2013 North Dakota Century Code Title 30.1 Uniform Probate Code Chapter 30.1-10.1 Disclaimer of Property Interests
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CHAPTER 30.1-10.1
DISCLAIMER OF PROPERTY INTERESTS
30.1-10.1-01. (2-1102) Definitions.
In this chapter:
1. "Beneficiary designation" means an instrument, other than an instrument creating a
trust, naming the beneficiary of an insurance or annuity policy; an account with a
designation for payment on death; a security registered in beneficiary form; a pension,
profit-sharing, retirement, or other employment-related benefit plan; or any other
nonprobate transfer at death.
2. "Disclaimant" means the person to whom the disclaimed interest or power would have
passed had the disclaimer not been made.
3. "Disclaimed interest" means the interest or share to which the disclaimant would have
been entitled had the disclaimer not been made.
4. "Disclaimer" means a refusal to accept an interest in, or power over, property.
5. "Distribution time" means the time when the disclaimed interest would have taken
effect in possession or enjoyment.
6. "Fiduciary" means a personal representative, trustee, an agent acting under a power
of attorney, or other person authorized to act as a fiduciary with respect to the property
of another person.
7. "Future interest" means an interest that takes effect in possession or enjoyment, if at
all, after the time of its creation.
8. "Jointly held property" means property held in the name of two or more persons under
an arrangement in which all holders have concurrent interests and under which the
last surviving holder is entitled to the whole of the property.
9. "Record" means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.
10. "Signed" means, with present intent to authenticate or adopt a record, to execute or
adopt a tangible symbol, or attach to or logically associate with the record an
electronic sound, symbol, or process.
11. "State" means a state of the United States, the District of Columbia, Puerto Rico, the
United States Virgin Islands, or any territory or insular possession subject to the
jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan
native village, which is recognized by federal law or formally acknowledged by a state.
12. "Trust" means an express trust, charitable or noncharitable, with additions, whenever
and however created; and means a trust created pursuant to a statute, judgment, or
decree which requires the trust to be administered in the manner of an 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,
including a power of appointment. A person may disclaim the interest or power even if
its creator imposed a spendthrift provision or similar restriction on transfer or a
restriction or limitation on the right to disclaim.
2. Except to the extent the fiduciary's power to disclaim is expressly limited by another
statute of this state or by the instrument creating the fiduciary relationship, a fiduciary
may disclaim, in whole or in part, any interest in or power over property, including a
power of appointment, whether acting in a personal or representative capacity. A
fiduciary may disclaim the interest or power even if its creator imposed a spendthrift
provision or similar restriction on transfer or a restriction or limitation on the right to
disclaim, or an instrument other than the instrument that created the 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,
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 the
interest or power disclaimed, be signed by the person making the disclaimer, and be
delivered or filed in the manner provided in section 30.1-10.1-09.
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5.
6.
A disclaimer becomes irrevocable upon the later to occur of its delivery or filing as
provided in section 30.1-10.1-09, or when it becomes effective as provided in sections
30.1-10.1-03 through 30.1-10.1-08.
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,
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 becomes
irrevocable, or, if the interest arose under the law of intestate succession, as of the
intestate's death.
3. The disclaimed interest passes according to a provision in the instrument creating the
interest providing for the disposition of the interest, should it be disclaimed, or of
disclaimed interests in general.
4. If the instrument does not contain a provision described in subsection 3 and if the
disclaimant is an individual, the disclaimed interest passes as if the disclaimant had
died immediately before the distribution time. However, if by law or under the
instrument the descendants of the disclaimant would share in the disclaimed interest
by any method of representation had the disclaimant died before the distribution time,
the disclaimed interest passes only to the descendants of the disclaimant who survive
the time of distribution. If the disclaimant is not an individual, the disclaimed 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
than the disclaimant takes effect as if the disclaimant had died or ceased to exist
immediately before the distribution time, but a future interest held by the disclaimant
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
whole or in part the greater of a fractional share of the property determined by dividing
the number one by the number of joint holders alive immediately before the death of
the holder to whose death the disclaimer relates or all of the property except that part
of the value of the entire interest attributable to the contribution furnished by the
disclaimant.
2. The disclaimer under subsection 1 takes effect as of the death of the holder to whose
death the disclaimer relates.
3. An interest disclaimed by a surviving holder of jointly held property passes as if the
person whose interest is being disclaimed predeceased the holder to whose death the
disclaimer relates.
30.1-10.1-05. (2-1108) Disclaimer of interest by trustee.
If a trustee disclaims an interest in property that otherwise would have become trust
property, the interest does not become trust property.
30.1-10.1-06. (2-1109) Disclaimer of powers of appointment and other powers not held
in fiduciary capacity.
1. If a holder disclaims a power of appointment or other power not held in a fiduciary
capacity and if the holder has not exercised the power, the disclaimer takes effect as 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
capacity and if the holder has exercised the power and the disclaimer is of a power
other than a presently exercisable general power of appointment, the disclaimer takes
effect immediately after the date of the last exercise of the power.
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3.
If a holder disclaims a power of appointment or other power not held in a fiduciary
capacity, the instrument creating the power is construed as if the power ceased to exist
when the disclaimer became effective.
30.1-10.1-07. (2-1110) Disclaimer by appointee, object, or taker in default of exercise
of power of appointment.
1. The disclaimer by an appointee of a power of appointment takes effect as of the time
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 appointment
takes effect as of the time the instrument creating the power becomes 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
exercised, the disclaimer takes effect as of the time the instrument creating the power
becomes irrevocable.
2. If a fiduciary disclaims a power held in a fiduciary capacity which has been exercised,
the disclaimer takes effect immediately after the last exercise of the power.
3. A disclaimer under this section is effective as to other fiduciaries if the disclaimer so
provides and the fiduciary disclaiming has the authority to bind the estate, trust, or
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
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
created by will, other than an interest in a testamentary trust, a disclaimer must be
delivered to the personal representative of the decedent's estate, or if a personal
representative is not then serving, it must be filed with the court having jurisdiction to
appoint the personal representative.
3. In the case of an interest in a testamentary trust, a disclaimer must be delivered to the
trustee then serving, or if a trustee is not then serving, to the personal representative
of the decedent's estate, or if a personal representative is not then 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
trustee then serving, or if a trustee is not then serving, it must be filed with a court
having jurisdiction to enforce the trust, or if the disclaimer is made before the time the
instrument creating the trust becomes irrevocable, it must be delivered to the settlor of
a revocable trust or the transferor of the interest.
5. In the case of an interest created by a beneficiary designation which is disclaimed
before the designation becomes irrevocable, the disclaimer must be delivered to the
person making the beneficiary designation.
6. In the case of an interest created by a beneficiary designation which is disclaimed after
the designation becomes irrevocable, a disclaimer of an interest in personal property
must be delivered to the person obligated to distribute the interest and the disclaimer
of an interest in real property must be recorded in the office of the county recorder of
the county where the real property that is the subject of the disclaimer is located.
7. In the case of a disclaimer by a surviving holder of jointly held property, the 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
appointment, the disclaimer must be delivered to the holder of the power or to the
fiduciary acting under the instrument that created the power, or if a fiduciary is not 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, to
the holder, personal representative of the holder's estate, or to the fiduciary under the
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11.
instrument that created the power, or if a fiduciary is not then serving, it must be filed
with the court having authority to appoint the fiduciary.
In the case of a disclaimer by a fiduciary of a power over a trust or estate, the
disclaimer must be delivered as provided in subsection 2, 3, or 4, as if the power
disclaimed were an interest in property.
In the case of a disclaimer of a power by an agent, the disclaimer must be delivered 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
effective the disclaimant accepts the interest sought to be disclaimed; the disclaimant
voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to
be disclaimed or makes a contract to do so; or, a judicial sale of 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
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
capacity is not barred by its past exercise unless the power is exercisable in favor of
the disclaimant.
5. 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
disclaimer of an interest in property which is barred by this section takes effect as a
transfer of the interest disclaimed to the persons who would have taken the interest
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
transfer the disclaimed or transferred interest is treated pursuant to the provisions of
title 26 of the United States Code or regulations promulgated under that title, as never
having been transferred to the disclaimant, then the disclaimer or transfer is effective
as a disclaimer under this chapter.
30.1-10.1-11. (2-1115) Recording of disclaimer.
If an instrument transferring an interest in or power over property subject to a disclaimer is
required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed,
recorded, or registered. Except as required in subsection 6 of section 30.1-10.1-09, failure to
file, record, or register the disclaimer does not affect its validity as between the disclaimant and
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
renounce property or an interest in or power over property under any law other than
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
property existing on August 1, 2001, as to which the time for delivering or filing a
disclaimer under law superseded by this chapter has not expired may be disclaimed
after August 1, 2001.
4. This chapter modifies, limits, and supersedes the federal Electronic Signatures in
Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit,
or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic
delivery of any of the notices described in section 103(b) of that Act
[15 U.S.C. 7003(b)].
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