Enrolled HB 60: Adopting and relating to the Uniform Real Property Transfer on Death Act; relating to establishing the law governing certain trusts; and relating to disclaimers of property interests.
00Enrolled HB 60 01 Adopting and relating to the Uniform Real Property Transfer on Death Act; relating to 02 establishing the law governing certain trusts; and relating to disclaimers of property interests. 03 _______________ 04 * Section 1. AS 13.36.035 is amended by adding new subsections to read: 05 (f) Unless the laws of this state govern the validity, construction, and 06 administration of the trust under (c) of this section, the laws of this state govern the 07 administration of a trust and the courts of this state have exclusive jurisdiction over the 08 trust and its trustees while the trust is administered in this state unless the governing 09 instrument of the trust 10 (1) specifies that the law of a jurisdiction other than this state governs 11 the administration of the trust; 12 (2) expressly prohibits a change in the choice of law for the 13 administration of the trust; and
01 (3) expressly states that a change in the choice of law for the 02 administration of the trust may not occur, even if a trustee from another jurisdiction 03 becomes a trustee of the trust. 04 (g) In (f) of this section, a trust is considered to be administered in this state if 05 (1) the governing instrument of the trust specifies that the trust is to be 06 administered in this state; 07 (2) the principal office of the trustee having custody of the trust's 08 principal assets and records is located in this state, unless the trustee elects to maintain 09 the administration of the trust in the state whose law is specified in the governing 10 instrument to govern; 11 (3) the only trustee who is acting to administer the trust is a qualified 12 person, unless the trustee elects to maintain the administration of the trust in the state 13 whose law is specified in the governing instrument to govern; 14 (4) a majority of all trustees acting to administer the trust consists of 15 qualified persons, unless a majority of the trustees elects to maintain the 16 administration of the trust in the state whose law is specified in the governing 17 instrument to govern; or 18 (5) a majority of the trustees are not qualified persons and a majority 19 of the trustees, including at least one trustee who is a qualified person, executes an 20 acknowledged instrument that this state shall be the primary place of administration 21 for the trust. 22 (h) The trustee shall make the election in (g)(2) - (4) of this section by an 23 instrument that is acknowledged and filed in a court of the state whose law is specified 24 in the governing instrument to govern. 25 * Sec. 2. AS 13 is amended by adding a new chapter to read: 26 Chapter 48. Uniform Real Property Transfer on Death Act. 27 Sec. 13.48.010. Transfer on death deed authorized. An individual may 28 transfer property to one or more beneficiaries effective at the transferor's death by a 29 transfer on death deed. 30 Sec. 13.48.020. Transfer on death deed revocable. A transfer on death deed 31 is revocable even if the deed or another instrument contains a contrary provision.
01 Sec. 13.48.030. Transfer on death deed nontestamentary. A transfer on 02 death deed is nontestamentary. 03 Sec. 13.48.040. Capacity of transferor. The capacity required to make or 04 revoke a transfer on death deed is the same as the capacity required to make a will. 05 Sec. 13.48.045. When certain deeds void; challenges to deed. (a) A transfer 06 on death deed or an instrument revoking a transfer on death deed is void if it is 07 obtained by fraud, duress, or undue influence. 08 (b) A proceeding must be commenced within 12 months after the transferor's 09 death to 10 (1) contest the capacity of the transferor; or 11 (2) determine whether a transfer on death deed or an instrument 12 revoking a transfer on death deed is void because it was obtained by fraud, duress, or 13 undue influence. 14 Sec. 13.48.050. Requirements. A transfer on death deed 15 (1) except as otherwise provided in (2) and (3) of this section, must 16 contain the essential elements and formalities of a properly recordable inter vivos 17 deed; 18 (2) must state that the transfer to the designated beneficiary is to occur 19 at the transferor's death; 20 (3) may not use a beneficiary designation that only identifies 21 beneficiaries as members of a class; a transfer on death deed that uses a beneficiary 22 designation that only identifies beneficiaries as members of a class is void; and 23 (4) must be recorded before the transferor's death in the public records 24 in the office of the recorder in the recording district where the property is located. 25 Sec. 13.48.060. Notice, delivery, acceptance, consideration not required. A 26 transfer on death deed is effective without 27 (1) notice or delivery to, or acceptance by, the designated beneficiary 28 during the transferor's life; or 29 (2) consideration. 30 Sec. 13.48.070. Revocation by instrument authorized; revocation by act 31 not permitted. (a) Subject to (b) of this section, an instrument is effective to revoke a
01 recorded transfer on death deed, or any part of it, only if the instrument 02 (1) is one of the following: 03 (A) a transfer on death deed that revokes the deed or part of the 04 deed expressly or by inconsistency; 05 (B) an instrument of revocation that expressly revokes the deed 06 or part of the deed; 07 (C) an inter vivos deed that expressly revokes the transfer on 08 death deed or part of the deed; or 09 (D) to the extent of the interest transferred by the inter vivos 10 deed, an inter vivos deed that transfers an interest in property that is the subject 11 of a transfer on death deed; and 12 (2) is acknowledged by the transferor after the acknowledgment of the 13 deed being revoked and recorded before the transferor's death in the recording district 14 where the deed is recorded. 15 (b) If a transfer on death deed is made by more than one transferor, 16 (1) revocation by a transferor does not affect the deed as to the interest 17 of another transferor; and 18 (2) a deed of joint owners is revoked only if it is revoked by all of the 19 living joint owners. 20 (c) After a transfer on death deed is recorded, it may not be revoked by a 21 revocatory act on the deed. 22 (d) This section does not limit the effect of an inter vivos transfer of the 23 property. 24 (e) If a recorded power of attorney or the transfer on death deed expressly 25 grants a designated agent of the transferor the power to revoke a transfer on death 26 deed, the designated agent may revoke the transfer on death deed as provided in this 27 section. 28 Sec. 13.48.080. Effect of transfer on death deed during transferor's life. 29 During a transferor's life, a transfer on death deed does not 30 (1) affect an interest or right of the transferor or any other owner, 31 including the right to transfer or encumber the property;
01 (2) affect an interest or right of a transferee, even if the transferee has 02 actual or constructive notice of the deed; 03 (3) affect an interest or right of a secured or unsecured creditor or 04 future creditor of the transferor, even if the creditor has actual or constructive notice of 05 the deed; 06 (4) affect the transferor's or designated beneficiary's eligibility for any 07 form of public assistance; 08 (5) create a legal or equitable interest in favor of the designated 09 beneficiary; or 10 (6) subject the property to claims or process of a creditor of the 11 designated beneficiary. 12 Sec. 13.48.090. Effect of transfer on death deed at transferor's death. (a) 13 Except as otherwise provided in the transfer on death deed, in this section, or in 14 AS 13.12.203, 13.12.702, 13.12.803, or 13.12.804, on the death of the transferor, the 15 following rules apply to property that is the subject of a transfer on death deed and 16 owned by the transferor at death: 17 (1) subject to (2) of this subsection, the interest in the property is 18 transferred to the designated beneficiary under the deed; 19 (2) the interest of a designated beneficiary is contingent on the 20 designated beneficiary surviving the transferor; the interest of a designated beneficiary 21 that fails to survive the transferor lapses; 22 (3) subject to (4) and (5) of this subsection, concurrent interests are 23 transferred to the beneficiaries in equal and undivided shares with no right of 24 survivorship; 25 (4) if the transferor has identified two or more designated beneficiaries 26 to receive concurrent interests in the property and if the transferor has not named an 27 alternate designated beneficiary under (5) of this subsection for the share of a 28 designated beneficiary that lapses or fails for any reason, the lapsing or failing share is 29 transferred to the other remaining designated beneficiaries in proportion to the interest 30 of each remaining beneficiary in the remaining part of the property held concurrently; 31 (5) the transferor may identify one or more alternate designated
01 beneficiaries to take the share of a designated beneficiary that lapses or fails for any 02 reason. 03 (b) Subject to AS 40.17, a beneficiary takes the property subject to all 04 conveyances, encumbrances, assignments, contracts, mortgages, liens, and other 05 interests to which the property is subject at the transferor's death. For purposes of this 06 subsection and AS 40.17, the recording of the transfer on death deed is considered to 07 have occurred at the transferor's death. 08 (c) If a transferor is a joint owner and is 09 (1) survived by one or more other joint owners, the property that is the 10 subject of a transfer on death deed belongs to the surviving joint owner or owners with 11 right of survivorship; or 12 (2) the last surviving joint owner, the transfer on death deed is 13 effective. 14 (d) A transfer on death deed transfers property without covenant or warranty 15 of title even if the deed contains a contrary provision. 16 Sec. 13.48.100. Disclaimer. A beneficiary may disclaim all or part of the 17 beneficiary's interest as provided by AS 13.70 (Uniform Disclaimer of Property 18 Interests Act). 19 Sec. 13.48.110. Liability for creditor claims and statutory allowances. (a) 20 To the extent the transferor's probate estate is insufficient to satisfy an allowed claim 21 against the estate, the costs of administration of the estate, or a statutory allowance to a 22 surviving spouse or child, the estate may enforce the liability against property 23 transferred at the transferor's death by a transfer on death deed. 24 (b) If more than one property is transferred by one or more transfer on death 25 deeds, the liability under (a) of this section is apportioned among the properties in 26 proportion to their net values at the transferor's death. 27 (c) A proceeding to enforce the liability under this section must be 28 commenced not later than 12 months after the transferor's death. A proceeding to 29 enforce the liability under (a) of this section may not be commenced unless the 30 personal representative of the transferor's estate has received a written demand by the 31 surviving spouse, a creditor, a child, or a person acting for a child of the decedent.
01 Sec. 13.48.120. Optional form of transfer on death deed. The following 02 form may be used to create a transfer on death deed. The provisions of this chapter 03 govern the effect of this or any other instrument used to create a transfer on death 04 deed. 05 (front of form) 06 REVOCABLE TRANSFER ON DEATH DEED 07 NOTICE TO OWNER 08 You should carefully read all information on the other side of 09 this form. Transferring real property by using a transfer on death 10 deed may have important legal consequences in addition to 11 designating who will receive the real property on the transferor's 12 death. These consequences may include, but are not limited to, (1) 13 affecting the beneficiary's eligibility for public assistance; and (2) 14 affecting creditors' rights. If you have any questions, you should 15 consult an attorney. 16 This form must be recorded before your death, or it will not be 17 effective. 18 IDENTIFYING INFORMATION 19 Owner or Owners Making This Deed: 20 _________________________ _________________________ 21 Printed name Mailing address 22 _________________________ 23 Marital status 24 _________________________ _________________________ 25 Printed name Mailing address 26 _________________________ 27 Marital status 28 Legal description of the property: 29 ____________________________________________________ 30 PRIMARY BENEFICIARY/BENEFICIARIES 31 (Please list one or more primary beneficiaries. You may want to
01 obtain legal advice before listing more than one primary beneficiary. 02 There is more than one way to transfer property to several persons.) 03 I designate the following beneficiary if the beneficiary survives 04 me: 05 _________________________ _________________________ 06 Printed name Mailing address, if available 07 _________________________ 08 Marital status 09 ALTERNATE BENEFICIARY/BENEFICIARIES - Optional 10 (You may list one or more alternate beneficiaries. You may 11 want to obtain legal advice before listing more than one alternate 12 beneficiary. There is more than one way to transfer property to several 13 persons.) 14 If my primary beneficiary does not survive me, I designate the 15 following alternate beneficiary if that beneficiary survives me: 16 _________________________ _________________________ 17 Printed name Mailing address, if available 18 _________________________ 19 Marital status 20 TRANSFER ON DEATH 21 At my death, I transfer my interest in the described property to 22 the beneficiaries as designated above. 23 Before my death, I have the right to revoke this deed. 24 AUTHORITY OF DESIGNATED AGENT TO REVOKE THIS DEED 25 I authorize the following designated agent to revoke this deed 26 before my death: 27 _________________________ _________________________ 28 Printed name Mailing address 29 SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED 30 _________________________ _________________________ 31 Signature Date
01 _________________________ _________________________ 02 Signature Date 03 ACKNOWLEDGMENT 04 State of ______________________________________ Judicial 05 District (or County of ________________________ or Municipality of 06 ___________________) 07 The foregoing instrument was acknowledged before me this 08 (date) by (name of person who acknowledged). 09 _______________________________ 10 Signature of Person Taking 11 Acknowledgment 12 _______________________________ 13 Title or Rank 14 _______________________________ 15 Serial Number, if any 16 (back of form) 17 COMMON QUESTIONS ABOUT THE USE OF THIS FORM 18 What does the Transfer on Death (TOD) deed do? When you 19 die, this deed transfers the described property, subject to any liens or 20 mortgages (or other encumbrances) on the property at your death. 21 Probate is not required. The TOD deed has no effect until you die. You 22 can revoke it at any time. You are also free to transfer the property to 23 someone else during your lifetime. If you do not own any interest in the 24 property when you die, this deed will have no effect. 25 How do I make a TOD deed? Complete this form. Have it 26 acknowledged before a notary public or other individual authorized by 27 law to take acknowledgments. Record the form in each recording 28 district where any part of the property is located. The form has no 29 effect unless it is acknowledged and recorded before your death. 30 Is the "legal description" of the property necessary? Yes. 31 How do I find the "legal description" of the property? This
01 information may be on the deed you received when you became an 02 owner of the property. This information may also be available in the 03 office of the recorder in the recording district where the property is 04 located. If you are not absolutely sure, consult a lawyer. 05 Can I change my mind before I record the TOD deed? Yes. 06 If you have not yet recorded the deed and want to change your mind, 07 simply tear up or otherwise destroy the deed. 08 How do I "record" the TOD deed? Take the completed and 09 acknowledged form to the office of the recorder in the recording district 10 where the property is located. Follow the instructions given by the 11 recorder to make the form part of the official property records. If the 12 property is in more than one recording district, you should record the 13 deed in each recording district. 14 Can I later revoke the TOD deed if I change my mind? Yes. 15 You can revoke the TOD deed. Except for a court, no one, including 16 the beneficiaries, can prevent you from revoking the deed. 17 How do I revoke the TOD deed after it is recorded? There 18 are three ways to revoke a recorded TOD deed: (1) Complete and 19 acknowledge a revocation form, and record it in each recording district 20 where the property is located. (2) Complete and acknowledge a new 21 TOD deed that disposes of the same property, and record it in each 22 recording district where the property is located. (3) Transfer the 23 property to someone else during your lifetime by a recorded deed that 24 expressly revokes the TOD deed. You may not revoke the TOD deed 25 by will. 26 I am being pressured to complete this form. What should I 27 do? Do not complete this form under pressure. Seek help from a trusted 28 family member, friend, or lawyer. 29 Do I need to tell the beneficiaries about the TOD deed? No, 30 but it is recommended. Secrecy can cause later complications and 31 might make it easier for others to commit fraud.
01 I have other questions about this form. What should I do? 02 This form is designed to fit some but not all situations. If you have 03 other questions, you are encouraged to consult a lawyer. 04 Sec. 13.48.130. Optional form of revocation. The following form may be 05 used to create an instrument of revocation under this chapter. The provisions of this 06 chapter govern the effect of this or any other instrument used to revoke a transfer on 07 death deed. 08 (front of form) 09 REVOCATION OF TRANSFER ON DEATH DEED 10 NOTICE TO OWNER 11 This revocation must be recorded before you die or it will not 12 be effective. This revocation is effective only as to the interests in the 13 property of owners who sign this revocation. 14 IDENTIFYING INFORMATION 15 Owner or Owners Making This Revocation: 16 _________________________ _________________________ 17 Printed name Mailing address 18 _________________________ 19 Marital status 20 _________________________ _________________________ 21 Printed name Mailing address 22 _________________________ 23 Marital status 24 Legal description of the property: 25 ____________________________________________________ 26 REVOCATION 27 I revoke all my previous transfers of this property by transfer on 28 death deed. 29 SIGNATURE OF OWNER OR OWNERS MAKING THIS 30 REVOCATION 31 _________________________ _________________________
01 Signature Date 02 _________________________ _________________________ 03 Signature Date 04 ACKNOWLEDGMENT 05 State of ______________________________________ Judicial 06 District (or County of ________________________ or Municipality of 07 ___________________) 08 The foregoing instrument was acknowledged before me this 09 (date) by (name of person who acknowledged). 10 _______________________________ 11 Signature of Person Taking 12 Acknowledgment 13 _______________________________ 14 Title or Rank 15 _______________________________ 16 Serial Number, if any 17 (back of form) 18 COMMON QUESTIONS ABOUT THE USE OF THIS FORM 19 How do I use this form to revoke a Transfer on Death 20 (TOD) deed? Complete this form. Have it acknowledged before a 21 notary public or other individual authorized to take acknowledgments. 22 Record the form in the public records in the office of the recorder in 23 each recording district where the property is located. The form must be 24 acknowledged and recorded before your death or it has no effect. 25 How do I find the "legal description" of the property? This 26 information may be on the TOD deed. It may also be available in the 27 office of the recorder in the recording district where the property is 28 located. If you are not absolutely sure, consult a lawyer. 29 How do I "record" the form? Take the completed and 30 acknowledged form to the office of the recorder in the recording district 31 where the property is located. Follow the instructions given by the
01 recorder to make the form part of the official property records. If the 02 property is located in more than one recording district, you should 03 record the form in each of those recording districts. 04 I am being pressured to complete this form. What should I 05 do? Do not complete this form under pressure. Seek help from a trusted 06 family member, friend, or lawyer. 07 I have other questions about this form. What should I do? 08 This form is designed to fit some but not all situations. If you have 09 other questions, consult a lawyer. 10 Sec. 13.48.140. Nonexclusivity. The provisions of this chapter do not affect 11 any method of transferring property otherwise permitted under the law of this state. 12 Sec. 13.48.150. Uniformity of application and construction. In applying and 13 construing this uniform act, consideration shall be given to the need to promote 14 uniformity of the law with respect to its subject matter among the states that enact it. 15 Sec. 13.48.160. Relationship to Electronic Signatures in Global and 16 National Commerce Act. The provisions of this chapter modify, limit, and supersede 17 15 U.S.C. 7001 - 7031 (Electronic Signatures in Global and National Commerce Act), 18 but do not modify, limit, or supersede 15 U.S.C. 7001(c) or authorize electronic 19 delivery of any of the notices described in 15 U.S.C. 7003(b). 20 Sec. 13.48.190. Definitions. In this chapter, 21 (1) "beneficiary" means a person who receives property under a 22 transfer on death deed; 23 (2) "designated beneficiary" means a person designated to receive 24 property in a transfer on death deed; 25 (3) "joint owner" means an individual who is a tenant by the entirety, 26 who is an owner of community property with a right of survivorship, or who otherwise 27 owns property concurrently with one or more other individuals with a right of 28 survivorship, but does not include an individual who is a tenant in common or other 29 owner of community property without a right of survivorship or who is a joint tenant, 30 other than an individual who is a tenant by the entirety; 31 (4) "person" means an individual, corporation, business trust, estate,
01 trust, partnership, limited liability company, association, joint venture, public 02 corporation, government or governmental subdivision, agency, or instrumentality, or 03 any other legal or commercial entity; 04 (5) "property" means an interest in real property located in this state 05 which is transferable on the death of the owner; 06 (6) "transfer on death deed" means a deed authorized under this 07 chapter; 08 (7) "transferor" means an individual who makes a transfer on death 09 deed. 10 Sec. 13.48.195. Short title. This chapter may be cited as the Uniform Real 11 Property Transfer on Death Act. 12 * Sec. 3. AS 13.70.100(e) is amended to read: 13 (e) In the case of an interest created by a beneficiary designation that is 14 disclaimed [MADE] before [THE TIME] the designation becomes irrevocable, the 15 [A] disclaimer shall be delivered to the person making the beneficiary designation. 16 * Sec. 4. AS 13.70.100(f) is amended to read: 17 (f) In the case of an interest created by a beneficiary designation that is 18 disclaimed [MADE] after [THE TIME] the designation becomes irrevocable, the [A] 19 disclaimer of an interest in 20 (1) personal property shall be delivered to the person obligated to 21 distribute the interest; and 22 (2) real property shall be recorded in the office of the recorder in 23 the recording district where the real property that is the subject of the disclaimer 24 is located. 25 * Sec. 5. AS 13.70.130 is amended to read: 26 Sec. 13.70.130. Recording of disclaimer. If an instrument transferring an 27 interest in or power over property subject to a disclaimer is required or permitted by 28 law to be filed, recorded, or registered, the disclaimer may be filed, recorded, or 29 registered as required or permitted by law. Except as otherwise provided in 30 AS 13.70.100(f)(2), failure [FAILURE] to file, record, or register the disclaimer does 31 not affect its validity as between the disclaimant and persons to whom the property
01 interest or power passes by reason of the disclaimer. 02 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 APPLICABILITY. (a) Sections 2 - 5 of this Act apply to a transfer on death deed 05 made on or after the effective date of this Act. In this section, "transfer on death deed" has the 06 meaning given in AS 13.48.190, enacted by sec. 2 of this Act. 07 (b) AS 13.70.100(e), as amended by sec. 3 of this Act, AS 13.70.100(f), as amended 08 by sec. 4 of this Act, and AS 13.70.130, as amended by sec. 5 of this Act, apply to a 09 disclaimer that is made under AS 13.70 on or after the effective date of this Act.