From our “Ask a Question” Mailbag: Using Disclaimer to Avoid Creditors in New Jersey – Not a Good Idea
Most Recently Updated July 8, 2018.
“My father, a Burlington County, New Jersey, resident, is planning to leave me an inheritance in his Will. I have substantial creditor problems. If my father dies, can I disclaim my inheritance so it passes to my children?”
Using Disclaimer to Avoid Creditors in New Jersey – Not a Good Idea
In New Jersey, a disclaimer is an heir’s legal refusal to accept a gift or a bequest. In other words, you can’t force someone to accept a gift. If a Will names someone an heir or if a life insurance policy names a beneficiary, that heir or beneficiary cannot be “forced” to accept the gift. If the heir or beneficiary legally and properly refuses the gift, it is called a “disclaimer.”
But, an heir or beneficiary cannot use a disclaimer to avoid existing creditors. We would have to discuss your exact circumstances, but it sounds as if your creditors would be able to properly claim that your disclaimer was fraud under the Uniform Fraudulent Transfer Act.
Other Available Options
That being said, your father does have other options to shelter the gift. New Jersey allows him to set up a protective trust where the assets are held for your benefit, but are not available to your creditors. He could also name your children as the beneficiaries of the estate, so your creditors would have no claims. These decisions are up to your father, but if he consults with an experienced Burlington County Estate Planning Attorney, he will find that he has many options available to benefit his child or grandchildren and avoid the gift from passing to your creditors.
More Planning Questions?
Proper planning is only a piece of the Estate Planning process. By all means, if you want to learn more, please read my more detailed article, Estate Planning Everything You Need to Know.
In Conclusion: Using Disclaimer to Avoid Creditors in New Jersey – Not a Good Idea
I hope that this article was helpful in explaining proper planning for creditor problems. Further, I included links to even more detailed information on my website so you can learn more. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!
Let our Estate Planning lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced estate planning lawyers. By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to make the process as painless as possible!
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