HB 297: "An Act adopting and relating to the Uniform Real Property Transfer on Death Act."
00 HOUSE BILL NO. 297 01 "An Act adopting and relating to the Uniform Real Property Transfer on Death Act." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 13 is amended by adding a new chapter to read: 04 Chapter 48. Uniform Real Property Transfer on Death Act. 05 Sec. 13.48.010. Transfer on death deed authorized. An individual may 06 transfer property to one or more beneficiaries effective at the transferor's death by a 07 transfer on death deed. 08 Sec. 13.48.020. Transfer on death deed revocable. A transfer on death deed 09 is revocable even if the deed or another instrument contains a contrary provision. 10 Sec. 13.48.030. Transfer on death deed nontestamentary. A transfer on 11 death deed is nontestamentary. 12 Sec. 13.48.040. Capacity of transferor. The capacity required to make or 13 revoke a transfer on death deed is the same as the capacity required to make a will. 14 Sec. 13.48.050. Requirements. A transfer on death deed 15 (1) except as otherwise provided in (2) of this section, must contain the
01 essential elements and formalities of a properly recordable inter vivos deed; 02 (2) must state that the transfer to the designated beneficiary is to occur 03 at the transferor's death; and 04 (3) must be recorded before the transferor's death in the public records 05 in the office of the recorder in the recording district where the property is located. 06 Sec. 13.48.060. Notice, delivery, acceptance, consideration not required. A 07 transfer on death deed is effective without 08 (1) notice or delivery to, or acceptance by, the designated beneficiary 09 during the transferor's life; or 10 (2) consideration. 11 Sec. 13.48.070. Revocation by instrument authorized; revocation by act 12 not permitted. (a) Subject to (b) of this section, an instrument is effective to revoke a 13 recorded transfer on death deed, or any part of it, only if the instrument 14 (1) is one of the following: 15 (A) a transfer on death deed that revokes the deed or part of the 16 deed expressly or by inconsistency; 17 (B) an instrument of revocation that expressly revokes the deed 18 or part of the deed; or 19 (C) an inter vivos deed that expressly revokes the transfer on 20 death deed or part of the deed; and 21 (2) is acknowledged by the transferor after the acknowledgment of the 22 deed being revoked and recorded before the transferor's death in the recording district 23 where the deed is recorded. 24 (b) If a transfer on death deed is made by more than one transferor, 25 (1) revocation by a transferor does not affect the deed as to the interest 26 of another transferor; and 27 (2) a deed of joint owners is revoked only if it is revoked by all of the 28 living joint owners. 29 (c) After a transfer on death deed is recorded, it may not be revoked by a 30 revocatory act on the deed. 31 (d) This section does not limit the effect of an inter vivos transfer of the
01 property. 02 Sec. 13.48.080. Effect of transfer on death deed during transferor's life. 03 During a transferor's life, a transfer on death deed does not 04 (1) affect an interest or right of the transferor or any other owner, 05 including the right to transfer or encumber the property; 06 (2) affect an interest or right of a transferee, even if the transferee has 07 actual or constructive notice of the deed; 08 (3) affect an interest or right of a secured or unsecured creditor or 09 future creditor of the transferor, even if the creditor has actual or constructive notice of 10 the deed; 11 (4) affect the transferor's or designated beneficiary's eligibility for any 12 form of public assistance; 13 (5) create a legal or equitable interest in favor of the designated 14 beneficiary; or 15 (6) subject the property to claims or process of a creditor of the 16 designated beneficiary. 17 Sec. 13.48.090. Effect of transfer on death deed at transferor's death. (a) 18 Except as otherwise provided in the transfer on death deed, in this section, or in 19 AS 13.12.203, 13.12.702, 13.12.706, 13.12.707, 13.12.803, or 13.12.804, on the death 20 of the transferor, the following rules apply to property that is the subject of a transfer 21 on death deed and owned by the transferor at death: 22 (1) subject to (2) of this subsection, the interest in the property is 23 transferred to the designated beneficiary under the deed; 24 (2) the interest of a designated beneficiary is contingent on the 25 designated beneficiary surviving the transferor; the interest of a designated beneficiary 26 that fails to survive the transferor lapses; 27 (3) subject to (4) of this subsection, concurrent interests are transferred 28 to the beneficiaries in equal and undivided shares with no right of survivorship; 29 (4) if the transferor has identified two or more designated beneficiaries 30 to receive concurrent interests in the property, the share of one that lapses or fails for 31 any reason is transferred to the other or to the others in proportion to the interest of
01 each in the remaining part of the property held concurrently. 02 (b) Subject to AS 40.17, a beneficiary takes the property subject to all 03 conveyances, encumbrances, assignments, contracts, mortgages, liens, and other 04 interests to which the property is subject at the transferor's death. For purposes of this 05 subsection and AS 40.17, the recording of the transfer on death deed is considered to 06 have occurred at the transferor's death. 07 (c) If a transferor is a joint owner and is 08 (1) survived by one or more other joint owners, the property that is the 09 subject of a transfer on death deed belongs to the surviving joint owner or owners with 10 right of survivorship; or 11 (2) the last surviving joint owner, the transfer on death deed is 12 effective. 13 (d) A transfer on death deed transfers property without covenant or warranty 14 of title even if the deed contains a contrary provision. 15 Sec. 13.48.100. Disclaimer. A beneficiary may disclaim all or part of the 16 beneficiary's interest as provided by AS 13.70 (Uniform Disclaimer of Property 17 Interests Act). 18 Sec. 13.48.110. Liability for creditor claims and statutory allowances. (a) 19 To the extent the transferor's probate estate is insufficient to satisfy an allowed claim 20 against the estate or a statutory allowance to a surviving spouse or child, the estate 21 may enforce the liability against property transferred at the transferor's death by a 22 transfer on death deed. 23 (b) If more than one property is transferred by one or more transfer on death 24 deeds, the liability under (a) of this section is apportioned among the properties in 25 proportion to their net values at the transferor's death. 26 (c) A proceeding to enforce the liability under this section must be 27 commenced not later than 18 months after the transferor's death. 28 Sec. 13.48.120. Optional form of transfer on death deed. The following 29 form may be used to create a transfer on death deed. The provisions of this chapter 30 govern the effect of this or any other instrument used to create a transfer on death 31 deed.
01 (front of form) 02 REVOCABLE TRANSFER ON DEATH DEED 03 NOTICE TO OWNER 04 You should carefully read all information on the other side of 05 this form. You may want to consult a lawyer before using this form. 06 This form must be recorded before your death, or it will not be 07 effective. 08 IDENTIFYING INFORMATION 09 Owner or Owners Making This Deed: 10 _________________________ _________________________ 11 Printed name Mailing address 12 _________________________ _________________________ 13 Printed name Mailing address 14 Legal description of the property: 15 ____________________________________________________ 16 PRIMARY BENEFICIARY/BENEFICIARIES 17 (Please list one or more primary beneficiaries. You may want to 18 obtain legal advice before listing more than one primary beneficiary. 19 There is more than one way to transfer property to several persons.) 20 I designate the following beneficiary if the beneficiary survives 21 me: 22 _________________________ _________________________ 23 Printed name Mailing address, if available 24 ALTERNATE BENEFICIARY/BENEFICIARIES - Optional 25 (You may list one or more alternate beneficiaries. You may 26 want to obtain legal advice before listing more than one alternate 27 beneficiary. There is more than one way to transfer property to several 28 persons.) 29 If my primary beneficiary does not survive me, I designate the 30 following alternate beneficiary if that beneficiary survives me: 31 _________________________ _________________________
01 Printed name Mailing address, if available 02 TRANSFER ON DEATH 03 At my death, I transfer my interest in the described property to 04 the beneficiaries as designated above. 05 Before my death, I have the right to revoke this deed. 06 SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED 07 _________________________ _________________________ 08 Signature Date 09 _________________________ _________________________ 10 Signature Date 11 ACKNOWLEDGMENT 12 State of ______________________________________ Judicial 13 District (or County of ________________________ or Municipality of 14 ___________________) 15 The foregoing instrument was acknowledged before me this 16 (date) by (name of person who acknowledged). 17 _______________________________ 18 Signature of Person Taking 19 Acknowledgment 20 _______________________________ 21 Title or Rank 22 _______________________________ 23 Serial Number, if any 24 (back of form) 25 COMMON QUESTIONS ABOUT THE USE OF THIS FORM 26 What does the Transfer on Death (TOD) deed do? When you 27 die, this deed transfers the described property, subject to any liens or 28 mortgages (or other encumbrances) on the property at your death. 29 Probate is not required. The TOD deed has no effect until you die. You 30 can revoke it at any time. You are also free to transfer the property to 31 someone else during your lifetime. If you do not own any interest in the
01 property when you die, this deed will have no effect. 02 How do I make a TOD deed? Complete this form. Have it 03 acknowledged before a notary public or other individual authorized by 04 law to take acknowledgments. Record the form in each recording 05 district where any part of the property is located. The form has no 06 effect unless it is acknowledged and recorded before your death. 07 Is the "legal description" of the property necessary? Yes. 08 How do I find the "legal description" of the property? This 09 information may be on the deed you received when you became an 10 owner of the property. This information may also be available in the 11 office of the recorder in the recording district where the property is 12 located. If you are not absolutely sure, consult a lawyer. 13 Can I change my mind before I record the TOD deed? Yes. 14 If you have not yet recorded the deed and want to change your mind, 15 simply tear up or otherwise destroy the deed. 16 How do I "record" the TOD deed? Take the completed and 17 acknowledged form to the office of the recorder in the recording district 18 where the property is located. Follow the instructions given by the 19 recorder to make the form part of the official property records. If the 20 property is in more than one recording district, you should record the 21 deed in each recording district. 22 Can I later revoke the TOD deed if I change my mind? Yes. 23 You can revoke the TOD deed. No one, including the beneficiaries, can 24 prevent you from revoking the deed. 25 How do I revoke the TOD deed after it is recorded? There 26 are three ways to revoke a recorded TOD deed: (1) Complete and 27 acknowledge a revocation form, and record it in each recording district 28 where the property is located. (2) Complete and acknowledge a new 29 TOD deed that disposes of the same property, and record it in each 30 recording district where the property is located. (3) Transfer the 31 property to someone else during your lifetime by a recorded deed that
01 expressly revokes the TOD deed. You may not revoke the TOD deed 02 by will. 03 I am being pressured to complete this form. What should I 04 do? Do not complete this form under pressure. Seek help from a trusted 05 family member, friend, or lawyer. 06 Do I need to tell the beneficiaries about the TOD deed? No, 07 but it is recommended. Secrecy can cause later complications and 08 might make it easier for others to commit fraud. 09 I have other questions about this form. What should I do? 10 This form is designed to fit some but not all situations. If you have 11 other questions, you are encouraged to consult a lawyer. 12 Sec. 13.48.130. Optional form of revocation. The following form may be 13 used to create an instrument of revocation under this chapter. The provisions of this 14 chapter govern the effect of this or any other instrument used to revoke a transfer on 15 death deed. 16 (front of form) 17 REVOCATION OF TRANSFER ON DEATH DEED 18 NOTICE TO OWNER 19 This revocation must be recorded before you die or it will not 20 be effective. This revocation is effective only as to the interests in the 21 property of owners who sign this revocation. 22 IDENTIFYING INFORMATION 23 Owner or Owners Making This Revocation: 24 _________________________ _________________________ 25 Printed name Mailing address 26 _________________________ _________________________ 27 Printed name Mailing address 28 Legal description of the property: 29 ____________________________________________________ 30 REVOCATION 31 I revoke all my previous transfers of this property by transfer on
01 death deed. 02 SIGNATURE OF OWNER OR OWNERS MAKING THIS 03 REVOCATION 04 _________________________ _________________________ 05 Signature Date 06 _________________________ _________________________ 07 Signature Date 08 ACKNOWLEDGMENT 09 State of ______________________________________ Judicial 10 District (or County of ________________________ or Municipality of 11 ___________________) 12 The foregoing instrument was acknowledged before me this 13 (date) by (name of person who acknowledged). 14 _______________________________ 15 Signature of Person Taking 16 Acknowledgment 17 _______________________________ 18 Title or Rank 19 _______________________________ 20 Serial Number, if any 21 (back of form) 22 COMMON QUESTIONS ABOUT THE USE OF THIS FORM 23 How do I use this form to revoke a Transfer on Death 24 (TOD) deed? Complete this form. Have it acknowledged before a 25 notary public or other individual authorized to take acknowledgments. 26 Record the form in the public records in the office of the recorder in 27 each recording district where the property is located. The form must be 28 acknowledged and recorded before your death or it has no effect. 29 How do I find the "legal description" of the property? This 30 information may be on the TOD deed. It may also be available in the 31 office of the recorder in the recording district where the property is
01 located. If you are not absolutely sure, consult a lawyer. 02 How do I "record" the form? Take the completed and 03 acknowledged form to the office of the recorder in the recording district 04 where the property is located. Follow the instructions given by the 05 recorder to make the form part of the official property records. If the 06 property is located in more than one recording district, you should 07 record the form in each of those recording districts. 08 I am being pressured to complete this form. What should I 09 do? Do not complete this form under pressure. Seek help from a trusted 10 family member, friend, or lawyer. 11 I have other questions about this form. What should I do? 12 This form is designed to fit some but not all situations. If you have 13 other questions, consult a lawyer. 14 Sec. 13.48.140. Nonexclusivity. The provisions of this chapter do not affect 15 any method of transferring property otherwise permitted under the law of this state. 16 Sec. 13.48.150. Uniformity of application and construction. In applying and 17 construing this uniform act, consideration shall be given to the need to promote 18 uniformity of the law with respect to its subject matter among the states that enact it. 19 Sec. 13.48.160. Relationship to Electronic Signatures in Global and 20 National Commerce Act. The provisions of this chapter modify, limit, and supersede 21 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), 22 but do not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic 23 delivery of any of the notices described in 15 U.S.C. 7003(b). 24 Sec. 13.48.190. Definitions. In this chapter, 25 (1) "beneficiary" means a person who receives property under a 26 transfer on death deed; 27 (2) "designated beneficiary" means a person designated to receive 28 property in a transfer on death deed; 29 (3) "joint owner" means an individual who is a tenant by the entirety, 30 who is an owner of community property with a right of survivorship, or who otherwise 31 owns property concurrently with one or more other individuals with a right of
01 survivorship, but does not include an individual who is a tenant in common or other 02 owner of community property without a right of survivorship or who is a joint tenant, 03 other than an individual who is a tenant by the entirety; 04 (4) "person" means an individual, corporation, business trust, estate, 05 trust, partnership, limited liability company, association, joint venture, public 06 corporation, government or governmental subdivision, agency, or instrumentality, or 07 any other legal or commercial entity; 08 (5) "property" means an interest in real property located in this state 09 which is transferable on the death of the owner; 10 (6) "transfer on death deed" means a deed authorized under this 11 chapter; 12 (7) "transferor" means an individual who makes a transfer on death 13 deed. 14 Sec. 13.48.195. Short title. This chapter may be cited as the Uniform Real 15 Property Transfer on Death Act. 16 * Sec. 2. AS 13.70.100(e) is amended to read: 17 (e) In the case of an interest created by a beneficiary designation that is 18 disclaimed [MADE] before [THE TIME] the designation becomes irrevocable, the 19 [A] disclaimer shall be delivered to the person making the beneficiary designation. 20 * Sec. 3. AS 13.70.100(f) is amended to read: 21 (f) In the case of an interest created by a beneficiary designation that is 22 disclaimed [MADE] after [THE TIME] the designation becomes irrevocable, the [A] 23 disclaimer of an interest in 24 (1) personal property shall be delivered to the person obligated to 25 distribute the interest; and 26 (2) real property shall be recorded in the office of the recorder in 27 the recording district where the real property that is the subject of the disclaimer 28 is located. 29 * Sec. 4. AS 13.70.130 is amended to read: 30 Sec. 13.70.130. Recording of disclaimer. If an instrument transferring an 31 interest in or power over property subject to a disclaimer is required or permitted by
01 law to be filed, recorded, or registered, the disclaimer may be filed, recorded, or 02 registered as required or permitted by law. Except as otherwise provided in 03 AS 13.70.100(f)(2), failure [FAILURE] to file, record, or register the disclaimer does 04 not affect its validity as between the disclaimant and persons to whom the property 05 interest or power passes by reason of the disclaimer. 06 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 APPLICABILITY. This Act applies to a transfer on death deed made before, on, or 09 after the effective date of this Act by a transferor dying on or after the effective date of this 10 Act. In this section, "transfer on death deed" and "transferor" have the meanings given in 11 AS 13.48.190, enacted by sec. 1 of this Act.