§ 424 — Transfer on death deed

§ 424. Transfer on death deed. 1. Definitions. For the purposes of\nthis section the following terms shall have the following meanings:\n (a) "Beneficiary" means a person who receives property in a transfer\non death deed.\n (b) "Designated beneficiary" means a person designated to receive\nproperty in a transfer on death deed.\n (c) "Joint owner" means an individual who owns property concurrently\nwith one or more other individuals with a right of survivorship. The\nterm includes a joint tenant, owner of community property with a right\nof survivorship and tenant by the entirety. The term does not include a\ntenant in common or owner of community property without a right of\nsurvivorship.\n (d) "Person" includes a natural person, an association, board, any\ncorporation, whether municipal, stock or non-stock, court, governmental\nagency, authority or subdivision, partnership or other firm and the\nstate.\n (e) "Property" means an interest in real property located in this\nstate which is transferable on the death of the owner.\n (f) "Transfer on death deed" means a deed authorized under this\nsection.\n (g) "Transferor" means an individual who makes a transfer on death\ndeed.\n 2. Nonexclusivity. This section does not affect any method of\ntransferring property otherwise permitted under the law of this state.\n 3. Transfer on death deed authorized. An individual may transfer\nproperty to one or more beneficiaries effective at the transferor's\ndeath by a transfer on death deed.\n 4. Transfer on death deed revocable. A transfer on death deed is\nrevocable even if the deed or another instrument contains a contrary\nprovision.\n 5. Transfer on death deed nontestamentary. A transfer on death deed is\nnontestamentary.\n 6. Capacity of transferor. The capacity required to make or revoke a\ntransfer on death deed is the same as the capacity required to make a\nwill.\n 7. Requirements. A transfer on death deed:\n (a) except as otherwise provided in this subdivision, shall contain\nthe essential elements and formalities of a properly recordable inter\nvivos deed;\n (b) shall state that the transfer to the designated beneficiary is to\noccur at the transferor's death;\n (c) shall be signed by two witnesses who were present at the same time\nand who witnessed the signing of the transfer on death deed;\n (d) shall be acknowledged before a notary public; and\n (e) shall be recorded before the transferor's death in the public\nrecords in the county clerk's office of the county where the property is\nlocated in the same manner as any other type of deed.\n 8. Notice, delivery, acceptance, consideration not required. A\ntransfer on death deed shall be effective without:\n (a) notice or delivery to or acceptance by the designated beneficiary\nduring the transferor's life; or\n (b) consideration.\n 9. Revocation by instrument authorized; revocation by act not\npermitted.\n (a) Subject to paragraph (b) of this subdivision, an instrument shall\nbe effective to revoke a recorded transfer on death deed, or any part of\nit, only if the instrument:\n (1) is one of the following:\n (A) a transfer on death deed that revokes the deed or part of the deed\nexpressly or by inconsistency;\n (B) an instrument of revocation that expressly revokes the deed or\npart of the deed; or\n (C) an inter vivos deed that expressly revokes the transfer on death\ndeed or part of the deed; and\n (2) is acknowledged by the transferor after the acknowledgment of the\ndeed being revoked and recorded before the transferor's death in the\npublic records in the county clerk's office of the county where the deed\nis recorded.\n (b) If a transfer on death deed is made by more than one transferor:\n (1) revocation by a transferor shall not affect the deed as to the\ninterest of another transferor; and\n (2) a deed of joint owners shall only be revoked if it is revoked by\nall of the living joint owners.\n (c) After a transfer on death deed is recorded, it shall not be\nrevoked by a revocatory act on the deed.\n (d) This section shall not limit the effect of an inter vivos transfer\nof the property.\n 10. Effect of transfer on death deed during transferor's life. During\na transferor's life, a transfer on death deed shall not:\n (a) affect an interest or right of the transferor or any other owner,\nincluding the right to transfer or encumber the property;\n (b) affect an interest or right of a transferee, even if the\ntransferee has actual or constructive notice of the deed;\n (c) affect an interest or right of a secured or unsecured creditor or\nfuture creditor of the transferor, even if the creditor has actual or\nconstructive notice of the deed;\n (d) affect the transferor's or designated beneficiary's eligibility\nfor any form of public assistance;\n (e) create a legal or equitable interest in favor of the designated\nbeneficiary; or\n (f) subject the property to claims or process of a creditor of the\ndesignated beneficiary.\n 11. Effect of transfer on death deed at transferor's death. (a) Except\nas otherwise provided in the transfer on death deed, in this section or\nin any other section of law which effects nonprobate transfers, on the\ndeath of the transferor, the following rules apply to property that is\nthe subject of a transfer on death deed and owned by the transferor at\ndeath:\n (1) Subject to subparagraph two of this paragraph, the interest in the\nproperty shall be transferred to the designated beneficiary in\naccordance with the deed.\n (2) The interest of a designated beneficiary is contingent on the\ndesignated beneficiary surviving the transferor. The interest of a\ndesignated beneficiary that fails to survive the transferor lapses.\n (3) Subject to subparagraph four of this paragraph, concurrent\ninterests shall be transferred to the beneficiaries in equal and\nundivided shares with no right of survivorship.\n (4) If the transferor has identified two or more designated\nbeneficiaries to receive concurrent interests in the property, the share\nof one which lapses or fails for any reason shall be transferred to the\nother, or to the others in proportion to the interest of each in the\nremaining part of the property held concurrently.\n (b) Subject to this chapter, a beneficiary takes the property subject\nto all conveyances, encumbrances, assignments, contracts, mortgages,\nliens, and other interests to which the property is subject at the\ntransferor's death. For purposes of this paragraph and this chapter, the\nrecording of the transfer on death deed shall be deemed to have occurred\nat the transferor's death.\n (c) If a transferor is a joint owner and is survived by one or more\nother joint owners, the property that is the subject of a transfer on\ndeath deed shall belong to the surviving joint owner or owners with\nright of survivorship.\n (d) If a transferor is a joint owner and is the last surviving joint\nowner, the transfer on death deed shall be effective.\n (e) A transfer on death deed transfers property without covenant or\nwarranty of title even if the deed contains a contrary provision.\n 12. Applicability of invalidating and revocatory principles. (a)\nNothing in this section shall limit the application of principles of\nfraud, undue influence, duress, mistake, or other invalidating cause to\na transfer of property.\n (b) Divorce, annulment or declaration of nullity, or dissolution of\nmarriage, shall have the same effect on a transfer on death deed as\noutlined in section 5-1.4 of the estates, powers and trusts law.\n 13. Renunciation. A beneficiary may renounce all or part of the\nbeneficiary's interest in the same manner as if the interest was\ntransferred in a will.\n 14. Liability for creditor claims and statutory allowances. (a) To the\nextent the transferor's probate estate is insufficient to satisfy an\nallowed claim against the estate or a statutory allowance to a surviving\nspouse or child, the estate may enforce the liability against property\ntransferred at the transferor's death by a transfer on death deed.\n (b) If more than one property is transferred by one or more transfer\non death deeds, the liability under paragraph (a) of this subdivision is\napportioned among the properties in proportion to their net values at\nthe transferor's death.\n (c) A proceeding to enforce the liability under this section must be\ncommenced no later than eighteen months after the transferor's death.\n 15. Form of transfer on death deed. The following form may be used to\ncreate a transfer on death deed. The other subdivisions of this section\nshall govern the effect of this, or any other instrument used to create\na transfer on death deed:\n(front of form)\nREVOCABLE TRANSFER ON DEATH DEED\nNOTICE TO OWNER\nYou should carefully read all information on the other side of this\nform. You may want to consult a lawyer before using this form.\nThis form must be recorded before your death, or it will not be\neffective.\nIDENTIFYING INFORMATION\nOwner or Owners Making This Deed:\n____________________________________________________\nPrinted name Mailing address\n____________________________________________________\nPrinted name Mailing address\nLegal description of the property:\n____________________________________________________\nPRIMARY BENEFICIARY\nI designate the following beneficiary if the beneficiary survives me.\n____________________________________________________\nPrinted name Mailing address, if available\nALTERNATE BENEFICIARY - Optional\nIf my primary beneficiary does not survive me, I designate the following\nalternate beneficiary if that beneficiary survives me.\n____________________________________________________\nPrinted name Mailing address, if available\nTRANSFER ON DEATH\nAt my death, I transfer my interest in the described property to the\nbeneficiaries as designated above. Before my death, I have the right to\nrevoke this deed.\nSIGNATURE OF OWNER OR OWNERS MAKING THIS DEED\n____________________________________________________\nSignature Date\n____________________________________________________\nSignature Date\nSIGNATURE OF WITNESSES\n____________________________________________________\nSignature Date\n____________________________________________________\nSignature Date\n____________________________________________________\nNOTARY ACKNOWLEDGMENT\n(insert notary acknowledgment for deed here)\n(back of form)\nCOMMON QUESTIONS ABOUT THE USE OF THIS FORM\nWhat does the Transfer on Death (TOD) deed do?\nWhen you die, this deed transfers the described property, subject to any\nliens or mortgages (or other encumbrances) on the property at your\ndeath. Probate is not required. The TOD deed has no effect until you\ndie. You can revoke it at any time. You are also free to transfer the\nproperty to someone else during your lifetime. If you do not own any\ninterest in the property when you die, this deed will have no effect.\nHow do I make a TOD deed?\nComplete this form. Have it acknowledged before a notary public. Record\nthe form in each county where any part of the property is located. The\nform has no effect unless it is acknowledged and recorded before your\ndeath.\nIs the "legal description" of the property necessary?\nYes.\nHow do I find the "legal description" of the property?\nThis information may be on the deed you received when you became an\nowner of the property. This information may also be available in the\ncounty clerk's office of the county where the property is located. If\nyou are not absolutely sure, consult a lawyer.\nCan I change my mind before I record the TOD deed?\nYes. If you have not yet recorded the deed and want to change your mind,\nsimply tear up or otherwise destroy the deed.\nHow do I "record" the TOD deed?\nTake the completed and acknowledged form to the county clerk's office of\nthe county where the property is located. Follow the instructions given\nby the county clerk to make the form part of the official property\nrecords. If the property is in more than one county, you should record\nthe deed in each county.\nCan I later revoke the TOD deed if I change my mind?\nYes. You can revoke the TOD deed. No one, including the beneficiaries,\ncan prevent you from revoking the deed.\nHow do I revoke the TOD deed after it is recorded?\nThere are three ways to revoke a recorded TOD deed:\n(1) Complete and acknowledge a revocation form and record it in each\ncounty where the property is located.\n(2) Complete and acknowledge a new TOD deed that disposes of the same\nproperty and record it in each county where the property is located.\n(3) Transfer the property to someone else during your lifetime by a\nrecorded deed that expressly revokes the TOD deed. You may not revoke\nthe TOD deed by will.\nI am being pressured to complete this form. What should I do?\nDo not complete this form under pressure. Seek help from a trusted\nfamily member, friend, or lawyer.\nDo I need to tell the beneficiaries about the TOD deed?\nNo, but it is recommended. Secrecy can cause later complications and\nmight make it easier for others to commit fraud.\nI have other questions about this form. What should I do?\nThis form is designed to fit some but not all situations. If you have\nother questions, you are encouraged to consult a lawyer.\n 16. Form of revocation. The following form may be used to create an\ninstrument of revocation under this section. The other subdivisions of\nthis section shall govern the effect of this, or any other instrument\nused to revoke a transfer on death deed.\n(front of form)\nREVOCATION OF TRANSFER ON DEATH DEED\nNOTICE TO OWNER\nThis revocation must be recorded before you die, or it will not be\neffective. This revocation is effective only as to the interests in the\nproperty of owners who sign this revocation.\nIDENTIFYING INFORMATION\nOwner or Owners of Property Making This Revocation:\n____________________________________________________\nPrinted name Mailing address\n____________________________________________________\nPrinted name Mailing address\nLegal description of the property:\n____________________________________________________\nREVOCATION\nI revoke all my previous transfers of this property by transfer on death\ndeed.\nSIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION\n____________________________________________________\nSignature Date\n____________________________________________________\nSignature Date\nSIGNATURE OF WITNESSES\n____________________________________________________\nSignature Date\n____________________________________________________\nSignature Date\nNOTARY ACKNOWLEDGMENT\n(insert notary acknowledgment here)\n(back of form)\nCOMMON QUESTIONS ABOUT THE USE OF THIS FORM\nHow do I use this form to revoke a Transfer on Death (TOD) deed?\nComplete this form. Have it acknowledged before a notary public. Record\nthe form in the public records in the county clerk's office of the\ncounty where the property is located. The form must be acknowledged and\nrecorded before your death, or it has no effect.\nHow do I find the "legal description" of the property?\nThis information may be on the TOD deed. It may also be available in the\ncounty clerk's office of the county where the property is located. If\nyou are not absolutely sure, consult a lawyer.\nHow do I "record" the form?\nTake the completed and acknowledged form to the county clerk's office of\nthe county where the property is located. Follow the instructions given\nby the county clerk to make the form part of the official property\nrecords. If the property is located in more than one county, you should\nrecord the form in each of those counties.\nI am being pressured to complete this form. What should I do?\nDo not complete this form under pressure. Seek help from a trusted\nfamily member, friend, or lawyer.\nI have other questions about this form. What should I do?\nThis form is designed to fit some but not all situations. If you have\nother questions, consult a lawyer.\n