Phoenix, AZ estate planning attorney Mark A. Bregman talks about a specific case he handled about a pre-bankruptcy disclaimer.
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Well the Edward Dittloft case or better known as IN RE: Costas, a fellow died, he had some residential real estate in a trust and he left one of his daughters as the trustee for the benefit of her self and two of her siblings. And the daughter that was named as the trustee needed to file bankruptcy. We executed a disclaimer disclaiming her interest as a beneficiary in the trust and then filed bankruptcy. The bankruptcy trustee wanted to bring that asset back into the bankruptcy estate for distribution to creditors and there was a split of authority among the states. It was a very state specific decision but the majority rule is if you do a disclaimer prior to filing bankruptcy it relates back to the death of the settlor of the trust and is not part of the bankruptcy estate. There were a lot of moving pieces that had to fall in place for that to prevail.