Legal Question in Wills and Trusts in North Carolina

disclaiming inheritance

Can a surviving spouse (no children) disclaim her rights so that a will made out by the deceased prior to their short-lived marriage which names his siblings can be probated by the executor named in that will?

Asked on 11/24/05, 5:44 pm

1 Answer from Attorneys

Walter LeVine Walter D. LeVine, Esq.

Re: disclaiming inheritance

Yes, providing they are the next closest living relatives. The effect of a disclaimer is that the decedent is considered as dying "intestate" which means without a Will. The property disclaimed would then pass to the next closest living relatives. If he had any surviving parent(s), they would inherit unless they also disclaimed in favor of the siblings. If you need help in preparing an appropriate Disclaimer, to be filed in NJ, contact me directly and provide the information. A Disclaimer must be filed with the Surrogate within 9 months of the date of death, or is not valid. So, if the timing is close, you must act promptly. Several other thoughts: You do not indicate the size of the estate involved. This could result in an incident of NJ Inheritance or Estate Taxes, depending upon the size of the estate. Siblings are subject to NJ Inheritance Taxes, depending upon the amount they will inherit. A spouse might be exempt from this tax, depending upon the size of the estate. If there are potential taxes involved, it might be better to accept the bequest and then "gift" the inheritance to the siblings. More information is needed to properly advise you on my thoughts. In either event (Disclaimer or taking the inheritance and then gifting it), the siblings should thank you; particulalrly if you save them any possible inheritance taxes. Again, the size of the estate is important, to determine if there might be any gift taxes involved should it be cheaper to take the inheritance and then gift it.

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Answered on 11/25/05, 9:46 am

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