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Can the only heir named in a will decline & divide the estate between others with in ninety day time frame of death or probate?

Columbus, TX |

The will has already been filled in probate

Attorney Answers 4

  1. This is called a disclaimer. It must be done in compliance done in compliance with Texas Probate Code section 37A. It not done in compliance with that section renders the "disclaimer ineffective". Section 37A (d). Disclaimer must be done within nine months of the death, regardless when the will is filed for probate. The heir at issue needs legal counsel.

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  2. You will need to be careful in this situation. A devisee may disclaim or assign thier rights to inherit under a Will but a disclaimer means that the Probate Code decides who receives the inheritance. Also, there may be tax considerations to take into account. Since the Will has been filed for probate I assume there is a probate attorney already involved and that attorney should be consulted. It sounds like you may wish to assign your interest and because of possible tax consequnces and the necessity of filing the proper paperwork an experienced probate attorney will be needed.

  3. My colleagues are correct in that the heir who wants to disclaim or assign their interest should consult with local probate counsel to be sure that it is done correctly and that such action is the proper course of conduct to achieve the desired goal.

    ** LEGAL DISCLAIMER ** My response above is not legal advice and it does not establish an attoreny-client relationship. When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am licensed in California. In reviewing my response, you are specifically advised that your use of, or reliance upon any response I provide is not advisable. I do not have all relevant background details or facts related to your issue / matter, thus I am not in a position to give you legal advice. Further, your review, use of, or reliance upon my response does not establish an attorney-client relationship between us nor does it qualify as a legal consultation for any purpose. For specific advice regarding your particular circumstances, you should consult and retain local counsel. Law Offices of Eric J. Gold Telephone: 818-279-2737 Email: service@egoldlaw.con

  4. I do want to add that disclaimers are not unusual and serve a number of benefits for the heirs of estates (or proposed heirs). I suggest that you first discuss the issue with the attorney for the estate. Recognize that that attorney is not representing you, and he or she does have a conflict of interest because they actually represent the estate and executor. Be that as it may, depending upon the value of the assets at issue, you may be able to obtain the simple advice you need; otherwise, if it involves a more valuable asset or loss of rights, then you are best advised to consult a probate attorney who acts strictly for you. They will need to review a copy of the will in order to properly advise you.

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