2020 -- H 7729 | |
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LC004485 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2020 | |
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A N A C T | |
RELATING TO PROBATE PRACTICE AND PROCEDURE -- RHODE ISLAND UNIFORM | |
REAL PROPERTY TRANSFER ON DEATH ACT | |
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Introduced By: Representative Lauren H. Carson | |
Date Introduced: February 26, 2020 | |
Referred To: House Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 33 of the General Laws entitled "PROBATE PRACTICE AND |
2 | PROCEDURE" is hereby amended by adding thereto the following chapter: |
3 | CHAPTER 4.1 |
4 | UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT |
5 | 33-4.1-1. Short title. |
6 | This chapter may be known and cited as the "Uniform Real Property Transfer on Death |
7 | Act". |
8 | 33-4.1-2. Definitions. |
9 | As used in this chapter: |
10 | (1) "Beneficiary" means a person who receives property under a transfer on death deed. |
11 | (2) "Class gift" means a transfer to a group of persons who are classified by their |
12 | relationship to one another or the transferor, and who are not individually named in the transferring |
13 | document. |
14 | (3) "Designated beneficiary" means a person designated to receive property in a transfer |
15 | on death deed. |
16 | (4) "Individual" means a natural person. |
17 | (5) (i) "Joint owner" means an individual who owns property concurrently with one or |
18 | more other individuals with a right of survivorship. |
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1 | (ii) "Joint owner" includes a joint tenant, owner of community property with a right of |
2 | survivorship, and tenant by the entirety. |
3 | (iii) "Joint owner" does not include a tenant in common or owner of community property |
4 | without a right of survivorship. |
5 | (6) "Natural person" means a human being. |
6 | (7) "Person" means an individual, corporation, business trust, estate, trust, partnership, |
7 | limited liability company, association, joint venture, public corporation, government or |
8 | governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. |
9 | (8) "Property" means an interest in real property located in this state that is transferable on |
10 | the death of the owner. |
11 | (9) "Transfer on death deed" means a deed authorized under this chapter. |
12 | (10) "Transferor" means an individual, in their individual capacity, who makes a transfer |
13 | on death deed. |
14 | 33-4.1-3. Applicability. |
15 | This chapter applies to a transfer on death deed made before, on, or after January 1, 2021, |
16 | by a transferor dying on or after January 1, 2021. |
17 | 33-4.1-4. Nonexclusivity. |
18 | This chapter does not affect any method of transferring property otherwise permitted under |
19 | the law of this state. |
20 | 33-4.1-5. Transfer on death deed authorized. |
21 | (a) An individual may transfer property to one or more named beneficiaries effective at the |
22 | transferor's death by a transfer on death deed. |
23 | (b) A class gift may not be made by a transfer on death deed. |
24 | 33-4.1-6. Transfer on death deed revocable. |
25 | A transfer on death deed is revocable even if the deed or another instrument contains a |
26 | contrary provision. |
27 | 33-4.1-7. Transfer on death deed nontestamentary. |
28 | A transfer on death deed is nontestamentary. |
29 | 33-4.1-8. Capacity of transferor. |
30 | The capacity required to make or revoke a transfer on death deed is the same as that |
31 | required to make a will. |
32 | 33-4.1-9. Requirements. |
33 | A transfer on death deed shall: |
34 | (1) Contain the essential elements and formalities of a properly recordable inter vivos deed; |
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1 | (2) State that the transfer to the designated beneficiary is to occur at the transferor's death; |
2 | and |
3 | (3) Be recorded before the transferor's death in the public records in the city or town |
4 | recorder's office where the property is located. |
5 | 33-4.1-10. Notice, delivery, acceptance, consideration not required. |
6 | A transfer on death deed is effective without: |
7 | (1) Notice or delivery to or acceptance by the designated beneficiary during the transferor's |
8 | life; or |
9 | (2) Consideration. |
10 | 33-4.1-11. Revocation by instrument authorized -- Revocation by act not permitted. |
11 | (a) Subject to subsection (b) of this section, an instrument is effective to revoke a recorded |
12 | transfer on death deed, or any part of it, only if the instrument: |
13 | (1) Is one of the following: |
14 | (i) A transfer on death deed that revokes the deed or part of the deed expressly or by |
15 | inconsistency; |
16 | (ii) An instrument of revocation that expressly revokes the deed or part of the deed; or |
17 | (iii) An inter vivos deed that revokes the transfer on death deed or part of the deed expressly |
18 | or by inconsistency; and |
19 | (2) Is acknowledged by the transferor after the acknowledgment of the deed being revoked |
20 | and recorded in the public records in the office of the city or town recorder where the deed is |
21 | recorded before the transferor's death. |
22 | (b) If a transfer on death deed is made by more than one transferor: |
23 | (1) Revocation by a transferor does not affect the deed as to the interest of another |
24 | transferor; and |
25 | (2) A deed of joint owners is revoked only if it is revoked by all of the living joint owners. |
26 | (c) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on |
27 | the deed. |
28 | (d) This section does not limit the effect of an inter vivos transfer of the property. |
29 | (e) Property subject to a revocation of a transfer on death deed shall adeem, and |
30 | nonademption statutes shall be inapplicable to the deed. |
31 | 33-4.1-12. Effect of transfer on death deed during transferor's life. |
32 | During a transferor's life, a transfer on death deed does not: |
33 | (1) Affect an interest or right of the transferor or any other owner, including the right to |
34 | transfer or encumber the property; |
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1 | (2) Affect an interest or right of a transferee, even if the transferee has actual or constructive |
2 | notice of the deed; |
3 | (3) Affect an interest or right of the transferor's secured or unsecured creditors or future |
4 | creditors, even if they have actual or constructive notice of the deed; |
5 | (4) Affect the transferor's or designated beneficiary's eligibility for any form of public |
6 | assistance; |
7 | (5) Create a legal or equitable interest in favor of the designated beneficiary; or |
8 | (6) Subject the property to claims or process of the designated beneficiary's creditors. |
9 | 33-4.1-13. Effect of transfer on death deed at transferor's death. |
10 | (a) Except as otherwise provided in the transfer on death deed and chapter 1.1 of this title, |
11 | on the death of the transferor, the following rules apply to property that is the subject of a transfer |
12 | on death deed and owned by the transferor at death. |
13 | (1) Subject to subsection (a)(2) of this section, the interests in the property are transferred |
14 | to the designated beneficiaries in accordance with the deed. |
15 | (2) The interest of a designated beneficiary is contingent on the designated beneficiary |
16 | surviving the transferor and the interest of a designated beneficiary that fails to survive the |
17 | transferor lapses. |
18 | (3) Subject to subsection (a)(4) of this section, concurrent interests are transferred to the |
19 | beneficiaries in equal and undivided shares with no right of survivorship, unless otherwise specified |
20 | in the transfer on death deed. |
21 | (4) If the transferor has identified two (2) or more designated beneficiaries to receive |
22 | concurrent interests in the property, the share of one that lapses or fails for any reason is transferred |
23 | to the other, or to the others in proportion to the interest of each in the remaining part of the property |
24 | held concurrently. |
25 | (b) A beneficiary takes the property subject to all conveyances, encumbrances, |
26 | assignments, contracts, mortgages, liens, and other interests to which the property is subject at the |
27 | transferor's death. For purposes of this subsection, the recording of the transfer on death deed is |
28 | considered to have occurred at the transferor's death. |
29 | (c) If a transferor is a joint owner and is: |
30 | (1) Survived by one or more other joint owners, the property that is the subject of a transfer |
31 | on death deed belongs to the surviving joint owners with right of survivorship; or |
32 | (2) The last surviving joint owner, the transfer on death deed is effective. |
33 | (d) A transfer on death deed transfers property without covenant or warranty of title even |
34 | if the deed contains a contrary provision. |
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1 | (e) Following the death of the transferor, an affidavit shall be recorded in the office of the |
2 | recorder of the city or town in which the affected property is located. Each affidavit shall: |
3 | (1) Contain a legal description of the real property that is affected; |
4 | (2) Reference the entry number and the book and page of the previously recorded transfer |
5 | on death deed; and |
6 | (3) Have attached as an exhibit, a copy of the death certificate or other document issued by |
7 | a governmental agency certifying the transferor's death. |
8 | (f) Upon the filing and recording of the affidavit required in subsection (e) of this section, |
9 | the beneficiary or beneficiaries shall pay to the clerk the costs of recording the certificate and the |
10 | transfer tax based on the assessed tax value of the property at the time of recording. |
11 | 33-4.1-14. Disclaimer. |
12 | A beneficiary may disclaim all or part of the beneficiary's interest. |
13 | 33-4.1-15. Liability for creditor claims and statutory allowances. |
14 | (a) To the extent the transferor's probate estate is insufficient to satisfy an allowed claim |
15 | against the estate or a statutory allowance to a surviving spouse or child, only the estate may enforce |
16 | the liability against property transferred at the transferor's death by a transfer on death deed. |
17 | (b) If more than one property is transferred by one or more transfer on death deeds, the |
18 | liability under subsection (a) of this section is apportioned among the properties in proportion to |
19 | their net values at the transferor's death. |
20 | (c) A probate proceeding to enforce the liability under this section shall be commenced not |
21 | later than twelve (12) months after the transferor's death. |
22 | (d) The estate may expressly waive the estate's claim against the property. |
23 | 33-4.1-16. Right of transferor's estate to void transfer on death deed. |
24 | (a) In the event that the beneficiary or beneficiaries are unable to afford any and all |
25 | mortgage payments relating to any existing mortgage or other interest in the property pursuant to § |
26 | 33-4.1-13(b) and the property is placed in foreclosure by the mortgagee or subject to any tax sales |
27 | or enforcement actions that will result in the loss of title to the property, the transferor's estate shall |
28 | have a right to void the transfer on death deed. |
29 | (b) The right to void the deed shall be contingent on the estate's ability: |
30 | (1) To satisfy the mortgage in full or upon the sale of the property; |
31 | (2) To pay all taxes due, outstanding liens and any other interests in full or upon sale of the |
32 | property; and |
33 | (3) To reimburse the beneficiary or beneficiaries all costs of recording described in § 33- |
34 | 4.1-13(f), including the transfer tax paid. |
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1 | (c) A probate proceeding or civil action to enforce the right to void the transfer on death |
2 | deed under this section shall be commenced not later than twelve (12) months after the transferor's |
3 | death. |
4 | 33-4.1-17. Form of transfer on death deed. |
5 | The following form may be used to create a transfer on death deed. The other sections of |
6 | this chapter govern the effect of this or any other instrument used to create a transfer on death deed: |
7 | (front of form) |
8 | REVOCABLE TRANSFER ON DEATH DEED FORM |
9 | NOTICE TO OWNER -- You should carefully read all information on the other side of |
10 | this form. You May Want to Consult a Lawyer Before Using This Form. |
11 | This form must be recorded before your death, or it will not be effective. The beneficiary |
12 | must be a named person. |
13 | IDENTIFYING INFORMATION -- Owner or Owners Making This Deed: |
14 | _________________________ _____________________________ |
15 | Printed name Mailing address |
16 | _________________________ _____________________________ |
17 | Printed name Mailing address |
18 | Legal description of the property:___________________________________________ |
19 | ______________________________________________________________________ |
20 | PRIMARY BENEFICIARY -- I designate the following beneficiary if the beneficiary |
21 | survives me: |
22 | _________________________ _____________________________ |
23 | Printed name Mailing address, if available |
24 | ALTERNATE BENEFICIARY (Optional) -- If my primary beneficiary does not survive |
25 | me, I designate the following alternate beneficiary if that beneficiary survives me: |
26 | _________________________ _____________________________ |
27 | Printed name Mailing address, if available |
28 | TRANSFER ON DEATH -- At my death, I transfer my interest in the described property |
29 | to the beneficiaries as designated above. Before my death, I have the right to revoke this deed. |
30 | SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED |
31 | _______________________________ __________________ [(SEAL)] |
32 | Signature Date |
33 | _______________________________ __________________ [(SEAL)] |
34 | Signature Date |
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1 | ACKNOWLEDGMENT (insert acknowledgment for deed here) |
2 | (back of form) |
3 | COMMON QUESTIONS ABOUT THE USE OF THIS FORM Q. What does the Transfer |
4 | on Death (TOD) deed do? A. When you die, this deed transfers the described property, subject to |
5 | any liens or mortgages (or other encumbrances) on the property at your death. Probate is not |
6 | required. The TOD deed has no effect until you die. You can revoke it at any time. You are also |
7 | free to transfer the property to someone else during your lifetime. If you do not own any interest in |
8 | the property when you die, this deed will have no effect. Q. How do I make a TOD deed? A. |
9 | Complete this form. Have it acknowledged before a notary public or other individual authorized by |
10 | law to take acknowledgments. Record the form in each city or town where any part of the property |
11 | is located. The form has no effect unless it is acknowledged and recorded before your death. Q. Is |
12 | the "legal description" of the property necessary? A. Yes. Q. How do I find the "legal description" |
13 | of the property? A. This information may be on the deed you received when you became an owner |
14 | of the property. This information may also be available in the office of the city or town recorder |
15 | where the property is located. If you are not absolutely sure, consult a lawyer. Q. Can I change my |
16 | mind before I record the TOD deed? A. Yes. If you have not yet recorded the deed and want to |
17 | change your mind, simply tear up or otherwise destroy the deed. Q. How do I "record" the TOD |
18 | deed? A. Take the completed and acknowledged form to the office of the city or town recorder |
19 | where the property is located. Follow the instructions given by the city or town recorder to make |
20 | the form part of the official property records. If the property is in more than one city or town, you |
21 | should record the deed in each city or town. Q. Can I later revoke the TOD deed if I change my |
22 | mind? A. Yes. The TOD deed is revocable. No one, including the beneficiaries, can prevent you |
23 | from revoking the deed. Q. How do I revoke the TOD deed after it is recorded? A. There are three |
24 | (3) ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revocation form, and |
25 | record it in each city or town where the property is located. (2) Complete and acknowledge a new |
26 | TOD deed that disposes of the same property, and record it in each city or town where the property |
27 | is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that |
28 | expressly revokes the TOD deed. You may not revoke the TOD deed by will. Q. I am being |
29 | pressured to complete this form. What should I do? A. Do not complete this form under pressure. |
30 | Seek help from a trusted family member, a friend, or a lawyer. Q. Do I need to tell the beneficiaries |
31 | about the TOD deed? A. No, but it is recommended. Secrecy can cause later complications and |
32 | might make it easier for others to commit fraud. Q. If I sign a TOD deed and designate my two (2) |
33 | children as beneficiaries, and one of them dies before me, does the interest of my child that dies |
34 | before me pass to his or her children? A. No. Everything will go to your surviving child unless you |
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1 | record a new transfer on death deed to state otherwise. If you have questions regarding how to word |
2 | a new transfer on death deed, you are encouraged to consult a lawyer. Q. I have other questions |
3 | about this form. What should I do? A. This form is designed to fit some but not all situations. If |
4 | you have other questions, you are encouraged to consult a lawyer. |
5 | 33-4.1-18. Optional form of revocation. |
6 | The following form may be used to create an instrument of revocation under this chapter. |
7 | The other sections of this chapter govern the effect of this or any other instrument used to revoke a |
8 | transfer on death deed. |
9 | (front of form) |
10 | FULL REVOCATION OF TRANSFER ON DEATH DEED |
11 | NOTICE TO OWNER -- This revocation must be recorded before you die or it will not be |
12 | effective. This revocation is effective only as to the interests in the property of owners who sign |
13 | this revocation. |
14 | IDENTIFYING INFORMATION -- Owner or Owners of Property Making This Revocation: |
15 | _________________________ _____________________________ |
16 | Printed name Mailing address |
17 | _________________________ _____________________________ |
18 | Printed name Mailing address |
19 | Legal description of the property:___________________________________________ |
20 | ______________________________________________________________________ |
21 | REVOCATION -- I revoke all my previous transfers of this property by transfer on death |
22 | deed. |
23 | SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION |
24 | _______________________________ __________________ [(SEAL)] |
25 | Signature Date |
26 | _______________________________ __________________ [(SEAL)] |
27 | Signature Date |
28 | ACKNOWLEDGMENT (insert acknowledgment here) |
29 | (back of form) |
30 | COMMON QUESTIONS ABOUT THE USE OF THIS FORM Q. How do I use this form |
31 | to revoke a Transfer on Death (TOD) deed? A. Complete this form. Have it acknowledged before |
32 | a notary public or other individual authorized to take acknowledgments. Record the form in the |
33 | public records in the office of the city or town recorder where the property is located. The form |
34 | must be acknowledged and recorded before your death or it has no effect. Q. How do I find the |
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1 | "legal description" of the property? A. This information may be on the TOD deed. It may also be |
2 | available in the office of the city or town recorder where the property is located. If you are not |
3 | absolutely sure, consult a lawyer. Q. How do I "record" the form? A. Take the completed and |
4 | acknowledged form to the office of the city or town recorder where the property is located. Follow |
5 | the instructions given by the city or town recorder to make the form part of the official property |
6 | records. If the property is located in more than one city or town, you should record the form in each |
7 | of those cities and towns. Q. I am being pressured to complete this form. What should I do? A. Do |
8 | not complete this form under pressure. Seek help from a trusted family member, a friend, or a |
9 | lawyer. Q. Can this form be used for a partial revocation of a previously filed TOD deed? A. No. |
10 | This form is to be used for full revocation of a deed. In the case of a partial revocation, a new TOD |
11 | deed must be filed. Q. I have other questions about this form. What should I do? A. This form is |
12 | designed to fit some but not all situations. If you have other questions, consult a lawyer. |
13 | 33-4.1-19. Uniformity of application and construction. |
14 | In applying and construing this uniform act, consideration must be given to the need to |
15 | promote uniformity of the law with respect to its subject matter among the states that enact it. |
16 | 33-4.1-20. Relation to electronic signatures in global and national commerce act. |
17 | This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global |
18 | and National Commerce Act, 15 U.S.C. § 7001, et seq., but does not modify, limit, or supersede § |
19 | 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices |
20 | described in § 103(b) of that act, 15 U.S.C. § 7003(b). |
21 | 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 | |
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1 | This act would allow an owner or owners of real property to execute a deed that names one |
2 | or more beneficiaries who will obtain title to the property at the owner's death without the necessity |
3 | of probate |
4 | This act would take effect upon passage. |
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