Transfer on Death Deed (or Beneficiary Deed)
Authored By: Legal Aid Services of Oklahoma, Inc.
What is a Transfer-On-Death Deed?
On November 1, 2008, Oklahoma's "Nontestamentary Transfer of Property Act" (Title 58 O.S. §§ 1251-1258) went into effect. This law allows a "record owner" to use a "Transfer-On-Death Deed" to name another person to receive his real estate without going through probate. This transfer does not take effect until the landowner's death. The person receiving the property (called the beneficiary) must take certain steps to make the transfer legal.
Terms to know
"Record owner"is the person whose interest in real estate is recorded in County Clerk's office where the real estate is located.
"Grantor" is the person who owns the land or home and who has a properly recorded deed or title to the land, home or mineral interest being transferred. A grantor is sometimes alsocalled homeowner, landowner or oil, gas and mineral interest owner.
"Beneficiary"is the person to get the land, home or mineral interest when the record owner dies. This person is named on the new deed the record owner must file. This person is sometimes called a "grantee."
"Alternative beneficiary"is a second person named by the record owner to receive the property, only if the first person cannot. For example, if the beneficiary named to receive the property dies before the landowner dies, the property cannot be transferred as the owner wanted because of probate and real estate laws. There would have to be a probate to transfer the property to someone else.
"Revoke"means to change your mind. If you sign a Transfer-On-Death Deed and then later decide to leave the property to someone else, you have to sign and file a certain kind of form and then make a new Transfer-On-Death Deed.
"Joint Tenancy With Right Of Survivorship" is co-ownership of property. Two or more people own the property together with exactly the same rights. Usually how married people own property. You still have to change the deed when one person dies, but usually do not have to go through probate to do this.
Who can use a Transfer on Death (or Beneficiary) Deed?
Any one who owns a home, land or oil, gas or mineral interests can use a Transfer-On-Death Deed. This type of deed is used to transfer property to another person after someone dies, but without having to file an expensive or time-consuming probate case in the court.
What Types of Property (Real Estate) Can the Owner Transfer Using A Transfer-On-Death Deed?
- A Home
Certain types of oil, gas and mineral rights.
(Please consult an oil and gas attorney for further advice regarding oil, gas and mineral interests.)
- The exclusive rights to drill for, produce, or otherwise gain possession of such substances.
- The owner's right to a royalty, which is a percentage of profit from what is drilled or taken out of the land.
How Does An Owner Use a Transfer-On-Death Deed To Avoid Probate?
A record owner may use this type of deed to transfer property to a beneficiary to be effective after the record owner dies. Specific forms are required. You must follow the law for the transfer to be done correctly. Please ask a lawyer for advice!
The record owner must:
You need to know:
- TITLE: Title the property "Transfer-on-death" by making a new deed.
- NAME: Name the person to get the land, home or mineral interest when the record owner dies on the new deed. This person is called the "beneficiary."
- SIGN: Sign the deed before two witnesses and a notary.
- RECORD: Record the deed in the office of the County Clerk in the county where the real estate is located, before his or her death.
- The beneficiary does not have to pay the owner any money for the transfer-on-death deed to be legal.
- The owner is not required to tell or get approval from the person named to receive the property.
- The owner may change his mind and "revoke" the deed any time before he dies.
- The owner has to file a form to "revoke" and then file a new transfer-on-death deed.
- Writing something in a will does NOT revoke the transfer-on-death deed.
- The record owner should name a second person on the deed as an "alternative beneficiary," in case the person named dies before the record owner.
- If no alternative is named and the first beneficiary dies before the owner, the transfer will not be effective under law. A probate will have to be filed to transfer title.
- If you file a second transfer-on-death deed, that second deed makes any deed you filed before that invalid. You should file a form to "revoke" first and then sign a new deed.
- Property owned by more than one person by "Joint Tenancy With Right Of Survivorship" can be transferred by this kind of deed but will only be effective if the person who signed the transfer-on-death deed is the last of the joint owners to die.
- The beneficiary will obtain the real estate subject to all conveyances, assignments, contracts, mortgages, liens and security pledges the record owner made during his lifetime. This may also include any conveyances of interest that are less than all of the record owner's interest in the property. To be sure what other interests the record owner had recorded on the property, you should search the title records on the property at the County Clerk's office.
How Does A Beneficiary Claim The Transfer-On-Death Property?
The Beneficiary must sign a form. The form must be filed with the County Clerk in the county where the real estate is located and the deed is recorded.
The form is called an Affidavit. An Affidavit is a form that has certain information and a sworn statement by you that are the beneficiary. It must be signed in front of a notary.
The Affidavit must contain:
1. The fact of the death of the record owner.
2. Whether or not the record owner and the beneficiary were husband and wife.
3. The legal description of the real estate.
4. If the beneficiary was not the record owner's spouse, the beneficiary, must attach two BOTH of these with the Affidavit:
(a) A copy of the death certificate of the record owner.
If you do not have one, learn more here http://oklaw.org/resource/getting-a-death-certificate?ref=9znJi
You can apply for a death certificate with this form at the OK Department of Vital Statistics (OKC), https://www.ok.gov/health2/documents/VR_DRRequest_interactive.pdf and;
(b) An estate tax release.
To receive an estate tax release, an Oklahoma Estate Tax Return form or a Simplified Nontaxable Affidavit form must be filed. A tax lawyer or accountant can help you.
The Oklahoma Estate Tax form or Simplified Nontaxable Affidavit form can be obtained online at https://www.ok.gov/tax/Forms_&_Publications/Forms/Estate/ or at the County Clerk's office.
5. A beneficiary may disclaim a Transfer-on-Death Deed within 9 months of the landowner's death.
A beneficiary will get title to the real estate subject to all conveyances, assignments, contracts, mortgages, liens and security pledges the record owner made during his lifetime. This may also include any conveyances of interest that are less than all of the record owner's interest in the property. You should search the title records on the property at the County Clerk's office so you know what other interests the owner recorded on the property.