Delaware Code Title 12 Sec. 612 – Delivery and recording requirements
(a) Subject to subsections (b) through (k) of this section, delivery of a disclaimer may be effected by personal delivery, first class mail, or any other method likely to result in its receipt, subject to the following:
(1) A disclaimer is considered as delivered to the person to whom such disclaimer is required to be delivered, if the method of delivery of the disclaimer would be considered delivered on the date by which it would be considered a timely mailing and treated as a timely filing if the disclaimer were a return or other document required to be filed within a prescribed period or on or before a prescribed date under the Code and would be considered to be timely filed under the provisions of § 7502 of the Code [26 U.S.C. § 7502], or the comparable provisions of any later law, and the regulations promulgated thereunder.
(2) If 2 or more persons or fiduciaries are acting as a person or fiduciary to whom a disclaimer is required to be delivered under subsections (b) through (k) of this section, delivery of such disclaimer shall be made on all such persons or fiduciaries.
Terms Used In Delaware Code Title 12 Sec. 612
- Attorney-in-fact: A person who, acting as an agent, is given written authorization by another person to transact business for him (her) out of court.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Beneficiary designation: means a testamentary or nontestamentary instrument or contract, other than an instrument creating a trust, naming the beneficiary of:
- Code: means the Internal Revenue Code of 1986, as amended (26 U. See Delaware Code Title 12 Sec. 602
- Court: means the Court of Chancery. See Delaware Code Title 12 Sec. 39A-101
- Decedent: A deceased person.
- Disclaimant: means the person to whom a disclaimed interest in property would have passed had the disclaimer not been made, or the person who would have had a power over property or with respect to property, including a power of appointment, had the disclaimer not been made. See Delaware Code Title 12 Sec. 602
- Disclaimed interest: means the interest that would have passed to the disclaimant had the disclaimer not been made. See Delaware Code Title 12 Sec. 602
- Disclaimer: means the refusal to accept an interest in or power over property. See Delaware Code Title 12 Sec. 602
- Donee: The recipient of a gift.
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: means a personal representative, trustee of a trust, agent acting under a power of attorney, conservator, custodian under a Uniform Transfers to Minors Act [Chapter 45 of this title] or similar statute of any jurisdiction, guardian, or other person authorized to act as a fiduciary with respect to the property or power of another person. See Delaware Code Title 12 Sec. 602
- Holder: means the person holding a power of appointment over an interest in property held in a trust, or holding a power over a trust, who is granted the right or authority to exercise the power of appointment over an interest in property held in a trust or of a power over a trust under the terms of the instrument governing the trust. See Delaware Code Title 12 Sec. 602
- Inter vivos: Transfer of property from one living person to another living person.
- Intestate: Dying without leaving a will.
- Jointly held property: means property held in the name of 2 or more persons under an arrangement in which all owners have concurrent interests and under which the last surviving owner is entitled to the whole of the property. See Delaware Code Title 12 Sec. 602
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- owner: shall include a tenant by the entirety. See Delaware Code Title 12 Sec. 602
- Person: means an individual, living, deceased or unborn, ascertained or unascertained, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or any governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. See Delaware Code Title 12 Sec. 602
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Trust: means :
- Trustee: A person or institution holding and administering property in trust.
(b) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:
(1) A disclaimer must be delivered to the personal representative of the decedent‘s estate, if one is then serving; and
(2) It must also be delivered to the court in the county in which proceedings for administration of the estate of a deceased transferor of the property or interest or a deceased donee of the power have been commenced or could be commenced.
(c) In the case of an interest in a testamentary trust:
(1) A disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent’s estate; and
(2) It must also be delivered to the court in the county in which proceedings for administration of the estate of a deceased transferor of the property or interest or a deceased donee of the power have been commenced or could be commenced.
(d) In the case of an interest in an inter vivos trust:
(1) A disclaimer must be delivered to the trustee then serving; or
(2) If no trustee is then serving, it must be delivered to the court having jurisdiction to enforce the trust.
(3) If the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.
(e) In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer must be delivered to the person making the beneficiary designation.
(f) In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer must be delivered to the person obligated to distribute the interest.
(g) In the case of a disclaimer by a surviving owner of jointly held property the disclaimer must be delivered to the person or persons to whom the disclaimed interest passes.
(h) In the case of a disclaimer by a permissible appointee or a taker in default of the exercise of a power of appointment at any time after the power was created:
(1) The disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or
(2) If no fiduciary is then serving, it must be delivered to a court having jurisdiction to appoint the fiduciary.
(i) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:
(1) The disclaimer must be delivered to the holder, the personal representative of the holder’s estate or to the fiduciary under the instrument that created the power; or
(2) If no fiduciary is then serving, it must be delivered to a court having jurisdiction to appoint the fiduciary.
(j) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (b), (c), or (d) of this section, as if the power disclaimed were an interest in property.
(k) In the case of a disclaimer of a power by an agent or attorney-in-fact, the disclaimer must be delivered to the principal or the principal’s representative.
(l) No fiduciary, person or entity having custody of the disclaimed interest shall be liable for any otherwise proper distribution made without actual notice of the disclaimer, or, if the disclaimer is barred under § 614 of this title, for any otherwise proper distribution made in reliance of the disclaimer, if the distribution is made without actual knowledge of the facts constituting the bar of the right to disclaim.
(m) For purposes of this section, when delivery of a disclaimer to a court is referenced, the disclaimant may fulfill this requirement by filing the disclaimer with the register of wills or the register in chancery for the county in which proceedings for administration of the estate of a deceased transferor of the property or interest, a deceased donee of the power or a deceased joint tenant has been commenced.
(n) A copy of the disclaimer may also be delivered to the person or persons entitled to the property or interest in the event of disclaimer; however, failure to make such delivery shall not affect the validity of the disclaimer. Such delivery is in addition to and not in lieu of the delivery and recording otherwise required under this section.
63 Del. Laws, c. 448, § ?1; 70 Del Laws, c. 186,, § ?1; 75 Del. Laws, c. 302, § ?1;