Disclaimer and Renunciation of Interest (Qualified Disclaimer) — West Virginia

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. West Virginia's current Act (W. Va. Code § 42-6-14) makes a disclaimer effective if the disclaimed interest is treated under federal tax law as never having passed to the disclaimant, so the federal 9-month deadline controls for a tax-qualified disclaimer. Verify the deadline with counsel before signing.

DISCLAIMER AND RENUNCIATION OF INTEREST (QUALIFIED DISCLAIMER)

STATE OF WEST VIRGINIA

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 who may disclaim an interest in or power over property under W. Va. Code § 42-6-5, namely a(n): ☐ heir ☐ next of kin ☐ devisee ☐ legatee ☐ grantee ☐ donee ☐ surviving joint tenant ☐ beneficiary under a testamentary or nontestamentary instrument or beneficiary designation ☐ appointee, object, or taker in default 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 (W. Va. Code ch. 42)
☐ Testamentary or inter vivos trust
☐ Beneficiary designation (annuity, life insurance, retirement/employment-related plan, POD account, or security registered in beneficiary form) (W. Va. Code § 42-6-12(a))
☐ Joint tenancy with right of survivorship
☐ 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 portion, which (per W. Va. Code § 42-6-5(d)) may be expressed as a fraction, percentage, monetary amount, term of years, or other interest or estate: [____________________] (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 West Virginia Uniform Disclaimer of Property Interests Act, W. Va. Code §§ 42-6-1 through 42-6-19, and is intended to constitute a qualified disclaimer under 26 U.S.C. § 2518 and Treas. Reg. § 25.2518-2.

• W. Va. Code § 42-6-5(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 its creator imposed a spendthrift provision or other restriction or limitation on the right to disclaim.
• W. Va. Code § 42-6-5(c) requires that the disclaimer (1) be in writing; (2) declare the disclaimer; (3) describe the interest or power disclaimed; (4) be signed by the person making the disclaimer; (5) be acknowledged in a manner that would authorize a deed to be admitted of record; and (6) be delivered or filed as provided in W. Va. Code § 42-6-12.
• W. Va. Code § 42-6-14 provides that, if as a result of a disclaimer the disclaimed interest is treated under Title 26 of the United States Code as never having been transferred to the disclaimant, the disclaimer is effective under the Act.

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, or other portion of all) right, title, claim, interest in, and power over the property described in Section 2 above — whether vested or contingent, present or future, legal or equitable.

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 writing, signed, and acknowledged as required by W. Va. Code § 42-6-5(c) and Treas. Reg. § 25.2518-2(b).

☐ This Disclaimer is being delivered and 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 (26 U.S.C. § 2518(b)(2); W. Va. Code § 42-6-14).

☐ 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 (W. Va. Code § 42-6-13; 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, because the Disclaimant is an individual, the disclaimed interest passes as if the Disclaimant had died immediately before the time of distribution, as provided by W. Va. Code § 42-6-6.

☐ This Disclaimer is intended to be treated under Title 26 of the United States Code as if the disclaimed interest had never been transferred to the Disclaimant, so that it is effective under W. Va. Code § 42-6-14.

6. EFFECT AND PASSING OF THE DISCLAIMED INTEREST

Under W. Va. Code § 42-6-6, because the Disclaimant is an individual and the instrument creating the interest does not provide otherwise, the disclaimed interest passes as if the Disclaimant had died immediately before the time of distribution. By operation of W. Va. Code § 42-6-5(f), a disclaimer is not a transfer, assignment, or release and relates back for all purposes to the time the disclaimer takes effect under § 42-6-6.

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

7. IRREVOCABILITY AND BINDING EFFECT

This Disclaimer is irrevocable. Under W. Va. Code § 42-6-5(e), a disclaimer becomes irrevocable when it is delivered, filed, or recorded under W. Va. Code § 42-6-12, or when it becomes effective under §§ 42-6-6 through 42-6-11, whichever occurs later. Once irrevocable, this Disclaimer may not be modified, withdrawn, or rescinded, and is binding upon the Disclaimant and all persons claiming through or under the Disclaimant.

8. DELIVERY, FILING, AND RECORDING

Pursuant to W. Va. Code § 42-6-12, delivery may be effected by personal delivery, first-class mail, or any other method likely to result in receipt. The Disclaimant shall (check all that apply):

☐ For an interest created under intestate succession or by will (other than an interest in a testamentary trust): deliver this Disclaimer to the personal representative of the Decedent's estate, or, if none is serving, file it with the Clerk of the County Commission of [____________] County, West Virginia, where estate administration has been commenced (W. Va. Code § 42-6-12(c)).

☐ For an interest in a testamentary or inter vivos trust: deliver this Disclaimer to the trustee then serving (or as otherwise provided in W. Va. Code § 42-6-12(d)–(e)).

☐ For an interest created by a beneficiary designation: deliver this Disclaimer to the person making the beneficiary designation (if still revocable) or to the person obligated to distribute the interest (W. Va. Code § 42-6-12(f)–(g)).

☐ For a surviving holder of jointly held property or an interest under a power of appointment: deliver this Disclaimer to the person(s) specified in W. Va. Code § 42-6-12(h)–(j).

☐ Record a duly executed and acknowledged copy of this Disclaimer in the deed books in the Office of the Clerk of the County Commission of [____________] County, West Virginia, where the real property is located, if real property or an interest in real property is disclaimed (W. Va. Code § 42-6-15(b)). Failure to record does not affect validity as between the Disclaimant and the persons to whom the interest passes (W. Va. Code § 42-6-15(c)).

9. SIGNATURE, ACKNOWLEDGMENT, AND NOTARIZATION

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

Disclaimant Signature: ______________________________________

Printed Name: [________________________________]

ACKNOWLEDGMENT

STATE OF WEST VIRGINIA )
COUNTY OF [____________] )

The foregoing instrument was acknowledged before me this [____] day of [____________], 20[____], by [DISCLAIMANT FULL LEGAL NAME], who is known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and who acknowledged that he/she executed the same as his/her free and voluntary act. This Disclaimer is acknowledged in a manner that would authorize a deed to be admitted of record (W. Va. Code § 42-6-5(c)).

______________________________________
Notary Public
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 West Virginia 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 (by personal delivery, first-class mail, or other method likely to result in 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 (first-class, registered, or certified mail receipts)
☐ Copy of the recorded Disclaimer (Clerk of the County Commission), if real property is involved
☐ File-stamped copy from the County Commission (estate administration)

SOURCES AND REFERENCES

• West Virginia Uniform Disclaimer of Property Interests Act, W. Va. Code §§ 42-6-1 to 42-6-19 — https://law.justia.com/codes/west-virginia/chapter-42/article-6/
• W. Va. Code § 42-6-5 (Power to disclaim) — https://law.justia.com/codes/west-virginia/chapter-42/article-6/section-42-6-5/
• W. Va. Code § 42-6-12 (Delivery of disclaimer) — https://law.justia.com/codes/west-virginia/chapter-42/article-6/section-42-6-12/
• W. Va. Code § 42-6-15 (Recording of disclaimers) — https://law.justia.com/codes/west-virginia/chapter-42/article-6/section-42-6-15/
• 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