I see a number of attorneys (and various articles) that advocate a pre-petition disclaimer of inheritance if a client anticipates having to file for bankruptcy and wishes to benefit his fellow bendficiaries. I have two questions: 1.) Has anyone had a successful case in a Ch. 7 bankruptcy with a pre-petition disclaimer of inheritance? 2.) If the person died intestate, and no will, does this change anything as far as a pre-petition disclaimer being effective?
Yes, a disclaimer is one possible option. Having the person who is leaving the wealth instead leave your share in a spend-thrift trust with a trustee other than the debtor is also an option. Either way, you need to consult with an estate/will/probate attorney to make sure you have a proper disclaimer done. There is a 5th Circuit case right on point that says a proper disclaimer removes what would have been inherited property from the bankruptcy estate.
I am licensed only in Texas. Offering information of a general nature in response to a question is not intended to be legal advice in your state.
If you are in the Houston area, I would suggest an attorney who does both bankrutpcy and probate, Liza Greene is one, I am the other.
I have had success here in New Jersey. But here is the critical part. A disclaimer means that you take nothing. . . . zero. . . . zip. So if you take a book, a pair of socks, a shirt, or anything, even of no value, your disclaimer may not be effective. When you sign that disclaimer, take it literally.
Legal disclaimer: Jonathan Stone is a New Jersey-licensed attorney only. The information is not intended to be legal advice. You should consult an attorney regarding your particular circumstances. Answering this question on Avvo does not constitute legal advice, constitute legal representation or constitute an attorney-client privilege.