CONSTRUCTION LAWLETTERS

FOR INDUSTRY PROFESSIONALS, MANAGERS, TRADES & SUPPLIERS

J. NORMAN STARK, ATTORNEY-AT-LAW

JURIS DOCTOR, B. ARCHITECTURE, B.F.A

Vol. 2001-9 sp September, 2001

NEW OHIO STATUTE - "TRANSFER ON DEATH" DEED

(Continued from August, 2001 issue.)

Named Beneficiaries. Upon the death of any individual who owns real property or an interest in real property subject to a “transfer on death beneficiary designation” and made using this new deed form, the deceased owner’s interest will be transferred only to the transfer on death (“TOD”) beneficiaries who are specifically identified in the deed by name and who survive the deceased owner or that is in existence on the date of the deceased owner’s death.

Recording. The transfer of the deceased owner’s interest must be recorded. However, first, the applicant must present to the County Auditor, an affidavit, accompanied by a certified copy of a death certificate for the deceased owner. The affidavit must recite: (1) the name and address of each designated transfer on death beneficiary who survived the deceased owner or that is in existence on the date of the deceased owner’s death, (2) the date of the deceased owner’s death, (3) a description of the subject real property or real property interest, and (4) the names of each designated transfer on death beneficiary who has not survived the deceased owner or that is not in existence on the date of the deceased owner’s death. A certified copy of a death certificate must accompany the affidavit for each designated transfer on death beneficiary who has not survived the deceased owner. The affidavit and supporting documents must next be presented to the County Recorder, who must make an index reference to any affidavit so filed in the record of deeds. (R.C. 5302.22 (C)).

Torrens Lands. Where title to real property to be made under the new law is registered under the existing Registration of Land Titles Law (Chapter 5309 R.C., Ohio Torrens Act), upon the death of the person holding the real property, or any interest in it, the transfer of the interest of the deceased owner shall be made pursuant to R.C. 5309.081. (R.C. 5302.22 (C)). A designated transfer on death beneficiary of Torrens land takes only the interest that the deceased owner or owners held on the date of death, subject to all encumbrances, reservations, and exceptions. (R.C. 5302.22 (B)(6)).

Liberal Construction. The new bill provides that any deed containing language that shows a clear intent to designate a transfer on death beneficiary must be liberally construed. (R.C. 53022.23 (A)).

Important Characteristics. Under this legislative enactment, and transfer on death provisions, certain important characteristics and aspects must be considered as well, namely:

(1) Transfer only to living / existing beneficiaries; multiple living/ existing beneficiaries; reversion of property to owner’s probate estate. A deceased owner’s interest may be transferred, using the new transfer on death deed, only to beneficiaries identified in the deed by name and who survive the deceased owner or that are in existence on the date of the deceased owner’s death. Where more than one transfer on death beneficiary is designated (named) the beneficiaries will take title in the interest in equal shares as “tenants in common”. If a transfer on death beneficiary does not survive the deceased owner (grantor) or is not in existence on the date of the deceased owner’s death, and the deceased owner has designated one or more persons as contingent transfer on death beneficiaries as provided in (2) hereinafter, the designated contingent TOD beneficiaries will take the same interest that would have passed to the TOD beneficiary had that TOD beneficiary survived the deceased owner or been in existence on the date of the deceased owner’s death. However, if none of the TOD beneficiaries survive the deceased owner, or is not in existence on the date of the deceased owner’s death, and no contingent TOD beneficiaries have been designated or have survived the deceased owner, the interest of the deceased owner, must be distributed as part of the probate estate of the deceased owner of the interest. (R.C. 5302.22 (B)(1)).
(To be continued in future issues.)

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Author:  J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has had experience in business, Construction, Real Property, Litigation and Construction-Legal Project and Crisis Management.

 


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