Bulletin: OK2008001

Dear Associates:

The Oklahoma Legislature recently enacted the "Nontestamentary Transfer of Property Act; Title 58 O.S. § 1251 et seq. The new law, which will become effective on November 1, 2008, provides that "an interest in real estate may be titled in transfer-on-death form by recording a deed, signed by the record owner of the interest, designating a grantee beneficiary or beneficiaries of the interest. The deed shall transfer the ownership of the interest (of the record owner) upon the death of the owner. A transfer-on-death deed need not be supported by consideration. The signature, consent or agreement of or notice to a grantee beneficiary or beneficiaries of a transfer-on-death deed shall not be required for any purpose during the lifetime of the record owner." (58 O.S. § 1252)

Transfer-on-Death Form - 58 O.S. § 1253: This section provides the form of deed to be used for a transfer pursuant to the provisions of the act. (See Exhibit "A")

Grantee Beneficiary Designation - 58 O.S. § 1254: The designation of the grantee beneficiary may be revoked at any time prior to the death of the record owner by recording an instrument revoking the designation in the county records where the real property is located.

A designation of the grantee beneficiary can be changed at any time prior to the death of the record owner by recording a "subsequent transfer-on-death deed" in accordance with the Act. The subsequent transfer-on-death beneficiary designation revokes all prior designations.

A transfer-on-death deed executed, acknowledged and recorded in accordance with the Act may not be revoked by the provisions of a will.

A transfer-on-death deed may be disclaimed in whole or in part by the grantee beneficiary within nine (9) months after the death of the owner by recording a disclaimer in the county records where the property is located.

Vesting - 58 O.S. § 1255: Title to the interest in real estate conveyed by a transfer-on-death deed will vest in the designated grantee beneficiary on the death of the record owner. An Affidavit, executed by the grantee beneficiary, must be recorded in the county where the real property is located to evidence the death of the record owner. The Affidavit must state the fact of the death of the record owner; whether or not the designated grantee beneficiary and the record owner were husband and wife; and provide the legal description of the property. If the record owner and the grantee beneficiary were not husband and wife, a copy of the death certificate of the record owner and an estate tax release shall be attached to the affidavit.

Grantee Beneficiaries of a transfer-on-death deed take the interest of the record owner at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during his lifetime including, but not limited to, any executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner that is less than all of the record owner's interest. (58 O.S. § 1255(B)

If a grantee beneficiary dies prior to the death of the record owner and an alternative grantee beneficiary has not been designated on the deed, the transfer shall lapse. (58 O.S. § 1255 (C)

Joint Owners - 58 O.S. § 1256: A record joint owner may use the procedures of the Act to convey an interest in real estate by a transfer-on-death deed. However, title shall vest in the grantee beneficiary only if the record joint owner is the last to die of all of the record joint owners.

A "joint owner" is defined as a person who owns an interest in real estate as a joint tenant with right of survivorship.

Record Owner Rights - 58 O.S. §1257: A record owner who executes a transfer-on-death deed remains the legal and equitable owner until the death of the owner and during the lifetime of the owner is considered an absolute owner as regards creditors and purchasers.

Deed in Conformity with the Act - 58 O.S. § 1258: A deed in transfer-on-death form, executed in conformity with the Act, shall not be considered a testamentary disposition and shall not be invalidated due to nonconformity with other provisions of Title 58 or Title 84 of the Oklahoma Statutes.

UNDERWRITING GUIDELINES:

A transfer-on-death deed, executed and recorded pursuant to the provisions of the "Nontestamentary Transfer of Property Act" may be accepted as a conveyance of the record owner's interest in the property effective upon the death of the grantor, provided an Affidavit evidencing the death of the grantor has been executed and recorded pursuant to § 1255 of the act, and 1) the designation of the grantee beneficiary has not been revoked, disclaimed or lapsed, as specified in the act; or 2) the designated grantee beneficiary has not been changed by filing a subsequent transfer-on-death deed, pursuant to the provisions of the act. We do not recommend that title agents prepare "Transfer-on-Death" deeds because they are considered to be an estate planning devise that should only be done with advice of counsel and should not be utilized as a real estate transfer devise.

REQUIREMENTS:

1) In the event that a "transfer-on-death deed" appears of record; no affidavit evidencing the death of the grantor of the deed has been recorded; and the seller of the property is the grantee beneficiary designated in the "transfer-on-death deed", a requirement for an affidavit must be made as provided in § 1255 of the Act. a) In this situation, you should also require that the affidavit recite the recording information of the transfer-on-death deed in addition to the information required by the statute. b) If the grantor and the designated grantee beneficiary were not husband and wife, the Affidavit must have affixed thereto an original death certificate evidencing the death of the grantor and an estate tax release from the Oklahoma Tax Commission.

2) In the event that a "transfer-on-death deed" appears of record; no evidence appears of record that the transfer has been revoked, disclaimed or lapsed pursuant to the provisions of the Act; and the seller is the record owner, you may require either of the following:

a) Require that a properly executed revocation of the designation of the designated grantee beneficiary be obtained from the record owner and recorded pursuant to the provisions of the Act; or

b) Require that a properly executed disclaimer be obtained from the designated grantee beneficiary and recorded pursuant to the provisions of the act.

Should you have any questions regarding the applicability of any of the provisions of the Act, please do not hesitate to call me or any other Stewart Title Guaranty Company Underwriter.

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