HP0553, LD 773, item 1, An Act To Enact the Uniform Real Property Transfer on Death Act

An Act To Enact the Uniform Real Property Transfer on Death Act

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 18-A MRSA Art. 6, Pt. 4 is enacted to read:

PART 4

UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

§ 6-401. Short title

This Part may be known and cited as "the Uniform Real Property Transfer on Death Act."

§ 6-402. Definitions

As used in this Part, unless the context otherwise indicates, the following terms have the following meanings.

1. Beneficiary. "Beneficiary" means a person that receives property under a transfer on death deed.

2. Designated beneficiary. "Designated beneficiary" means a person designated to receive property in a transfer on death deed.

3. Joint owner. "Joint owner" means an individual who owns property concurrently with one or more other individuals with a right of survivorship. "Joint owner" includes a joint tenant and tenant by the entirety. "Joint owner" does not include a tenant in common or owner of community property without a right of survivorship.

4. Person. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity.

5. Property. "Property" means an interest in real property located in this State that is transferable on the death of the owner.

6. Transfer on death deed. "Transfer on death deed" means a deed authorized under this Part.

7. Transferor. "Transferor" means an individual who makes a transfer on death deed.

§ 6-403. Applicability

This Part applies to a transfer on death deed made before, on or after January 1, 2018 by a transferor dying on or after January 1, 2018.

§ 6-404. Nonexclusivity

This Part does not affect any method of transferring property otherwise permitted under the law of this State.

§ 6-405. Transfer on death deed authorized

An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed.

§ 6-406. Transfer on death deed revocable

A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.

§ 6-407. Transfer on death deed nontestamentary

A transfer on death deed is nontestamentary.

§ 6-408. Capacity of transferor

The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will.

§ 6-409. Requirements

A transfer on death deed:

1. Essential elements and formalities. Except as otherwise provided in subsection 2, must contain the essential elements and formalities of a properly recordable inter vivos deed;

2. Death of transferor. Must state that the transfer to the designated beneficiary is to occur at the transferor's death; and

3. Recorded before transferor's death. Must be recorded before the transferor's death in the public records in the registry of deeds in the county where the property is located.

§ 6-410. Notice, delivery, acceptance, consideration not required

A transfer on death deed is effective without:

1. Notice, delivery or acceptance. Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or

2. Consideration. Consideration.

§ 6-411. Revocation by instrument authorized; revocation by act not permitted

1. Revocation by instrument. Subject to subsection 2, an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:

A. Is one of the following:

(1) A transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency;

(2) An instrument of revocation that expressly revokes the deed or part of the deed; or

(3) An inter vivos deed that expressly revokes the transfer on death deed or part of the deed; and

B. Is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded before the transferor's death in the registry of deeds in the county where the deed is recorded.

2. More than one transferor. If a transfer on death deed is made by more than one transferor:

A. Revocation by a transferor does not affect the deed as to the interest of another transferor; and

B. A deed of joint owners is revoked only if it is revoked by all of the living joint owners.

3. Revocation after recorded. After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed.

4. Inter vivos transfer. This section does not limit the effect of an inter vivos transfer of the property.

§ 6-412. Effect of transfer on death deed during transferor's life

During a transferor's life, a transfer on death deed does not:

1. Affect interest or right of transferor or other owner. Affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;

2. Affect interest or right of transferee. Affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed;

3. Affect interest or right of creditor. Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;

4. Affect eligibility or public assistance. Affect the transferor's or designated beneficiary's eligibility for any form of public assistance;

5. Create legal or equitable interest. Create a legal or equitable interest in favor of the designated beneficiary; or

6. Subject the property to claims or process. Subject the property to claims or process of a creditor of the designated beneficiary.

§ 6-413. Effect of transfer on death deed at transferor's death

1. Upon death of transferor. Except as otherwise provided in the transfer on death deed, in this section or in section 2-508, 2-605, 2-803 or 2-805 or in Article 2, Part 2, on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death.

A. Subject to paragraph B, the interest in the property is transferred to the designated beneficiary in accordance with the deed.

B. The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.

C. Subject to paragraph D, concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.

D. If the transferor has identified 2 or more designated beneficiaries to receive concurrent interests in the property, the share of one that lapses or fails for any reason is transferred to the other or to the others in proportion to the interest of each in the remaining part of the property held concurrently.

2. Subject to all interests. Subject to Title 33, section 201, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens and other interests to which the property is subject at the transferor's death. For purposes of this subsection and Title 33, section 201, the recording of the transfer on death deed is deemed to have occurred at the transferor's death.

3. Joint owner. If a transferor is a joint owner and is:

A. Survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship; or

B. The last surviving joint owner, the transfer on death deed is effective.

4. No covenant or warranty of title. A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.

§ 6-414. Disclaimer

A beneficiary may disclaim all or part of the beneficiary's interest as provided by section 2-801.

§ 6-415. Liability for creditor claims and statutory allowances

A beneficiary of a transfer on death deed is liable for an allowed claim against the transferor's probate estate and statutory allowances to a surviving spouse and children to the extent provided in section 6-107.

§ 6-416. Optional form of transfer on death deed

The following form may be used to create a transfer on death deed. The other sections of this Part govern the effect of this or any other instrument used to create a transfer on death deed.

(front of form)

REVOCABLE TRANSFER ON DEATH DEED

NOTICE TO OWNER

You should carefully read all information on the other side of this form. YOU MAY WANT TO CONSULT A LAWYER BEFORE USING THIS FORM.

This form must be recorded before your death, or it will not be effective.

IDENTIFYING INFORMATION

Owner or Owners Making This Deed:

............................................................

............................................................................................

Printed name..........................................Mailing address

............................................................................................

Printed name..........................................Mailing address

Legal description of the property:

........................................................................................................................

PRIMARY BENEFICIARY

I designate the following beneficiary if the beneficiary survives me.

............................................................

............................................................................................

Printed name..........................................Mailing address, if available

ALTERNATE BENEFICIARY - Optional

If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me.

............................................................

............................................................................................

Printed name..........................................Mailing address, if available

TRANSFER ON DEATH

At my death, I transfer my interest in the described property to the beneficiaries as designated above.

Before my death, I have the right to revoke this deed.

SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED

............................................................

(SEAL, if any).....................................

Signature.................................................Date...............

............................................................

(SEAL, if any).....................................

Signature.................................................Date...............

ACKNOWLEDGMENT

(insert acknowledgment for deed here)

(back of form)

COMMON QUESTIONS ABOUT THE USE OF THIS FORM

What does the Transfer on Death (TOD) deed do? When you die, this deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at your death. Probate is not required. The TOD deed has no effect until you die. You can revoke it at any time. You are also free to transfer the property to someone else during your lifetime. If you do not own any interest in the property when you die, this deed will have no effect.

How do I make a TOD deed? Complete this form. Have it acknowledged before a notary public or other individual authorized by law to take acknowledgments. Record the form in each county where any part of the property is located. The form has no effect unless it is acknowledged and recorded before your death.

Is the "legal description" of the property necessary? Yes.

How do I find the "legal description" of the property? This information may be on the deed you received when you became an owner of the property. This information may also be available in the registry of deeds for the county where the property is located. If you are not absolutely sure, consult a lawyer.

Can I change my mind before I record the TOD deed? Yes. If you have not yet recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed.

How do I "record" the TOD deed? Take the completed and acknowledged form to the registry of deeds of the county where the property is located. Follow the instructions given by the register of deeds to make the form part of the official property records. If the property is in more than one county, you should record the deed in each county.

Can I later revoke the TOD deed if I change my mind? Yes. You can revoke the TOD deed. No one, including the beneficiaries, can prevent you from revoking the deed.

How do I revoke the TOD deed after it is recorded? There are three ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revocation form, and record it in each county where the property is located. (2) Complete and acknowledge a new TOD deed that disposes of the same property, and record it in each county where the property is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the TOD deed by will.

I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer.

Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended. Secrecy can cause later complications and might make it easier for others to commit fraud.

I have other questions about this form. What should I do? This form is designed to fit some but not all situations. If you have other questions, you are encouraged to consult a lawyer.

§ 6-417. Optional form of revocation

The following form may be used to create an instrument of revocation under this Part. The other sections of this Part govern the effect of this or any other instrument used to revoke a transfer on death deed.

(front of form)

REVOCATION OF TRANSFER ON DEATH DEED

NOTICE TO OWNER

This revocation must be recorded before you die or it will not be effective. This revocation is effective only as to the interests in the property of owners who sign this revocation.

IDENTIFYING INFORMATION

Owner or Owners of Property Making This Revocation:

............................................................

............................................................................................

Printed name..........................................Mailing address

............................................................................................

Printed name..........................................Mailing address

Legal description of the property:

........................................................................................................................

REVOCATION

I revoke all my previous transfers of this property by transfer on death deed.

SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION

............................................................

(SEAL, if any).....................................

Signature.................................................Date...............

............................................................

(SEAL, if any).....................................

Signature.................................................Date...............

ACKNOWLEDGMENT

(insert acknowledgment)

(back of form)

COMMON QUESTIONS ABOUT THE USE OF THIS FORM

How do I use this form to revoke a Transfer on Death (TOD) deed? Complete this form. Have it acknowledged before a notary public or other individual authorized to take acknowledgments. Record the form in the public records in the registry of deeds of each county where the property is located. The form must be acknowledged and recorded before your death or it has no effect.

How do I find the "legal description" of the property? This information may be on the TOD deed. It may also be available in the registry of deeds for the county where the property is located. If you are not absolutely sure, consult a lawyer.

How do I "record" the form? Take the completed and acknowledged form to the registry of deeds of the county where the property is located. Follow the instructions given by the register of deeds to make the form part of the official property records. If the property is located in more than one county, you should record the form in each of those counties.

I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer.

I have other questions about this form. What should I do? This form is designed to fit some but not all situations. If you have other questions, consult a lawyer.

§ 6-418. Uniformity of application and construction

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

§ 6-419. Relation to Electronic Signatures in Global and National Commerce Act

This Part modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 United States Code, Section 7001, et seq., but does not modify, limit or supersede Section 101(c) of that Act, 15 United States Code, Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that Act, 15 United States Code, Section 7003(b).

§ 6-420. Effective date

This Part takes effect January 1, 2018.

summary

This bill enacts the Uniform Real Property Transfer on Death Act, adopted by the Uniform Law Commission in 2009. The Prefatory Note and the Comments explain the Act and its provisions in detail.

HP0553 LD 773	Session - 128th Maine Legislature		LR 425 Item 1
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