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7 LONG TITLE
8 General Description:
9 This bill enacts the Uniform Real Property Transfer on Death Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ creates a new part in the Utah Uniform Probate Code entitled the Uniform Real
13 Property Transfer on Death Act;
14 ▸ defines terms;
15 ▸ specifically applies only to deeds created by a person who dies on or after May 8,
16 2018;
17 ▸ provides that the act is nonexclusive and does not affect any other method of
18 transferring real property allowed under Utah law;
19 ▸ makes clear that the transfer of property only occurs upon the transferor's death;
20 ▸ provides that a transfer on death deed is revocable and nontestamentary; and
21 ▸ requires that the transferor have the same capacity as that required to make a will at
22 the time the deed is made.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 ENACTS:
29 75-6-401, Utah Code Annotated 1953
30 75-6-402, Utah Code Annotated 1953
31 75-6-403, Utah Code Annotated 1953
32 75-6-404, Utah Code Annotated 1953
33 75-6-405, Utah Code Annotated 1953
34 75-6-406, Utah Code Annotated 1953
35 75-6-407, Utah Code Annotated 1953
36 75-6-408, Utah Code Annotated 1953
37 75-6-409, Utah Code Annotated 1953
38 75-6-410, Utah Code Annotated 1953
39 75-6-411, Utah Code Annotated 1953
40 75-6-412, Utah Code Annotated 1953
41 75-6-413, Utah Code Annotated 1953
42 75-6-414, Utah Code Annotated 1953
43 75-6-415, Utah Code Annotated 1953
44 75-6-416, Utah Code Annotated 1953
45 75-6-417, Utah Code Annotated 1953
46 75-6-418, Utah Code Annotated 1953
47 75-6-419, Utah Code Annotated 1953
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49 Be it enacted by the Legislature of the state of Utah:
50 Section 1. Section 75-6-401 is enacted to read:
51
52 75-6-401. Title.
53 This chapter is known as the "Uniform Real Property Transfer on Death Act."
54 Section 2. Section 75-6-402 is enacted to read:
55 75-6-402. Definitions.
56 As used in this chapter:
57 (1) "Beneficiary" means a person who receives property under a transfer on death deed.
58 (2) "Class gift" means a transfer to a group of persons who are classified by their
59 relationship to one another or the transferor, and who are not individually named in the
60 transferring document.
61 (3) "Designated beneficiary" means a person designated to receive property in a
62 transfer on death deed.
63 (4) "Individual" means a natural person.
64 (5) (a) "Joint owner" means an individual who owns property concurrently with one or
65 more other individuals with a right of survivorship.
66 (b) "Joint owner" includes a joint tenant, owner of community property with a right of
67 survivorship, and tenant by the entirety.
68 (c) "Joint owner" does not include a tenant in common or owner of community
69 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 8, 2018,
82 by a transferor dying on or after May 8, 2018.
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, only the estate
199 may enforce the liability against property transferred at the transferor's death by a transfer on
200 death 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 probate proceeding to enforce the liability under this section shall be commenced
205 not later than 12 months after the transferor's death.
206 (4) The estate may expressly waive the estate's claim against the property.
207 Section 16. Section 75-6-416 is enacted to read:
208 75-6-416. Form of transfer on death deed.
209 The following form may be used to create a transfer on death deed. The other sections
210 of this chapter govern the effect of this or any other instrument used to create a transfer on
211 death deed:
212 (front of form)
213 REVOCABLE TRANSFER ON DEATH DEED FORM
214 NOTICE TO OWNER
215 You should carefully read all information on the other side of this form. You May Want
216 to Consult a Lawyer Before Using This Form.
217 This form must be recorded before your death, or it will not be effective. The
218 beneficiary must be a named person.
219 IDENTIFYING INFORMATION
220 Owner or Owners Making This Deed:
221 ___________________________ ______________________________
222 Printed name Mailing address
223 ___________________________ ______________________________
224 Printed name Mailing address
225 Legal description of the property:
226 _________________________________________________________
227 PRIMARY BENEFICIARY
228 I designate the following beneficiary if the beneficiary survives me:
229 ____________________ ________________________
230 Printed name Mailing address, if available
231 ALTERNATE BENEFICIARY - Optional
232 If my primary beneficiary does not survive me, I designate the following alternate
233 beneficiary if that beneficiary survives me:
234 ____________________ ________________________
235 Printed name Mailing address, if available
236 TRANSFER ON DEATH
237 At my death, I transfer my interest in the described property to the beneficiaries as
238 designated above.
239 Before my death, I have the right to revoke this deed.
240 SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
241 _______________________________ [(SEAL)]_________________
242 Signature Date
243 _______________________________ [(SEAL)]_________________
244 Signature Date
245 ACKNOWLEDGMENT
246 (insert acknowledgment for deed here)
247 (back of form)
248 COMMON QUESTIONS ABOUT THE USE OF THIS FORM
249 Q. What does the Transfer on Death (TOD) deed do?
250 A. When you die, this deed transfers the described property, subject to any liens or
251 mortgages (or other encumbrances) on the property at your death. Probate is not required. The
252 TOD deed has no effect until you die. You can revoke it at any time. You are also free to
253 transfer the property to someone else during your lifetime. If you do not own any interest in the
254 property when you die, this deed will have no effect.
255 Q. How do I make a TOD deed?
256 A. Complete this form. Have it acknowledged before a notary public or other individual
257 authorized by law to take acknowledgments. Record the form in each county where any part of
258 the property is located. The form has no effect unless it is acknowledged and recorded before
259 your death.
260 Q. Is the "legal description" of the property necessary?
261 A. Yes.
262 Q. How do I find the "legal description" of the property?
263 A. This information may be on the deed you received when you became an owner of the
264 property. This information may also be available in the office of the county recorder for the
265 county where the property is located. If you are not absolutely sure, consult a lawyer.
266 Q. Can I change my mind before I record the TOD deed?
267 A. Yes. If you have not yet recorded the deed and want to change your mind, simply
268 tear up or otherwise destroy the deed.
269 Q. How do I "record" the TOD deed?
270 A. Take the completed and acknowledged form to the office of the county recorder of
271 the county where the property is located. Follow the instructions given by the county recorder
272 to make the form part of the official property records. If the property is in more than one
273 county, you should record the deed in each county.
274 Q. Can I later revoke the TOD deed if I change my mind?
275 A. Yes. The TOD deed is revocable. No one, including the beneficiaries, can prevent
276 you from revoking the deed.
277 Q. How do I revoke the TOD deed after it is recorded?
278 A. There are three ways to revoke a recorded TOD deed: (1) Complete and
279 acknowledge a revocation form, and record it in each county where the property is located. (2)
280 Complete and acknowledge a new TOD deed that disposes of the same property, and record it
281 in each county where the property is located. (3) Transfer the property to someone else during
282 your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the
283 TOD deed by will.
284 Q. I am being pressured to complete this form. What should I do?
285 A. Do not complete this form under pressure. Seek help from a trusted family member,
286 a friend, or a lawyer.
287 Q. Do I need to tell the beneficiaries about the TOD deed?
288 A. No, but it is recommended. Secrecy can cause later complications and might make it
289 easier for others to commit fraud.
290 Q. If I sign a TOD deed and designate my two children as beneficiaries, and one of
291 them dies before me, does the interest of my child that dies before me pass to his or her
292 children?
293 A. No. Everything will go to your surviving child unless you record a new transfer on
294 death deed to state otherwise. If you have questions regarding how to word a new transfer on
295 death deed, you are encouraged to consult a lawyer.
296 Q. I have other questions about this form. What should I do?
297 A. This form is designed to fit some but not all situations. If you have other questions,
298 you are encouraged to consult a lawyer.
299 Section 17. Section 75-6-417 is enacted to read:
300 75-6-417. Optional form of revocation.
301 The following form may be used to create an instrument of revocation under this
302 chapter. The other sections of this chapter govern the effect of this or any other instrument used
303 to revoke a transfer on death deed.
304 (front of form)
305 FULL REVOCATION OF TRANSFER ON DEATH DEED
306 NOTICE TO OWNER
307 This revocation must be recorded before you die or it will not be effective. This
308 revocation is effective only as to the interests in the property of owners who sign this
309 revocation.
310 IDENTIFYING INFORMATION
311 Owner or Owners of Property Making This Revocation:
312 ___________________________ ______________________________
313 Printed name Mailing address
314 ___________________________ ______________________________
315 Printed name Mailing address
316 Legal description of the property:
317 ___________________________________________________________
318 REVOCATION
319 I revoke all my previous transfers of this property by transfer on death deed.
320 SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
321 _______________________________ [(SEAL)]_________________
322 Signature Date
323 _______________________________ [(SEAL)]_________________
324 Signature Date
325 ACKNOWLEDGMENT
326 (insert acknowledgment here)
327 (back of form)
328 COMMON QUESTIONS ABOUT THE USE OF THIS FORM
329 Q. How do I use this form to revoke a Transfer on Death (TOD) deed?
330 A. Complete this form. Have it acknowledged before a notary public or other
331 individual authorized to take acknowledgments. Record the form in the public records in the
332 office of the county recorder of each county where the property is located. The form must be
333 acknowledged and recorded before your death or it has no effect.
334 Q. How do I find the "legal description" of the property?
335 A. This information may be on the TOD deed. It may also be available in the office of
336 the county recorder for the county where the property is located. If you are not absolutely sure,
337 consult a lawyer.
338 Q. How do I "record" the form?
339 A. Take the completed and acknowledged form to the office of the county recorder of
340 the county where the property is located. Follow the instructions given by the county recorder
341 to make the form part of the official property records. If the property is located in more than
342 one county, you should record the form in each of those counties.
343 Q. I am being pressured to complete this form. What should I do?
344 A. Do not complete this form under pressure. Seek help from a trusted family member,
345 a friend, or a lawyer.
346 Q. Can this form be used for a partial revocation of a previously filed TOD deed?
347 A. No. This form is to be used for full revocation of a deed. In the case of a partial
348 revocation, a new TOD deed must be filed.
349 Q. I have other questions about this form. What should I do?
350 A. This form is designed to fit some but not all situations. If you have other questions,
351 consult a lawyer.
352 Section 18. Section 75-6-418 is enacted to read:
353 75-6-418. Uniformity of application and construction.
354 In applying and construing this uniform act, consideration must be given to the need to
355 promote uniformity of the law with respect to its subject matter among the states that enact it.
356 Section 19. Section 75-6-419 is enacted to read:
357 75-6-419. Relation to Electronic Signatures in Global and National Commerce
358 Act.
359 This chapter modifies, limits, and supersedes the federal Electronic Signatures in
360 Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., but does not modify, limit,
361 or supersede Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery
362 of any of the notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).