What it means
A disclaimer only works once it reaches the right hands, and §739.301 names them for every kind of interest: the personal representative for interests passing by will or intestacy — or the clerk of court if no personal representative is serving; the serving trustee for trust interests; the person obligated to distribute for irrevocable beneficiary designations; the person to whom the interest passes, for jointly held property; and on through powers of appointment.
Delivery may be made by personal delivery, first-class mail, or any method that results in receipt — a mailed disclaimer is deemed delivered on its postmark date. For real estate, recording the disclaimer in the county where the land lies creates a presumption of delivery.
- Delivery by personal delivery, first-class mail, or any method resulting in receipt; mailed disclaimers are deemed delivered on the postmark date.
- Will and intestacy interests: deliver to the personal representative, or file with the clerk of court where administration venue would be proper.
- Trust interests: deliver to the serving trustee, with fallbacks to the personal representative or the clerk.
- Irrevocable beneficiary designations: deliver to the person obligated to distribute the interest.
- Real estate: recording in the county where the property sits creates a presumption of delivery.
- A fiduciary without actual notice of a disclaimer is not liable for an otherwise proper distribution.
How it plays out
Delivery is the step people skip. A disclaimer can be perfectly drafted, signed, and witnessed, and still fail because it sat in a drawer instead of reaching the personal representative before distribution. Our office treats delivery as part of execution — the disclaimer is signed, delivered, and, when real estate is involved, recorded, in one sitting. The postmark rule occasionally rescues a federal tax deadline, but we would rather never rely on it.
Where this shows up
Pages on this site where § 739.301 does real work:
