Disclaimer and Renunciation of Interest (Qualified Disclaimer) — Hawaii

TIMING — IRC § 2518 (9-MONTH DEADLINE): To qualify as a federal "qualified disclaimer," this writing must be signed and delivered within nine (9) months after the date of the decedent's death or other transfer (or within 9 months after the disclaimant turns 21), with no acceptance of the interest or its benefits. Hawaii's Act (HRS ch. 526) does not set its own fixed time limit, but under HRS § 526-14 a disclaimer is effective if the disclaimed interest is treated under federal law as never having been transferred — so the IRC § 2518 9-month rule controls. Verify the deadline with counsel before signing.

DISCLAIMER AND RENUNCIATION OF INTEREST (QUALIFIED DISCLAIMER)

STATE OF HAWAII

TABLE OF CONTENTS

1. Disclaimant Information
2. Identification of the Transfer and Interest Disclaimed
3. Statutory Authority
4. The Disclaimer
5. Qualified-Disclaimer Representations
6. Effect and Passing of the Disclaimed Interest
7. Irrevocability and Binding Effect
8. Delivery, Filing, and Recording
9. Signature, Acknowledgment, and Notarization
10. Verification / Declaration
11. Certificate of Delivery / Service
12. Attachments Checklist

1. DISCLAIMANT INFORMATION

The undersigned (the "Disclaimant") is a person to whom a disclaimed interest in property would have passed had the disclaimer not been made, within the meaning of HRS § 526-2, namely a(n): ☐ heir ☐ next of kin ☐ devisee ☐ legatee ☐ grantee ☐ donee ☐ surviving joint tenant ☐ beneficiary under a testamentary or nontestamentary instrument or contract ☐ appointee under a power of appointment ☐ other: [____________________].

2. IDENTIFICATION OF THE TRANSFER AND INTEREST DISCLAIMED

Source of the interest (check all that apply):
☐ Last Will and Testament of the Decedent
☐ Intestate succession (HRS § 560:2-101 et seq.)
☐ Revocable, inter vivos, or testamentary trust
☐ Beneficiary designation (life insurance, retirement plan, annuity, POD/TOD account, or security registered in beneficiary form)
☐ Joint tenancy with right of survivorship / tenancy by the entirety
☐ Power of appointment
☐ Other: [________________________________]

Extent of the disclaimer:
☐ Full disclaimer — the Disclaimant disclaims the entire interest described above.
☐ Partial disclaimer — the Disclaimant disclaims only the following fraction, percentage, monetary amount, term of years, limitation of a power, or other interest or estate (as permitted by HRS § 526-5(d)): [____________________] (e.g., an undivided ____% interest, or the sum of $[____________]).

Legal description of any real property disclaimed (or see attached Exhibit A): [________________________________]

3. STATUTORY AUTHORITY

This Disclaimer is made under the Hawaii Uniform Disclaimer of Property Interests Act, HRS chapter 526, and is intended to constitute a qualified disclaimer under 26 U.S.C. § 2518 and Treas. Reg. § 25.2518-2.

• HRS § 526-5(a) authorizes a person to disclaim, in whole or in part, any interest in or power over property, including a power of appointment, even if the creator imposed a spendthrift provision or similar restriction.
• HRS § 526-5(c) requires that, to be effective, the disclaimer be in a writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the Disclaimant, and be delivered or filed in the manner provided in § 526-12.
• HRS § 526-14 provides that if, as a result of a disclaimer, the disclaimed interest is treated under federal tax law as never having been transferred to the Disclaimant, the disclaimer is effective as a tax-qualified disclaimer under the chapter.

4. THE DISCLAIMER

The Disclaimant, intending to be legally bound, hereby IRREVOCABLY and UNQUALIFIEDLY DISCLAIMS and RENOUNCES all (or, where a partial disclaimer is elected in Section 2, the stated fraction, percentage, monetary amount, term of years, or other portion of all) right, title, claim, and interest of every kind — whether vested or contingent, present or future, legal or equitable — in and to the property and interest described in Section 2 above. This writing is a disclaimer within the meaning of HRS § 526-5(c).

This Disclaimer is made freely, voluntarily, and with full knowledge of its legal and tax consequences.

5. QUALIFIED-DISCLAIMER REPRESENTATIONS

The Disclaimant represents and certifies that:

☐ This Disclaimer is in a writing or other record, declares itself a disclaimer, describes the interest disclaimed, and is signed by the Disclaimant (or the Disclaimant's legal representative), as required by HRS § 526-5(c) and Treas. Reg. § 25.2518-2(b).

☐ This Disclaimer is being delivered or filed within nine (9) months after the later of (a) the date of the Decedent's death or the effective date of the transfer creating the interest, or (b) the date the Disclaimant attained age 21 (HRS § 526-12; 26 U.S.C. § 2518(b)(2)).

☐ The Disclaimant has NOT accepted the disclaimed interest or any of its benefits, and has not assigned, conveyed, encumbered, pledged, transferred, or contracted to transfer the interest (HRS § 526-13; Treas. Reg. § 25.2518-2(d)).

☐ The disclaimed interest passes without any direction on the part of the Disclaimant (26 U.S.C. § 2518(b)(4); Treas. Reg. § 25.2518-2(e)).

☐ As a result of this Disclaimer, the interest passes as if the Disclaimant had died immediately before the time of distribution (or, for an intestate interest, as of the Decedent's death), as provided by HRS § 526-6.

☐ This Disclaimer is intended as a qualified disclaimer under 26 U.S.C. § 2518 for federal transfer-tax purposes (HRS § 526-14).

6. EFFECT AND PASSING OF THE DISCLAIMED INTEREST

Under HRS § 526-6, unless the instrument creating the interest provides otherwise, the disclaimed interest passes as if the Disclaimant had died immediately before the time of distribution; if the disclaimed interest arose under the law of intestate succession, the disclaimer takes effect as of the time of the Decedent's death. A future interest held by a person other than the Disclaimant takes effect as if the Disclaimant had died or ceased to exist immediately before the time of distribution. The disclaimer relates back to the time the instrument creating the interest became irrevocable, or to the determinative event, as applicable.

The Disclaimant does not direct to whom the disclaimed interest passes; it passes solely by operation of the governing instrument and Hawaii law.

7. IRREVOCABILITY AND BINDING EFFECT

This Disclaimer is irrevocable and may not be modified, withdrawn, or rescinded once delivered or filed. Under HRS § 526-5(e), the Disclaimer becomes irrevocable when it is delivered or filed pursuant to § 526-12 or becomes effective under §§ 526-6 through 526-11, whichever occurs later. This Disclaimer is binding upon the Disclaimant and all persons claiming through or under the Disclaimant.

8. DELIVERY, FILING, AND RECORDING

Pursuant to HRS § 526-12, the Disclaimant shall (check all that apply):

☐ Deliver this Disclaimer to the personal representative of the Decedent's estate (for an interest created by will or by intestate succession, other than an interest in a testamentary trust); or, if no personal representative is serving, file it with the court in the circuit where administration would be proper.

☐ Deliver this Disclaimer to the trustee then serving (or, if none, to the personal representative or the court) for an interest in a testamentary or inter vivos trust.

☐ Deliver this Disclaimer to the person making the beneficiary designation (if disclaimed before the designation becomes irrevocable) or to the person obligated to distribute the interest (if disclaimed after it becomes irrevocable).

☐ Deliver this Disclaimer to the person or persons to whom the disclaimed interest passes (for a disclaimer by a surviving owner of jointly held property).

☐ Record this Disclaimer with the Bureau of Conveyances (or file with the Land Court / Office of the Assistant Registrar for registered land) for the island/county where the real property is located, if real property or an interest in real property is disclaimed and the transferring instrument is required or permitted to be recorded (HRS § 526-15).

9. SIGNATURE, ACKNOWLEDGMENT, AND NOTARIZATION

Executed this [____] day of [____________], 20[____].

Disclaimant Signature: ______________________________________

Printed Name: [________________________________]

ACKNOWLEDGMENT

STATE OF HAWAII )
COUNTY / CIRCUIT OF [____________] )

On this [____] day of [____________], 20[____], before me personally appeared [DISCLAIMANT FULL LEGAL NAME], to me known (or satisfactorily proven) to be the person described in and who executed the foregoing instrument, who acknowledged that he/she executed the same as his/her free act and deed.

______________________________________
Notary Public, [____] Judicial Circuit, State of Hawaii
My commission expires: [__/__/____]

[NOTARY SEAL]

10. VERIFICATION / DECLARATION

I, [DISCLAIMANT FULL LEGAL NAME], declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct, that I have not accepted the disclaimed interest or any benefit thereof, and that I make this Disclaimer of my own free will.

Signature: ______________________________________
Date: [__/__/____]

11. CERTIFICATE OF DELIVERY / SERVICE

I certify that on the date(s) shown below a true and correct copy of this Disclaimer was delivered (in person, by first-class mail, or by any other method likely to result in its receipt) to the following:

Signature: ______________________________________
Printed Name: [________________________________]

12. ATTACHMENTS CHECKLIST

☐ Copy of the Last Will and Testament, trust instrument, or beneficiary designation creating the disclaimed interest
☐ Exhibit A — legal description of any real property disclaimed
☐ Certified copy of the Decedent's Death Certificate
☐ Proof of delivery / mailing (registered or certified mail receipts)
☐ Recorded copy of the Disclaimer (Bureau of Conveyances / Land Court), if real property is involved
☐ File-stamped copy from the probate court (estate proceeding)

SOURCES AND REFERENCES

• Hawaii Uniform Disclaimer of Property Interests Act, HRS ch. 526 — https://law.justia.com/codes/hawaii/title-28/chapter-526/
• HRS § 526-5 (Power to disclaim; general requirements) — https://law.justia.com/codes/hawaii/title-28/chapter-526/section-526-5/
• HRS § 526-13 (When disclaimer barred or limited) — https://codes.findlaw.com/hi/division-3-property-family/hi-rev-st-sect-526-13.html
• HRS § 526-15 (Recording of disclaimer) — https://law.justia.com/codes/hawaii/title-28/chapter-526/section-526-15/
• 26 U.S.C. § 2518 (Disclaimers) — https://www.law.cornell.edu/uscode/text/26/2518
• Treas. Reg. § 25.2518-2 (Requirements for a qualified disclaimer) — https://www.law.cornell.edu/cfr/text/26/25.2518-2