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Disclaimers Should Not Be Forgotten

In meeting with a probate client, I am reminded how important it is in planning an estate not to forget the flexibility of a disclaimer.  In this case, the decedent's Will provided for a family bypass trust — a technique used to utilize the decedent's federal estate tax exemption equivalent in order to avoid paying estate taxes on the spouse's later death.  Unfortunately, in this case the decedent's estate was limited, because he owned everything jointly with his spouse as joint tenants with rights of survivorship.  With nothing more, the family bypass trust would have gone unfunded, because nothing passed through the decedent's estate.  However, because this estate may well be taxable at the death of the decedent's spouse if the estate tax exemption equivalent falls back to $1 million as scheduled in 1011.  The solution is the use of a disclaimer by the surviving spouse, who can disclaim half of the joint tenancy property, which will then fall into the bypass trust.  This move may wind up saving the ultimate heirs of this estate in excess of $400,000. Care must be taken to exercise this option timely.  The qualified disclaimer expires 9 months after death. 

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