Legislative record

AN ACT TO AMEND TITLE 12, TITLE 18, TITLE 25, AND TITLE 30 OF THE DELAWARE CODE RELATING TO THE UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT.

Delaware currently permits the nonprobate transfer of bank accounts, investments, and vehicles. This Act provides a mechanism for the nonprobate transfer of real estate without requiring the creation of a revocable trust. This is done by permitting an owner of an interest in real estate to execute and record a transfer on death (“TOD”) deed designating a beneficiary who will automatically receive the real estate on the owner's death. During the owner's lifetime the beneficiary of a TOD deed has no interest in the real estate and the owner retains full power to transfer or encumber the real estate or to revoke the TOD deed. This Act is a Substitute for House Bill No. 147. Like House Bill No. 147, this Act adopts the Uniform Real Property Transfer on Death Act authored by the Uniform Law Commission. The Uniform Law Commission “provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.” The Uniform Real Property Transfer on Death Act has been enacted in 19 states (including Virginia), the District of Columbia, and the U.S. Virgin Islands, and a substantially similar law has been enacted in 10 additional states. The Uniform Real Property Transfer on Death Act is pending before 6 state legislatures (including New Jersey and Maryland). In adopting the Uniform Real Property Transfer on Death Act, this Act, like House Bill No. 147, also makes the following changes to the uniform law and Delaware law: (1) Provides clarity that a transfer on death deed controls over any contrary instruction in a will to transfer the same real property. (2) Provides in the optional forms included in this Act, which may be used to create a transfer on death deed or revoke a transfer on death deed, that a transferor is a grantor and a beneficiary is a grantee. This change is made to assist the Recorders of Deeds in integrating the forms in their computerized databases. (3) Authorizes the Registers of Wills to adopt a form to be used by a beneficiary to provide notice of the death of a person whose real property has transferred to the beneficiary by a transfer on death deed. (4) Authorizes a beneficiary to file with a Register of Wills the death certificate of a person whose real property has transferred to the beneficiary by a transfer on death deed. (5) Makes abundantly clear that which is already permitted under the law of this State, that a person may obtain from the Office of Vital Statistics a death certificate to establish their legal right to real property and may disclose that death certificate to a Register of Wills to prove the person’s legal right to real property. This Act differs from House Bill No. 147 as follows: (1) By providing that an owner of real property may transfer the property only to an individual. (2) By making clear that a transfer on death deed, including all signatures required to execute a transfer on death deed, must be notarized. (3) By requiring a transfer on death deed be witnessed by 2 individuals, at least 1 of whom must not be a beneficiary. (4) By requiring a revocation of a transfer on death deed be witnessed by 2 individuals and making a conforming change to the optional form. (5) By making changes to the optional transfer on death deed form in this Act to do the following: a. Making clear a mailing address is required for a beneficiary. b. Making clear on the deed how the deed may be revoked. c. Bolding the acknowledgement related to the effect a transfer on death deed has on a contrary instruction in a will and rewriting this acknowledgement in plainer language. An owner’s transfer of real property to a beneficiary by a transfer on death deed controls over a contrary instruction in a will that is prepared before or after the transfer on death deed. d. Requiring printed names and signatures for owners and witnesses and updating the form to make clear 2 witnesses are required. (6) By making clear that the Court of Chancery has jurisdiction over challenges to the validity or revocation of a transfer on death deed. (7) By relocating Section 5 of this Act to another chapter in the Insurance Code and making other changes to conform the language to existing law.