(a) With respect to testamentary instruments and intestate | 12 |
succession, an heir, next of kin, devisee, legatee, donee, person | 13 |
succeeding to a disclaimed interest, surviving joint tenant, | 14 |
surviving tenant by the entireties, surviving tenant of a tenancy | 15 |
with a right of survivorship, beneficiary under a testamentary | 16 |
instrument, or person designated to take pursuant to a power of | 17 |
appointment exercised by a testamentary instrument; | 18 |
(b) With respect to nontestamentary instruments, a
grantee, | 19 |
donee, person succeeding to a disclaimed interest,
surviving joint | 20 |
tenant, surviving tenant by the entireties,
surviving tenant of a | 21 |
tenancy with a right of survivorship,
beneficiary under a | 22 |
nontestamentary instrument, or person
designated to take pursuant | 23 |
to a power of appointment exercised
by a nontestamentary | 24 |
instrument; | 25 |
(c) With respect to fiduciary rights, privileges, powers,
and | 26 |
immunities, a fiduciary under a testamentary or
nontestamentary | 27 |
instrument. ThisDivision (A)(1)(c) of this section does not | 28 |
authorize a
fiduciary who disclaims fiduciary rights, privileges, | 29 |
powers, and immunities to disclaimcause the rights of | 30 |
beneficiariesany beneficiary to be disclaimed unless the | 31 |
instrument creating the fiduciary relationship authorizes the | 32 |
fiduciary to make such a
disclaimer. | 33 |
(2) "Personal representative" includes any fiduciary as | 36 |
defined in section 2109.01 of the Revised Code and any executor, | 37 |
trustee, guardian, or other person or entity having a fiduciary | 38 |
relationship with regard to any interest in property passing to | 39 |
the fiduciary, executor, trustee, guardian, or other person or | 40 |
entity by reason of a disclaimant's death. | 41 |
(B)(1) A disclaimant, other than a fiduciary under an | 44 |
instrument who is not authorized by the instrument to disclaim
the | 45 |
interest of a beneficiary, may disclaim, in whole or in part,
the | 46 |
succession to any property by executing and by delivering,
filing, | 47 |
or recording a written disclaimer instrument in the
manner | 48 |
provided in this section. | 49 |
(4) The guardian of the estate of a minor or an
incompetent, | 63 |
or the personal representative of a deceased person, whether or | 64 |
not authorized by the instrument to disclaim,
with the
consent of | 65 |
the probate division of the court of common
pleas, may
disclaim, | 66 |
in whole or in part, the succession to any
property, or
interest | 67 |
in property, that the ward, if an adult and
competent, or
the | 68 |
deceased, if living, might have disclaimed.
The guardian or | 69 |
personal representative, or any interested person
may file an | 70 |
application with the probate division of the court of
common pleas | 71 |
that has jurisdiction of the estate, asking that the
court order | 72 |
the guardian or personal representative to execute
and deliver, | 73 |
file, or record the disclaimer on behalf of the ward
or, estate, | 74 |
or deceased person.
The court shall order the guardian or personal | 75 |
representative to
execute and deliver, file, or record the | 76 |
disclaimer if the court
finds, upon hearing after notice to | 77 |
interested parties and such
other persons as the court shall | 78 |
direct, that: | 79 |
(b) It would not materially, adversely affect the minor or | 83 |
incompetent, or the beneficiaries of the estate of the decedent, | 84 |
taking into consideration other available resources and the age, | 85 |
probable life expectancy, physical and mental condition, and | 86 |
present and reasonably anticipated future needs of the minor or | 87 |
incompetent or the beneficiaries of the estate of the decedent. | 88 |
(3) The date on which the disclaimant attains twenty-one | 108 |
eighteen
years of age or is no longer an incompetent, without | 109 |
tendering or
repaying any benefit received while the disclaimant | 110 |
was under
twenty-oneeighteen years of age or an incompetent, and | 111 |
even if a guardian
of a minor or incompetent had filed an | 112 |
application pursuant to
division (B)(4) of this section and the | 113 |
probate division of the
court of common pleas involved did not | 114 |
consent to the guardian
executing a disclaimer. | 115 |
(2) If the interest disclaimed is created by a
testamentary | 128 |
instrument, by intestate succession,
by a
transfer on death
deed | 129 |
pursuant to section 5302.22 of the Revised Code,
or by a | 130 |
certificate of title to a motor vehicle, watercraft, or outboard | 131 |
motor that evidences ownership of the motor vehicle, watercraft, | 132 |
or outboard motor that is transferable on death pursuant to | 133 |
section 2131.13 of the Revised Code, the
disclaimer instrument | 134 |
shall be filed in the probate division of
the court of common | 135 |
pleas in the county in which proceedings for
the administration of | 136 |
the decedent's estate have been commenced,
and an executed copy of | 137 |
the disclaimer instrument shall be
delivered personally or by | 138 |
certified mail to the personal
representative of the decedent's | 139 |
estate. | 140 |
(3) If no proceedings for the administration of the | 141 |
decedent's estate have been commenced, the disclaimer instrument | 142 |
shall be filed in the probate division of the court of common | 143 |
pleas in the county in which proceedings for the administration
of | 144 |
the decedent's estate might be commenced according to law.
The | 145 |
disclaimer instrument shall be filed and indexed, and fees | 146 |
charged, in the same manner as provided by law for an application | 147 |
to be appointed as personal representative to administer the | 148 |
decedent's estate. The disclaimer is effective whether or not | 149 |
proceedings thereafter are commenced to administer the decedent's | 150 |
estate. If proceedings thereafter are commenced for the | 151 |
administration of the decedent's estate, they shall be filed | 152 |
under, or consolidated with, the case number assigned to the | 153 |
disclaimer instrument. | 154 |
(4) If an interest in real estate is disclaimed, an
executed | 155 |
copy of the disclaimer instrument also shall be recorded
in the | 156 |
office of the recorder of the county in which the real
estate is | 157 |
located. The disclaimer instrument shall include a
description of | 158 |
the real estate with sufficient certainty to
identify it, and | 159 |
shall contain a reference to the record of the
instrument that | 160 |
created the interest disclaimed. If title to the
real estate is | 161 |
registered under Chapters 5309. and 5310. of the
Revised Code, the | 162 |
disclaimer interest shall be entered as a
memorial on the last | 163 |
certificate of title. A spouse of a
disclaimant has no dower or | 164 |
other interest in the real estate
disclaimed. | 165 |
(G) Unless theIf a donative instrument expressly provides | 166 |
that,
if there isfor the distribution of property, part of | 167 |
property, or interest in property if there is a disclaimer, there | 168 |
shall not be any
acceleration of
remainders or other interests, | 169 |
the property, part of property, or interest disclaimed shall be | 170 |
distributed or disposed of, and accelerated or not accelerated, in | 171 |
accordance with the donative instrument. In the absence of express | 172 |
provisions to the contrary in the donative instrument, the | 173 |
property, part
of property, or
interest in property disclaimed, | 174 |
and any future
interest that is
to take effect in possession or | 175 |
enjoyment at or
after the
termination of the interest disclaimed, | 176 |
shall descend,
be
distributed, or otherwise be disposed of, and | 177 |
shall be
accelerated, in the following manner: | 178 |
(I) A disclaimant who has a present and future interest in | 193 |
property, and disclaims the disclaimant's present interest
in | 194 |
whole or in part,
is considered to have disclaimed the | 195 |
disclaimant's future
interest to the same
extent, unless a | 196 |
contrary intention appears in the disclaimer
instrument or the | 197 |
donative instrument. A disclaimant is not
precluded from | 198 |
receiving, as an alternative taker, a beneficial
interest in the | 199 |
property disclaimed, unless a contrary intention
appears in the | 200 |
disclaimer instrument or in the donative
instrument. | 201 |
(N) The right to disclaim and the procedures for
disclaimer | 228 |
established by this section are in addition to, and do
not exclude | 229 |
or abridge, any other rights or procedures existingthat exist or | 230 |
formerly existed
under any
other section of the Revised Code or at | 231 |
common law to
assign,
convey, release, refuse to accept, renounce, | 232 |
waive, or
disclaim
property. | 233 |
Section 4. The General Assembly recognizes that section 2518 | 261 |
of the Internal Revenue Code defines a qualified disclaimer, in | 262 |
part, as a written refusal by a person to accept an interest in | 263 |
property that is received by the transferor of the interest within | 264 |
nine months after the later of the date on which the transfer | 265 |
creating the interest is made and the date on which the person | 266 |
attains twenty-one years of age. By amending division (D) of | 267 |
section 5815.36 of the Revised Code to eliminate a reference to | 268 |
the nine-month period, the General Assembly intends to create the | 269 |
possibility that some disclaimers governed by the law of this | 270 |
state will be qualified under section 2518 of the Internal Revenue | 271 |
Code and some will not be qualified under that section. | 272 |