1     
UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: V. Lowry Snow

5     
Senate Sponsor: Lyle W. Hillyard

6     

7     LONG TITLE
8     Committee Note:
9          The Judiciary Interim Committee recommended this bill.
10     General Description:
11          This bill enacts the Uniform Real Property Transfer on Death Act.
12     Highlighted Provisions:
13          This bill:
14          ▸     creates a new part in the Utah Uniform Probate Code entitled the Uniform Real
15     Property Transfer on Death Act;
16          ▸     defines terms;
17          ▸     specifically applies only to deeds created by a person who dies on or after May 9,
18     2017;
19          ▸     provides that the act is nonexclusive and does not affect any other method of
20     transferring real property allowed under Utah law;
21          ▸     makes clear that the transfer of property only occurs upon the transferor's death;
22          ▸     provides that a transfer on death deed is revocable and nontestamentary; and
23          ▸     requires that the transferor have the same capacity as that required to make a will at
24     the time the deed is made.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:

28          None
29     Utah Code Sections Affected:
30     ENACTS:
31          75-6-401, Utah Code Annotated 1953
32          75-6-402, Utah Code Annotated 1953
33          75-6-403, Utah Code Annotated 1953
34          75-6-404, Utah Code Annotated 1953
35          75-6-405, Utah Code Annotated 1953
36          75-6-406, Utah Code Annotated 1953
37          75-6-407, Utah Code Annotated 1953
38          75-6-408, Utah Code Annotated 1953
39          75-6-409, Utah Code Annotated 1953
40          75-6-410, Utah Code Annotated 1953
41          75-6-411, Utah Code Annotated 1953
42          75-6-412, Utah Code Annotated 1953
43          75-6-413, Utah Code Annotated 1953
44          75-6-414, Utah Code Annotated 1953
45          75-6-415, Utah Code Annotated 1953
46          75-6-416, Utah Code Annotated 1953
47          75-6-417, Utah Code Annotated 1953
48          75-6-418, Utah Code Annotated 1953
49          75-6-419, Utah Code Annotated 1953
50     

51     Be it enacted by the Legislature of the state of Utah:
52          Section 1. Section 75-6-401 is enacted to read:
53     
CHAPTER 6. UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

54          75-6-401. Title.
55          This chapter is known as the "Uniform Real Property Transfer on Death Act."
56          Section 2. Section 75-6-402 is enacted to read:
57          75-6-402. Definitions.
58          As used in this chapter:

59          (1) "Beneficiary" means a person who receives property under a transfer on death deed.
60          (2) "Class gift" means a transfer to a group of persons who are classified by their
61     relationship to one another or the transferor, and who are not individually named in the
62     transferring document.
63          (3) "Designated beneficiary" means a person designated to receive property in a
64     transfer on death deed.
65          (4) "Individual" means a natural person.
66          (5) "Joint owner" means an individual who owns property concurrently with one or
67     more other individuals with a right of survivorship. The term includes a joint tenant, owner of
68     community property with a right of survivorship, and tenant by the entirety. The term does not
69     include a tenant in common or owner of community property without a right of survivorship.
70          (6) "Natural person" means a human being.
71          (7) "Person" means an individual, corporation, business trust, estate, trust, partnership,
72     limited liability company, association, joint venture, public corporation, government or
73     governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
74          (8) "Property" means an interest in real property located in this state that is transferable
75     on the death of the owner.
76          (9) "Transfer on death deed" means a deed authorized under this chapter.
77          (10) "Transferor" means an individual, in their individual capacity, who makes a
78     transfer on death deed.
79          Section 3. Section 75-6-403 is enacted to read:
80          75-6-403. Applicability.
81          This chapter applies to a transfer on death deed made before, on, or after May 9, 2017,
82     by a transferor dying on or after May 9, 2017.
83          Section 4. Section 75-6-404 is enacted to read:
84          75-6-404. Nonexclusivity.
85          This chapter does not affect any method of transferring property otherwise permitted
86     under the law of this state.
87          Section 5. Section 75-6-405 is enacted to read:
88          75-6-405. Transfer on death deed authorized.
89          (1) An individual may transfer property to one or more named beneficiaries effective at

90     the transferor's death by a transfer on death deed.
91          (2) A class gift may not be made by a transfer on death deed.
92          Section 6. Section 75-6-406 is enacted to read:
93          75-6-406. Transfer on death deed revocable.
94          A transfer on death deed is revocable even if the deed or another instrument contains a
95     contrary provision.
96          Section 7. Section 75-6-407 is enacted to read:
97          75-6-407. Transfer on death deed nontestamentary.
98          A transfer on death deed is nontestamentary.
99          Section 8. Section 75-6-408 is enacted to read:
100          75-6-408. Capacity of transferor.
101          The capacity required to make or revoke a transfer on death deed is the same as that
102     required to make a will.
103          Section 9. Section 75-6-409 is enacted to read:
104          75-6-409. Requirements.
105          A transfer on death deed shall:
106          (1) contain the essential elements and formalities of a properly recordable inter vivos
107     deed;
108          (2) state that the transfer to the designated beneficiary is to occur at the transferor's
109     death; and
110          (3) be recorded before the transferor's death in the public records in the county
111     recorder's office of the county where the property is located.
112          Section 10. Section 75-6-410 is enacted to read:
113          75-6-410. Notice, delivery, acceptance, consideration not required.
114          A transfer on death deed is effective without:
115          (1) notice or delivery to or acceptance by the designated beneficiary during the
116     transferor's life; or
117          (2) consideration.
118          Section 11. Section 75-6-411 is enacted to read:
119          75-6-411. Revocation by instrument authorized -- Revocation by act not
120     permitted.

121          (1) Subject to Subsection (2), an instrument is effective to revoke a recorded transfer
122     on death deed, or any part of it, only if the instrument:
123          (a) is one of the following:
124          (i) a transfer on death deed that revokes the deed or part of the deed expressly or by
125     inconsistency;
126          (ii) an instrument of revocation that expressly revokes the deed or part of the deed; or
127          (iii) an inter vivos deed that revokes the transfer on death deed or part of the deed
128     expressly or by inconsistency; and
129          (b) is acknowledged by the transferor after the acknowledgment of the deed being
130     revoked and recorded in the public records in the office of the county recorder where the deed
131     is recorded before the transferor's death.
132          (2) If a transfer on death deed is made by more than one transferor:
133          (a) revocation by a transferor does not affect the deed as to the interest of another
134     transferor; and
135          (b) a deed of joint owners is revoked only if it is revoked by all of the living joint
136     owners.
137          (3) After a transfer on death deed is recorded, it may not be revoked by a revocatory act
138     on the deed.
139          (4) This section does not limit the effect of an inter vivos transfer of the property.
140          (5) Property subject to a revocation of a transfer on death deed shall adeem and
141     nonademption statutes shall be inapplicable to the deed.
142          Section 12. Section 75-6-412 is enacted to read:
143          75-6-412. Effect of transfer on death deed during transferor's life.
144          During a transferor's life, a transfer on death deed does not:
145          (1) affect an interest or right of the transferor or any other owner, including the right to
146     transfer or encumber the property;
147          (2) affect an interest or right of a transferee, even if the transferee has actual or
148     constructive notice of the deed;
149          (3) affect an interest or right of the transferor's secured or unsecured creditors or future
150     creditors, even if they have actual or constructive notice of the deed;
151          (4) affect the transferor's or designated beneficiary's eligibility for any form of public

152     assistance;
153          (5) create a legal or equitable interest in favor of the designated beneficiary; or
154          (6) subject the property to claims or process of the designated beneficiary's creditors.
155          Section 13. Section 75-6-413 is enacted to read:
156          75-6-413. Effect of transfer on death deed at transferor's death.
157          (1) Except as otherwise provided in the transfer on death deed, Sections 75-2-205,
158     75-2-702, 75-2-803, and 75-2-804 on the death of the transferor, the following rules apply to
159     property that is the subject of a transfer on death deed and owned by the transferor at death.
160          (a) Subject to Subsection (1)(b), the interests in the property are transferred to the
161     designated beneficiaries in accordance with the deed.
162          (b) The interest of a designated beneficiary is contingent on the designated beneficiary
163     surviving the transferor. Notwithstanding Section 75-2-706, the interest of a designated
164     beneficiary that fails to survive the transferor lapses.
165          (c) Subject to Subsection (1)(d), concurrent interests are transferred to the beneficiaries
166     in equal and undivided shares with no right of survivorship, unless otherwise specified in the
167     transfer on death deed.
168          (d) If the transferor has identified two or more designated beneficiaries to receive
169     concurrent interests in the property, the share of one that lapses or fails for any reason is
170     transferred to the other, or to the others in proportion to the interest of each in the remaining
171     part of the property held concurrently.
172          (2) Subject to Title 57, Chapter 3, Recording of Documents, a beneficiary takes the
173     property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens,
174     and other interests to which the property is subject at the transferor's death. For purposes of
175     this Subsection (2) and Title 57, Chapter 3, Recording of Documents, the recording of the
176     transfer on death deed is considered to have occurred at the transferor's death.
177          (3) If a transferor is a joint owner and is:
178          (a) survived by one or more other joint owners, the property that is the subject of a
179     transfer on death deed belongs to the surviving joint owner or owners with right of
180     survivorship; or
181          (b) the last surviving joint owner, the transfer on death deed is effective.
182          (4) A transfer on death deed transfers property without covenant or warranty of title

183     even if the deed contains a contrary provision.
184          (5) Following the death of the transferor, an affidavit in substantially the form found in
185     Section 57-1-5.1 shall be recorded in the office of the recorder of the county in which the
186     affected property is located. Each affidavit shall:
187          (a) contain a legal description of the real property that is affected;
188          (b) reference the entry number and the book and page of the previously recorded
189     transfer on death deed; and
190          (c) have attached as an exhibit, a copy of the death certificate or other document issued
191     by a governmental agency as described in Section 75-1-107 certifying the transferor's death.
192          Section 14. Section 75-6-414 is enacted to read:
193          75-6-414. Disclaimer.
194          A beneficiary may disclaim all or part of the beneficiary's interest.
195          Section 15. Section 75-6-415 is enacted to read:
196          75-6-415. Liability for creditor claims and statutory allowances.
197          (1) To the extent the transferor's probate estate is insufficient to satisfy an allowed
198     claim against the estate or a statutory allowance to a surviving spouse or child, the estate may
199     enforce the liability against property transferred at the transferor's death by a transfer on death
200     deed.
201          (2) If more than one property is transferred by one or more transfer on death deeds, the
202     liability under Subsection (1) is apportioned among the properties in proportion to their net
203     values at the transferor's death.
204          (3) A proceeding to enforce the liability under this section shall be commenced not
205     later than 18 months after the transferor's death.
206          Section 16. Section 75-6-416 is enacted to read:
207          75-6-416. Form of transfer on death deed.
208          The following form may be used to create a transfer on death deed. The other sections
209     of this chapter govern the effect of this or any other instrument used to create a transfer on
210     death deed:
211                              (front of form)
212                    REVOCABLE TRANSFER ON DEATH DEED FORM
213     NOTICE TO OWNER

214          You should carefully read all information on the other side of this form. You May Want
215     to Consult a Lawyer Before Using This Form.
216          This form must be recorded before your death, or it will not be effective. The
217     beneficiary must be a named person.
218     IDENTIFYING INFORMATION
219          Owner or Owners Making This Deed:
220          ___________________________ ______________________________
221          Printed name                    Mailing address
222          ___________________________ ______________________________
223          Printed name                    Mailing address
224          Legal description of the property:
225          _________________________________________________________
226     PRIMARY BENEFICIARY
227          I designate the following beneficiary if the beneficiary survives me:
228           ____________________ ________________________
229          Printed name                    Mailing address, if available
230     ALTERNATE BENEFICIARY - Optional
231          If my primary beneficiary does not survive me, I designate the following alternate
232     beneficiary if that beneficiary survives me:
233          ____________________     ________________________
234          Printed name               Mailing address, if available
235     TRANSFER ON DEATH
236          At my death, I transfer my interest in the described property to the beneficiaries as
237     designated above.
238          Before my death, I have the right to revoke this deed.
239     SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
240          _______________________________     [(SEAL)]_________________
241          Signature                                   Date
242          _______________________________     [(SEAL)]_________________
243          Signature                                   Date
244     ACKNOWLEDGMENT

245     (insert acknowledgment for deed here)
246                              (back of form)
247               COMMON QUESTIONS ABOUT THE USE OF THIS FORM
248          Q. What does the Transfer on Death (TOD) deed do?
249          A. When you die, this deed transfers the described property, subject to any liens or
250     mortgages (or other encumbrances) on the property at your death. Probate is not required. The
251     TOD deed has no effect until you die. You can revoke it at any time. You are also free to
252     transfer the property to someone else during your lifetime. If you do not own any interest in the
253     property when you die, this deed will have no effect.
254          Q. How do I make a TOD deed?
255          A. Complete this form. Have it acknowledged before a notary public or other individual
256     authorized by law to take acknowledgments. Record the form in each county where any part of
257     the property is located. The form has no effect unless it is acknowledged and recorded before
258     your death.
259          Q. Is the "legal description" of the property necessary?
260          A. Yes.
261          Q. How do I find the "legal description" of the property?
262          A. This information may be on the deed you received when you became an owner of the
263     property. This information may also be available in the office of the county recorder for the
264     county where the property is located. If you are not absolutely sure, consult a lawyer.
265          Q. Can I change my mind before I record the TOD deed?
266          A. Yes. If you have not yet recorded the deed and want to change your mind, simply
267     tear up or otherwise destroy the deed.
268          Q. How do I "record" the TOD deed?
269          A. Take the completed and acknowledged form to the office of the county recorder of
270     the county where the property is located. Follow the instructions given by the county recorder
271     to make the form part of the official property records. If the property is in more than one
272     county, you should record the deed in each county.
273          Q. Can I later revoke the TOD deed if I change my mind?
274          A. Yes. The TOD deed is revocable. No one, including the beneficiaries, can prevent
275     you from revoking the deed.

276          Q. How do I revoke the TOD deed after it is recorded?
277          A. There are three ways to revoke a recorded TOD deed: (1) Complete and
278     acknowledge a revocation form, and record it in each county where the property is located. (2)
279     Complete and acknowledge a new TOD deed that disposes of the same property, and record it
280     in each county where the property is located. (3) Transfer the property to someone else during
281     your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the
282     TOD deed by will.
283          Q. I am being pressured to complete this form. What should I do?
284          A. Do not complete this form under pressure. Seek help from a trusted family member,
285     a friend, or a lawyer.
286          Q. Do I need to tell the beneficiaries about the TOD deed?
287          A. No, but it is recommended. Secrecy can cause later complications and might make it
288     easier for others to commit fraud.
289          Q. If I sign a TOD deed and designate my two children as beneficiaries, and one of
290     them dies before me, does the interest of my child that dies before me pass to his or her
291     children?
292          A. No. Everything will go to your surviving child unless you record a new transfer on
293     death deed to state otherwise. If you have questions regarding how to word a new transfer on
294     death deed, you are encouraged to consult a lawyer.
295          Q. I have other questions about this form. What should I do?
296          A. This form is designed to fit some but not all situations. If you have other questions,
297     you are encouraged to consult a lawyer.
298          Section 17. Section 75-6-417 is enacted to read:
299          75-6-417. Optional form of revocation.
300          The following form may be used to create an instrument of revocation under this
301     chapter. The other sections of this chapter govern the effect of this or any other instrument used
302     to revoke a transfer on death deed.
303                              (front of form)
304                    FULL REVOCATION OF TRANSFER ON DEATH DEED
305     NOTICE TO OWNER
306          This revocation must be recorded before you die or it will not be effective. This

307     revocation is effective only as to the interests in the property of owners who sign this
308     revocation.
309     IDENTIFYING INFORMATION
310          Owner or Owners of Property Making This Revocation:
311          ___________________________ ______________________________
312          Printed name                    Mailing address
313          ___________________________ ______________________________
314          Printed name                    Mailing address
315          Legal description of the property:
316          ___________________________________________________________
317     REVOCATION
318          I revoke all my previous transfers of this property by transfer on death deed.
319     SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
320          _______________________________ [(SEAL)]_________________
321          Signature                              Date
322          _______________________________ [(SEAL)]_________________
323          Signature                              Date
324     ACKNOWLEDGMENT
325          (insert acknowledgment here)
326                              (back of form)
327               COMMON QUESTIONS ABOUT THE USE OF THIS FORM
328          Q. How do I use this form to revoke a Transfer on Death (TOD) deed?
329          A. Complete this form. Have it acknowledged before a notary public or other
330     individual authorized to take acknowledgments. Record the form in the public records in the
331     office of the county recorder of each county where the property is located. The form must be
332     acknowledged and recorded before your death or it has no effect.
333          Q. How do I find the "legal description" of the property?
334          A. This information may be on the TOD deed. It may also be available in the office of
335     the county recorder for the county where the property is located. If you are not absolutely sure,
336     consult a lawyer.
337          Q. How do I "record" the form?

338          A. Take the completed and acknowledged form to the office of the county recorder of
339     the county where the property is located. Follow the instructions given by the county recorder
340     to make the form part of the official property records. If the property is located in more than
341     one county, you should record the form in each of those counties.
342          Q. I am being pressured to complete this form. What should I do?
343          A. Do not complete this form under pressure. Seek help from a trusted family member,
344     a friend, or a lawyer.
345          Q. Can this form be used for a partial revocation of a previously filed TOD deed?
346          A. No. This form is to be used for full revocation of a deed. In the case of a partial
347     revocation, a new TOD deed must be filed.
348          Q. I have other questions about this form. What should I do?
349          A. This form is designed to fit some but not all situations. If you have other questions,
350     consult a lawyer.
351          Section 18. Section 75-6-418 is enacted to read:
352          75-6-418. Uniformity of application and construction.
353          In applying and construing this uniform act, consideration must be given to the need to
354     promote uniformity of the law with respect to its subject matter among the states that enact it.
355          Section 19. Section 75-6-419 is enacted to read:
356          75-6-419. Relation to Electronic Signatures in Global and National Commerce
357     Act.
358          This chapter modifies, limits, and supersedes the federal Electronic Signatures in
359     Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., but does not modify, limit,
360     or supersede Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery
361     of any of the notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).






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