An Act To Enact the Uniform Real Property Transfer on Death Act
Maine Legislature, Session 128, LD 0773
Committee: Judiciary
Sponsors: MALABY

Legislative Document
No. 773
H.P. 553
House of Representatives, March 2, 2017
An Act To Enact the Uniform Real Property Transfer on Death Act
Reference to the Committee on Judiciary suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative MALABY of Hancock.
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  18-A MRSA Art. 6, Pt. 4 is enacted to read:  
UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT (2009) 
Prefatory Note 
One of the main innovations in the property law of the twentieth century has been the 
development of asset-specific will substitutes for the transfer of property at death. By 
these mechanisms, an owner may designate beneficiaries to receive the property at the 
owner's death without waiting for probate and without the beneficiary designation 
needing to comply with the witnessing requirements of wills. Examples of specific assets 
that today routinely pass outside of probate include the proceeds of life insurance policies 
and pension plans, securities registered in transfer on death (TOD) form, and funds held 
in pay on death (POD) bank accounts. 
Today, nonprobate transfers are widely accepted. The trend has largely focused on 
assets that are personal property, such as the assets described in the preceding paragraph. 
However, long-standing uniform law speaks more broadly. Section 6-101 of the Uniform 
Probate Code (UPC) provides:  "A provision for a nonprobate transfer on death in an 
insurance policy, contract of employment, bond, mortgage, promissory note, certificated 
or uncertificated security, account agreement, custodial agreement, deposit agreement, 
compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, 
conveyance, deed of gift, marital property agreement, or other written instrument of a 
similar nature is nontestamentary" (emphasis supplied). 
A small but growing number of jurisdictions have implemented the principle of UPC 
Section 6-101 by enacting statutes providing an asset-specific mechanism for the 
nonprobate transfer of land. This is done by permitting owners of interests in real 
property to execute and record a transfer on death (TOD) deed. By this deed, the owner 
identifies the beneficiary or beneficiaries who will succeed to the property at the owner's 
death. During the owner's lifetime, the beneficiaries have no interest in the property, and 
the owner retains full power to transfer or encumber the property or to revoke the TOD 
deed. 
Thirteen states have enacted statutes authorizing TOD deeds. In the chronological 
order of the statutes' enactment, the states are: Missouri (1989), Kansas (1997), Ohio 
(2000), New Mexico (2001), Arizona (2002), Nevada (2003), Colorado (2004), Arkansas 
(2005), Wisconsin (2006), Montana (2007), Oklahoma (2008), Minnesota (2008), and 
Indiana (2009). 
The time is ripe for a Uniform Act to facilitate this emerging form of nonprobate 
transfer and to bring uniformity and clarity to its use and operation. 
PART 4 
UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT 
§6-401.  Short title 
This Part may be known and cited as "the Uniform Real Property Transfer on Death 
Act." 
§6-402.  Definitions 
As used in this Part, unless the context otherwise indicates, the following terms have 
the following meanings. 
1.  Beneficiary.  "Beneficiary" means a person that receives property under a transfer 
on death deed. 
2.  Designated beneficiary.  "Designated beneficiary" means a person designated to 
receive property in a transfer on death deed. 
3.  Joint owner.  "Joint owner" means an individual who owns property concurrently 
with one or more other individuals with a right of survivorship.  "Joint owner" includes a 
joint tenant and tenant by the entirety.  "Joint owner" does not include a tenant in 
common or owner of community property without a right of survivorship. 
4.  Person.  "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.  "Property" means an interest in real property located in this State that 
is transferable on the death of the owner. 
6.  Transfer on death deed.  "Transfer on death deed" means a deed authorized 
under this Part. 
7.  Transferor.  "Transferor" means an individual who makes a transfer on death 
deed. 
Comment 
Paragraph (1) defines a beneficiary as a person that receives property under a transfer 
on death deed.  This links the definition of a "beneficiary" to the definition of a "person." 
A beneficiary can be any person, including the trustee of a revocable trust. 
Paragraph (2) defines a designated beneficiary as a person designated to receive 
property in a transfer on death deed. This links the definition of a "designated 
beneficiary" to the definition of a "person." A designated beneficiary can be any person, 
including a revocable trust. 
The distinction between a "beneficiary" and a "designated beneficiary" is easily 
illustrated. Section 13 provides that, on the transferor's death, the property that is the 
subject of a transfer on death deed is transferred to the designated beneficiaries who 
survive the transferor. If X and Y are the designated beneficiaries but only Y survives the 
transferor, then Y is a beneficiary and X is not. A further illustration comes into play if 
Section 13 is made subject to the state's antilapse statute. If X fails to survive the 
transferor but has a descendant, Z, who survives the transferor, the antilapse statute may 
create a substitute gift in favor of Z. In such a case, the designated beneficiaries are X and 
Y, but the beneficiaries are Y and Z. 
Paragraph (3) provides a definition of a "joint owner" as an individual who owns 
property with one or more other individuals with a right of survivorship. The term is used 
in Sections 11 and 13. 
Paragraph (4) is the standard Uniform Law Commission definition of a "person." 
The effect of paragraph (5) is that the act applies to all interests in real property 
located in this state that are transferable at the death of the owner. 
Paragraph (6) provides that a "transfer on death deed" is a deed authorized under this 
act. In some states with existing transfer on death deed legislation, the legislation has 
instead used the term "beneficiary deed." The term "transfer on death deed" is preferred, 
to be consistent with the transfer on death registration of securities. See Article 6, Part 3, 
of the Uniform Probate Code, containing the Uniform TOD Security Registration Act. 
Paragraph (7) limits the definition of a "transferor" to an individual. The term 
"transferor" does not include a corporation, business trust, estate, trust, partnership, 
limited liability company, association, joint venture, public corporation, government or 
governmental subdivision, agency, or instrumentality, or any legal or commercial entity 
other than an individual. The term also does not include an agent or other representative. 
If a transfer on death deed is made by an agent on behalf of a principal or by a 
conservator, guardian, or judge on behalf of a ward, the principal or ward is the 
transferor. By way of analogy, see Uniform Trust Code (2000/2005) Section 103(15) 
(defining "settlor") and the accompanying Comment (excluding an individual "acting as 
the agent for the person who will be funding the trust"). The power of an agent to make or 
revoke a transfer on death deed on behalf of a principal is determined by other law, such 
as the Uniform Power of Attorney Act (2006) (UPC Article 5B), as indicated in the 
Comments to Sections 9 and 11 (UPC Sections 6-409 and 6-411). 
§6-403.  Applicability 
This Part applies to a transfer on death deed made before, on or after January 1, 2018 
by a transferor dying on or after January 1, 2018. 
Comment 
This section provides that the act applies to a transfer on death deed made before, on, 
or after the effective date of the act by a transferor dying on or after the effective date of 
the act. This section is consistent with the Uniform Probate Code's provisions governing 
transfer on death registration of securities. Those provisions "appl[y] to registrations of 
securities in beneficiary form made before or after [effective date], by decedents dying on 
or after [effective date]." UPC Section 6-311. 
§6-404.  Nonexclusivity 
This Part does not affect any method of transferring property otherwise permitted 
under the law of this State. 
Comment 
This section provides that the act is nonexclusive. The act does not affect any method 
of transferring property otherwise permitted under state law. 
One such method is a present transfer with a retained legal life estate. Consider the 
following examples: 
Example 1. A conveys Blackacre to B while reserving A's right to remain in 
possession until A's death. By this conveyance, A has made a present transfer of a future 
interest to B. The transfer is irrevocable. The future interest will ripen into possession at 
A's death, even if B fails to survive A. 
Example 2. A executes, acknowledges, and records a transfer on death deed for 
Blackacre, naming B as the designated beneficiary. During A's lifetime, no interest passes 
to B, and A may revoke the deed. If unrevoked, the deed will transfer possession to B at 
A's death only if B survives A. 
As illustrated in these examples, the two methods of transfer have different effects 
and are governed by different rules. 
§6-405.  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. 
Comment 
This section authorizes a transfer on death deed and makes it clear that the transfer is 
not an inter vivos transfer. The transfer occurs at the transferor's death. 
The transferor is an individual, but the singular includes the plural. Multiple 
individuals can readily act together to transfer property by a transfer on death deed, as in 
the common case of a husband and wife who own the property as joint tenants or as 
tenants by the entirety. On the effect of a transfer on death deed made by joint owners, 
see Section 13(c) and the accompanying Comment. 
The transferor may select any form of ownership, concurrent or successive, absolute 
or conditional, contingent or vested, valid under state law. Among many other things, this 
permits the transferor to reserve interests for the transferor's estate (e.g., mineral 
interests); to specify the nature and extent of the beneficiary's interest; and to designate 
one or more primary beneficiaries and one or more alternate beneficiaries to take in the 
event the primary beneficiaries fail to survive the transferor. This freedom to specify the 
form and terms of the transferee's interest comports with the fundamental principle of 
American law recognized by the Restatement (Third) of Property (Wills and Other 
Donative Transfers) §10.1 that the donor's intention should be "given effect to the 
maximum extent allowed by law." As the Restatement explains in Comment c to §10.1, 
"American law curtails freedom of disposition only to the extent that the donor attempts 
to make a disposition or achieve a purpose that is prohibited or restricted by an overriding 
rule of law." 
Notwithstanding this freedom of disposition, transferors are encouraged as a practical 
matter to avoid formulating dispositions that would complicate title. Dispositions 
containing conditions or class gifts, for example, may require a court proceeding to sort 
out the beneficiaries' interests. Other estate planning mechanisms, such as trusts, may be 
more appropriate in such cases. 
§6-406.  Transfer on death deed revocable 
A transfer on death deed is revocable even if the deed or another instrument contains 
a contrary provision. 
Comment 
A fundamental feature of a transfer on death deed under this act is that the transferor 
retains the power to revoke the deed. Section 6 is framed as a mandatory rule, for two 
reasons. First, the rule prevents an off-record instrument from affecting the revocability 
of a transfer on death deed. Second, the rule protects the transferor who may wish later to 
revoke the deed. 
If the transferor promises to make the deed irrevocable or not to revoke the deed, the 
promisee may have a remedy under other law if the promise is broken. The deed remains 
revocable despite the promise. 
§6-407.  Transfer on death deed nontestamentary 
A transfer on death deed is nontestamentary. 
Comment 
This section is consistent with Uniform Probate Code Section 6-101(a), which 
provides: "A provision for a nonprobate transfer on death in an insurance policy, contract 
of employment, bond, mortgage, promissory note, certificated or uncertificated security, 
account agreement, custodial agreement, deposit agreement, compensation plan, pension 
plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, 
marital property agreement, or other written instrument of a similar nature is 
nontestamentary." 
As the Comment to Uniform Probate Code Section 6-101 explains, because the mode 
of transfer is declared to be nontestamentary, the instrument of transfer is not a will and 
does not have to be executed in compliance with the formalities for wills, nor does the 
instrument need to be probated. 
Whether a document that is ineffective as a transfer on death deed (e.g., because it 
has not been recorded before the transferor's death) should be given effect as a 
testamentary instrument will depend on the applicable facts and on the wills law of the 
jurisdiction. Section 2-503 of the Uniform Probate Code provides in pertinent part: 
"Although a document ... was not executed in compliance with Section 2-502, the 
document ... is treated as if it had been executed in compliance with that section if the 
proponent of the document ... establishes by clear and convincing evidence that the 
decedent intended the document ... to constitute ... (iii) an addition to or alteration of the 
[decedent's] will ...." 
§6-408.  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. 
Comment 
This section provides that the capacity required to make or revoke a transfer on death 
deed, which is a revocable will substitute, is the same as the capacity required to make a 
will. It is appropriate that a will and a transfer on death deed require the same level of 
capacity, for both mechanisms are revocable and ambulatory, the latter term meaning that 
they do not operate before the grantor's death. This approach is consistent with the 
Restatement (Third) of Property (Wills and Other Donative Transfers) §8.1(b), which 
applies the standard of testamentary capacity, and not the standard of capacity for inter 
vivos gifts, to revocable will substitutes: "If the donative transfer is in the form of a will, 
a revocable will substitute, or a revocable gift, the testator or donor must be capable of 
knowing and understanding in a general way the nature and extent of his or her property, 
the natural objects of his or her bounty, and the disposition that he or she is making of 
that property, and must also be capable of relating these elements to one another and 
forming an orderly desire regarding the disposition of the property." This section is also 
consistent with Uniform Trust Code Section 601: "The capacity required to create, 
amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee 
of a revocable trust, is the same as that required to make a will." 
A transfer on death deed is not affected if the transferor subsequently loses capacity. 
On the ability of an agent under a power of attorney to make or revoke a transfer on death 
deed, see the Comments to Sections 9 and 11. 
§6-409.  Requirements 
A transfer on death deed: 
1.  Essential elements and formalities.  Except as otherwise provided in subsection 
2, must contain the essential elements and formalities of a properly recordable inter vivos 
deed; 
2.  Death of transferor.  Must state that the transfer to the designated beneficiary is 
to occur at the transferor's death; and 
3.  Recorded before transferor's death.  Must be recorded before the transferor's 
death in the public records in the registry of deeds in the county where the property is 
located. 
Comment 
Paragraph (1) requires a transfer on death deed to contain the same essential elements 
and formalities, other than a present intention to convey, as are required for a properly 
recordable inter vivos deed under state law. "Essential elements" is a term with a long 
usage in the law of deeds of real property. The essential elements of a deed vary from one 
state to another but commonly include the names of the grantor and grantee, a clause 
transferring title, a description of the property transferred, and the grantor's signature. In 
all states, the essential elements of a properly recordable deed include the requirement 
that the deed be acknowledged by the grantor before a notary public or other individual 
authorized by law to take acknowledgments. See Thompson on Real Property §92.04(c) 
(observing that a "certificate of acknowledgment or attestation is universally required to 
qualify an instrument for recordation"). In the context of transfer on death deeds, the 
requirement of acknowledgment fulfills at least four functions. First, it cautions a 
transferor that he or she is performing an act with legal consequences. Such caution is 
important where, as here, the transferor does not experience the wrench of delivery 
because the transfer occurs at death. Second, acknowledgment helps to prevent fraud. 
Third, acknowledgment facilitates the recording of the deed. Fourth, acknowledgment 
enables the rule in Section 11 that a later acknowledged deed prevails over an earlier 
acknowledged deed. 
Paragraph (2) emphasizes an important distinction between an inter vivos transfer and 
a transfer on death. An inter vivos transfer reflects an intention to transfer, at the time of 
the conveyance, an interest in property, either a present interest or a future interest. In 
contrast, a transfer on death reflects an intention that the transfer occur at the transferor's 
death. Under no circumstances should a transfer on death be given effect inter vivos; to 
do so would violate the transferor's intention that the transfer occur at the transferor's 
death. 
Paragraph (3) requires a transfer on death deed to be recorded before the transferor's 
death in the county (or other appropriate administrative division of a state, such as a 
parish) where the land is located. If the property described in the deed is in more than one 
county, the deed is effective only with respect to the property in the county or counties 
where the deed is recorded. The requirement of recordation before death helps to prevent 
fraud by ensuring that all steps necessary to the effective transfer on death deed are 
completed during the transferor's lifetime.  The requirement of recordation before death 
also enables all parties to rely on the recording system. 
An individual's agent may execute a transfer on death deed on the individual's behalf 
to the extent permitted by other law, such as the Uniform Power of Attorney Act (2006). 
This act does not define, but instead relies on other law to determine, the authority of an 
agent. 
§6-410.  Notice, delivery, acceptance, consideration not required 
A transfer on death deed is effective without: 
1.  Notice, delivery or acceptance.  Notice or delivery to or acceptance by the 
designated beneficiary during the transferor's life; or 
2.  Consideration.  Consideration. 
Comment 
This section makes it clear that a transfer on death deed is effective without notice or 
delivery to or acceptance by the beneficiary during the transferor's lifetime (paragraph 
(1)) and without consideration (paragraph (2)). 
Paragraph (1) is consistent with the fundamental distinction under this act between a 
transfer on death deed and an inter vivos deed. Under the former, but not under the latter, 
the transfer occurs at the transferor's death. Therefore, there is no requirement of notice, 
delivery, or acceptance during the transferor's life. This does not mean that the 
beneficiary is required to accept the property. The beneficiary may disclaim the property, 
as explained in Section 14 and the accompanying Comment. 
Paragraph (2) is consistent with the law of donative transfers. A deed need not be 
supported by consideration. 
§6-411.  Revocation by instrument authorized; revocation by act not permitted 
1.  Revocation by instrument.  Subject to subsection 2, an instrument is effective to 
revoke a recorded transfer on death deed, or any part of it, only if the instrument: 
A.  Is one of the following: 
(1)  A transfer on death deed that revokes the deed or part of the deed expressly 
or by inconsistency; 
(2)  An instrument of revocation that expressly revokes the deed or part of the 
deed; or 
(3)  An inter vivos deed that expressly revokes the transfer on death deed or part 
of the deed; and 
B.  Is acknowledged by the transferor after the acknowledgment of the deed being 
revoked and recorded before the transferor's death in the registry of deeds in the 
county where the deed is recorded. 
2.  More than one transferor.  If a transfer on death deed is made by more than one 
transferor: 
A.  Revocation by a transferor does not affect the deed as to the interest of another 
transferor; and 
B.  A deed of joint owners is revoked only if it is revoked by all of the living joint 
owners. 
3.  Revocation after recorded.  After a transfer on death deed is recorded, it may not 
be revoked by a revocatory act on the deed. 
4.  Inter vivos transfer.  This section does not limit the effect of an inter vivos 
transfer of the property. 
Comment 
This section concerns revocation by instrument and revocation by act. On revocation 
by change of circumstances, such as by divorce or homicide, see Section 13 and the 
accompanying Comment. 
Subsection (a) provides the exclusive methods of revoking, in whole or in part, a 
recorded transfer on death deed by a subsequent instrument. Revocation by an instrument 
not specified, such as the transferor's will, is not permitted. 
The rule that a transfer on death deed may not be revoked by the transferor's 
subsequent will is a departure from the Restatement (Third) of Property (Wills and Other 
Donative Transfers) §7.2 comment e (see also the corresponding Reporter's Note), which 
encourages the revocability of will substitutes by will. However, there is a sound reason 
for the departure in the specific case of a transfer on death deed. A transfer on death deed 
operates on real property, for which certainty of title is essential. This certainty would be 
difficult, and in many cases impossible, to achieve if an off-record instrument, such as the 
grantor's will, could revoke a recorded transfer on death deed. The rule in this act against 
revocation by will is also consistent with the uniform acts governing multiple-party bank 
accounts. See Uniform Probate Code Section 6-213(b) ("A right of survivorship arising 
from the express terms of the account, Section 6-212, or a POD designation, may not be 
altered by will.") 
A recorded transfer on death deed may be revoked by instrument only by (1) a 
subsequently acknowledged transfer on death deed, (2) a subsequently acknowledged 
instrument of revocation, such as the form in Section 17, or (3) a subsequently 
acknowledged inter vivos deed containing an express revocation clause. Consider the 
following examples: 
Example 1. T executes, acknowledges, and records a transfer on death deed for 
Blackacre. Later, T executes, acknowledges, and records a second transfer on death deed 
for Blackacre, containing an express revocation clause revoking "all my prior transfer on 
death deeds concerning this property." The second deed revokes the first deed. The 
revocation occurs when the second deed is recorded. (For the result if the second deed 
had not contained the express revocation clause, see Example 5.) 
Example 2. T executes, acknowledges, and records two transfer on death deeds for 
Blackacre. Both deeds expressly revoke "all my prior transfer on death deeds concerning 
this property." The dates of acknowledgment determine which deed revoked the other. 
The first deed is acknowledged November 1; the second deed is acknowledged December 
15. The second deed is the later acknowledged, so it revokes the first deed. The 
revocation occurs when the second deed is recorded. 
Example 3. T executes and acknowledges a transfer on death deed for Blackacre. T 
later executes and acknowledges a revocation form. Both instruments are recorded. 
Because the revocation form is acknowledged later than the deed, the form revokes the 
deed. The revocation occurs when the form is recorded. 
Example 4. T executes and acknowledges a transfer on death deed for Blackacre. T 
later executes and acknowledges an inter vivos deed conveying Blackacre and expressly 
revoking the transfer on death deed. Both instruments are recorded. Because the inter 
vivos deed contains an express revocation provision and is acknowledged later than the 
transfer on death deed, the inter vivos deed revokes the transfer on death deed. The 
revocation occurs when the inter vivos deed is recorded. (For the result if the inter vivos 
deed had not contained an express revocation clause, see the discussion below on 
"ademption by extinction.") 
The same rules apply whether the revocation is total or partial. In the previous 
examples, suppose instead that the initial transfer on death deed provides for the transfer 
of two parcels, Blackacre and Whiteacre, and that the subsequent instrument revokes the 
transfer on death deed as to Blackacre. The subsequent instrument revokes the transfer on 
death deed in part. 
If the property described in the original deed is in more than one county, the 
revocation is effective only with respect to the property in the county or counties where 
the revoking deed or instrument is recorded. 
Subsection (a)(1)(A) speaks of revocation "expressly or by inconsistency." This 
provision references the well-established law of revocation by inconsistency of wills. 
Consider the following examples: 
Example 5. T executes, acknowledges, and records a transfer on death deed for 
Blackacre naming X as the designated beneficiary. Later, T executes, acknowledges, and 
records a transfer on death deed for the same property, Blackacre, containing no express 
revocation of the earlier deed but naming Y as the designated beneficiary. Later, T dies. 
The recording of the deed in favor of Y revokes the deed in favor of X by inconsistency. 
At T's death, Y is the owner of Blackacre. 
Example 6. T, the owner of Blackacre in fee simple absolute, executes, 
acknowledges, and records a transfer on death deed for Blackacre naming X as the 
designated beneficiary. Later, T executes, acknowledges, and records a transfer on death 
deed containing no express revocation of the earlier deed but naming Y as the designated 
beneficiary of a life estate (or a mineral interest) in Blackacre. Later, T dies. The 
recording of the deed in favor of Y partially revokes the deed in favor of X by 
inconsistency. At T's death, Y is the owner of a life estate (or a mineral interest) in 
Blackacre, and X is the owner of the remainder. 
The question is sometimes raised whether a recorded inter vivos deed without an 
express revocation clause operates as a revocation of an earlier transfer on death deed. 
The answer highlights the important distinction between "revocation" and "ademption by 
extinction." See Atkinson on Wills §134. Revocation means that the instrument is 
rendered void. Ademption by extinction means that the transfer of the property cannot 
occur because the property is not owned by the transferor at death. The doctrines are 
different. 
In some instances, revocation and ademption have the same practical effect: the 
designated beneficiary of the property receives nothing. Nothing in this section changes 
that fact, as indicated in subsection (d). However, there are other instances where the 
doctrines have differing effects. Consider the following illustration, drawn from the law 
of wills. 
Example 7. T executes a will devising Blackacre to A. Later, T becomes legally 
incompetent, and G is appointed as T's conservator. G, acting within the scope of his 
authority, sells Blackacre to B for $100,000. Later, T dies. 
The law of wills provides that the devise to A is adeemed rather than revoked. This 
means that A is not entitled to Blackacre but is entitled to a pecuniary devise in the 
amount of $100,000. See UPC Section 2-606(b); Atkinson on Wills §134; Wasserman v. 
Cohen, 606 N.E.2d 901, 903 (Mass. 1993). The result is designed to effectuate T's 
presumed intention. 
The Joint Editorial Board for Uniform Trust and Estate Acts has begun a 
conversation on whether the Uniform Probate Code's provisions on ademption should be 
extended to nonprobate transfers, thus harmonizing the treatment of wills and will 
substitutes on this aspect of the law. 
This act accepts the well-recognized distinction between revocation and ademption in 
order to leave the door open for such future harmonization, which would effectuate the 
presumed intention of nonprobate grantors. 
Subsection (b) supplies rules governing revocation by instrument in the event of a 
transfer on death deed made by multiple owners. Subsection (b)(1) provides that 
revocation by a transferor does not affect a transfer on death deed as to the interest of 
another transferor. 
Subsection (b)(2) provides that a transfer on death deed of joint owners is revoked 
only if it is revoked by all of the living joint owners. This rule is consistent with Uniform 
Probate Code Section 6-306, which provides in pertinent part: "A registration of a 
security in beneficiary form may be canceled or changed at any time by the sole owner or 
all then surviving owners without the consent of the beneficiary." Subsection (b)(2) 
applies only to a deed of joint owners. A joint tenant who severs the joint tenancy, 
thereby destroying the right of survivorship, is no longer a joint owner. 
Subsection (c) provides that a recorded transfer on death deed may not be revoked by 
a revocatory act performed on the deed. Such an act includes burning, tearing, canceling, 
obliterating, or destroying the deed or any part of it. 
This act does not define, but instead looks to other law to determine, the authority of 
an agent. An individual's agent may revoke a transfer on death deed on the individual's 
behalf to the extent permitted by other law, such as the Uniform Power of Attorney Act 
(2006). 
§6-412.  Effect of transfer on death deed during transferor's life 
During a transferor's life, a transfer on death deed does not: 
1.  Affect interest or right of transferor or other owner.  Affect an interest or right 
of the transferor or any other owner, including the right to transfer or encumber the 
property; 
2.  Affect interest or right of transferee.  Affect an interest or right of a transferee, 
even if the transferee has actual or constructive notice of the deed; 
3.  Affect interest or right of creditor.  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 eligibility or public assistance.  Affect the transferor's or designated 
beneficiary's eligibility for any form of public assistance; 
5.  Create legal or equitable interest.  Create a legal or equitable interest in favor of 
the designated beneficiary; or 
6.  Subject the property to claims or process.  Subject the property to claims or 
process of a creditor of the designated beneficiary. 
Comment 
A fundamental feature of a transfer on death deed under this act is that it does not 
operate until the transferor's death. The transfer occurs at the transferor's death, not 
before. 
Paragraph (1): A transfer on death deed, during the transferor's lifetime, does not 
affect the interests or property rights of the transferor or any other owners. Therefore, the 
deed does not, among many other things: affect the transferor's right to transfer or 
encumber the property inter vivos; sever a joint tenancy or a joint tenant's right of 
survivorship; trigger a due-on-sale clause in the transferor's mortgage; trigger the 
imposition of real estate transfer tax; or affect the transferor's homestead or real estate tax 
exemptions, if any. 
Paragraph (2): A transfer on death deed does not affect transferees, whether or not 
they have notice of the deed. Like a will, the transfer on death deed is ambulatory. It has 
no effect on inter vivos transfers. 
Paragraph (3): A transfer on death deed, during the transferor's lifetime, does not 
affect pre-existing or future creditors, secured or unsecured, whether or not they have an 
interest in the property or notice of the deed. 
Paragraph (4): A transfer on death deed, during the transferor's lifetime, does not 
affect the transferor's or designated beneficiary's eligibility for any form of public 
assistance, including Medicaid. On this point, the drafting committee specifically 
disapproves of the contrary approach of Colo. Rev. Stat. §15-15-403. 
Paragraph (5): During the transferor's lifetime, a transfer on death deed does not 
create a legal or equitable interest in the designated beneficiary. The beneficiary does not 
have an interest that can be assigned or encumbered. Note, however, that this rule would 
not preclude the doctrine of after-acquired title. A warranty deed from a designated 
beneficiary to a third party would operate to pass the beneficiary's title to the third party 
after the transferor's death. 
Paragraph (6): A transfer on death deed, during the transferor's lifetime, does not 
make the property subject to claims or process of the designated beneficiary's creditors. 
The deed has no more effect than a will. 
If a transferor combines an inter vivos transfer of an interest in property (such as a 
mineral interest) with a transfer on death of the remainder interest, the inter vivos transfer 
may have present effect even though the transfer on death does not occur until the 
transferor's death. 
§6-413.  Effect of transfer on death deed at transferor's death 
1.  Upon death of transferor.  Except as otherwise provided in the transfer on death 
deed, in this section or in section 2-508, 2-605, 2-803 or 2-805 or in Article 2, Part 2, on 
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. 
A.  Subject to paragraph B, the interest in the property is transferred to the designated 
beneficiary in accordance with the deed. 
B.  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. 
C.  Subject to paragraph D, concurrent interests are transferred to the beneficiaries in 
equal and undivided shares with no right of survivorship. 
D.  If the transferor has identified 2 or more designated beneficiaries to receive 
concurrent interests in the property, the share of one that 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. 
2.  Subject to all interests.  Subject to Title 33, section 201, 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 Title 33, section 201, the recording of the transfer on 
death deed is deemed to have occurred at the transferor's death. 
3.  Joint owner.  If a transferor is a joint owner and is: 
A.  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 
B.  The last surviving joint owner, the transfer on death deed is effective. 
4.  No covenant or warranty of title.  A transfer on death deed transfers property 
without covenant or warranty of title even if the deed contains a contrary provision. 
Comment 
Subsection (a) states four default rules, except as otherwise provided by the transfer 
on death deed, by this section, or by other provisions of state law governing nonprobate 
transfers. On this last, and the desirability of extending the probate rules governing 
antilapse, revocation on divorce or homicide, survival and simultaneous death, and the 
elective share of the surviving spouse to nonprobate instruments such as transfer on death 
deeds, see the Legislative Note. 
The four default rules established by subsection (a) are these. First, the property that 
is the subject of an effective transfer on death deed and owned by the transferor at death 
is transferred at the transferor's death to the designated beneficiaries as provided in the 
deed. The rule implements the transferor's intention as described in the deed. Consider the 
following example: 
Example 1. A executes, acknowledges, and records a transfer on death deed for 
Blackacre naming X as the primary beneficiary and Y as the alternate beneficiary if X fails 
to survive A. Both X and Y survive A. Blackacre is transferred to X at A's death in 
accordance with the provisions of the deed. 
This default rule implements the fundamental principle that the provisions of the deed 
control the disposition of the property, unless otherwise provided by state law. 
The drafting committee approves of the result in In re Estate of Roloff, 143 P.3d 406 
(Kan. Ct. App. 2006) (holding that crops should be transferred with the land under a 
transfer on death deed because this result would be reached on the same facts with any 
other deed). 
The bracketed language at the beginning of subsection (a) enables a state to make the 
default rules subject to other statutes, such as an antilapse statute or a statute providing 
for revocation on divorce. Consider the following examples: 
Example 2. A executes, acknowledges, and records a transfer on death deed for 
Blackacre naming X as the primary beneficiary and Y as the alternate beneficiary if X fails 
to survive A. In fact, X and Y fail to survive A, who is survived only by X's child, Z. 
Assume that the state's antilapse statute applies to transfer on death deeds and creates a 
substitute gift in Z. (For such a statute, see Uniform Probate Code Section 2-706.) 
Blackacre is transferred to Z at A's death in accordance with the provisions of the deed as 
modified by the antilapse statute. 
Example 3. A executes, acknowledges, and records a transfer on death deed for 
Blackacre naming her spouse, X, as the primary beneficiary and Y as the alternate 
beneficiary if X fails to survive A. Later, A and X divorce. Assume that the state's statute 
on revocation by divorce applies to transfer on death deeds and revokes the designation in 
favor of X, with the effect that the provisions of the transfer on death deed are given 
effect as if X had disclaimed. (For such a statute, see Uniform Probate Code Section 
2-804.) Assume further that the effect of the putative disclaimer is that X is treated as 
having failed to survive A. (See the Uniform Disclaimer of Property Interests Act 
(1999/2006) Section 6(a)(3)(B) (UPC Section 2-1106(a)(3)(B).) Blackacre is transferred 
to Y at A's death in accordance with the provisions of the deed as modified by the 
revocation on divorce and disclaimer statutes. 
Note that the property must be owned by the transferor at death. Property no longer 
owned by the transferor at death cannot be transferred by a transfer on death deed, just as 
it cannot be transferred by a will. This is the principle of ademption by extinction, 
discussed in the Comment to Section 11. 
In almost every instance, the transferor will own the property not only at death but 
also when the transfer on death deed is executed, but the latter is not imperative. Consider 
the following example. H and W, a married couple, hold Blackacre as tenants by the 
entirety. H executes, acknowledges, and records a transfer on death deed for Blackacre in 
favor of X. W later dies, at which point H owns Blackacre in fee simple absolute. Later, H 
dies. Under the law of some states, there may be a question whether the transfer on death 
deed is effective, given that H executed it when Blackacre was owned, not by H and W, 
but by the marital entity. The correct answer is that the transfer on death deed is effective 
at H's death because Blackacre is owned by H at H's death. See, e.g., Mitchell v. 
Wilmington Trust Co., 449 A.2d 1055 (Del. Ch. 1982) (mortgage granted by one tenant 
by the entirety is not void upon execution but remains inchoate during the lives of both 
spouses and becomes a valid lien if the spouse who executed the mortgage survives the 
other spouse or if the spouses get divorced). 
The second default rule established by subsection (a) is that the interest of a 
designated beneficiary is contingent on surviving the transferor. This default rule treats 
wills and will substitutes alike. The interest of a designated beneficiary who fails to 
survive the transferor lapses. On the desirability of extending statutory antilapse 
protection to will substitutes such as transfer on death deeds, see the Legislative Note. 
The third default rule established by subsection (a) is that concurrent beneficiaries 
receive equal and undivided interests with no right of survivorship among them. This 
default rule is consistent with the general presumption in favor of tenancy in common. 
See Powell on Real Property §51.02. The rule is also consistent with Uniform Probate 
Code Section 6-212 governing multiple-party accounts and Section 6-307 governing the 
transfer on death registration of securities. 
The fourth and last default rule established by subsection (a) is that, in the event of 
the lapse or failure of an interest to be held concurrently, the share that lapses or fails 
passes proportionately to the surviving concurrent beneficiaries. Consider the following 
example: 
Example 4.  A executes, acknowledges, and records a transfer on death deed for 
Blackacre naming X, Y, and Z as the designated beneficiaries. X and Y survive A, but Z 
fails to survive A. The transfer on death deed is effective and, in the absence of an 
antilapse statute, transfers Blackacre to X and Y. This default rule is consistent with the 
transferor's probable intention in the absence of an antilapse statute and also with 
Uniform Probate Code Section 2-604(b) on the lapse of a residuary devise. On the 
desirability of extending statutory antilapse protection to will substitutes such as transfer 
on death deeds, see the Legislative Note. 
Subsection (b) concerns the effect of transactions during the transferor's life. The 
subsection states an intermediate rule between two extremes. One extreme would provide 
that transactions during the transferor's life affect the beneficiary only if the transactions 
are recorded before the transferor's death. This would unfairly disadvantage the 
transferor's creditors and inter vivos transferees. The other extreme would provide that 
transactions during the transferor's life always supersede the beneficiary's interest, even if 
the recording act would provide otherwise. Between these two positions is the rule of 
subsection (b). 
Subsection (b) provides that the beneficiary's interest is subject to all conveyances, 
encumbrances, assignments, contracts, mortgages, liens, and other interests to which the 
property is subject at the transferor's death. "Liens" includes liens arising by operation of 
law, such as state Medicaid liens. 
The only exception to this rule arises when the state recording act so provides. The 
state recording act will so provide only when two conditions are met: (1) the inter vivos 
conveyance or encumbrance is unrecorded throughout the transferor's life (the legal 
fiction in this subsection protects persons who transact with the transferor and record any 
time before the transferor's death); and (2) the beneficiary is protected by the recording 
act. These two conditions will be met only in rare instances. Most beneficiaries of transfer 
on death deeds are gratuitous, whereas state recording acts typically protect only 
purchasers for value. See Powell on Real Property §82.02. 
Subsection (c) provides that the survivorship right of a joint owner takes precedence 
over the transfer on death deed. This rule is consistent with the law of joint tenancy and 
wills: the right of survivorship takes precedence over a provision in a joint tenant's will. 
Subsection (d) states the mandatory rule that a transfer on death deed transfers the 
property without covenant or warranty of title. The rule is mandatory for two reasons: 
first, to prevent mishaps by uninformed grantors; and second, to recognize that a transfer 
on death deed is a will substitute. The rule of this section is consistent with the 
longstanding law of wills. As stated by Sir Edward Coke, "an express warranty cannot be 
created by will." Coke on Littleton 386a. 
§6-414.  Disclaimer 
A beneficiary may disclaim all or part of the beneficiary's interest as provided by 
section 2-801. 
Comment 
A beneficiary of a transfer on death deed may disclaim the property interest the deed 
attempts to transfer. While this section relies on other law, such as the Uniform 
Disclaimer of Property Interests Act (1999/2006), to govern the disclaimer, two general 
principles should be noted. 
First, there is no need under the law of disclaimers to execute a disclaimer in 
advance.  During the transferor's life, a designated beneficiary has no interest in the 
property. See Section 12. Nothing passes to the designated beneficiary while the 
transferor is alive, hence there is no need to execute a disclaimer during that time. 
Second, an effective disclaimer executed after the testator's death "relates back" to the 
moment of the attempted transfer, here the death of the transferor. Because the disclaimer 
"relates back," the beneficiary is regarded as never having had an interest in the 
disclaimed property. The Uniform Disclaimer of Property Interests Act (1999/2006) 
(UPC Article 2, Part 11) reaches this result, without using the language of relation back, 
in UDPIA Section 6(b)(1): "The disclaimer takes effect as of the time the instrument 
creating the interest becomes irrevocable ...." As the Comment to UDPIA Section 6 
explains, "This Act continues the effect of the relation back doctrine, not by using the 
specific words, but by directly stating what the relation back doctrine has been interpreted 
to mean." 
§6-415.  Liability for creditor claims and statutory allowances 
A beneficiary of a transfer on death deed is liable for an allowed claim against the 
transferor's probate estate and statutory allowances to a surviving spouse and children to 
the extent provided in section 6-107. 
Comment 
Alternative A defers to other law, such as Uniform Probate Code Section 6-102, to 
establish the liability of a beneficiary of a transfer on death deed for creditor claims and 
statutory allowances. 
Uniform Probate Code (UPC) Section 6-102 was added in 1998 to establish the 
principle that recipients of nonprobate transfers can be required to contribute to pay 
allowed claims and statutory allowances to the extent the probate estate is insufficient. 
The fundamental rule of liability is contained in UPC Section 6-102(b): "Except as 
otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability 
to any probate estate of the decedent for allowed claims against the decedent's probate 
estate and statutory allowances to the decedent's spouse and children to the extent the 
estate is insufficient to satisfy those claims and allowances. The liability of a nonprobate 
transferee may not exceed the value of nonprobate transfers received or controlled by that 
transferee." The other provisions of UPC Section 6-102 implement this liability rule. 
For states not favoring the comprehensive approach of UPC Section 6-102(b) or the 
equivalent, Alternative B provides an in rem liability rule applying to transfer on death 
deeds. The property transferred under a transfer on death deed is liable to the transferor's 
probate estate for properly allowed claims and statutory allowances to the extent the 
estate is insufficient. 
One of the functions of probate is creditor protection. UPC Section 6-102, referenced 
in Alternative A, attempts to provide comprehensive creditor protection within the realm 
of nonprobate transfers. In addition, this act in Alternative B provides more creditor 
protection than is typically available under current law. For many transferors, the transfer 
on death deed will be used in lieu of joint tenancy with right of survivorship. Under the 
usual law of joint tenancy, the unsecured creditors of a deceased joint tenant have no 
recourse against the property or against the other joint tenant. Instead, the property passes 
automatically to the survivor, free of the decedent's debts. See Comment 5 to UPC 
Section 6-102. If the debts cannot be paid from the probate estate, the creditor is out of 
luck. Under Alternative B, in contrast, the property transferred under a transfer on death 
deed is liable to the probate estate for properly allowed claims and statutory allowances to 
the extent the estate is insufficient. 
§6-416.  Optional form of transfer on death deed 
The following form may be used to create a transfer on death deed.  The other 
sections of this Part govern the effect of this or any other instrument used to create a 
transfer on death deed. 
(front of form) 
REVOCABLE TRANSFER ON DEATH DEED 
NOTICE TO OWNER 
You should carefully read all information on the other side of this form.  YOU MAY 
WANT TO CONSULT A LAWYER BEFORE USING THIS FORM. 
This form must be recorded before your death, or it will not be effective. 
IDENTIFYING INFORMATION 
Owner or Owners Making This Deed: 
............................................................ 
............................................................................................ 
Printed name..........................................Mailing address 
............................................................................................ 
Printed name..........................................Mailing address 
Legal description of the property: 
........................................................................................................................ 
PRIMARY BENEFICIARY 
I designate the following beneficiary if the beneficiary survives me. 
............................................................ 
............................................................................................ 
Printed name..........................................Mailing address, if available 
ALTERNATE BENEFICIARY - Optional 
If my primary beneficiary does not survive me, I designate the following alternate 
beneficiary if that beneficiary survives me. 
............................................................ 
............................................................................................ 
Printed name..........................................Mailing address, if available 
TRANSFER ON DEATH 
At my death, I transfer my interest in the described property to the beneficiaries as 
designated above. 
Before my death, I have the right to revoke this deed. 
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED 
............................................................ 
(SEAL, if any)..................................... 
Signature.................................................Date............... 
............................................................ 
(SEAL, if any)..................................... 
Signature.................................................Date............... 
ACKNOWLEDGMENT 
(insert acknowledgment for deed here) 
(back of form) 
COMMON QUESTIONS ABOUT THE USE OF THIS FORM 
What does the Transfer on Death (TOD) deed do? When you die, this deed transfers 
the described property, subject to any liens or mortgages (or other encumbrances) on the 
property at your death.  Probate is not required.  The TOD deed has no effect until you 
die.  You can revoke it at any time.  You are also free to transfer the property to someone 
else during your lifetime.  If you do not own any interest in the property when you die, 
this deed will have no effect. 
How do I make a TOD deed? Complete this form.  Have it acknowledged before a 
notary public or other individual authorized by law to take acknowledgments.  Record the 
form in each county where any part of the property is located.  The form has no effect 
unless it is acknowledged and recorded before your death. 
Is the "legal description" of the property necessary? Yes. 
How do I find the "legal description" of the property? This information may be on the 
deed you received when you became an owner of the property.  This information may 
also be available in the registry of deeds for the county where the property is located.  If 
you are not absolutely sure, consult a lawyer. 
Can I change my mind before I record the TOD deed? Yes.  If you have not yet 
recorded the deed and want to change your mind, simply tear up or otherwise destroy the 
deed. 
How do I "record" the TOD deed? Take the completed and acknowledged form to the 
registry of deeds of the county where the property is located.  Follow the instructions 
given by the register of deeds to make the form part of the official property records.  If 
the property is in more than one county, you should record the deed in each county. 
Can I later revoke the TOD deed if I change my mind? Yes.  You can revoke the 
TOD deed.  No one, including the beneficiaries, can prevent you from revoking the deed. 
How do I revoke the TOD deed after it is recorded? There are three ways to revoke a 
recorded TOD deed:  (1) Complete and acknowledge a revocation form, and record it in 
each county where the property is located.  (2) Complete and acknowledge a new TOD 
deed that disposes of the same property, and record it in each county where the property 
is located.  (3) Transfer the property to someone else during your lifetime by a recorded 
deed that expressly revokes the TOD deed.  You may not revoke the TOD deed by will. 
I am being pressured to complete this form.  What should I do? Do not complete this 
form under pressure.  Seek help from a trusted family member, friend, or lawyer. 
Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended.  
Secrecy can cause later complications and might make it easier for others to commit 
fraud. 
I have other questions about this form.  What should I do? This form is designed to fit 
some but not all situations.  If you have other questions, you are encouraged to consult a 
lawyer. 
Comment 
The form in this section is optional. The section is based on Section 4 of the Uniform 
Health-Care Decisions Act (1993). 
The transfer on death deed is likely to be used by consumers for whom the 
preparation of a tailored inter vivos revocable trust is too costly. The form in this section 
is designed to be understandable and consumer friendly. 
For examples of statutory forms containing answers to questions likely to be asked by 
consumers, see the Illinois statutory forms for powers of attorney. 755 Ill. Comp. Stat. 
45/3-3 (power of attorney for property); 755 Ill. Comp. Stat. 45/4-10 (power of attorney 
for health care). 
§6-417.  Optional form of revocation 
The following form may be used to create an instrument of revocation under this Part.  
The other sections of this Part govern the effect of this or any other instrument used to 
revoke a transfer on death deed. 
(front of form) 
REVOCATION OF TRANSFER ON DEATH DEED 
NOTICE TO OWNER 
This revocation must be recorded before you die or it will not be effective.  This 
revocation is effective only as to the interests in the property of owners who sign this 
revocation. 
IDENTIFYING INFORMATION 
Owner or Owners of Property Making This Revocation: 
............................................................ 
............................................................................................ 
Printed name..........................................Mailing address 
............................................................................................ 
Printed name..........................................Mailing address 
Legal description of the property: 
........................................................................................................................ 
REVOCATION 
I revoke all my previous transfers of this property by transfer on death deed. 
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION 
............................................................ 
(SEAL, if any)..................................... 
Signature.................................................Date............... 
............................................................ 
(SEAL, if any)..................................... 
Signature.................................................Date............... 
ACKNOWLEDGMENT 
(insert acknowledgment) 
(back of form) 
COMMON QUESTIONS ABOUT THE USE OF THIS FORM 
How do I use this form to revoke a Transfer on Death (TOD) deed? Complete this 
form.  Have it acknowledged before a notary public or other individual authorized to take 
acknowledgments.  Record the form in the public records in the registry of deeds of each 
county where the property is located.  The form must be acknowledged and recorded 
before your death or it has no effect. 
How do I find the "legal description" of the property? This information may be on the 
TOD deed.  It may also be available in the registry of deeds for the county where the 
property is located.  If you are not absolutely sure, consult a lawyer. 
How do I "record" the form? Take the completed and acknowledged form to the 
registry of deeds of the county where the property is located.  Follow the instructions 
given by the register of deeds to make the form part of the official property records.  If 
the property is located in more than one county, you should record the form in each of 
those counties. 
I am being pressured to complete this form.  What should I do? Do not complete this 
form under pressure.  Seek help from a trusted family member, friend, or lawyer. 
I have other questions about this form.  What should I do? This form is designed to fit 
some but not all situations.  If you have other questions, consult a lawyer. 
Comment 
The form in this section is optional. The section is based on Section 4 of the Uniform 
Health-Care Decisions Act (1993). 
The aim of the form in this section is to be understandable and consumer friendly. 
§6-418.  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. 
§6-419.  Relation to Electronic Signatures in Global and National Commerce Act 
This Part modifies, limits and supersedes the federal Electronic Signatures in Global 
and National Commerce Act, 15 United States Code, Section 7001, et seq., but does not 
modify, limit or supersede Section 101(c) of that Act, 15 United States Code, Section 
7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) 
of that Act, 15 United States Code, Section 7003(b). 
§6-420.  Effective date 
This Part takes effect January 1, 2018. 
SUMMARY 
This bill enacts the Uniform Real Property Transfer on Death Act, adopted by the 
Uniform Law Commission in 2009.  The Prefatory Note and the Comments explain the 
Act and its provisions in detail.