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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 38360
Experience:  Texas lawyer for 30 years in Estate law
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I am the Trustee of my husband's irrevocable trust. He did

Customer Question

I am the Trustee of my husband's irrevocable trust. He did not make provisions to distribute his personal effects.
There are 8 items (a gun collection) that are being demanded by my step son (who estranged himself 25 years ago when his father would not give him his grandfather's gun collection.)There has been 1 1/2 years of $20k legal wrangling iomposed on the Estate that has not liquidiity. I have had to loan the Estate money to pay legal fees and property taxes for 6 unsold properties.How do I "disclaim" these particular personal effects out of the estate? Is there a legal "template" I can follow so I do not have to incur more lawyer fees?I would like to let brother and sister assume the legal fees and figure out how to distribute the guns equitably. The estate can no longer fund their family feud.The guns have caused such dissention between my step daughter and my stepson that we attended mediation in April. A 6 gun 2 gun split was nearly agreed upon but the stepson balked since delivery of the guns was not instantly feasible.Thank you for your help.
Charlotte Allen
Submitted: 4 months ago.
Category: Estate Law
Expert:  RayAnswers replied 4 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question, conduct and prepare your response.

Customer: replied 4 months ago.
hello ray??
Expert:  RayAnswers replied 4 months ago.

Hi I am here give me a minute.

Expert:  RayAnswers replied 4 months ago.

What state here, you can do a disclaimer if you want to waive your share on these items.

Customer: replied 4 months ago.
Texas
Customer: replied 4 months ago.
I am not sure what your question means
Customer: replied 4 months ago.
I wwant to waive the items
Customer: replied 4 months ago.
Where do I find the disclaimer?
Customer: replied 4 months ago.
hello Ray?
How do I file the disclaimer without going through a lawyer?
Customer: replied 4 months ago.
are you there Ray?
Customer: replied 4 months ago.
why aren't you answering me?
Customer: replied 4 months ago.
J.A. Ray??
Expert:  RayAnswers replied 4 months ago.

You would sign and file disclaimer in the probate/estate case.If you give me the state I can get you a form.Sorry thanks for your patience.

Expert:  RayAnswers replied 4 months ago.

There are some system delay here, there is a minute or so between when you type and I get it and answer.

Customer: replied 4 months ago.
Texas. Do I file the disclaimer myself?
Expert:  RayAnswers replied 4 months ago.

Yes or have estate lawyer send you one here.

Expert:  RayAnswers replied 4 months ago.

Here is the form you have to add heading here from probate.Case number, names , court.

http://texasbarbooks.net/wp-content/uploads/2014/11/Texas-Probate-System-4th-Ed.-Updates.pdf

In Texas if you disclaim it passes to the other heirs under will or under laws of intestacy.

Thanks again.

Expert:  RayAnswers replied 4 months ago.

Texas Estate Code that allows for disclaimer.

ESTATES CODE

TITLE 2. ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY

SUBTITLE C. PASSAGE OF TITLE AND DISTRIBUTION OF DECEDENTS' PROPERTY IN GENERAL

CHAPTER 122. DISCLAIMERS AND ASSIGNMENTS

SUBCHAPTER A. DISCLAIMER OF INTEREST OR POWER

Sec. 122.001. DEFINITIONS. In this subchapter:

Text of subdivision as amended by Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 3

(1) "Beneficiary" includes a person who would have been entitled, if the person had not made a disclaimer, to receive property as a result of the death of another person:

(A) by inheritance;

(B) under a will;

(C) by an agreement between spouses for community property with a right of survivorship;

(D) by a joint tenancy with a right of survivorship;

(E) by a survivorship agreement, account, or interest in which the interest of the decedent passes to a surviving beneficiary;

(F) by an insurance, annuity, endowment, employment, deferred compensation, or other contract or arrangement; or

(G) under a pension, profit sharing, thrift, stock bonus, life insurance, survivor income, incentive, or other plan or program providing retirement, welfare, or fringe benefits with respect to an employee or a self-employed individual.

Text of subdivision as amended by Acts 2015, 84th Leg., R.S., Ch. 841 (S.B. 462), Sec. 3

(1) "Beneficiary" includes a person who would have been entitled, if the person had not made a disclaimer, to receive property as a result of the death of another person:

(A) by inheritance;

(B) under a will;

(C) by an agreement between spouses for community property with a right of survivorship;

(D) by a joint tenancy with a right of survivorship;

(E) by a survivorship agreement, account, or interest in which the interest of the decedent passes to a surviving beneficiary;

(F) by an insurance, annuity, endowment, employment, deferred compensation, or other contract or arrangement;

(G) under a pension, profit sharing, thrift, stock bonus, life insurance, survivor income, incentive, or other plan or program providing retirement, welfare, or fringe benefits with respect to an employee or a self-employed individual; or

(H) by a transfer on death deed.

(2) "Disclaim" and "disclaimer" have the meanings assigned by Section 240.002, Property Code.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 3, eff. September 1, 2015.

Acts 2015, 84th Leg., R.S., Ch. 841 (S.B. 462), Sec. 3, eff. September 1, 2015.

Sec. 122.002. DISCLAIMER. A person who may be entitled to receive property as a beneficiary may disclaim the person's interest in or power over the property in accordance with Chapter 240, Property Code.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 3, eff. September 1, 2015.

SUBCHAPTER E. ASSIGNMENT OF INTEREST

Sec. 122.201. ASSIGNMENT. A person who is entitled to receive property or an interest in property from a decedent under a will, by inheritance, or as a beneficiary under a life insurance contract, and does not disclaim the property under Chapter 240, Property Code, may assign the property or interest in property to any person.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 4, eff. September 1, 2015.

Sec. 122.202. FILING OF ASSIGNMENT. An assignment may, at the request of the assignor, be delivered or filed as provided for the delivery or filing of a disclaimer under Subchapter C, Chapter 240, Property Code.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 5, eff. September 1, 2015.

Sec. 122.204. FAILURE TO COMPLY. Failure to comply with Chapter 240, Property Code, does not affect an assignment.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 6, eff. September 1, 2015.

Sec. 122.205. GIFT. An assignment under this subchapter is a gift to the assignee and is not a disclaimer under Chapter 240, Property Code.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 562 (H.B. 2428), Sec. 7, eff. September 1, 2015.

Sec. 122.206. SPENDTHRIFT PROVISION. An assignment of property or interest that would defeat a spendthrift provision imposed in a trust may not be made under this subchapter.

Customer: replied 4 months ago.
This is very helpful JA.I am concerned by the fact that we attempted to mediate the issue of the guns. So perhaps the Judge may say they have to stay in the estate as is. What do you think/
Why didn't the attorney representing the estate recommend this tactic a long time ago?
Customer: replied 4 months ago.
Do you mean I can e-file the waiver form to the county courthouse?
Customer: replied 4 months ago.
Why doesn't the waiver have space to provide what particular personal effect I want to disclaim?
Customer: replied 4 months ago.
J.A. are we connected still? Help!!
Expert:  RayAnswers replied 4 months ago.

Well here the disclaimer waives your rights to the estate.Thats all you are doing is waiving out.The other heirs then have to deal with it, you are out of the fight so to speak.If you aren't wanting to waive everything here but some things this will not work in Texas.You can write the executor telling them you are willing to waive any interest you have, copy to the judge.Thats the best you can do if that is the situation, you only want to disclaim the interest in thee guns but not everything else.

The probate court f no agreement is reached likely orders them sold and the heirs have right to buy them like anyone else.High bidder gets them.

Thanks for letting me clarify.And the lawyer here may be happy generating more fees.You have to monitor that.

Expert:  RayAnswers replied 4 months ago.

I am still here, it takes me a bit to respond and there is a bit of delay between when you submit and I get back to you.But I haven't gone anywhere I promise.Thanks

Customer: replied 4 months ago.
I am the executor and trustee and am not clear on wrting the Judge that I want to opt out of ownership of the guns. Do I use the Disclaimer form you forward or is there a different form for single items/
Customer: replied 4 months ago.
Hello?
Customer: replied 4 months ago.
Have we been disconnected?
Customer: replied 4 months ago.
I want to give you a good rating but I cannot unless we finish this chat. Please respond.
Expert:  RayAnswers replied 4 months ago.

You would just write the judge here that you want to waive your interests to the guns.The judge wold likely have to issue orders here confirming that.

I am still here if you have more .Thanks for your patience.

Customer: replied 4 months ago.
Write the Judge and ask to waive the interest in the guns...and Judge hopefully issues a confirmation. Sounds easy but would my attorney get unhinged if I do not file it through him?
Do I have to explain WHY I want this waiver?
Expert:  RayAnswers replied 4 months ago.

You can write the lawyer here as well, joint letter to both lawyer for the estate and judge.

Bob Smith , Attorney at Law

*****

Houston, Texas 77036

Honorable ***** *****

123rd Judicial District Court

Re:Guns in the Estate of ***** *****

Dear Sirs,

This letter is to advise all parties of m intent to relinquish my legal inherited interest in the guns that are assets of the estate.I am asking the court to enter appropriate orders based on this letter, and have the guns or any proceeds from their sale go to the remaining heirs of the estate.I no longer have any interest in them and want to disclaim this to the court and the lawyer for the estate.

Sincerely yours,

Your name

Executor

Something like this here.

Thanks

Customer: replied 4 months ago.
Thank you for this sample letter it helps me alot. It protects me.My only apprehension is that, while the letter gets me out of the fight which would be HUGE, my lovely step daughter may get sued by her brother who keeps threatening a lawsuit on her.One hour after my husband died I literally handed the guns to my stepdaughter. She has 75% contingent possession of the assets when I die.. Step son has 25% and if they ever sell. In my mind the gun collection was a gift. But there was no receipt for that exchange at the time.My lawyer says that since the step son filed a claim against the guns, AND claimed that I was an inept executor I cannot claim that I gave the guns to her...he only wants me to say they are in safekeeping with her.I think giving a gift one hour after death which was long before the death certificate was filed, that this GIFT should be justified and should be admissable.But lawyer wants the guns to be a bargaining chip to get stepson to sign an afffadavit to leave the estate alone and then he will receive the guns..The Judge dismissed the claims by stepson' due to his missed deadlines to file.or something of that nature. Then he threatened to take his sister to court for theft..so she cowered and said she might be willing to give him the guns but had to talk to me and lawyer...yesterday my lawyer gets another threatening demand to get the guns by October 10because he thinks he talked his sister into handing them over....but that keeps our bargaining chip at bayMy stepdaughter currently has the guns in her gun safe for SAFE keeping but the brother claims she has stolen them by this action. Its a real mess.he does not want to actually file a huge lawsuit because he knows that my lawyer would try to get all legal fees incurred to come out of his pocket.Are there any restraints that can be imposed on a beneficiary to STOP bleeding the estate of legal fees to educate him on the law?
My attorney said he is not actually CONTESTING the will but he has incured the huge legal fees attempting to discredit me as executor now trustee.It seems unreasonable that he can rack up these fees but not go to court. Can we force his hand to go to court so the Estate could make him pay all legal fees?
Expert:  RayAnswers replied 4 months ago.

Well you can take yourself out of the fight here with a letter.I am not sure you can do a lot about the step daughter and step son.It may resolve itself if you are out of the fight here.

Thanks again.

Customer: replied 4 months ago.
Good point but should I give my attorney heads up about this waiver request to the Judge? No doubt he will say if I do this lot out, that he can come at me for other personal effects..and we will not be able to get him to sign an affadavit to cease and desistin from challenging the will.
Expert:  RayAnswers replied 4 months ago.

You can do so.Just tell him you want out of this fight.

Customer: replied 4 months ago.
but I lose bargaining chip to keep stepson from challenging the estate in the future.
How will I ever get stepson to assume the attorney fees. I realize the esate must defend itself. but shouldn't a frivolous claims and expenses incurred to defend itself be givin to the perpetrator?
Expert:  RayAnswers replied 4 months ago.

Yes the lawyer for the estate should argue the the step son should pay legal fees.Court can order him to do so.

Thanks.

Customer: replied 4 months ago.
Does the lawyer have to wait until a full fledged lawsuit is filed before he can ask the judge to pay legal fees?
Expert:  RayAnswers replied 4 months ago.

Yes he likely would.This way if the estate prevails court taxes him legal fees and costs.

Customer: replied 4 months ago.
Iwant to keep my stepdaughter in good graces. She would probably resent me getting out of the fight...its an untenable situationOne totally other idea could be that I give the siblings thirty days to settle the feud or I will donate the guns to a museum.
Would that do more harm than good?
Expert:  RayAnswers replied 4 months ago.

I think the best alter alternative here is to have lawyer motion the court for authority to sell them and divide proceeds.In that scenario either can but them at a sale.Court sets terms and price, high bidder gets them.Then the proceeds after payment of debts and divided to the heirs.Anytime the court orders it you are protected from liability here.

Customer: replied 4 months ago.
wow! That is a radical idea over items that are SO sentimental for the stepson..to him they are the last vestige of the memory of his grandfather.and same goes for stepdaughter as well somewhat
Customer: replied 4 months ago.
if stepson NEVER files a lawsuit how will the estate ever be able to recoup the legal fees?
Expert:  RayAnswers replied 4 months ago.

You can certainly try here to do so with probate judge.Also a sale here gives both the chance to buy them , high bidder wins.You are protected here.Lawyer should consider that.

Thanks again.