MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary A
By: Representative Sanford
AN ACT TO CREATE THE MISSISSIPPI UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE THAT THE ACT IS APPLICABLE TO TRANSFER ON DEATH DEEDS EXECUTED AFTER JULY 1, 2020; TO DECLARE THAT THE ACT DOES NOT AFFECT ANY OTHER METHOD OF TRANSFERRING REAL PROPERTY; TO AUTHORIZE A TRANSFER ON DEATH DEED THAT IS BOTH REVOCABLE AND NONTESTAMENTARY; TO REQUIRE CAPACITY ON THE PART OF THE TRANSFEROR AND PRESCRIBE OTHER REQUIREMENTS; TO WAIVE NOTICE, DELIVERY, ACCEPTANCE AND CONSIDERATION FOR TRANSFER ON DEATH DEEDS; TO PRESCRIBE REQUIREMENTS FOR EFFECTIVE REVOCATION OF A TRANSFER ON DEATH DEED; TO PROVIDE FOR THE EFFECT OF A TRANSFER ON DEATH DEED WHILE THE TRANSFEROR IS STILL LIVING; TO PROVIDE FOR THE EFFECT, DURING A TRANSFEROR'S LIFETIME, OF A SUBSEQUENT CONVEYANCE OF REAL PROPERTY SUBJECT TO A TRANSFER ON DEATH DEED; TO PROVIDE FOR THE EFFECT AT THE TRANSFEROR'S DEATH AND THE EFFECT OF LIENS, ENCUMBRANCES AND CREDITORS' CLAIMS; TO AUTHORIZE A DESIGNATED BENEFICIARY TO DISCLAIM HIS INTEREST; TO CREATE OPTIONAL FORMS FOR A TRANSFER ON DEATH DEED AND FOR REVOCATION; 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 "Mississippi Uniform Real Property Transfer on Death Act."
SECTION 2. Definitions. As used in this chapter, the following words and phrases have the meanings ascribed in this section:
(1) "Beneficiary" means a person who receives real property under a transfer on death deed.
(2) "Designated beneficiary" means a person designated to receive real property in a transfer on death deed.
(3) "Joint owner with right of survivorship" or "joint owner" means an individual who owns real property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant 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) "Real property" means an interest in real property located in this state.
(6) "Transfer on death deed" means a deed authorized under this chapter and does not refer to any other deed that transfers an interest in real property on the death of an individual.
(7) "Transferor" means an individual who makes a transfer on death deed.
(8) In this chapter, the terms "cancel" and "revoke" are synonymous.
SECTION 3. Applicability. This chapter applies to a transfer on death deed executed and acknowledged on or after July 1, 2020, by a transferor who dies on or after July 1, 2020.
SECTION 4. Nonexclusivity. This chapter does not affect any method of transferring real property otherwise permitted under the laws of this state.
SECTION 5. Transfer on death deed authorized. An individual may transfer the individual's interest in real 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 shall be executed as set forth in Section 89-3-1 and need not be executed with the formalities of a will.
SECTION 7. Transfer on death deed nontestamentary. A transfer on death deed is a nontestamentary instrument.
SECTION 8. Capacity of transferor. (a) The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a contract.
(b) A transfer on death deed may not be created through use of a power of attorney unless the transfer of real property through a transfer on death deed is specifically authorized in the power of attorney.
SECTION 9. Requirements. To be effective, a transfer on death deed must:
(1) Except as otherwise provided in paragraph (2), contain the essential elements and formalities of a recordable deed;
(2) State that the transfer of an interest in real property to the designated beneficiary is to occur at the transferor's death;
(3) Be recorded before the transferor's death in the deed records in the official records of the chancery clerk of the county where the real 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 subsections (d) and (e), an instrument is effective to revoke a recorded transfer on death deed, or any part of it, if the instrument:
(1) Is one (1) of the following:
(A) A subsequent transfer on death deed that revokes the preceding transfer on death deed or part of the deed expressly or by inconsistency; or
(B) Except as provided by subsection (b), an instrument of revocation that expressly revokes the transfer on death deed or part of the deed;
(2) Is acknowledged by the transferor after the acknowledgment of the deed being revoked; and
(3) Is recorded before the transferor's death in the official records of the chancery clerk of the county where the deed being revoked is recorded.
(b) A will may not revoke or supersede a transfer on death deed.
(c) If a marriage between the transferor and a designated beneficiary is dissolved after a transfer on death deed is recorded, a final judgment of the court dissolving the marriage operates to revoke the transfer on death deed as to that designated beneficiary.
(d) If a transfer on death deed is made by more than one (1) transferor, revocation by a transferor does not affect the deed as to the interest of another transferor who does not make that revocation.
(e) A transfer on death deed made by joint owners with right of survivorship is revoked only if it is revoked by all of the living joint owners.
(f) This section does not limit the effect of an inter vivos transfer of the real 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:
(A) The right to transfer or encumber the real property that is the subject of the deed;
(B) Homestead rights in the real property, if applicable; and
(C) Ad valorem tax exemptions, including exemptions for residence homestead, persons sixty-five (65) years of age or older, persons with disabilities, and veterans.
(2) Affect an interest or right of a transferee of the real property that is the subject of the deed, 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, subject to applicable federal law;
(5) Constitute a transfer triggering a "due on sale" or similar clause;
(6) Invoke statutory real estate notice or disclosure requirements;
(7) Create a legal or equitable interest in favor of the designated beneficiary; or
(8) Subject the real property to claims or process of a creditor of the designated beneficiary.
SECTION 13. Effect of subsequent conveyance on transfer on death deed. An otherwise valid transfer on death deed is void as to any interest in real property that is conveyed by the transferor during the transferor's lifetime after the transfer on death deed is executed and recorded if:
(1) A valid instrument conveying the interest is recorded in the official records of the chancery clerk of the same county in which the transfer on death deed is recorded; and
(2) The recording of the instrument occurs before the transferor's death.
SECTION 14. Effect of transfer on death deed at transferor's death. Except as otherwise provided in the transfer on death deed, this section, or any other statute or the common law of this state governing a decedent's estate, on the death of the transferor, the following rules apply to an interest in real property that is the subject of a transfer on death deed and owned by the transferor at death:
(1) If a transferor is a joint owner with right of survivorship who is survived by one or more other joint owners, the real property that is the subject of the transfer on death deed belongs to the surviving joint owner or owners. If a transferor is a joint owner with right of survivorship who is the last-surviving joint owner, the transfer on death deed is effective.
(2) The last-surviving joint owner may revoke the transfer on death deed subject to Section 11.
(3) A transfer on death deed transfers real property without covenant of warranty of title even if the deed contains a contrary provision.
SECTION 15. Transfer on death deed property subject to liens and encumbrances at transferor's death; creditors' claims. (a) Except as otherwise provided in the transfer on death deed, in this section, in Section 91-1-25 relating to the prohibition on inheriting from a person one has killed, in Title 91, Chapter 3, Mississippi Code of 1972 (the Uniform Simultaneous Death Act), and in Section 91-5-25 relating to the spousal right to renounce a will, 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:
(1) Subject to paragraph (2), the interest in the property is transferred to a 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 (2) 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 Title 89, Chapter 5, Mississippi Code of 1972, relating to recordation of instruments, a designated beneficiary takes the real property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the real property is subject at the transferor's death. For purposes of this subsection and Section 89-5-1 et seq., the recording of the transfer on death deed is considered to have occurred at the transferor's death.
SECTION 16. Disclaimer. A designated beneficiary may disclaim all or part of the designated beneficiary's interest as provided by the Uniform Disclaimer of Property Interests Act (Chapter 21, Title 89, Mississippi Code of 1972).
SECTION 17. Optional form for transfer on death deed. The following form may be used to create a transfer on death deed. The other sections of this chapter govern the effect of this or any other instrument used to create a transfer on death deed:
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 as set forth in Section 11 of this act, the Mississippi Uniform Real Property Transfer on Death Act.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
______________________________ [(SEAL)]________________
Signature Date
______________________________ [(SEAL)]________________
Signature Date
ACKNOWLEDGMENT
(insert acknowledgment for deed here)
SECTION 18. Optional form of revocation. The following form may be used to create an instrument of revocation of a transfer on death deed. The other sections of this chapter govern the effect of this or any other instrument used to revoke a transfer on death deed.
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)]_________________
Signature Date
_____________________________ [(SEAL)]_________________
Signature Date
ACKNOWLEDGMENT
(insert acknowledgment here)
SECTION 19. Relation to electronic signatures in Global and National Commerce Act. This chapter 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 20. Sections 1 through 19 of this act shall be codified as a new chapter in Title 89, Mississippi Code of 1972.
SECTION 21. This act shall take effect and be in force from and after July 1, 2020.