Transfer on Death Act

Question 1

Can you use a disclaimer with a TOD?

Answer 1

Yes. Passes as if the disclaimant died immediately

before the owner. (Or, if entity, as if it didn’t exist)

Question 2

What is not covered by TOD Act?

Answer 2

• JTWROS/Tenants by Entirety
• Life Estate/Remainder
• Trusts
• Powers of Appointment
• Life Insurance/Annuities*
• Retirement Plans*
*Unless the provisions of the Act were
incorporated in the agreement

**Note that these will not be covered by LDPS
But they won’t be subject to claimants from estate’s ability to reach

Question 3

What does TOD have similar with probate and trust code?

Answer 3

1. Anti-Lapse
2. Omitted Child
3. Divorce
4. Slayer Rule

Question 4

Are vehicles subject to TOD?

Answer 4

Yes. Have to get new title and ask BMV to put it on there.

Question 5

Can an LLC allow a TOD?

Answer 5

Yes, unless the operating agreement doesn’t allow it.

Question 6

How do you do a TOD Deed?

Answer 6

“(insert owner’s name) conveys and warrants
(or quitclaims) to (insert owner’s name), TOD
to (insert beneficiary’s name)“

Question 7

Can you TOD TPP?

Answer 7

Yes, but it must be notarized.

Question 8

Does the TOD instrument have to be delivered to be effective?

Answer 8

Yes.

Question 9

When is a TOD Deed effective?

Answer 9

When recorded. HAS to be recorded BEFORE death.

Question 10

Can you amend or revoke a TOD?

Answer 10

Yes, but not by will or trust.

Question 11

How do you revoke a TOD Deed?

Answer 11

Any subsequent revocation OR deed (tath changes ownership) must also be recorded to revoke the TOD Deed.

Transfer of ownership of real property during the life of owner terminates the beneficiary designation,
but only if the deed is recorded during the life of
the owner

Question 12

Can a trust be a TOD beneficiary?

Answer 12

Yes, all kinds of trusts.

A testamentary trust is considered to have
come into existence at the owner’s death if
the will is admitted to probate

Question 13

What interest does beneficiary have during life?

Answer 13

None

Question 14

What is the effective date for a TOD designation (not deed)?

Answer 14

A beneficiary designation, revocation or
amendment relates back to the date it was
received by the transferring entity

Question 15

If want lineal descendants on TOD what to use?

Answer 15

LDPS (can also say is NO LDPS)

Question 16

What happens if beneficiary designation procured by fraud, duress, undue influence, or mistake or because
the owner lacked capacity?

Answer 16

It’s void

Question 17

Can a tenant in common do a TOD on his share?

Answer 17

Yes

Question 18

Can you do a TOD Deed on life estate?

Answer 18

No

Question 19

What is the anti-lapse statute under TOD Act?

Answer 19

LDPS is Default rule if a beneficiary is a descendant; can opt out with “no LDPS”

Question 20

What happens to TOD upon divorce?

Answer 20

The beneficiary designation is revoked.

Question 21

What are the rules for TODs 12 months after owner’s death?

Answer 21

• If a trust is a beneficiary and no trustee is appointed,
transferring entity may distribute as if no trust survived

• If a trust is a beneficiary and no affidavit of certification of trust is received, transferring entity may distribute as if no trust survived

• Evidence of a surviving descendant of a nonsurviving
beneficiary is not received, transferring entity may
distribute as if no descendant of a nonsurviving
beneficiary survived the owner

• If a missing beneficiary’s share is not claimed,
transferring entity may distribute as if that beneficiary
did not survive the owner

Question 22

What should an interested person do if have an adverse claim to a TOD?

Answer 22

Must send notice to the transferring entity before the TOD transfer is made

• Afford a reasonable opportunity to act on the
notice before making the transfer

• Requirements of Notice:
– Asserts a claim of beneficial interest adverse to the
transfer to be made
– Name and address of claimant
– Identifies the owner
– States the nature of the claim

• Transferring entity can discharge its duty by sending a notice to the claimant
• Notice must be sent by certified mail
• Must advise claimant that the transfer will be made at least forty-five (45) days after the date of mailing, unless a court order is received
• Transferring entity may require parties to adjudicate their rights or post a bond

Question 23

Which court has jurisidiction over TODs?

Answer 23

• The probate court shall hear and determine
questions and issue appropriate orders
concerning any action to:
– Obtain the property from a transferring entity
– Determine the beneficiary who is entitled to
receive a TOD transfer
– Determine the proper share of each beneficiary
– Obtain the return of improperly distributed
property (plus income/gain)