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Assignments, Disclaimers and Powers of Appointment

          Assignments, Disclaimers and Powers of Appointment can alter the distribution of a decedent’s estate.    

          First what is and who can make an assignment? A person who has a vested — legally enforceable — interest in a decedent’s estate can “assign” – i.e., transfer – part or all of their interest to another. Generally, an inheritance vests upon the decedent’s death.  An assignment is a gift by the assignor making the assignment to the assignee receiving the assigned interest.    Assignments create tax issues for both the assignor and assignee.   

          For example, consider an unmarried father who dies intestate — without a will or trust – and is survived by a son and a daughter — his heirs.  Prior to settling dad’s estate, the son decides to give his one-half share to his sister and signs and notarizes an assignment of inheritance rights.  The assignment is then filed with the Court.  Dad’s estate, less expenses and debts, is distributed entirely to the daughter. 

          If an interest in real property inherited from a parent is assigned then the parent child exclusion from reassessment — for local real property taxes — only applies to the interest(s) belonging to the child(ren) who do not assign their interest(s).  There is no reassessment exclusion for any transfers between siblings.

          Assignments, however, almost never apply to a beneficiary’s interests in a trust.  Usually, a trust prohibits beneficiaries from assigning their interest in the trust before distribution.  The anti-assignment provision protects undistributed trust assets from claims by a beneficiary’s creditors. 

          Next, disclaimers are used when a beneficiary, or heir, refuses to accept a gift or inheritance.  You cannot force someone to receive a gift or an inheritance.  To be valid disclaimers must satisfy the following requirements: be unconditional, be in writing, and be timely (i.e., generally, within nine months of the transfer), and, when real property is involved, also be filed with the county recorder where the real property lies.  Unlike assignments, the person disclaiming their interest cannot say who receives the disclaimed interest.  A disclaimer is not a gift by the person disclaiming.  Lastly, one cannot have accepted any benefits from the property being disclaimed, such as the income from an income producing asset. 

          The person disclaiming their gift or inheritance is treated as if they had predeceased the person who made the gift.  We see who is then entitled to inherit. 

          For example, a decedent’s trust leaves a share of the decedent’s trust estate to a named beneficiary and otherwise, if he does not survive to inherit, to the beneficiary’s descendants by right of representation.  The beneficiary survives and timely disclaims.  The beneficiary’s living descendants would then inherit by right of representation. 

          Unlike assignments and disclaimers, powers of appointment are created within a person’s estate planning, e.g., a trust or will, for future use.  A power of appointment allows the power holder to say who receives a gift/distribution from a trust or an estate.  The power of appointment is either a limited power that allows gifting to certain persons or is a general power that allows gifting to anyone at all, including the power holder, the power holder’s estate and the power holder’s creditors.  Powers of appointment are used for a variety of estate planning reasons. 

          For example, a husband’s and wife’s joint estate planning may give the spouse who survives a limited power of appointment over the deceased spouse’s separate trust estate.  The limited power of appointment might allow the deceased spouse’s estate to be divided equally or unequally amongst the deceased spouse’s children as the surviving spouse sees fit after the deceased spouse’s death.

          Anyone who wants to proceed with making an assignment, a disclaimer or exercise of a power of appointment should consult a qualified attorney.  There are tax and other issues to discuss and drafting requirements to these legal instruments that benefit from the expertise of a qualified attorney. 

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”

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How To Transfer A Small Estate

  • How To Transfer A Small…

How To Go About Transferring A Small Estate

Estates come in all sizes. Procedures for settling an estate may differ depending on the size, however. If you are in charge of settling a friend or loved one’s small estate, take a few moments to consider alternatives to traditional probate .

Why Use A Small Estate Affidavit?

When a simple estate has few assets, there’s often no reason to go through a regular probate proceeding. Only qualifying estates use the small estate affidavit, but they do see some real benefits.

A small estate may be settled more quickly than any other probate proceeding. Also, costs are usually lower due to the simplicity of the case.

Does This Estate Qualify As A Small Estate?

You are eligible to use a small estate affidavit if:

  • The decedent’s personal property, after deducting liens and encumbrances, is worth not more than $75,000 and at least 30 days have passed since the decedent passed away, and/or
  • The assessed value of the decedent’s Arizona real property on the date of death, after deducting liens and encumbrances, as of the date of death, is not more than $100,000 and at least 6 months have passed since the decedent passed away, and/or
  • You are the surviving spouse and you want to use the Affidavit to Collect Personal property to collect wages of up to $5,000 owed to the decedent, and/or
  • You are named in the Will to receive the property OR
  • The decedent did not have a Will, but you are related to the decedent as the surviving spouse, child if there’s no surviving spouse or the spouse is not your parent or your parent had separate or community property OR
  • Parent if there is no surviving spouse or child, or brother or sister if there’s no surviving spouse or child or parent; and
  • If anyone with equal or greater right than you to the property has assigned their entire interest in the estate to you in writing and a copy is attached to the affidavit.

Forms You Will Need

The clerk of the county you’ll be filing can give you forms to start your small estate affidavit, or you can find them online . For example, the Transfer of Small Estate by Affidavit packet on the Maricopa County Superior Court website contains the following forms and instructions:

  • Affidavit for Collection of All Personal property
  • Probate Information Cover Sheet
  • Affidavit for Transfer of Title to Real Property Checklist
  • Affidavit for Transfer of Title to Real Property

You can download the entire packet or the individual forms. As noted on the website, make sure you get the instructions for the forms, also.

After Preparing The Affidavit

You’ll use the completed affidavit to collect any person or entity that has possession of the deceased person’s personal property . For example, cars, jewelry, stocks, cash, and bank accounts are considered personal property. You may need to pay a fee to change the title of some assets, like automobiles .

You may also use the affidavit to collect debts owed to the deceased person. Also, if you are the surviving spouse, the affidavit will help you collect up to $5,000 in wages owed to your deceased loved one.

Claiming real property may be aa little more complicated. Go to the Probate Registrar to any Superior Court location. Take along originals of the following documents:

  • Probate cover sheet
  • Original Will if available or certified copy of Will from the court of record
  • Certified death certificate

And a copy of the closing statement if probate occurred in another county.

The Probate Registrar will issue a certified copy of the Affidavit, if approved. You may then record the certified copy in the Arizona county where the real property is located.

Even Seemingly Simple Estates Can Get Complicated

The attorneys at Keystone Law Firm know how to help you through probate and beyond. Call us at (480) 418-8448 to set up an appointment. We offer services for clients throughout Arizona, including Chandler , Gilbert , Sun Lakes , Tempe , Phoenix , Mesa , Scottsdale , and Apache Junction .

Author:  Francisco Sirvent - Keystone Law Firm

Author: Francisco Sirvent - Keystone Law Firm I graduated from the University of Arizona in 2001 with a B.S. in Biosystems Engineering, first in my class. I then entered the legal profession as a law clerk in 2002 and pursued a law degree at Arizona State University, completing the degree in 2006 as one of a handful of students who also obtained a Certificate in Law, Science and Technology. I led the Elder Law Pro Bono project and Christian Legal Society student chapters, and then interned at Arizona Technology Enterprises. I now run a law firm in Chandler Arizona dedicated to helping Arizonans with their Estate Planning, Probate and Family Law needs.

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Giving Up Your Inheritance: Assignment

EstPlan9

As you probably already know, California allows you to disclaim your interest in an inheritance. Disclaiming an inheritance is simply the same as refusing an inheritance. If you disclaim your inheritance, it will be as if you “predeceased” the decedent, and the assets will be treated as though another person inherited them. In California, you can also make what is called an “assignment” if you do not want or need an inheritance. An assignment works differently from a disclaimer. Below is more about assigning inheritance.

What Is an Assignment of Inheritance?

If you receive an inheritance that you do not need or want, or if you receive an inheritance that you would prefer someone else receive, you can make an “assignment.” An assignment occurs when you transfer all or part of your inheritance to someone else.

The person making an assignment is known as an “assignor,” and the person receiving it is known as the “assignee.” Generally, an assignment is like a gift by the assignor to the assignee.

There are legal steps to be taken for an assignment to happen. An assignment is not an informal transfer. After all, transferring your inheritance to another person goes against what your deceased loved one designated or what California law requires based on familial relationships. Assignments are executed in writing and delivered to the executor of the estate. An assignment must be filed with the probate court before the transfer can be done.

If you are thinking of assigning your inheritance, you need to note that assignments create tax issues for both the assignor and assignee. Indeed, some tax issues can be avoided with an assignment, but you’d need to speak to a lawyer or tax advisor to determine the tax implications that apply to your case.

Reasons for Assignment

People assign assets for various reasons. The following are some of the reasons why people assign their interest in an inheritance;

  • To avoid gift tax if they don’t plan to use the money themselves
  • To exchange their inheritance for an immediate cash payment from a third party
  • To give a share in the estate to an accidentally omitted beneficiary

Assignment vs. Disclaimer

As already mentioned, assignments are different from disclaimers. Firstly, when it comes to assignment, you inherit the property and then assign it. On the other hand, you do not get any share of the inheritance with a disclaimer.

Secondly, if you assign your inheritance, you can choose who gets it. You can assign your inheritance to anyone you want. On the other hand, when you disclaim your inheritance, you have no direct say in who gets it. If you disclaim an inheritance, the beneficiary or heir next in line will likely inherit it.

Lastly, there is no time frame for assignment, whereas you generally have nine months for a disclaimer.

Because there is no time frame for assignment, people who don’t want or need their inheritance, who accidentally pass the required nine months for a disclaimer, usually end up assigning their inheritance.

In conclusion, it is crucial to note that you cannot undo an assignment. In other words, transferring your inheritance rights is an irrevocable act.

Contact The Probate Guy

When it comes to assignments and disclaimers, making the right decision is easiest when you have the support of a skilled attorney. Contact the experienced and dedicated California probate attorney , Robert L. Cohen – The Probate Guy – to schedule a telephonic consultation.

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I love being a probate attorney. I love helping people through a very difficult time in their lives with the probate process. My practice focuses solely on probate matters. My job is to complete the probate process as efficiently and painlessly for my clients as possible. I have found that paying the upfront costs of probate adds unneeded stress, so I will advance all of the fees and costs for the probate. No money is required to complete the probate. I will be reimbursed at the end of the case when you receive your inheritance. Call me NOW to discuss your case for free.

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2019 Arizona Revised Statutes Title 29 - Partnership § 29-732 Interest in limited liability company; transferability of interest; rights of assignees

29-732. Interest in limited liability company; transferability of interest; rights of assignees

(Rpld. 9/1/20)

A. An interest in a limited liability company is personal property and, except as provided in an operating agreement or article 11 of this chapter, may be assigned in whole or in part. The assignment of an interest in a limited liability company does not dissolve the limited liability company or entitle the assignee to participate in the management of the business and affairs of the limited liability company or to become or to exercise the rights of a member, unless the assignee is admitted as a member as provided in section 29-731. An assignee that has not become a member is only entitled to receive, to the extent assigned, the share of distributions, including distributions representing the return of contributions, and the allocation of profits and losses, to which the assignor would otherwise be entitled with respect to the assigned interest.

B. An assignee who has become a member has the rights and powers to the extent assigned and is subject to the restrictions and liabilities of a member under the articles of organization, an operating agreement and this chapter. An assignee who becomes a member is also liable for any obligations of his assignor to make capital contributions.

C. Unless otherwise provided in an operating agreement, a member who has assigned all or part of his interest in a limited liability company is not released from his liability to the limited liability company under this chapter without the written consent of all members whether or not the assignee becomes a member. A member who has assigned all of his interest in a limited liability company remains a member until the admission of the assignee as a member unless otherwise provided in an operating agreement.

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IMAGES

  1. Assignment of Interest in Trust Form

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  2. Assignment of entire interest in estate (3)

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COMMENTS

  1. PDF Superior Court of Arizona in Maricopa County

    assigned their entire interest in the estate to us. This assignment is proven by the copy of the document(s) attached to this affidavit or we have signed this affidavit indicating their interest in the property. 11. OTHER PERSONS. No other person has a right to the interest of the decedent in the described property. 12. TAXES. No federal or ...

  2. Assignments, Disclaimers and Powers of Appointment

    A person who has a vested — legally enforceable — interest in a decedent's estate can "assign" - i.e., transfer - part or all of their interest to another. Generally, an inheritance vests upon the decedent's death. An assignment is a gift by the assignor making the assignment to the assignee receiving the assigned interest.

  3. PDF SMALL ESTATE AFFIDAVIT 1

    1. To collect personal property: Take the "Affidavit for Collection of All Personal Property" to the person who has the personal property (cash, bank accounts, stocks and bonds, cars, jewelry, etc.) of the person who died. If you are claiming title to a motor vehicle, the motor vehicle division will transfer title to you upon payment of any ...

  4. Arizona Probate: An Overview

    the total value of the estate's personal property must be less than $75,000; you must wait at least 30 days after death, and; the estate must not be going through formal probate. Arizona Revised Statutes §14-03971. Real estate: To use an affidavit to claim real estate: the total value of the estate's real estate must be less than $100,000

  5. SMALL ESTATE AFFIDAVIT(S) FOR TRANSFER

    assigned their entire interest in the estate to us. This assignment is proven by the copy of the document(s) attached to this affidavit or we have signed this affidavit indicating their interest in the property. 11. OTHER PERSONS. No other person has a right to the interest of the decedent in the described property. 12. TAXES. No federal or ...

  6. Arizona Probate Forms and Resources

    Arizona Rules of Probate Procedure. Arizona Revised Statute, Title 14 - Trusts, Estates and Protective Proceedings. Arizona Code of Judicial Administration (ACJA), Chapter 3. Probate Court. ACJA § 7-202: Fiduciaries

  7. Arizona Inheritance Laws: What You Should Know

    The Probate Process in Arizona Inheritance Laws. Any estates that consist of less than $75,000 in personal property or $100,000 in real property can skip the probate process altogether. These are formally titled as small estates, and an executor handles them with no court supervision. Should the decedent's estate surpass either of the above ...

  8. Arizona Disclaimer of Property Interests Law

    J. The right to disclaim property or an interest in property is barred by: 1. An assignment, conveyance, encumbrance, pledge or transfer of the property or interest or a contract. 2. A written waiver of the right to disclaim. 3. An acceptance of the property or interest or a benefit under it. 4.

  9. Tips On Transferring A Small Estate In Arizona

    The assessed value of the decedent's Arizona real property on the date of death, after deducting liens and encumbrances, ... If anyone with equal or greater right than you to the property has assigned their entire interest in the estate to you in writing and a copy is attached to the affidavit.

  10. 2013 Arizona Revised Statutes

    2013 Arizona Revised Statutes Title 14 - Trusts, Estates and Protective Proceedings ... be expressed as a fraction, a percentage, a monetary amount, a term of years, a limitation of a power or any other interest or estate in the property. E. A disclaimer becomes irrevocable when it is delivered or filed pursuant to section 14-10012 or when it ...

  11. Is a Assignment of Inheritance Interest form required in a small estate

    Hi I am looking to complete a small estate transfer of title a real property here in Arizona. All of the other parties with interest (the child's father) and siblings are willing to sign their assigned estate interests to me as the deceased's mother.

  12. PDF ASSIGNMENT OF ENTIRE INTEREST IN ESTATE

    WITNESS my hand and official seal the date aforesaid. The information in this document is designed to provide an outline that you can follow when formulating business or personal plans. Due to the variances of many local, city, county and state laws, we recommend that you seek professional legal counseling before entering into any contract or ...

  13. Giving Up Your Inheritance: Assignment

    An assignment occurs when you transfer all or part of your inheritance to someone else. The person making an assignment is known as an "assignor," and the person receiving it is known as the "assignee.". Generally, an assignment is like a gift by the assignor to the assignee. There are legal steps to be taken for an assignment to happen.

  14. Arizona Assignment of Portion of Expected Interest in Estate in Order

    Arizona Assignment of Portion of Expected Interest in Estate in Order to Pay Indebtedness is a legal document commonly used in estate planning and asset distribution cases. It involves transferring a specific portion of an individual's anticipated inheritance or expected interest in an estate to cover outstanding debts or financial obligations.

  15. Giving up your inheritance: Assignments vs disclaimers

    An assignment should not be confused with a disclaimer. A disclaimer is when someone refuses an inheritance. If you want to disclaim an inheritance, you don't have any direct say in what happens to it. Legally, the assets involved are treated as though the person designated to inherit them predeceased the person whose estate is being settled.

  16. Arizona Revised Statutes §44-1032 Assignment for the benefit of

    2005 Arizona Revised Statutes - Revised Statutes §44-1032 Assignment for the benefit of consenting creditors; effect; execution of release by creditors Any debtor desiring to do so may make an assignment for the benefit of such of his creditors only as will consent to accept their proportional share of his estate, and discharge him from their ...

  17. Assignment of Portion of Expected Interest in Estate in Order to Pay

    Assignment Of Interest In Estate Form. Download legal document forms from the largest library of legal forms. ... Arizona Arkansas California Colorado Connecticut ... In other words, the surviving spouse can inherit the entire estate without having to pay Inheritance Tax (IHT). They can also pass on their unused tax-free allowance to their ...

  18. Arizona Entire Interest Assigned

    Arizona Entire Interest Assigned refers to a legal term commonly used in real estate transactions. It involves the complete transfer of one's ownership rights, commonly known as an "interest," in a property located in the state of Arizona. ... Arizona Assignment of Partnership Interest is a legal ...by WMUA Form — Complete. Arizona Form 165 ...

  19. I am trying to locate a form for Arizona, "Assignment of Entire

    I am trying to locate a form for Arizona, "Assignment of Entire Interest in Estate". Please advise. Thanks for your ... "Assignment of Entire Interest in Estate". Please advise. Thanks for your help! Kelly. Answered by lwpat in 1 hour 11 years ago. lwpat. Lawyer. 15,512 satisfied customers. Specialities include: Estate Law, General Legal Practice.

  20. Arizona Revised Statutes § 29-732 (2019)

    29-732. Interest in limited liability company; transferability of interest; rights of assignees (Rpld. 9/1/20) A. An interest in a limited liability company is personal property and, except as provided in an operating agreement or article 11 of this chapter, may be assigned in whole or in part.

  21. Assignment of entire interest in estate (3)

    1. ASSIGNMENT OF ENTIRE INTEREST IN ESTATE This Agreement is entered into by and between Edward York , (hereinafter called "Assignor" and Daniel Newton , (hereinafter called "Assignee"). RECITALS A. Assignor as a heir to the estate of Donald York (hereinafter called "deceased") now deceased, whose last place of residence was 1502 Diamond Street Brooklyn, NY 11225, and who died intestate on ...

  22. Arizona Disclaimer of Interest Forms

    The disclaimer must be in writing and include a description of the interest, a declaration of intent to disclaim all or a defined portion of the interest, and be signed by the disclaimant in front of a notary (see ARS 14-10005 (C)). File the disclaimer within nine months of the transfer (e.g., the death of the creator of the interest) with the ...

  23. Arizona Limited Liability Company Law 2023

    The complete text of Arizona Revised Statutes Section 29-3401 of Arizona's new LLC law that is effective September 1, 2019. ... An estate in community property with right of survivorship may also be created by a written assignment of a transferable interest to a married couple, who may include one or both assignor spouses, or by the Articles of ...