Bulletin: WI2009001

Dear Associates:

On March 27, 2006, the Wisconsin legislature enacted 2005 Wisconsin Act 206 to create a vehicle for a nonprobate transfer of real estate at death. This statute permits an owner of real estate to record a deed which designates one or more beneficiaries who will receive title to the real estate upon the owner's death. See Wis. Stats. §705.15 for the TOD provisions and Wis. Stats. §§77.21 & 77.22 for transfer fee provisions and exceptions.

What Is The Purpose Of A Transfer On Death Deed?

Unlike a direct deed from the grantor to the beneficiaries, with the grantor retaining a life estate (which conveys a remainder interest to the beneficiaries), the "transfer on death" deed is NOT a conveyance of the real estate at the time that the TOD deed is recorded, but only acts as a conveyance when the grantor dies. Thus, the grantor may unilaterally change his or her mind on who the beneficiary will be at any time prior to death just by revoking the TOD deed or by recording a subsequent TOD deed with a different beneficiary. In addition, the grantor may continue to deal with the real estate as a sole owner, and need not get the signatures of the beneficiaries to mortgage or sell the real estate.

What Deed Form Is Used For A Transfer On Death Deed?

As of October of 2008, there is not a particular deed form to be used to create a TOD deed.

Usually a quit claim deed form is used with the following modifications:

1. The name will be changed from "Quit Claim Deed" to "Transfer on Death Deed"
   
   
2. The granting language [(grantor's name) quit claims to (grantee's name) the following described real estate . . .] will often be changed to "(grantor's name) transfers on death to (grantee's name) the following described real estate . . ."
   
   
3. The deed should have a notation to the following effect:
   
   This document designates a Transfer on Death Beneficiary only pursuant to Wis. Stats. §705.15, and is exempt from the transfer fee and transfer return pursuant to Wis. Stats. §77.21(1) and 77.25(10m).

If you discover one of these deeds during a search, the notation on the deed may be as brief as

"This conveyance is pursuant to Wis. Stats. §705.15"

Or the notation may be as elaborate as

"This is a Transfer on Death Deed under Wis. Stats. §705.15, which conveys ownership of the above real estate upon the grantor's death to those of the above-named grantees who survive grantor as a non-testamentary conveyance without probate. No conveyance occurs until the death of the grantor. Grantor is the sole owner of this real estate while grantor is living. During the grantor's lifetime, grantor has the right to revoke or change this deed in any manner, including the right to change the grantees named herein, and the right to sell or otherwise convey this real estate and to retain the sales proceeds, without the permission or involvement of the grantees. This deed is exempt from transfer fee per §§77.21(1) and 77.25(10m)."

What Happens When The Grantor Dies?

Like real estate held in joint tenancy or as survivorship marital property or property subject to a life estate, the actual transfer of the real estate to the TOD beneficiary occurs immediately upon the death of the grantor and without anything being recorded with the register of deeds.

To evidence the conveyance in the chain of title, the beneficiary (or another interested party) can prepare and record a Form HT-110-TOD.This form is similar to the more familiar HT-110 used to evidence the death of a life tenant or of a joint tenant. This form and its instructions are located at the following website: http://www.wrdaonline.org/./Forms/index.htm.

How Should A TOD Deed In The Chain Of Title Be Shown On A Commitment?

1. The TOD deed is not the vesting deed, and it does not change the vesting to be shown in the commitment. The search needs to go back at least to the deed from which the grantor obtained title. This is the vesting that needs to be shown in Schedule A.
   
   
2. As the TOD deed does not convey any interest in the real estate until the grantor dies, there is no need to require any deed or mortgage to be signed by the TOD beneficiaries.
   
   
3. Because the TOD deed is recorded in the title chain, you may want to acknowledge its existence somewhere in your commitment. Do so by adding the following note to Schedule B-II of the commitment:

NOTE: We find a Transfer on Death deed dated ___________________, from ___________, as Grantor(s), to _______________, as Beneficiar(ies) recorded on ________________ [date] in Reel/Volume/Book ____, Image/Page _____, as Document No. ________________. This document does not currently convey any interest in the real estate.

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