STATE OF NEW YORK ________________________________________________________________________ 7267 IN SENATE January 5, 2018 ___________ Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the real property law, in relation to transfer on death deeds The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The real property law is amended by adding a new section 2 424 to read as follows: 3 § 424. Transfer on death deed. 1. Definitions. For the purposes of 4 this section the following terms shall have the following meanings: 5 (a) "Beneficiary" means a person that receives property under a trans- 6 fer on death deed. 7 (b) "Designated beneficiary" means a person designated to receive 8 property in a transfer on death deed. 9 (c) "Joint owner" means an individual who owns property concurrently 10 with one or more other individuals with a right of survivorship. The 11 term includes a joint tenant, owner of community property with a right 12 of survivorship and tenant by the entirety. The term does not include a 13 tenant in common or owner of community property without a right of 14 survivorship. 15 (d) "Person" means an individual, corporation, business trust, estate, 16 trust, partnership, limited liability company, association, joint 17 venture, public corporation, government or governmental subdivision, 18 agency, or instrumentality, or any other legal or commercial entity. 19 (e) "Property" means an interest in real property located in this 20 state which is transferable on the death of the owner. 21 (f) "Transfer on death deed" means a deed authorized under this 22 section. 23 (g) "Transferor" means an individual who makes a transfer on death 24 deed. 25 2. Nonexclusivity. This section does not affect any method of trans- 26 ferring property otherwise permitted under the law of this state. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14068-01-7

S. 7267 2 1 3. Transfer on death deed authorized. An individual may transfer prop- 2 erty to one or more beneficiaries effective at the transferor's death by 3 a transfer on death deed. 4 4. Transfer on death deed revocable. A transfer on death deed is revo- 5 cable even if the deed or another instrument contains a contrary 6 provision. 7 5. Transfer on death deed nontestamentary. A transfer on death deed is 8 nontestamentary. 9 6. Capacity of transferor. The capacity required to make or revoke a 10 transfer on death deed is the same as the capacity required to make a 11 will. 12 7. Requirements. A transfer on death deed: 13 (a) except as otherwise provided in paragraph (b) of this subdivision, 14 shall contain the essential elements and formalities of a properly 15 recordable inter vivos deed; 16 (b) shall state that the transfer to the designated beneficiary is to 17 occur at the transferor's death; and 18 (c) shall be recorded before the transferor's death in the public 19 records in the county clerk's office of the county where the property is 20 located in the same manner as any other type of deed. 21 8. Notice, delivery, acceptance, consideration not required. A trans- 22 fer on death deed shall be effective without: 23 (a) notice or delivery to or acceptance by the designated beneficiary 24 during the transferor's life; or 25 (b) consideration. 26 9. Revocation by instrument authorized; revocation by act not permit- 27 ted. (a) Subject to paragraph (b) of this subdivision, an instrument 28 shall be effective to revoke a recorded transfer on death deed, or any 29 part of it, only if the instrument: 30 (1) is one of the following: 31 (A) a transfer on death deed that revokes the deed or part of the deed 32 expressly or by inconsistency; 33 (B) an instrument of revocation that expressly revokes the deed or 34 part of the deed; or 35 (C) an inter vivos deed that expressly revokes the transfer on death 36 deed or part of the deed; and 37 (2) is acknowledged by the transferor after the acknowledgment of the 38 deed being revoked and recorded before the transferor's death in the 39 public records in the county clerk's office of the county where the deed 40 is recorded. 41 (b) If a transfer on death deed is made by more than one transferor: 42 (1) revocation by a transferor shall not affect the deed as to the 43 interest of another transferor; and 44 (2) a deed of joint owners shall only be revoked if it is revoked by 45 all of the living joint owners. 46 (c) After a transfer on death deed is recorded, it shall not be 47 revoked by a revocatory act on the deed. 48 (d) This section shall not limit the effect of an inter vivos transfer 49 of the property. 50 10. Effect of transfer on death deed during transferor's life. During 51 a transferor's life, a transfer on death deed shall not: 52 (a) affect an interest or right of the transferor or any other owner, 53 including the right to transfer or encumber the property; 54 (b) affect an interest or right of a transferee, even if the transfer- 55 ee has actual or constructive notice of the deed;

S. 7267 3 1 (c) affect an interest or right of a secured or unsecured creditor or 2 future creditor of the transferor, even if the creditor has actual or 3 constructive notice of the deed; 4 (d) affect the transferor's or designated beneficiary's eligibility 5 for any form of public assistance; 6 (e) create a legal or equitable interest in favor of the designated 7 beneficiary; or 8 (f) subject the property to claims or process of a creditor of the 9 designated beneficiary. 10 11. Effect of transfer on death deed at transferor's death. (a) 11 Except as otherwise provided in the transfer on death deed, in this 12 section or in any other section of law which effects nonprobate trans- 13 fers, on the death of the transferor, the following rules apply to prop- 14 erty that is the subject of a transfer on death deed and owned by the 15 transferor at death: 16 (1) Subject to subparagraph two of this paragraph, the interest in the 17 property shall be transferred to the designated beneficiary in accord- 18 ance with the deed. 19 (2) The interest of a designated beneficiary is contingent on the 20 designated beneficiary surviving the transferor. The interest of a 21 designated beneficiary that fails to survive the transferor lapses. 22 (3) Subject to subparagraph four of this paragraph, concurrent inter- 23 ests shall be transferred to the beneficiaries in equal and undivided 24 shares with no right of survivorship. 25 (4) If the transferor has identified two or more designated benefici- 26 aries to receive concurrent interests in the property, the share of one 27 which lapses or fails for any reason shall be transferred to the other, 28 or to the others in proportion to the interest of each in the remaining 29 part of the property held concurrently. 30 (b) Subject to this chapter, a beneficiary takes the property subject 31 to all conveyances, encumbrances, assignments, contracts, mortgages, 32 liens, and other interests to which the property is subject at the 33 transferor's death. For purposes of this paragraph and this chapter, the 34 recording of the transfer on death deed shall be deemed to have occurred 35 at the transferor's death. 36 (c) If a transferor is a joint owner and is survived by one or more 37 other joint owners, the property that is the subject of a transfer on 38 death deed shall belong to the surviving joint owner or owners with 39 right of survivorship. 40 (d) If a transferor is a joint owner and is the last surviving joint 41 owner, the transfer on death deed shall be effective. 42 (e) A transfer on death deed transfers property without covenant or 43 warranty of title even if the deed contains a contrary provision. 44 12. Disclaimer. A beneficiary may disclaim all or part of the benefi- 45 ciary's interest in the same manner as if the interest was transferred 46 in a will. 47 13. Liability for creditor claims and statutory allowances. (a) To 48 the extent the transferor's probate estate is insufficient to satisfy an 49 allowed claim against the estate or a statutory allowance to a surviving 50 spouse or child, the estate may enforce the liability against property 51 transferred at the transferor's death by a transfer on death deed. 52 (b) If more than one property is transferred by one or more transfer 53 on death deeds, the liability under paragraph (a) of this subdivision is 54 apportioned among the properties in proportion to their net values at 55 the transferor's death.

S. 7267 4 1 (c) A proceeding to enforce the liability under this section must be 2 commenced no later than eighteen months after the transferor's death. 3 14. Form of transfer on death deed. The following form may be used to 4 create a transfer on death deed. The other subdivisions of this section 5 shall govern the effect of this or any other instrument used to create a 6 transfer on death deed: 7 (front of form) 8 REVOCABLE TRANSFER ON DEATH DEED 9 NOTICE TO OWNER 10 You should carefully read all information on the other side of 11 this form. You May Want to Consult a Lawyer Before Using This Form. 12 This form must be recorded before your death, or it will not be 13 effective. 14 IDENTIFYING INFORMATION 15 Owner or Owners Making This Deed: 16 ________________________________________________________________________ 17 Printed name Mailing address 18 ________________________________________________________________________ 19 Printed name Mailing address 20 Legal description of the property: 21 ________________________________________________________________________ 22 PRIMARY BENEFICIARY 23 I designate the following beneficiary if the beneficiary survives 24 me. 25 ________________________________________________________________________ 26 Printed name Mailing address, if available 27 ALTERNATE BENEFICIARY - Optional 28 If my primary beneficiary does not survive me, I designate the follow- 29 ing alternate beneficiary if that beneficiary survives me. 30 ________________________________________________________________________ 31 Printed name Mailing address, if available 32 TRANSFER ON DEATH 33 At my death, I transfer my interest in the described property to the 34 beneficiaries as designated above. 35 Before my death, I have the right to revoke this deed. 36 SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED 37 ________________________________________________________________________ 38 Signature Date

S. 7267 5 1 ________________________________________________________________________ 2 Signature Date 3 ACKNOWLEDGMENT 4 (insert acknowledgment for deed here) 5 (back of form) 6 COMMON QUESTIONS ABOUT THE USE OF THIS FORM 7 What does the Transfer on Death (TOD) deed do? When you die, this deed 8 transfers the described property, subject to any liens or mortgages (or 9 other encumbrances) on the property at your death. Probate is not 10 required. The TOD deed has no effect until you die. You can revoke it 11 at any time. You are also free to transfer the property to someone else 12 during your lifetime. If you do not own any interest in the property 13 when you die, this deed will have no effect. 14 How do I make a TOD deed? Complete this form. Have it acknowledged 15 before a notary public or other individual authorized by law to take 16 acknowledgments. Record the form in each county where any part of the 17 property is located. The form has no effect unless it is acknowledged 18 and recorded before your death. 19 Is the "legal description" of the property necessary? Yes. 20 How do I find the "legal description" of the property? This informa- 21 tion may be on the deed you received when you became an owner of the 22 property. This information may also be available in the county clerk's 23 office of the county where the property is located. If you are not abso- 24 lutely sure, consult a lawyer. 25 Can I change my mind before I record the TOD deed? Yes. If you have 26 not yet recorded the deed and want to change your mind, simply tear up 27 or otherwise destroy the deed. 28 How do I "record" the TOD deed? Take the completed and acknowledged 29 form to the county clerk's office of the county where the property is 30 located. Follow the instructions given by the county clerk to make the 31 form part of the official property records. If the property is in more 32 than one county, you should record the deed in each county. 33 Can I later revoke the TOD deed if I change my mind? Yes. You can 34 revoke the TOD deed. No one, including the beneficiaries, can prevent 35 you from revoking the deed. 36 How do I revoke the TOD deed after it is recorded? There are three 37 ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revo- 38 cation form, and record it in each county where the property is located. 39 (2) Complete and acknowledge a new TOD deed that disposes of the same 40 property, and record it in each county where the property is located. 41 (3) Transfer the property to someone else during your lifetime by a 42 recorded deed that expressly revokes the TOD deed. You may not revoke 43 the TOD deed by will. 44 I am being pressured to complete this form. What should I do? Do not 45 complete this form under pressure. Seek help from a trusted family 46 member, friend, or lawyer. 47 Do I need to tell the beneficiaries about the TOD deed? No, but it is 48 recommended. Secrecy can cause later complications and might make it 49 easier for others to commit fraud.

S. 7267 6 1 I have other questions about this form. What should I do? This form is 2 designed to fit some but not all situations. If you have other ques- 3 tions, you are encouraged to consult a lawyer. 4 15. Form of revocation. The following form may be used to create an 5 instrument of revocation under this section. The other subdivisions of 6 this section shall govern the effect of this or any other instrument 7 used to revoke a transfer on death deed. 8 (front of form) 9 REVOCATION OF TRANSFER ON DEATH DEED 10 NOTICE TO OWNER 11 This revocation must be recorded before you die or it will not be 12 effective. This revocation is effective only as to the interests in the 13 property of owners who sign this revocation. 14 IDENTIFYING INFORMATION 15 Owner or Owners of Property Making This Revocation: 16 ________________________________________________________________________ 17 Printed name Mailing address 18 ________________________________________________________________________ 19 Printed name Mailing address 20 Legal description of the property: 21 ________________________________________________________________________ 22 REVOCATION 23 I revoke all my previous transfers of this property by transfer on 24 death deed. 25 SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION 26 ________________________________________________________________________ 27 Signature Date 28 ________________________________________________________________________ 29 Signature Date 30 ACKNOWLEDGMENT 31 (insert acknowledgment here) 32 (back of form) 33 COMMON QUESTIONS ABOUT THE USE OF THIS FORM 34 How do I use this form to revoke a Transfer on Death (TOD) deed? 35 Complete this form. Have it acknowledged before a notary public or other 36 individual authorized to take acknowledgments. Record the form in the 37 public records in the county clerk's office of the county where the 38 property is located. The form must be acknowledged and recorded before 39 your death or it has no effect.

S. 7267 7 1 How do I find the "legal description" of the property? This informa- 2 tion may be on the TOD deed. It may also be available in the county 3 clerk's office of the county where the property is located. If you are 4 not absolutely sure, consult a lawyer. 5 How do I "record" the form? Take the completed and acknowledged form 6 to the county clerk's office of the county where the property is 7 located. Follow the instructions given by the county clerk to make the 8 form part of the official property records. If the property is located 9 in more than one county, you should record the form in each of those 10 counties. 11 I am being pressured to complete this form. What should I do? Do not 12 complete this form under pressure. Seek help from a trusted family 13 member, friend, or lawyer. 14 I have other questions about this form. What should I do? This form is 15 designed to fit some but not all situations. If you have other ques- 16 tions, consult a lawyer. 17 § 2. This act shall take effect immediately and shall apply to any 18 transfer on death deed made before, on, or after the effective date of 19 this act by a transferor dying on or after the effective date of this 20 act.

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