A trust for the sole benefit of a disabled adult child who lacked capacity was created by a NJ Superior Court order. The trust was created as a result of a guardianship for the child’s aging parent. The mother died before the court could issue its order appointing the guardian. The child then unexpectedly died and her only heir was her brother. The brother wants to disclaim the gift. The question raised is whether the disclaimer has to be filed with the Surrogate or with the trustee without having to file it with the Surrogate.
My thought is that you don’t need to file the disclaimer with the Surrogate. You can just deliver the disclaimer to the Trustee. Here’s why.
Let’s start with NJSA 3B:9-2b. It states, among other things, that any person who is a beneficiary under a non-testamentary instrument may disclaim in whole or in part any such property or interest therein by delivering a written disclaimer. The trust in this case is not a testamentary trust. It’s a stand-alone trust created outside of a will.
A trust beneficiary can legally disclaim an economic benefit under a trust pursuant to N.J.S.A. 3B:9-2b.
Now let’s turn to N.J.S.A. 3B:9-6b. It states, among other things, that the disclaimer of an interest in property, other than property passing under or pursuant to a will or testamentary trust shall be delivered to the fiduciary, payor or other person having legal title to or possession of the property or interest disclaimed or who is entitled thereto in the event of disclaimer. Because this is property passing under a non-testamentary trust, the disclaimer is delivered to the trustee. The disclaimer does not have to be filed with the Surrogate.
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By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Trust Attorney