5fiduciary making the disclaimer and acknowledged in the manner provided for deeds of
3.6real estate to be recorded in this state. In addition, for a disclaimer to be effective, an
3.7original of the disclaimer must be delivered or filed in the manner provided in section
3.8524.2-1114
.
3.9(d) A partial disclaimer may be expressed as a fraction, percentage, monetary
3.10amount, specific property, term of years, portion of a beneficial interest in or right to
3.11distributions from a trust, limitation of a power, or any other interest or estate in the
3.12property.
3.13(e) A disclaimer becomes irrevocable when the disclaimer is delivered or filed
3.14pursuant to section524.2-1114 or it becomes effective as provided in sections
524.2-1108
3.15to
524.2-1113 , whichever occurs later.
3.16(f) A disclaimer made under sections524.2-1101 to
524.2-1116 is not a transfer,
3.17assignment, or release.
3.18 Sec. 5. Minnesota Statutes 2010, section 524.2-1114, is amended to read:
3.19524.2-1114 DELIVERY OR FILING.
3.20(a) Subject to paragraphs (b) to (l), delivery of a disclaimer may be effective
3.21by personal delivery, first-class mail, or any other method that results in its receipt.
3.22A disclaimer sent by first-class mail is deemed to have been delivered on the date it is
3.23postmarked. Delivery by any other method is effective upon receipt by the person to
3.24whom the disclaimer is to be delivered under this section.
3.25(b) In the case of a disclaimer of an interest created under the law of intestate
3.26succession or an interest created by will, other than an interest in a testamentary trust:
3.27(1) the disclaimer must be delivered to the personal representative of the decedent's
3.28estate; or
3.29(2) if no personal representative is serving when the disclaimer is sought to be
3.30delivered, the disclaimer must be filed with the clerk of the court in any county where
3.31venue of administration would be proper.
3.32(c) In the case of a disclaimer of an interest in a testamentary trust:
3.33(1) the disclaimer must be delivered to the trustee serving when the disclaimer is
3.34delivered or, if no trustee is then serving, to the personal representative of the decedent's
3.35estate; or
4.1(2) if no personal representative is serving when the disclaimer is sought to be
4.2delivered, the disclaimer must be filed with the clerk of the court in any county where
4.3venue of administration of the decedent's estate would be proper.
4.4(d) In the case of a disclaimer of an interest in an inter vivos trust:
4.5(1) the disclaimer must be delivered to the trustee serving when the disclaimer is
4.6delivered;
4.7(2) if no trustee is then serving, it must be filed with the clerk of the court in any
4.8county where the filing of a notice of trust would be proper; or
4.9(3) if the disclaimer is made before the time the instrument creating the trust becomes
4.10irrevocable, the disclaimer must be delivered to the person with the power to revoke the
4.11revocable trust or the transferor of the interest or to such person's legal representative.
4.12(e) In the case of a disclaimer of an interest created by a beneficiary designation made
4.13before the time the designation becomes irrevocable, the disclaimer must be delivered to
4.14the person making the beneficiary designation or to such person's legal representative.
4.15(f) In the case of a disclaimer of an interest created by a beneficiary designation
4.16made after the time the designation becomes irrevocable, the disclaimer must be delivered
4.17to the person obligated to distribute the interest.
4.18(g) In the case of a disclaimer by a surviving holder of jointly held property, the
4.19disclaimer must be delivered to the person to whom the disclaimed interest passes or, if
4.20such person cannot reasonably be located by the disclaimant, the disclaimer must be
4.21delivered as provided in paragraph (b).
4.22(h) In the case of a disclaimer by an object, or taker in default of exercise, of a
4.23power of appointment at any time after the power was created, the disclaimer must be
4.24delivered to:
4.25(1) the holder of the power; or
4.26(2) the fiduciary acting under the instrument that created the power or, if no fiduciary
4.27is serving when the disclaimer is sought to be delivered, filed with a court having authority
4.28to appoint the fiduciary.
4.29(i) In the case of a disclaimer by an appointee of a nonfiduciary power of
4.30appointment, the disclaimer must be delivered to:
4.31(1) the holder of the power or the personal representative of the holder's estate; or
4.32(2) the fiduciary under the instrument that created the power or, if no fiduciary is
4.33serving when the disclaimer is sought to be delivered, filed with a court having authority
4.34to appoint the fiduciary.
5.1(j) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the
5.2disclaimer must be delivered as provided in paragraph (b), (c), or (d) as if the power
5.3disclaimed were an interest in property.
5.4(k) In the case of a disclaimer of a power exercisable by an agent, other than a power
5.5exercisable by a fiduciary over a trust or estate, the disclaimer must be delivered to the
5.6principal or the principal's representative.
5.7(l) Notwithstanding paragraph (a), delivery of a disclaimer of an interest in or
5.8relating to real estate shall be presumed upon the recording of the disclaimer in the office
5.9of theclerk of the court county recorder or registrar of titles of the county or counties
5.10where the real estate is located.
5.11(m) A fiduciary or other person having custody of the disclaimed interest is not
5.12liable for any otherwise proper distribution or other disposition made without actual
5.13notice of the disclaimer or, if the disclaimer is barred under section524.2-1106 , for any
5.14otherwise proper distribution or other disposition made in reliance on the disclaimer, if
5.15the distribution or disposition is made without actual knowledge of the facts constituting
5.16the bar of the right to disclaim.
5.17 Sec. 6. Minnesota Statutes 2010, section 524.2-1115, is amended to read:
5.18524.2-1115 RECORDING OF DISCLAIMER RELATING TO REAL ESTATE.
5.19(a) A disclaimer of an interest in or relating to real estate does not provide
5.20constructive notice to all persons unless the disclaimer contains a legal description of the
5.21real estate to which the disclaimer relates and unless the disclaimer isfiled for recording
5.22recorded in the office of the county recorder or registrar of titles in the county or counties
5.23where the real estate is located.
5.24(b) An effective disclaimer meeting the requirements of paragraph (a) constitutes
5.25constructive notice to all persons from the time offiling recording. Failure to record the
5.26disclaimer does not affect its validity as between the disclaimant and persons to whom the
5.27property interest or power passes by reason of the disclaimer.
5.28 Sec. 7. Minnesota Statutes 2010, section 524.2-1116, is amended to read:
5.29524.2-1116 APPLICATION TO EXISTING RELATIONSHIPS.
5.30Except as otherwise provided in section
524.2-1106, an Sections 524.2-1101 to
5.31524.2-1116 apply to disclaimers of any interest in or power over property existing on
5.32January 1, 2010,as to which the time for delivering or filing a disclaimer under laws
5.33superseded by sections
524.2-1101 to
524.2-1116 has not expired, may be disclaimed
5.34after January 1, 2010 whenever created.
1.3Uniform Disclaimer of Property Interests Act;amending Minnesota Statutes
1.42010, sections 524.2-1103; 524.2-1104; 524.2-1106; 524.2-1107; 524.2-1114;
1.5524.2-1115; 524.2-1116.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.7 Section 1. Minnesota Statutes 2010, section 524.2-1103, is amended to read:
1.8524.2-1103 SCOPE.
1.9Sections
1.10
1.11
1.12under Minnesota law regardless of whether it is qualified under section 2518 of the
1.13Internal Revenue Code of 1986
1.14subdivision 1, clause 3.
1.15 Sec. 2. Minnesota Statutes 2010, section 524.2-1104, is amended to read:
1.16524.2-1104 TAX-QUALIFIED DISCLAIMER.
1.17Notwithstanding any other provision of this chapter, other than section
1.18if, as a result of a disclaimer or transfer, the disclaimed or transferred interest is treated
1.19pursuant to the provisions of section 2518 of the Internal Revenue Code of 1986, as
1.20
1.21having been transferred to the disclaimant, then the disclaimer or transfer is effective as a
1.22disclaimer under sections
2.1 Sec. 3. Minnesota Statutes 2010, section 524.2-1106, is amended to read:
2.2524.2-1106 WHEN DISCLAIMER IS BARRED OR LIMITED.
2.3(a) A disclaimer is barred by a written waiver of the right to disclaim.
2.4(b) A disclaimer of an interest in property is barred if any of the following events
2.5occur before the disclaimer becomes effective:
2.6(1) the disclaimant accepts the portion of the interest sought to be disclaimed;
2.7(2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the
2.8portion of the interest sought to be disclaimed or contracts to do so;
2.9(3) the portion of the interest sought to be disclaimed is sold pursuant to a judicial
2.10sale; or
2.11(4) the disclaimant is insolvent when the disclaimer becomes irrevocable.
2.12(c) Acceptance of a distribution from a trust shall constitute acceptance of only
2.13that portion of the beneficial interest in that trust that has been distributed, and shall not
2.14constitute acceptance or bar disclaimer of that portion of the beneficial interest in the trust
2.15that has not yet been distributed.
2.16
2.17fiduciary capacity is not barred by its previous exercise.
2.18
2.19a fiduciary capacity is not barred by its previous exercise unless the power is exercisable
2.20in favor of the disclaimant.
2.21
2.22this section is ineffective.
2.23 Sec. 4. Minnesota Statutes 2010, section 524.2-1107, is amended to read:
2.24524.2-1107 POWER TO DISCLAIM; GENERAL REQUIREMENTS; WHEN
2.25IRREVOCABLE.
2.26(a) A person may disclaim, in whole or in part, any interest in or power over
2.27property, including a power of appointment. A person may disclaim the interest or power
2.28even if its creator imposed a spendthrift provision or similar restriction on transfer or a
2.29restriction or limitation on the right to disclaim.
2.30(b) With court approval, a fiduciary may disclaim, in whole or in part, any interest in
2.31or power over property, including a power of appointment when acting in a representative
2.32capacity. Without court approval, a fiduciary may disclaim, in whole or in part, any interest
2.33in or power over property, including a power of appointment, if and to the extent that the
2.34instrument creating the fiduciary relationship explicitly grants the fiduciary the right to
2.35disclaim. With court approval, a custodial parent may disclaim on behalf of a minor child
3.1for whom no conservator has been appointed, in whole or in part, any interest in or power
3.2over property, including a power of appointment, which the minor child is to receive.
3.3(c) To be effective, a disclaimer must be in writing, declare the writing as a
3.4disclaimer, describe the interest or power disclaimed, and be signed by the person or
3.5fiduciary making the disclaimer and acknowledged in the manner provided for deeds of
3.6real estate to be recorded in this state. In addition, for a disclaimer to be effective, an
3.7original of the disclaimer must be delivered or filed in the manner provided in section
3.9(d) A partial disclaimer may be expressed as a fraction, percentage, monetary
3.10amount, specific property, term of years, portion of a beneficial interest in or right to
3.11distributions from a trust, limitation of a power, or any other interest or estate in the
3.12property.
3.13(e) A disclaimer becomes irrevocable when the disclaimer is delivered or filed
3.14pursuant to section
3.16(f) A disclaimer made under sections
3.17assignment, or release.
3.18 Sec. 5. Minnesota Statutes 2010, section 524.2-1114, is amended to read:
3.19524.2-1114 DELIVERY OR FILING.
3.20(a) Subject to paragraphs (b) to (l), delivery of a disclaimer may be effective
3.21by personal delivery, first-class mail, or any other method that results in its receipt.
3.22A disclaimer sent by first-class mail is deemed to have been delivered on the date it is
3.23postmarked. Delivery by any other method is effective upon receipt by the person to
3.24whom the disclaimer is to be delivered under this section.
3.25(b) In the case of a disclaimer of an interest created under the law of intestate
3.26succession or an interest created by will, other than an interest in a testamentary trust:
3.27(1) the disclaimer must be delivered to the personal representative of the decedent's
3.28estate; or
3.29(2) if no personal representative is serving when the disclaimer is sought to be
3.30delivered, the disclaimer must be filed with the clerk of the court in any county where
3.31venue of administration would be proper.
3.32(c) In the case of a disclaimer of an interest in a testamentary trust:
3.33(1) the disclaimer must be delivered to the trustee serving when the disclaimer is
3.34delivered or, if no trustee is then serving, to the personal representative of the decedent's
3.35estate; or
4.1(2) if no personal representative is serving when the disclaimer is sought to be
4.2delivered, the disclaimer must be filed with the clerk of the court in any county where
4.3venue of administration of the decedent's estate would be proper.
4.4(d) In the case of a disclaimer of an interest in an inter vivos trust:
4.5(1) the disclaimer must be delivered to the trustee serving when the disclaimer is
4.6delivered;
4.7(2) if no trustee is then serving, it must be filed with the clerk of the court in any
4.8county where the filing of a notice of trust would be proper; or
4.9(3) if the disclaimer is made before the time the instrument creating the trust becomes
4.10irrevocable, the disclaimer must be delivered to the person with the power to revoke the
4.11revocable trust or the transferor of the interest or to such person's legal representative.
4.12(e) In the case of a disclaimer of an interest created by a beneficiary designation made
4.13before the time the designation becomes irrevocable, the disclaimer must be delivered to
4.14the person making the beneficiary designation or to such person's legal representative.
4.15(f) In the case of a disclaimer of an interest created by a beneficiary designation
4.16made after the time the designation becomes irrevocable, the disclaimer must be delivered
4.17to the person obligated to distribute the interest.
4.18(g) In the case of a disclaimer by a surviving holder of jointly held property, the
4.19disclaimer must be delivered to the person to whom the disclaimed interest passes or, if
4.20such person cannot reasonably be located by the disclaimant, the disclaimer must be
4.21delivered as provided in paragraph (b).
4.22(h) In the case of a disclaimer by an object, or taker in default of exercise, of a
4.23power of appointment at any time after the power was created, the disclaimer must be
4.24delivered to:
4.25(1) the holder of the power; or
4.26(2) the fiduciary acting under the instrument that created the power or, if no fiduciary
4.27is serving when the disclaimer is sought to be delivered, filed with a court having authority
4.28to appoint the fiduciary.
4.29(i) In the case of a disclaimer by an appointee of a nonfiduciary power of
4.30appointment, the disclaimer must be delivered to:
4.31(1) the holder of the power or the personal representative of the holder's estate; or
4.32(2) the fiduciary under the instrument that created the power or, if no fiduciary is
4.33serving when the disclaimer is sought to be delivered, filed with a court having authority
4.34to appoint the fiduciary.
5.1(j) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the
5.2disclaimer must be delivered as provided in paragraph (b), (c), or (d) as if the power
5.3disclaimed were an interest in property.
5.4(k) In the case of a disclaimer of a power exercisable by an agent, other than a power
5.5exercisable by a fiduciary over a trust or estate, the disclaimer must be delivered to the
5.6principal or the principal's representative.
5.7(l) Notwithstanding paragraph (a), delivery of a disclaimer of an interest in or
5.8relating to real estate shall be presumed upon the recording of the disclaimer in the office
5.9of the
5.10where the real estate is located.
5.11(m) A fiduciary or other person having custody of the disclaimed interest is not
5.12liable for any otherwise proper distribution or other disposition made without actual
5.13notice of the disclaimer or, if the disclaimer is barred under section
5.14otherwise proper distribution or other disposition made in reliance on the disclaimer, if
5.15the distribution or disposition is made without actual knowledge of the facts constituting
5.16the bar of the right to disclaim.
5.17 Sec. 6. Minnesota Statutes 2010, section 524.2-1115, is amended to read:
5.18524.2-1115 RECORDING OF DISCLAIMER RELATING TO REAL ESTATE.
5.19(a) A disclaimer of an interest in or relating to real estate does not provide
5.20constructive notice to all persons unless the disclaimer contains a legal description of the
5.21real estate to which the disclaimer relates and unless the disclaimer is
5.22recorded in the office of the county recorder or registrar of titles in the county or counties
5.23where the real estate is located.
5.24(b) An effective disclaimer meeting the requirements of paragraph (a) constitutes
5.25constructive notice to all persons from the time of
5.26disclaimer does not affect its validity as between the disclaimant and persons to whom the
5.27property interest or power passes by reason of the disclaimer.
5.28 Sec. 7. Minnesota Statutes 2010, section 524.2-1116, is amended to read:
5.29524.2-1116 APPLICATION TO EXISTING RELATIONSHIPS.
5.30
5.31524.2-1116 apply to disclaimers of any interest in or power over property existing on
5.32January 1, 2010,
5.33
5.34
