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What is necessary for a disclaimer to be "qualified?"

As discussed in a previous blog entry, making a qualified disclaimer can be a useful tool in estate administration. In particular, it allows a beneficiary to renounce an interest in an inheritance or gift and thereby let it pass to another beneficiary. However, what does it take for the disclaimer to be "qualified" in the eyes of the IRS?

A disclaimer is qualified only if it satisfies the following requirements:

(1) The disclaimer must be irrevocable and unqualified:

(2) The disclaimer must be in writing;

(3) The writing must be delivered no later than the date which is 9 months after the later of-

    (i) The date on which the transfer creating the interest in the disclaimant is made, or

    (ii) The day on which the disclaimant attains age 21.

(4) The disclaimant must not have accepted the interest disclaimed or any of its benefits; and

(5) The interest disclaimed must pass either to the spouse of the decedent or to a person other than the disclaimant without any direction on the part of the person making the disclaimer.

When faced with the descision about making a disclaimer, you should consult an estate attorney and a financial advisor.

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Attorney Michael Lins
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