This summer, transferring real estate between parties just got a little easier under the Uniform Real Property Transfer on Death Act (Alaska Statute 13.48) with Transfer on Death Deeds.
Prior to July 2014, Alaska real estate could typically be transferred on death by right of survivorship only to a surviving spouse, or when an estate (with or without a will) was probated. To avoid probate, some people used trusts and gifting to transfer property on death. Now the use of TODDS will allow property owners the ability to transfer their home on death without going through probate.
The TODD concept was first used in Missouri in 1989, but now more than 20 states have adopted some version of the TODD to allow property owners to transfer property.
There are four aspects to the new law.
First, because the "transfer" does not take effect until death, the TODD allows the owner to maintain full control of the property until the moment of death. The TODD transfers only the interest the owner holds at the time of death. This allows property owners to change their mind by revoking or creating a new TODD for different beneficiaries, or selling the property.
Second, to create or revoke a TODD, it must be signed and recorded where the property is located prior to the property owner's death. However, a TODD can be challenged and possibly voided (within 12 months of death) if the mental capacities of the property owner are questionable, or it was signed under duress, fraud, or undue influence. The same standards for a last will and testament apply to a TODD.
Third, there are positives and negatives to being a beneficiary of a TODD.
Beneficiaries have no control, legal rights or benefits of property ownership until the property owner's death. This keeps the property outside of beneficiaries' financial control so the property is not considered an asset.
Multiple designated beneficiaries or alternative beneficiaries can be named.
There is no requirement for notice or acceptance by the beneficiaries, so they don't even have to be aware the TODD exists.
When a TODD is activated, beneficiaries get an income tax basis adjustment (up or down).
The beneficiary takes the property as is where is -- subject to any cloud on the title, such as liens, mortgages, loans, assessments, property taxes, etc. Beneficiaries are still obligated to pay expenses typically associated with ownership.
If the estate has insufficient funds to satisfy allowed creditors or claims, the estate has 12 months from death to enforce a claim against the TODD property. A claim could also be filed to pay the expense to administer the estate or from a surviving spouse or child.
The death of a joint owner does not automatically trigger the TODD until the death of the remaining owners.
The transfer of property from a TODD is not final. A beneficiary may disclaim the interest, but this act is irrevocable. Disclaiming interest may be necessary if the beneficiary cannot pay the mortgage or maintain the property, or if there are other financial problems that make it difficult to keep the property.
Finally, a TODD was not intended to be a substitute for a will because an estate is more than just real property. To be legal, there is a specific format to create or revoke a TODD. There are also exceptions to the TODD act to consider. So it is important to consult an attorney knowledgeable in estate planning to make certain what you want to do is properly executed, and you fully understand the income and transfer tax consequences.
Barbara and Clair Ramsey are Anchorage associate brokers specializing in residential real estate. Their column appears every month in Alaska Dispatch News. Their e-mail address is info@ramseyteam.com.