Bill Text: MS SB2736 | 2016 | Regular Session | Introduced
Bill Title: Transfer on Death Act; create.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-02-23 - Died In Committee [SB2736 Detail]
Download: Mississippi-2016-SB2736-Introduced.html
MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Judiciary, Division A
By: Senator(s) Tollison
Senate Bill 2736
AN ACT TO CREATE THE UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT; TO ENACT A SHORT TITLE; TO CREATE DEFINITIONS; TO PROVIDE FOR APPLICABILITY AND NONEXCLUSIVITY; TO AUTHORIZE REVOCATION; TO PROVIDE FOR THE EFFECT OF THE DEED DURING THE TRANSFEROR'S LIFE; AMEND SECTIONS 89-1-1, 89-5-1 AND 89-5-5, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Short title. This act may be cited as the Uniform Real Property Transfer on Death Act.
SECTION 2. Definitions. In this act:
(1) "Beneficiary" means a person that receives property under a transfer-on-death deed.
(2) "Designated beneficiary" means a person designated to receive property in a transfer-on-death deed.
(3) "Joint owner" means an individual who owns property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant, joint tenant with a right of survivorship, and tenant by the entirety. The term does not include a tenant in common.
(4) "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.
(5) "Property" means an interest in real property located in this state which is transferable on the death of the owner.
(6) "Transfer-on-death deed" means a deed authorized under this act.
(7) "Transferor" means an individual who makes a transfer-on-death deed.
SECTION 3. Applicability. This act applies to a transfer-on-death deed made before, on, or after the effective date of this act by a transferor dying on or after the effective date of this act.
SECTION 4. Nonexclusivity. This act does not affect any method of transferring property otherwise permitted under the law of this state.
SECTION 5. Transfer-on-death deed authorized. An individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed.
SECTION 6. 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. Transfer-on-death deed nontestamentary. A transfer-on-death deed is nontestamentary.
SECTION 8. Capacity of transferor. The capacity required to make or revoke a transfer-on-death deed is the same as the capacity required to make a will.
SECTION 9. Requirements. A transfer-on-death deed:
(1) Except as otherwise provided in paragraph (2), must contain the essential elements and formalities of a properly recordable inter vivos deed;
(2) Must state that the transfer to the designated beneficiary is to occur at the transferor's death; and
(3) Must be recorded before the transferor's death in the public records in the office of the clerk of the chancery court of the county where the property is located.
SECTION 10. 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. Revocation by instrument authorized; revocation by act not permitted. (a) Subject to subsection (b), an instrument is effective to revoke a recorded transfer-on-death deed, or any part of it, only if the instrument:
(1) Is one of the following:
(A) A transfer-on-death deed that revokes the deed or part of the deed expressly or by inconsistency;
(B) An instrument of revocation that expressly revokes the deed or part of the deed; or
(C) An inter vivos deed that expressly revokes the transfer-on-death deed or part of the deed; and
(2) Is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded before the transferor's death in the public records in the office of the clerk of the chancery court of the county where the deed is recorded.
(b) If a transfer-on-death deed is made by more than one transferor:
(1) Revocation by a transferor does not affect the deed as to the interest of another transferor; and
(2) A deed of joint owners is revoked only if it is revoked by all of the living joint owners.
(c) After a transfer-on-death deed is recorded, it may not be revoked by a revocatory act on the deed.
(d) This section does not limit the effect of an inter vivos transfer of the property.
SECTION 12. 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 a secured or unsecured creditor or future creditor of the transferor, even if the creditor has 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 a creditor of the designated beneficiary.
SECTION 13. Effect of transfer-on-death deed at transferor's. (a) Except as otherwise provided in the transfer-on-death deed, in this section, or in Section 91-5-7 relating to antilapse, Section 91-5-33 relating to a person not taking under the will of one he killed, Chapter 3, Title 91, Mississippi Code of 1972, relating to the Uniform Simultaneous Death Law, upon 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:
(1) Subject to paragraph (2), the interest in the property is transferred to the designated beneficiary in accordance with the deed.
(2) The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.
(3) Subject to paragraph (4), concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.
(4) If the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property, the share of one which 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.
(b) Subject to Chapter 5, Title 89, Mississippi Code of 1972, 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 and Chapter 5, Title 89, Mississippi Code of 1972, the recording of the transfer-on-death deed is deemed to have occurred at the transferor's death.
(c) If a transferor is a joint owner and is:
(1) 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
(2) the last surviving joint owner, the transfer-on-death deed is effective.
(d) A transfer-on-death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.
SECTION 14. Disclaimer. A beneficiary may disclaim all or part of the beneficiary's interest as provided by Chapter 21, Title 89, Mississippi Code of 1972.
SECTION 15. Liability for creditor claims and statutory allowances. (a) 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, the estate may enforce the liability against property transferred at the transferor's death by a transfer-on-death deed.
(b) If more than one property is transferred by one or more transfer-on-death deeds, the liability under subsection (a) is apportioned among the properties in proportion to their net values at the transferor's death.
(c) A proceeding to enforce the liability under this section must be commenced not later than eighteen (18) months after the transferor's death.
SECTION 16. Delivery or filing. (a) In this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of:
(1) an annuity or insurance policy;
(2) an account with a designation for payment on death;
(3) a security registered in beneficiary form;
(4) a pension, profit-sharing, retirement, or other employment-related benefit plan; or
(5) any other nonprobate transfer at death.
(b) Subject to subsections (c) through (l), delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.
(c) In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust:
(1) a disclaimer must be delivered to the personal representative of the decedent's estate; or
(2) if no personal representative is then serving, it must be filed with a court having jurisdiction to appoint the personal representative.
(d) In the case of an interest in a testamentary trust:
(1) a disclaimer must be delivered to the trustee then serving, or if no trustee is then serving, to the personal representative of the decedent's estate; or
(2) if no personal representative is then serving, it must be filed with a court having jurisdiction to enforce the trust.
(e) In the case of an interest in an inter vivos trust:
(1) a disclaimer must be delivered to the trustee then serving;
(2) if no trustee is then serving, it must be filed with a court having jurisdiction to enforce the trust; or
(3) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it must be delivered to the settlor of a revocable trust or the transferor of the interest.
(f) In the case of an interest created by a beneficiary designation which is disclaimed before the designation becomes irrevocable, the disclaimer must be delivered to the person making the beneficiary designation.
(g) In the case of an interest created by a beneficiary designation which is disclaimed after the designation becomes irrevocable:
(1) The disclaimer of an interest in personal property must be delivered to the person obligated to distribute the interest; and
(2) The disclaimer of an interest in real property must be recorded in the office of the clerk of the chancery court of the county where the real property that is the subject of the disclaimer is located.
(h) In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer must be delivered to the person to whom the disclaimed interest passes.
(i) In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created:
(1) The disclaimer must be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power; or
(2) If no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.
(j) In the case of a disclaimer by an appointee of a nonfiduciary power of appointment:
(1) The disclaimer must be delivered to the holder, the personal representative of the holder's estate or to the fiduciary under the instrument that created the power; or
(2) If no fiduciary is then serving, it must be filed with a court having authority to appoint the fiduciary.
(k) In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer must be delivered as provided in subsection (c), (d), or (e), as if the power disclaimed were an interest in property.
(l) In the case of a disclaimer of a power by an agent, the disclaimer must be delivered to the principal or the principal's representative.
SECTION 17. [RESERVED]
SECTION 18. 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. Relation to electronic signatures in global and national commerce act. This act modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101 (c) of that act, 15 U.S.C. Section 7001 (c), or authorize electronic delivery of any of the notices described in Section 103 (b) of that act, 15 U.S.C. Section 7003 (b).
SECTION 20. Section 89-1-1, Mississippi Code of 1972, is amended as follows:
89-1-1. Any interest in or claim to land, including a transfer-on-death deed under Sections 1 through 19 of this act, may be conveyed to vest immediately or in the future, by writing signed and delivered; and such writing shall have the effect to transfer, according to its terms, the title of the person signing and delivering it, with all its incidents, as fully and perfectly as if it were transferred by feoffment with livery of seizin, notwithstanding there may be an adverse possession thereof.
SECTION 21. Section 89-5-1, Mississippi Code of 1972, is amended as follows:
89-5-1. Except as provided by Sections 89-5-101 through
89-5-113, a conveyance of land, including a transfer-on-death deed under Sections 1 through 19 of this act, shall not be good against a purchaser for a valuable consideration without notice, or any creditor, unless it be lodged with the clerk of the chancery court of the county in which the lands are situated to be recorded; but after filing with the clerk, the priority of time of filing shall determine the priority of all conveyances of the same land as between the several holders of such conveyances.
SECTION 22. Section 89-5-5, Mississippi Code of 1972, is amended as follows:
89-5-5. Every conveyance, including a transfer-on-death deed under Sections 1 through 19 of this act, covenant, agreement, bond, mortgage, and deed of trust shall take effect, as to all creditors and subsequent purchasers for a valuable consideration without notice, only from the time when delivered to the clerk to be recorded; and no conveyance, covenant, agreement, bond, mortgage, or deed of trust which is unrecorded or has not been filed for record, shall take precedence over any similar instrument affecting the same property which may be of record, to the end that with reference to all instruments which may be filed for record under this section, the priority thereof shall be governed by the priority in time of the filing of the several instruments, in the absence of actual notice.
SECTION 23. This act shall take effect and be in force from and after January 1, 2017.
