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Practitioners now have the benefit of The Non-Testamentary Transfer of Property Act, which provides an approved form for Transfer on Death Deeds. See 58 O.S. § 1253 (OK 2016).
Once the practitioner has drafted the Transfer on Death Deed in accordance with the statutory form, and determined that the client’s present situation is one contemplated by the Act, the hurdle to overcome is the beneficiary affidavit requirement.
When Grantor’s Intent is Clear
Once the Grantor’s intention is clearly established by a transfer on death deed, the next stage required by the Non-Testamentary Transfer of Property Act occurs after the death of the Grantor. This stage can happen months or years after the transfer on death deed is recorded. The practitioner therefore must be ready at any time to provide legal notice of the Grantee/Beneficiary’s acceptance.
The Affidavit
According to the Act, to accept real estate pursuant to a Transfer on Death Deed, “a designated grantee beneficiary shall execute an affidavit affirming: 1) verification of the record owner’s death, 2) whether the record owner and the designated beneficiary were married at the time of the record owner’s death, and 3) a legal description of the real estate.
Finally, “the grantee shall attach a copy of the record owner’s death certificate to the beneficiary affidavit.” 58 O.S. §1252 (OK 2016).
Acceptance
If the Grantee/Beneficiary accepts the interest in real estate conveyed in the Transfer on Death Deed, then he or she is required to obtain and record a beneficiary affidavit in accordance with the Statute. (Id.)
No Acceptance
Alternatively, If the Grantee/Beneficiary does not accept the interest in real estate conveyed in the Transfer on Death Deed or does not record a beneficiary affidavit before the expiration of nine months after the decedent’s date of death then the interest will revert to the estate of decedent, and thus be subject to a probate proceeding. 58 O.S. §1252 (OK 2016).
Conclusion
The Beneficiary Affidavit is just as important a part of the Non-Testamentary Trust Act as the Transfer on Death Deed itself. Without the proper execution and recording of the beneficiary affidavit, the same problem of having to probate the property arises.
The process identified in recording an affidavit is clear, so in order to avoid probate, the Grantee/Beneficiary must be notified of both the Transfer on Death Deed as well as the Grantor’s death within nine months.
For assistant with all of your estate planning, probate, or title examination needs, call Ball Morse Lowe today at 405-701-5355.
