2019 -- S 0337

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LC001563

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- RHODE ISLAND UNIFORM

REAL PROPERTY TRANSFER ON DEATH ACT

     Introduced By: Senator Dawn M. Euer

     Date Introduced: February 13, 2019

     Referred To: Senate Judiciary

     (by request)

It is enacted by the General Assembly as follows:

     SECTION 1. Title 33 of the General Laws entitled "PROBATE PRACTICE AND

PROCEDURE" is hereby amended by adding thereto the following chapter:

CHAPTER 4.1

UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

     33-4.1-1. Short title.

     This chapter may be known and cited as the "Uniform Real Property Transfer on Death

Act".

     33-4.1-2. Definitions.

     As used in this chapter:

     (1) "Beneficiary" means a person who receives property under a transfer on death deed.

     (2) "Class gift" means a transfer to a group of persons who are classified by their

relationship to one another or the transferor, and who are not individually named in the

transferring document.

     (3) "Designated beneficiary" means a person designated to receive property in a transfer

on death deed.

     (4) "Individual" means a natural person.

     (5) (i) "Joint owner" means an individual who owns property concurrently with one or

more other individuals with a right of survivorship.

     (ii) "Joint owner" includes a joint tenant, owner of community property with a right of

survivorship, and tenant by the entirety.

     (iii) "Joint owner" does not include a tenant in common or owner of community property

without a right of survivorship.

     (6) "Natural person" means a human being.

     (7) "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.

     (8) "Property" means an interest in real property located in this state that is transferable

on the death of the owner.

     (9) "Transfer on death deed" means a deed authorized under this chapter.

     (10) "Transferor" means an individual, in their individual capacity, who makes a transfer

on death deed.

     33-4.1-3. Applicability.

     This chapter applies to a transfer on death deed made before, on, or after January 1, 2020,

by a transferor dying on or after January 1, 2020.

     33-4.1-4. Nonexclusivity.

     This chapter does not affect any method of transferring property otherwise permitted

under the law of this state.

     33-4.1-5. Transfer on death deed authorized.

      (a) An individual may transfer property to one or more named beneficiaries effective at

the transferor's death by a transfer on death deed.

     (b) A class gift may not be made by a transfer on death deed.

     33-4.1-6. Transfer on death deed revocable.

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

contrary provision.

     33-4.1-7. Transfer on death deed nontestamentary.

     A transfer on death deed is nontestamentary.

     33-4.1-8. Capacity of transferor.

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

required to make a will.

     33-4.1-9. Requirements.

     A transfer on death deed shall:

     (1) Contain the essential elements and formalities of a properly recordable inter vivos

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deed;

     (2) State that the transfer to the designated beneficiary is to occur at the transferor's death;

and

     (3) Be recorded before the transferor's death in the public records in the city or town

recorder's office where the property is located.

     33-4.1-10. Notice, delivery, acceptance, consideration not required.

     A transfer on death deed is effective without:

     (1) Notice or delivery to or acceptance by the designated beneficiary during the

transferor's life; or

     (2) Consideration.

     33-4.1-11. Revocation by instrument authorized -- Revocation by act not permitted.

(a) Subject to subsection (b) of this section, an instrument is effective to revoke a

recorded transfer on death deed, or any part of it, only if the instrument:

     (1) Is one of the following:

     (i) A transfer on death deed that revokes the deed or part of the deed expressly or by

inconsistency;

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

     (iii) An inter vivos deed that revokes the transfer on death deed or part of the deed

expressly or by inconsistency; and

     (2) Is acknowledged by the transferor after the acknowledgment of the deed being

revoked and recorded in the public records in the office of the city or town recorder where the

deed is recorded before the transferor's death.

     (b) If a transfer on death deed is made by more than one transferor:

     (1) Revocation by a transferor does not affect the deed as to the interest of another

transferor; and

     (2) A deed of joint owners is revoked only if it is revoked by all of the living joint

owners.

     (c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act

on the deed.

     (d) This section does not limit the effect of an inter vivos transfer of the property.

     (e) Property subject to a revocation of a transfer on death deed shall adeem, and

nonademption statutes shall be inapplicable to the deed.

     33-4.1-12. Effect of transfer on death deed during transferor's life.

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

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     (1) Affect an interest or right of the transferor or any other owner, including the right to

transfer or encumber the property;

     (2) Affect an interest or right of a transferee, even if the transferee has actual or

constructive notice of the deed;

     (3) Affect an interest or right of the transferor's secured or unsecured creditors or future

creditors, even if they have actual or constructive notice of the deed;

     (4) Affect the transferor's or designated beneficiary's eligibility for any form of public

assistance;

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

     (6) Subject the property to claims or process of the designated beneficiary's creditors.

     33-4.1-13. Effect of transfer on death deed at transferor's death.

     (a) Except as otherwise provided in the transfer on death deed and chapter 1.1 of this title,

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.

     (1) Subject to subsection (2) of this section, the interests in the property are transferred to

the designated beneficiaries in accordance with the deed.

     (2) The interest of a designated beneficiary is contingent on the designated beneficiary

surviving the transferor and the interest of a designated beneficiary that fails to survive the

transferor lapses.

     (3) Subject to subsection (4) of this section, concurrent interests are transferred to the

beneficiaries in equal and undivided shares with no right of survivorship, unless otherwise

specified in the transfer on death deed.

     (4) If the transferor has identified two (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.

     (b) 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, the recording of the transfer on death deed is

considered to have occurred at the transferor's death.

     (c) If a transferor is a joint owner and is:

     (1) 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 owners with right of survivorship; or

     (2) The last surviving joint owner, the transfer on death deed is effective.

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     (d) A transfer on death deed transfers property without covenant or warranty of title even

if the deed contains a contrary provision.

     (e) Following the death of the transferor, an affidavit shall be recorded in the office of the

recorder of the city or town in which the affected property is located. Each affidavit shall:

     (1) Contain a legal description of the real property that is affected;

     (2) Reference the entry number and the book and page of the previously recorded transfer

on death deed; and

     (3) Have attached as an exhibit, a copy of the death certificate or other document issued

by a governmental agency certifying the transferor's death.

     33-4.1-14. Disclaimer.

     A beneficiary may disclaim all or part of the beneficiary's interest.

     33-4.1-15. Liability for creditor claims and statutory allowances.

     (a) To the extent the transferor's probate estate is insufficient to satisfy an allowed claim

against the estate or a statutory allowance to a surviving spouse or child, only the estate may

enforce the liability against property transferred at the transferor's death by a transfer on death

deed.

     (b) If more than one property is transferred by one or more transfer on death deeds, the

liability under subsection (a) of this section is apportioned among the properties in proportion to

their net values at the transferor's death.

     (c) A probate proceeding to enforce the liability under this section shall be commenced

not later than twelve (12) months after the transferor's death.

     (d) The estate may expressly waive the estate's claim against the property.

     33-4.1-16. Form of transfer on death deed.

     The following form may be used to create a transfer on death deed. The other sections of

this chapter 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 FORM

     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. The beneficiary

must be a named person.

IDENTIFYING INFORMATION -- Owner or Owners Making This Deed:

     _________________________ _____________________________

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     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)]

     Signature Date

     _______________________________ __________________ [(SEAL)]

     Signature Date

     ACKNOWLEDGMENT (insert acknowledgment for deed here)

     (back of form)

     COMMON QUESTIONS ABOUT THE USE OF THIS FORM Q. What does the

Transfer on Death (TOD) deed do? A. 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. Q. How do I make a TOD

deed? A. Complete this form. Have it acknowledged before a notary public or other individual

authorized by law to take acknowledgments. Record the form in each city or town where any part

of the property is located. The form has no effect unless it is acknowledged and recorded before

your death. Q. Is the "legal description" of the property necessary? A. Yes. Q. How do I find the

"legal description" of the property? A. 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 office of the

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city or town recorder where the property is located. If you are not absolutely sure, consult a

lawyer. Q. Can I change my mind before I record the TOD deed? A. Yes. If you have not yet

recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed. Q.

How do I "record" the TOD deed? A. Take the completed and acknowledged form to the office of

the city or town recorder where the property is located. Follow the instructions given by the city

or town recorder to make the form part of the official property records. If the property is in more

than one city or town, you should record the deed in each city or town. Q. Can I later revoke the

TOD deed if I change my mind? A. Yes. The TOD deed is revocable. No one, including the

beneficiaries, can prevent you from revoking the deed. Q. How do I revoke the TOD deed after it

is recorded? A. There are three (3) ways to revoke a recorded TOD deed: (1) Complete and

acknowledge a revocation form, and record it in each city or town where the property is located.

(2) Complete and acknowledge a new TOD deed that disposes of the same property, and record it

in each city or town 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. Q. I am being pressured to complete this form. What should I do?

A. Do not complete this form under pressure. Seek help from a trusted family member, a friend,

or a lawyer. Q. Do I need to tell the beneficiaries about the TOD deed? A. No, but it is

recommended. Secrecy can cause later complications and might make it easier for others to

commit fraud. Q. If I sign a TOD deed and designate my two (2) children as beneficiaries, and

one of them dies before me, does the interest of my child that dies before me pass to his or her

children? A. No. Everything will go to your surviving child unless you record a new transfer on

death deed to state otherwise. If you have questions regarding how to word a new transfer on

death deed, you are encouraged to consult a lawyer. Q. I have other questions about this form.

What should I do? A. This form is designed to fit some but not all situations. If you have other

questions, you are encouraged to consult a lawyer.

     33-4.1-17. Optional form of revocation.

     The following form may be used to create an instrument of revocation under this chapter.

The other sections of this chapter govern the effect of this or any other instrument used to revoke

a transfer on death deed.

     (front of form)

     FULL 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.

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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)]

     Signature Date

     _______________________________ __________________ [(SEAL)]

     Signature Date

     ACKNOWLEDGMENT (insert acknowledgment here)

     (back of form)

     COMMON QUESTIONS ABOUT THE USE OF THIS FORM Q. How do I use this

form to revoke a Transfer on Death (TOD) deed? A. 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 office of the city or town recorder where the property is located. The

form must be acknowledged and recorded before your death or it has no effect. Q. How do I find

the "legal description" of the property? A. This information may be on the TOD deed. It may also

be available in the office of the city or town recorder where the property is located. If you are not

absolutely sure, consult a lawyer. Q. How do I "record" the form? A. Take the completed and

acknowledged form to the office of the city or town recorder where the property is located.

Follow the instructions given by the city or town recorder to make the form part of the official

property records. If the property is located in more than one city or town, you should record the

form in each of those cities and towns. Q. I am being pressured to complete this form. What

should I do? A. Do not complete this form under pressure. Seek help from a trusted family

member, a friend, or a lawyer. Q. Can this form be used for a partial revocation of a previously

filed TOD deed? A. No. This form is to be used for full revocation of a deed. In the case of a

partial revocation, a new TOD deed must be filed. Q. I have other questions about this form.

What should I do? A. This form is designed to fit some but not all situations. If you have other

questions, consult a lawyer.

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     33-4.1-18. 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.

     33-4.1-19. Relation to electronic signatures in global and national commerce act.

     This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global

and National Commerce Act, 15 U.S.C. § 7001, et seq., but does not modify, limit, or supersede §

101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices

described in § 103(b) of that act, 15 U.S.C. § 7003(b).

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE -- RHODE ISLAND UNIFORM

REAL PROPERTY TRANSFER ON DEATH ACT

***

     This act would allow an owner or owners of real property to execute a deed that names

one or more beneficiaries who will obtain title to the property at the owner's death without the

necessity of probate

     This act would take effect upon passage.

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