New law promises a 'probate revolution'
Effective July 21 this year, under a new law, an owner will be able to sign a transfer on death (TOD) deed transferring real property to a person or organization (including a charity) upon death. The TOD deed must provide a few simple facts, including a legal description of the property and the names and addresses of the persons transferring and receiving the property. It must be signed before a notary public. Most importantly, it must state that it will become effective upon the transferor’s death. The deed must be recorded prior to the transferor’s death, in the recording office where the land is located.
No attorney, court probate proceeding or other formality is required. There is no waiting period. The deed is immediately effective upon the owner’s death. If the simple forms in the Act are used, the only fee is a small one to record the deed. Should the owner change his or her mind, he or she can revoke the Transfer on Death deed or execute a new deed for all or part of the property as long as it is recorded during his or her lifetime.
The beneficiary can also disclaim (refuse) the deed. Any attempt to transfer or bequeath the property after the Transfer on Death deed has been recorded will be ineffective, unless it is recorded in the same recorder’s office during the owner’s lifetime.
This simple process is not for everyone. Complex or large estates may require more sophisticated estate planning. And even in a small simple estate it is wise to at least consult an attorney or other expert to insure that the owner is using the best estate plan and that issues like possible tax consequences are fully considered. However, the Uniform Real Property Transfer on Death Deed Act (URPTODA) will now provide another alternative way to pass real property at death.
Transfer on Death deeds are now permitted in 24 states and the District of Columbia, and are rapidly becoming the norm across the country. Whether a Transfer on Death deed is legal depends upon the law of the state where the property is located, regardless of the owner’s home state. Thus the new Alaska law only governs land in Alaska.
The Uniform Real Property Transfer on Death Deed Act is like other state and federal laws that allow transfers of personal property upon death, including Individual Retirement Accounts (IRAs), securities and bank accounts. These new Transfer on Death laws, all designed to simplify, speed and lower the cost of simple estate planning, are being called the non-probate revolution.
House Bill 60, the legislation that became new law, received vital support from the Alaska Commission on Aging, AARP, the Alaska Association of Realtors, and the Alaska Bankers Association. Members of the Alaska Bar Association Probate and Real Property Law Sections, including Beth Chapman and Dave Shaftel, worked hard on it over several years. Credit also goes to Ben Orzeske, Legislative Counsel to the Uniform Law Commission in Chicago, and Alaska Assistant Attorney Generals Deborah Behr and Theresa Thurbon, two Alaska Uniform Law Commissioners, and to Legislative Legal Counsel attorney Theresa Bannister, who did the drafting, and to both Mr. Miles Brookes and Ms. Nicoli Bailey of my staff, who did the “heavy lifting” to get the bill scheduled and through the hearing process.
Thanks go to bill co-sponsors, Representatives Cathy Munoz (R-Juneau), Bob Lynn (R-Anchorage), House Minority Leader Chris Tuck (D-Anchorage), David Guttenberg (D-Fairbanks), and Harriet Drummond (D-Anchorage). Chairman Kurt Olson (R-Soldotna) of the House Labor and Commerce Committee and Chairman Wes Keller (R-Wasilla) of the House Judiciary Committee were also very supportive.
The bill was introduced in January 2012 and had to pass through four committees and the floors of both Houses. Governor Sean Parnell, who was also very supportive, signed it into law on April 22 this year. So it has been a long haul and took a lot of help and support, but it was worth it – a real pleasure.
Max Gruenberg represents Anchorage District 14 in the Alaska state legislature.