Real Property Transfer on Death

In a prior post, I referenced the trend in probate law of testamentary contractual arrangements becoming more common. One such arrangement that can be used to transfer real property is a transfer-on-death deed, which is available in any state that has adopted the Uniform Real Property Transfer on Death Act or a similar statute.

The URPTODA allows real property to be transferred almost like a brokerage account would be transferred pursuant to a beneficiary designation.  The law permits a property owner to execute a transfer-on-death deed naming another individual or entity that will take title to the property upon the owner's death. Such a deed is revocable during the owner's life, meaning that the designated beneficiary has no rights with respect to the property until the owner's death. To be enforceable at such time, the deed must otherwise qualify as a recordable, inter vivos deed, must state that the transfer occur upon death, and must in fact be recorded with the county recorder's office.

Under the URPTODA, a designated beneficiary may disclaim the real property that would otherwise pass to them under a transfer-on-death deed but need not take any affirmative action in order to succeed to ownership of the property. However, individual state laws vary on this point; in at least one state (Oklahoma), the designated beneficiary must affirmatively record an affidavit accepting such interest or the property will revert back to the decedent's estate.

The URPTODA offers a solution that is preferable to other informal mechanisms for avoiding probate, such as executing but not recording a deed (a "sleeping deed") or naming a non-spouse beneficiary as a joint owner of a real property. However, utilizing a transfer-on-death deed is inferior in almost every way to executing and recording a traditional deed to a revocable living trust. For a good summary of these relative drawbacks, see page 34 of a recent issue of the Utah Bar Journal, located here.  In short, the URPTODA provides a new alternative for transferring real property to an heir outside of probate, but it will rarely be the best alternative.

Posted in: Probate,Residence