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:

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

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

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CHAPTER 4.1

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UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

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     33-4.1-1. Short title.

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

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Act".

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     33-4.1-2. Definitions.

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     As used in this chapter:

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

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

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

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transferring document.

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

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on death deed.

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     (4) "Individual" means a natural person.

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

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more other individuals with a right of survivorship.

 

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

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survivorship, and tenant by the entirety.

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

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without a right of survivorship.

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

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     (7) "Person" means an individual, corporation, business trust, estate, trust, partnership,

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limited liability company, association, joint venture, public corporation, government or

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governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

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

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on the death of the owner.

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

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

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on death deed.

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     33-4.1-3. Applicability.

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

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

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     33-4.1-4. Nonexclusivity.

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

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under the law of this state.

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

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

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

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

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

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

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contrary provision.

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

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     A transfer on death deed is nontestamentary.

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     33-4.1-8. Capacity of transferor.

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

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required to make a will.

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     33-4.1-9. Requirements.

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     A transfer on death deed shall:

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

 

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deed;

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

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and

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

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recorder's office where the property is located.

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

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     A transfer on death deed is effective without:

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

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transferor's life; or

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     (2) Consideration.

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

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

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

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     (1) Is one of the following:

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

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inconsistency;

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

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

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expressly or by inconsistency; and

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

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

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deed is recorded before the transferor's death.

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

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

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transferor; and

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

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owners.

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

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on the deed.

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

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

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nonademption statutes shall be inapplicable to the deed.

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

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     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

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transfer or encumber the property;

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

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constructive notice of the deed;

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

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

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

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assistance;

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

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

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

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

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on the death of the transferor, the following rules apply to property that is the subject of a transfer

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on death deed and owned by the transferor at death.

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

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the designated beneficiaries in accordance with the deed.

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

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

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transferor lapses.

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

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

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specified in the transfer on death deed.

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     (4) If the transferor has identified two (2) or more designated beneficiaries to receive

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concurrent interests in the property, the share of one that lapses or fails for any reason is

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transferred to the other, or to the others in proportion to the interest of each in the remaining part

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of the property held concurrently.

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     (b) A beneficiary takes the property subject to all conveyances, encumbrances,

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assignments, contracts, mortgages, liens, and other interests to which the property is subject at the

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transferor's death. For purposes of this subsection, the recording of the transfer on death deed is

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considered to have occurred at the transferor's death.

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

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     (1) Survived by one or more other joint owners, the property that is the subject of a

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transfer on death deed belongs to the surviving joint owners with right of survivorship; or

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     (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

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if the deed contains a contrary provision.

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

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

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

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

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on death deed; and

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

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by a governmental agency certifying the transferor's death.

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     33-4.1-14. Disclaimer.

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

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

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

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

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

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deed.

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

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

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their net values at the transferor's death.

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

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

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

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

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

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this chapter govern the effect of this or any other instrument used to create a transfer on death

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deed:

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     (front of form)

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     REVOCABLE TRANSFER ON DEATH DEED FORM

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     NOTICE TO OWNER -- You should carefully read all information on the other side of

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this form. You May Want to Consult a Lawyer Before Using This Form.

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

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must be a named person.

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IDENTIFYING INFORMATION -- Owner or Owners Making This Deed:

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     _________________________ _____________________________

 

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     Printed name Mailing address

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     _________________________ _____________________________

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     Printed name Mailing address

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     Legal description of the property:___________________________________________

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     ______________________________________________________________________

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     PRIMARY BENEFICIARY -- I designate the following beneficiary if the beneficiary

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survives me:

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     _________________________ _____________________________

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     Printed name Mailing address, if available

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     ALTERNATE BENEFICIARY (Optional) -- If my primary beneficiary does not survive

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me, I designate the following alternate beneficiary if that beneficiary survives me:

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     _________________________ _____________________________

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     Printed name Mailing address, if available

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     TRANSFER ON DEATH -- At my death, I transfer my interest in the described property

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to the beneficiaries as designated above. Before my death, I have the right to revoke this deed.

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     SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED

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     _______________________________ __________________ [(SEAL)]

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     Signature Date

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     _______________________________ __________________ [(SEAL)]

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     Signature Date

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     ACKNOWLEDGMENT (insert acknowledgment for deed here)

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     (back of form)

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

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Transfer on Death (TOD) deed do? A. When you die, this deed transfers the described property,

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subject to any liens or mortgages (or other encumbrances) on the property at your death. Probate

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is not required. The TOD deed has no effect until you die. You can revoke it at any time. You are

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also free to transfer the property to someone else during your lifetime. If you do not own any

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interest in the property when you die, this deed will have no effect. Q. How do I make a TOD

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

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

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

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

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"legal description" of the property? A. This information may be on the deed you received when

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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

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

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

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

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

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

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

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

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

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

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

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

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in each city or town where the property is located. (3) Transfer the property to someone else

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during your lifetime by a recorded deed that expressly revokes the TOD deed. You may not

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revoke the TOD deed by will. Q. I am being pressured to complete this form. What should I do?

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

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

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

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

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

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

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

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

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

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questions, you are encouraged to consult a lawyer.

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     33-4.1-17. Optional form of revocation.

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

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

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a transfer on death deed.

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     (front of form)

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     FULL REVOCATION OF TRANSFER ON DEATH DEED

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     NOTICE TO OWNER -- This revocation must be recorded before you die or it will not

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be effective. This revocation is effective only as to the interests in the property of owners who

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sign this revocation.

 

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IDENTIFYING INFORMATION -- Owner or Owners of Property Making This Revocation:

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     _________________________ _____________________________

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     Printed name Mailing address

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     _________________________ _____________________________

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     Printed name Mailing address

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     Legal description of the property:___________________________________________

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     ______________________________________________________________________

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     REVOCATION -- I revoke all my previous transfers of this property by transfer on death

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deed.

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     SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION

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     _______________________________ __________________ [(SEAL)]

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     Signature Date

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     _______________________________ __________________ [(SEAL)]

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     Signature Date

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     ACKNOWLEDGMENT (insert acknowledgment here)

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     (back of form)

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

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form to revoke a Transfer on Death (TOD) deed? A. Complete this form. Have it acknowledged

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before a notary public or other individual authorized to take acknowledgments. Record the form

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in the public records in the office of the city or town recorder where the property is located. The

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

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

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

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

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

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

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

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

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

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

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

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

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

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questions, consult a lawyer.

 

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     33-4.1-18. Uniformity of application and construction.

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     In applying and construing this uniform act, consideration must be given to the need to

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promote uniformity of the law with respect to its subject matter among the states that enact it.

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

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

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

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

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

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     SECTION 2. This act shall take effect upon passage.

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LC001563

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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

***

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

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

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necessity of probate

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     This act would take effect upon passage.

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LC001563

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