Family disputes over estates sometimes lead people to make hasty decisions they later regret. A beneficiary caught in the middle of family conflict might disclaim their inheritance to restore peace. They sign documents waiving their rights to the estate. Later, when emotions settle, they realize they made a mistake and want to undo what they did.
The question becomes whether a disclaimer of inheritance can be revoked once signed. Texas law provides specific requirements for disclaimers to become effective and irrevocable. Understanding these technical filing requirements becomes essential because improper filing may leave the door open for revocation. The timing and location of filing can determine whether a beneficiary permanently loses their inheritance or retains the ability to reclaim it.
The In re Estate of Boren, 268 S.W.3d 841 (Tex. App.—Texarkana 2008) case provides an opportunity to consider this issue.
Facts & Procedural History
Sarah died in 2005. Her last will and testament named her nephew Richard as her first choice to serve as independent executor of her estate. The will named Richard’s mother Jeanetta (Sarah’s sister-in-law) as the alternative or successor executor. The will also devised Sarah’s estate in equal shares to Richard and Jeanetta as sole beneficiaries if Sarah’s husband Charles did not survive her.
As part of her estate plan, Richard had served as attorney-in-fact for Sarah and her husband Charles under durable powers of attorney. Neither Sarah nor Charles had children. Charles was later determined to be incapacitated and a guardian of his estate was appointed. The issuance of letters of guardianship rendered the durable power of attorney given by Charles no longer effective.
Charles died intestate in December 2004. After Charles’s death, Richard expressed dismay over conflict among the family members. Charles’s brother Dee testified that Richard told relatives it was his desire to mend rifts in the family. Dee testified that as he and Richard stood over Charles’s coffin, Richard said that he and his mother were going to sign papers to remove themselves from the estate matters. Charles’s niece Beverly (who served as Charles’s guardian at the time of his death) testified that Richard told her he wanted to get the family back together. Richard told Beverly that peace in the family was extremely important to him and that he did not need or want anything Sarah or Charles had owned. He inquired whether there was anything he could sign to demonstrate that fact and assuage the hard feelings against him.
Richard later told Beverly that he had spoken with Jeanetta and that she agreed to sign documents to “get the family back together.” Beverly had her attorney prepare waiver and disclaimer documents. Richard retrieved these documents and took them to his own attorney. Although Richard’s attorney did not read the documents and did not comprehend their content, he advised Richard to sign them. Richard and Jeanetta signed the disclaimers and returned them to Beverly’s attorney. That attorney filed the disclaimers in the papers of Charles’s guardianship, which had not yet been closed.
The disclaimer documents were titled “Waiver of Service, Waiver of Interest, and Approval and Consent to Sale of Real Property.” After identifying the persons signing, each document stated: “I hereby waive any interest or claim I have or may have in or against their respective estates by will, inheritance, right of survivorship, or otherwise.” Richard later indicated that he believed the disclaimers did nothing more than consent to the sale of real estate. He expressed ignorance that these documents had the effect of terminating any claims he had under Sarah’s will.
On January 7, 2005, two things happened on the same date. First, Richard and Jeanetta filed revocations of the disclaimers they had previously signed. Second, Sarah died. The revocations were filed with the county clerk of the county of Sarah’s residence.
On August 29, 2006, Richard filed an application for probate of Sarah’s will. He also requested his appointment as independent executor. Two separate contests were filed—one by Beverly and another by Marcella (Sarah’s sister). After a hearing, the trial court rejected Beverly’s contest because she lacked standing. The court found that Marcella had standing to challenge Richard’s application.
The trial court entered an order denying Richard’s application for probate of the will. The court made findings that the disclaimers were in substantial compliance with the probate laws. The court found that the disclaimers were signed knowingly and voluntarily. The court also found that Richard was an unsuitable person to act as executor because of demonstrated violations of his fiduciary duties to Charles and Sarah. Richard appealed.
What Does the Texas Estates Code Require for Disclaimers?
Section 37A of the Texas Probate Code, which is now the Texas Estates Code, governs disclaimers of inheritance from decedents. The statute treats a disclaiming party as having “predeceased the decedent.” Therefore, if the disclaimers signed by Richard and Jeanetta were effective, the devises to them contained in Sarah’s will would lapse. Neither Richard nor Jeanetta were Sarah’s lineal descendants. The will contained no other contingent beneficiaries. If the disclaimers were effective and operative, the only practical effect of Sarah’s will would be to designate the appointment of an independent executor to serve without bond. Her assets would pass to all of her heirs-at-law as if there was no will.
The probate code contains detailed requirements concerning the filing of disclaimers. The statute provides different filing requirements depending on whether probate proceedings are pending and whether the decedent was a Texas resident. If there is an action in probate pending on the decedent, then disclaimers are to be filed in that probate action unless it is an independent administration and more than a year has passed since the issuance of letters. If there is no probate action pending on the estate of the decedent, the statute provides alternative filing locations.
When no probate action is pending and the decedent was a Texas resident, the disclaimer is to be filed with the county clerk of the county of residence of the decedent. If the decedent was not a Texas resident and the decedent had an interest in real property in Texas, the disclaimer is to be filed “with the county clerk of the county in which such real property or interest therein is located.” The statute further provides that the disclaimer is to be “recorded by such county clerk in the deed records of that county.”
The statute addresses revocability. That provision states: “Any disclaimer filed and served under this section shall be irrevocable.” This language makes clear that filing and service are prerequisites to irrevocability. Until proper filing occurs, the disclaimer remains revocable.
Where Were the Disclaimers Actually Filed?
The disclaimers signed by Richard and Jeanetta were not filed with the county clerk for recording in the public records. Instead, they were filed in the papers of Charles’s guardianship. Charles had already died when these disclaimers were filed. The guardianship was no longer effective for most purposes. The only power the person named as guardian had at that time was to submit a final accounting and conclude the guardianship.
The disclaimers were filed in a case file that had become inactive except for closing the guardianship and dismissing the guardian. On the same day Sarah died, Richard and Jeanetta filed revocations of these purported disclaimers. These revocation documents were filed with the county clerk of the county of Sarah’s residence—the proper location under the statute.
The trial court found that the disclaimers were in substantial compliance with Section 37A of the Texas Probate Code. The court found that the clear language of the disclaimers along with conversations Richard had with other family members evidenced a clear intent to waive or disclaim their interest in either Charles’s or Sarah’s estates. The court found that the disclaimers were not ambiguous and that Richard had the documents reviewed by his attorney before signing. The court found that the disclaimers were voluntarily executed.
Marcella argued on appeal that the statute did not require the disclaimer to be filed in the deed records. She contended that so long as the disclaimer had been presented to the clerk and was on file anywhere in the office of the clerk, the requirement of the statute was satisfied.
What Is the Purpose of Filing Requirements for Disclaimers?
From the early days of Texas jurisprudence, the recognized object of filing and recording statutes has been to provide a means of constructive notice of the existence of a document to creditors and subsequent purchasers. The filing requirement serves two purposes: first, to finalize the act of disclaimer, and second, to provide notice to creditors or subsequent purchasers of the fact that a disclaimer has occurred.
Filing a disclaimer in a guardianship proceeding of someone other than the deceased person under whom inheritance was being disclaimed would not be effective to place a person on notice that the disclaimer existed. A creditor of Sarah’s estate would have no reason to search Charles’s guardianship records to determine whether beneficiaries under Sarah’s will had disclaimed their inheritances. The filing location must be one where interested parties would reasonably look for such information.
The statute distinguishes between disclaimers involving nonresident and resident decedents because the estate of a nonresident’s personal property is governed by the laws of the state of residence of the decedent. The descent of real property is governed by the laws of Texas. A Texas resident decedent may have died possessed of only personal property. The property disclaimed in the estate of a Texas decedent might be only personalty and could be finally recorded by the clerk in something other than the real property records.
County clerks today maintain records differently than they did when the statute was originally drafted. County clerks no longer have an obligation to maintain separate books and records for deeds, deeds of trust, and mechanics liens. Since substantial statutory changes were made to the prescribed duties of county clerks in 1989, there is no duty of a county clerk to maintain a separate set of “deed records.” Under the statutory scheme in use today, a county clerk may consolidate records together and record, index, or classify them as one of seven different types of records.
When Does a Disclaimer Become Irrevocable?
The statute provides that any disclaimer filed and served under Section 37A shall be irrevocable. This language establishes a clear rule. Once proper filing and service of the disclaimer occurs, it becomes irrevocable. Before that point, the disclaimer remains revocable.
The court examined whether the filing requirement had been met in this case. There was no evidence that the disclaimers had been filed in accordance with the Texas Probate Code. The disclaimers were filed in the papers of Charles’s guardianship rather than with the county clerk for recordation in public records. Until the disclaimers had been properly filed, they remained revocable.
The court determined that when Section 37A uses the phrase “shall be filed with the county clerk,” it means the kind of filing with a county clerk for recordation by the clerk in its records. This includes filing in the Official Public Records of Real Property, in the Official Public Records of Personal Property and Chattels, or in the Official Public Records of Governmental, Business, and Personal Matters. The purpose is to provide constructive notice to interested parties who would search those public records.
Because Richard and Jeanetta revoked their disclaimers before the disclaimers had been properly filed, they were effectively revoked. Despite the fact that the form of the disclaimers was sufficient to satisfy the statute, despite the intention they held to disclaim inheritance under Sarah at the time they were signed, and regardless of their expressed desires to heal the rift within the family, the disclaimers were no longer operative after the revocation occurred.
The court recognized that the disclaimer documents met the substantive requirements of the statute. The language clearly expressed an intent to disclaim any interest in Sarah’s estate. The documents were signed voluntarily. Richard had consulted an attorney before signing. However, these substantive elements were not sufficient to make the disclaimers irrevocable because the filing requirement had not been satisfied.
The Takeaway
A disclaimer of inheritance in Texas does not become irrevocable until it has been properly filed and served according to the Texas Estates Code. The filing must occur in a location that provides constructive notice to creditors and subsequent purchasers. Filing a disclaimer in the papers of a guardianship proceeding for someone other than the decedent does not satisfy the statutory filing requirement. Beneficiaries who sign disclaimer documents can revoke those disclaimers at any time before proper filing occurs. Once proper filing and service take place, the disclaimer becomes irrevocable and the beneficiary is treated as having predeceased the decedent. The Boren case demonstrates that even when a disclaimer is signed voluntarily, reviewed by an attorney, and clearly expresses intent to disclaim inheritance, it remains revocable until the technical filing requirements are met. Executors and beneficiaries must pay careful attention to where and how disclaimers are filed to ensure they have the intended legal effect.
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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
