Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 94 (2018GS)

Sponsor

Rep. Snow, V. L.

Final action

Governor Signed 3/13/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• creates a new part in the Utah Uniform Probate Code entitled the Uniform Real Property Transfer on Death Act;
• defines terms;
• specifically applies only to deeds created by a person who dies on or after May 8, 2018;
• provides that the act is nonexclusive and does not affect any other method of transferring real property allowed under Utah law;
• makes clear that the transfer of property only occurs upon the transferor's death;
• provides that a transfer on death deed is revocable and nontestamentary; and
• requires that the transferor have the same capacity as that required to make a will at the time the deed is made.

Every vote on this bill

Bill text

UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: V. Lowry Snow
Senate Sponsor: 
Lyle W. Hillyard
LONG TITLE
General Description:
This bill enacts the Uniform Real Property Transfer on Death Act.
Highlighted Provisions:
This bill:
▸ creates a new part in the Utah Uniform Probate Code entitled the Uniform Real
Property Transfer on Death Act;
▸ defines terms;
▸ specifically applies only to deeds created by a person who dies on or after May 8,
2018;
▸ provides that the act is nonexclusive and does not affect any other method of
transferring real property allowed under Utah law;
▸ makes clear that the transfer of property only occurs upon the transferor's death;
▸ provides that a transfer on death deed is revocable and nontestamentary; and
▸ requires that the transferor have the same capacity as that required to make a will at
the time the deed is made.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
ENACTS:
75-6-401
, Utah Code Annotated 1953
75-6-402
, Utah Code Annotated 1953
75-6-403
, Utah Code Annotated 1953
75-6-404
, Utah Code Annotated 1953
75-6-405
, Utah Code Annotated 1953
75-6-406
, Utah Code Annotated 1953
75-6-407
, Utah Code Annotated 1953
75-6-408
, Utah Code Annotated 1953
75-6-409
, Utah Code Annotated 1953
75-6-410
, Utah Code Annotated 1953
75-6-411
, Utah Code Annotated 1953
75-6-412
, Utah Code Annotated 1953
75-6-413
, Utah Code Annotated 1953
75-6-414
, Utah Code Annotated 1953
75-6-415
, Utah Code Annotated 1953
75-6-416
, Utah Code Annotated 1953
75-6-417
, Utah Code Annotated 1953
75-6-418
, Utah Code Annotated 1953
75-6-419
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
75-6-401
 is enacted to read:
CHAPTER 6. UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT
 75-6-401.
Title.
This chapter is known as the "Uniform Real Property Transfer on Death Act."
Section 2. Section 
75-6-402
 is enacted to read:
 75-6-402.
Definitions.
As used in this chapter:
(1) "Beneficiary" means a person who receives property under a transfer on death deed.
(2) "Class gift" means a transfer to a group of persons who are classified by their
relationship to one another or the transferor, and who are not individually named in the
transferring document.
(3) "Designated beneficiary" means a person designated to receive property in a
transfer on death deed.
(4) "Individual" means a natural person.
(5) (a) "Joint owner" means an individual who owns property concurrently with one or
more other individuals with a right of survivorship.
(b) "Joint owner" includes a joint tenant, owner of community property with a right of
survivorship, and tenant by the entirety.
(c) "Joint owner" does not include a tenant in common or owner of community
property without a right of survivorship.
(6) "Natural person" means a human being.
(7) "Person" means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(8) "Property" means an interest in real property located in this state that is transferable
on the death of the owner.
(9) "Transfer on death deed" means a deed authorized under this chapter.
(10) "Transferor" means an individual, in their individual capacity, who makes a
transfer on death deed.
Section 3. Section 
75-6-403
 is enacted to read:
 75-6-403.
Applicability.
This chapter applies to a transfer on death deed made before, on, or after May 8, 2018,
by a transferor dying on or after May 8, 2018.
Section 4. Section 
75-6-404
 is enacted to read:
 75-6-404.
Nonexclusivity.
This chapter does not affect any method of transferring property otherwise permitted
under the law of this state.
Section 5. Section 
75-6-405
 is enacted to read:
 75-6-405.
Transfer on death deed authorized.
(1) An individual may transfer property to one or more named beneficiaries effective at
the transferor's death by a transfer on death deed.
(2) A class gift may not be made by a transfer on death deed.
Section 6. Section 
75-6-406
 is enacted to read:
 75-6-406.
 Transfer on death deed revocable.
A transfer on death deed is revocable even if the deed or another instrument contains a
contrary provision.
Section 7. Section 
75-6-407
 is enacted to read:
 75-6-407.
 Transfer on death deed nontestamentary.
A transfer on death deed is nontestamentary.
Section 8. Section 
75-6-408
 is enacted to read:
 75-6-408.
 Capacity of transferor.
The capacity required to make or revoke a transfer on death deed is the same as that
required to make a will.
Section 9. Section 
75-6-409
 is enacted to read:
 75-6-409.
Requirements.
A transfer on death deed shall:
(1) contain the essential elements and formalities of a properly recordable inter vivos
deed;
(2) state that the transfer to the designated beneficiary is to occur at the transferor's
death; and
(3) be recorded before the transferor's death in the public records in the county
recorder's office of the county where the property is located.
Section 10. Section 
75-6-410
 is enacted to read:
 75-6-410.
Notice, delivery, acceptance, consideration not required.
A transfer on death deed is effective without:
(1) notice or delivery to or acceptance by the designated beneficiary during the
transferor's life; or
(2) consideration.
Section 11. Section 
75-6-411
 is enacted to read:
 75-6-411.
 Revocation by instrument authorized -- Revocation by act not
permitted.
(1) Subject to Subsection (2), an instrument is effective to revoke a recorded transfer
on death deed, or any part of it, only if the instrument:
(a) is one of the following:
(i) a transfer on death deed that revokes the deed or part of the deed expressly or by
inconsistency;
(ii) an instrument of revocation that expressly revokes the deed or part of the deed; or
(iii) an inter vivos deed that revokes the transfer on death deed or part of the deed
expressly or by inconsistency; and
(b) is acknowledged by the transferor after the acknowledgment of the deed being
revoked and recorded in the public records in the office of the county recorder where the deed
is recorded before the transferor's death.
(2) If a transfer on death deed is made by more than one transferor:
(a) revocation by a transferor does not affect the deed as to the interest of another
transferor; and
(b) a deed of joint owners is revoked only if it is revoked by all of the living joint
owners.
(3) After a transfer on death deed is recorded, it may not be revoked by a revocatory act
on the deed.
(4) This section does not limit the effect of an inter vivos transfer of the property.
(5) Property subject to a revocation of a transfer on death deed shall adeem and
nonademption statutes shall be inapplicable to the deed.
Section 12. Section 
75-6-412
 is enacted to read:
 75-6-412.
 Effect of transfer on death deed during transferor's life.
During a transferor's life, a transfer on death deed does not:
(1) affect an interest or right of the transferor or any other owner, including the right to
transfer or encumber the property;
(2) affect an interest or right of a transferee, even if the transferee has actual or
constructive notice of the deed;
(3) affect an interest or right of the transferor's secured or unsecured creditors or future
creditors, even if they have actual or constructive notice of the deed;
(4) affect the transferor's or designated beneficiary's eligibility for any form of public
assistance;
(5) create a legal or equitable interest in favor of the designated beneficiary; or
(6) subject the property to claims or process of the designated beneficiary's creditors.
Section 13. Section 
75-6-413
 is enacted to read:
 75-6-413.
 Effect of transfer on death deed at transferor's death.
(1) Except as otherwise provided in the transfer on death deed, Sections 
75-2-205
,
75-2-702
, 
75-2-803
, and 
75-2-804
 on the death of the transferor, the following rules apply to
property that is the subject of a transfer on death deed and owned by the transferor at death.
(a) Subject to Subsection (1)(b), the interests in the property are transferred to the
designated beneficiaries in accordance with the deed.
(b) The interest of a designated beneficiary is contingent on the designated beneficiary
surviving the transferor. Notwithstanding Section 
75-2-706
, the interest of a designated
beneficiary that fails to survive the transferor lapses.
(c) Subject to Subsection (1)(d), concurrent interests are transferred to the beneficiaries
in equal and undivided shares with no right of survivorship, unless otherwise specified in the
transfer on death deed.
(d) If the transferor has identified two or more designated beneficiaries to receive
concurrent interests in the property, the share of one that lapses or fails for any reason is
transferred to the other, or to the others in proportion to the interest of each in the remaining
part of the property held concurrently.
(2) Subject to Title 57, Chapter 3, Recording of Documents, a beneficiary takes the
property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens,
and other interests to which the property is subject at the transferor's death. For purposes of
this Subsection (2) and Title 57, Chapter 3, Recording of Documents, the recording of the
transfer on death deed is considered to have occurred at the transferor's death.
(3) If a transferor is a joint owner and is:
(a) survived by one or more other joint owners, the property that is the subject of a
transfer on death deed belongs to the surviving joint owner or owners with right of
survivorship; or
(b) the last surviving joint owner, the transfer on death deed is effective.
(4) A transfer on death deed transfers property without covenant or warranty of title
even if the deed contains a contrary provision.
(5) Following the death of the transferor, an affidavit in substantially the form found in
Section 
57-1-5.1
 shall be recorded in the office of the recorder of the county in which the
affected property is located. Each affidavit shall:
(a) contain a legal description of the real property that is affected;
(b) reference the entry number and the book and page of the previously recorded
transfer on death deed; and
(c) have attached as an exhibit, a copy of the death certificate or other document issued
by a governmental agency as described in Section 
75-1-107
 certifying the transferor's death.
Section 14. Section 
75-6-414
 is enacted to read:
 75-6-414.
Disclaimer.
A beneficiary may disclaim all or part of the beneficiary's interest.
Section 15. Section 
75-6-415
 is enacted to read:
 75-6-415.
 Liability for creditor claims and statutory allowances.
(1) To the extent the transferor's probate estate is insufficient to satisfy an allowed
claim against the estate or a statutory allowance to a surviving spouse or child, only the estate
may enforce the liability against property transferred at the transferor's death by a transfer on
death deed.
(2) If more than one property is transferred by one or more transfer on death deeds, the
liability under Subsection (1) is apportioned among the properties in proportion to their net
values at the transferor's death.
(3) A probate proceeding to enforce the liability under this section shall be commenced
not later than 12 months after the transferor's death.
(4) The estate may expressly waive the estate's claim against the property.
Section 16. Section 
75-6-416
 is enacted to read:
 75-6-416.
Form of transfer on death deed.
The following form may be used to create a transfer on death deed. The other sections
of this chapter govern the effect of this or any other instrument used to create a transfer on
death deed:
(front of form)
REVOCABLE TRANSFER ON DEATH DEED FORM
NOTICE TO OWNER
You should carefully read all information on the other side of this form. You May Want
to Consult a Lawyer Before Using This Form.
This form must be recorded before your death, or it will not be effective. The
beneficiary must be a named person.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
___________________________ ______________________________
Printed name Mailing address
___________________________ ______________________________
Printed name Mailing address
Legal description of the property:
_________________________________________________________
PRIMARY BENEFICIARY
I designate the following beneficiary if the beneficiary survives me:
 ____________________ ________________________
Printed name Mailing address, if available
ALTERNATE BENEFICIARY - Optional
If my primary beneficiary does not survive me, I designate the following alternate
beneficiary if that beneficiary survives me:
____________________ ________________________
 Printed name Mailing address, if available
TRANSFER ON DEATH
At my death, I transfer my interest in the described property to the beneficiaries as
designated above.
Before my death, I have the right to revoke this deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
_______________________________ [(SEAL)]_________________
Signature Date
_______________________________ [(SEAL)]_________________
Signature Date
ACKNOWLEDGMENT
(insert acknowledgment for deed here)
(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
Q. What does the Transfer on Death (TOD) deed do?
A. When you die, this deed transfers the described property, subject to any liens or
mortgages (or other encumbrances) on the property at your death. Probate is not required. The
TOD deed has no effect until you die. You can revoke it at any time. You are also free to
transfer the property to someone else during your lifetime. If you do not own any interest in the
property when you die, this deed will have no effect.
Q. How do I make a TOD deed?
A. Complete this form. Have it acknowledged before a notary public or other individual
authorized by law to take acknowledgments. Record the form in each county where any part of
the property is located. The form has no effect unless it is acknowledged and recorded before
your death.
Q. Is the "legal description" of the property necessary?
A. Yes.
Q. How do I find the "legal description" of the property?
A. This information may be on the deed you received when you became an owner of the
property. This information may also be available in the office of the county recorder for the
county where the property is located. If you are not absolutely sure, consult a lawyer.
Q. Can I change my mind before I record the TOD deed?
A. Yes. If you have not yet recorded the deed and want to change your mind, simply
tear up or otherwise destroy the deed.
Q. How do I "record" the TOD deed?
A. Take the completed and acknowledged form to the office of the county recorder of
the county where the property is located. Follow the instructions given by the county recorder
to make the form part of the official property records. If the property is in more than one
county, you should record the deed in each county.
Q. Can I later revoke the TOD deed if I change my mind?
A. Yes. The TOD deed is revocable. No one, including the beneficiaries, can prevent
you from revoking the deed.
Q. How do I revoke the TOD deed after it is recorded?
A. There are three ways to revoke a recorded TOD deed: (1) Complete and
acknowledge a revocation form, and record it in each county where the property is located. (2)
Complete and acknowledge a new TOD deed that disposes of the same property, and record it
in each county where the property is located. (3) Transfer the property to someone else during
your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the
TOD deed by will.
Q. I am being pressured to complete this form. What should I do?
A. Do not complete this form under pressure. Seek help from a trusted family member,
a friend, or a lawyer.
Q. Do I need to tell the beneficiaries about the TOD deed?
A. No, but it is recommended. Secrecy can cause later complications and might make it
easier for others to commit fraud.
Q. If I sign a TOD deed and designate my two children as beneficiaries, and one of
them dies before me, does the interest of my child that dies before me pass to his or her
children?
A. No. Everything will go to your surviving child unless you record a new transfer on
death deed to state otherwise. If you have questions regarding how to word a new transfer on
death deed, you are encouraged to consult a lawyer.
Q. I have other questions about this form. What should I do?
A. This form is designed to fit some but not all situations. If you have other questions,
you are encouraged to consult a lawyer.
Section 17. Section 
75-6-417
 is enacted to read:
 75-6-417.
Optional form of revocation.
The following form may be used to create an instrument of revocation under this
chapter. The other sections of this chapter govern the effect of this or any other instrument used
to revoke a transfer on death deed.
(front of form)
FULL REVOCATION OF TRANSFER ON DEATH DEED
NOTICE TO OWNER
This revocation must be recorded before you die or it will not be effective. This
revocation is effective only as to the interests in the property of owners who sign this
revocation.
IDENTIFYING INFORMATION
Owner or Owners of Property Making This Revocation:
___________________________ ______________________________
Printed name Mailing address
___________________________ ______________________________
Printed name Mailing address
Legal description of the property:
___________________________________________________________
REVOCATION
I revoke all my previous transfers of this property by transfer on death deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
_______________________________ [(SEAL)]_________________
Signature Date
_______________________________ [(SEAL)]_________________
Signature Date
ACKNOWLEDGMENT
(insert acknowledgment here)
(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
Q. How do I use this form to revoke a Transfer on Death (TOD) deed?
A. Complete this form. Have it acknowledged before a notary public or other
individual authorized to take acknowledgments. Record the form in the public records in the
office of the county recorder of each county where the property is located. The form must be
acknowledged and recorded before your death or it has no effect.
Q. How do I find the "legal description" of the property?
A. This information may be on the TOD deed. It may also be available in the office of
the county recorder for the county where the property is located. If you are not absolutely sure,
consult a lawyer.
Q. How do I "record" the form?
A. Take the completed and acknowledged form to the office of the county recorder of
the county where the property is located. Follow the instructions given by the county recorder
to make the form part of the official property records. If the property is located in more than
one county, you should record the form in each of those counties.
Q. I am being pressured to complete this form. What should I do?
A. Do not complete this form under pressure. Seek help from a trusted family member,
a friend, or a lawyer.
Q. Can this form be used for a partial revocation of a previously filed TOD deed?
A. No. This form is to be used for full revocation of a deed. In the case of a partial
revocation, a new TOD deed must be filed.
Q. I have other questions about this form. What should I do?
A. This form is designed to fit some but not all situations. If you have other questions,
consult a lawyer.
Section 18. Section 
75-6-418
 is enacted to read:
 75-6-418.
Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to
promote uniformity of the law with respect to its subject matter among the states that enact it.
Section 19. Section 
75-6-419
 is enacted to read:
 75-6-419.
Relation to Electronic Signatures in Global and National Commerce
Act.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in
Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., but does not modify, limit,
or supersede Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery
of any of the notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).