Bulletin: NE2012004

Dear Associates:

The Nebraska Uniform Real Estate Transfer on Death Deed Act was signed by Nebraska’s Governor on April 5, 2012, and is codified at Sections 76-3401 through 76-3423, Nebraska Revised Statutes.  What follows is a section-by-section outline of the provisions of the Act.  Reference should be made to the actual legislation when seeking to apply it to specific circumstances and situations.

Some sections of the Act are not included below because, although important, they are not of crucial interest to the title community, and are omitted in the interest of brevity.

L. B. 536 (2012)

NEBRASKA UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

§2.  Definitions Key:  

1. Beneficiary:  a person who receives property under a transfer on death deed (TODD).
2. Designated Beneficiary (DB):  person designated to receive property in a TODD.
3. Person:  individual, corporation, an estate, trustee of a trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
4. Property:  an interest in property located in this state which is transferable upon the death of the owner.
5. Transferor:  an individual who makes a TODD.

§3.  Applicability

1.  TODD made before, on, after operative date of Act.

2.  Transferor dies on or after operative date of Act.

§4.  Other Means of Transfer No effect on other means of transfer. 

§5.  Agricultural real estate May sever growing crops by indicating that growing crops vest either in the DB, or in the transferor’s estate, upon transferor’s death.  If no disposition of growing crops appears in the TODD, the crops pass to the transferor’s estate. 

§6.  Revocable despite contrary provision. 

§7.  Nontestamentary  A TODD is not a Last Will and Testament, and is therefore not treated as one.

§8.  Capacity of transferor is same capacity required to make a will. 

§9.  Self-proving provision required   

1. Attested by two or more disinterested witnesses. Consider problems inherent in determining who is a "disinterested" witness. This term is not defined in the statute. Nebraska Probate Code defines, in the context of witnessing of a will, "disinterested witness" as a person who is not an "interested witness;" [§30-2209(10)].  "Interested witness" is defined as one who is or would be entitled to receive any property thereunder..." [§30-2209(22)]

2. Acknowledged before notary or equivalent officer. Transferor and witnesses must all sign in the presence of a notary.

The foregoing section is unique to Nebraska. 

§10.  Execution and recording 

1. Same formalities of execution of properly recorded inter vivos deed

2. Statement that transfer to occur at transferor’s death

3. Warnings to be included in the TODD: 

a. subject to inheritance taxation

b. designated beneficiary is personally liable for Medicaid reimbursement and for claims against transferor’s estate

c. HHS may require revocation to maintain qualification for Medicaid

d. Defect in wording of warnings doesn’t invalidate deed  

4. Recording must be

a. within 30 days after being executed

b. before transferor’s death

c. in ROD where property is located 

§11.  Notice or delivery to designated beneficiary not required for TODD to be effective. 

§12.  Form 521 (Real Estate Transfer Statement required) at time TODD becomes effective (death of transferor/recording of death certificate). 

The foregoing section is unique to Nebraska. 

§13.  Revocation

         a. subsequent TODD

         b. separate instrument of revocation, or

         c. inter vivos deed expressly revoking, and

         d.  acknowledged by transferor after acknowledgement of deed being
              revoked and recorded:

            1. within 30 days after execution  (see §25-2221 for time computation)

            2. before transferor’s death and

            3. in Register of Deeds (ROD) of county where deed is recorded

            4. if more than one transferor:  

a. revocation by a transferor does not affect the deed as to interest of another transferor;

b. deed of joint owners revoked only if revoked by all living joint owners who were transferors; "joint owners" defined as With Rights of Survivorship (WROS) and not Tenants in Common (TIC)

c. TOD deed may not be revoked by a revocatory act on the deed

d. no limitation on the effect of an inter vivos transfer of the property   

§14.  No effect during transferor’s life 

a. on interest or right of transferor or any other owner, including right to transfer or encumber

b. on interest or right of a transferee

c. on interest of any creditor

d. on transferor’s or beneficiary’s eligibility for public assistance

e. not subject to claims of creditors of designated beneficiary

§15.  Rules regarding transfers  

a. interest of designated beneficiary contingent on DB surviving transferor by 120 hours, unless otherwise provided

b. concurrent interests are transferred to DB in equal, undivided shares, with no right of survivorship

c. if two or more DBs are to receive concurrent interests, and the share of one fails, that share is transferred to the other DB

d. DB takes subject to all matters of record

e. If transferor is a joint owner, property belongs to surviving joint owner or owners WROS

f. if the transferor is the last surviving joint owner, a TODD  by the survivor is effective

g. no covenant or warranty of title even if warranty language in deed

h. divorce, dissolution, or annulment after recording of TODD revokes TODD unless TODD expressly provides otherwise

§16.  Disclaimer  DB may disclaim all or any part of the beneficiary’s interest. 

§17. Designated Beneficiary’s liability  Personally liable if remainder of transferor’s estate is insufficient to pay claims, statutory allowances, or expenses of administration. 

§18.  Medicaid reimbursement  DB personally liable for Medicaid reimbursement.

The foregoing section is unique to Nebraska. 

§19.  Contract to make or not revoke TODD must be established by written evidence signed by transferor after operative date of act. 

The foregoing section is unique to Nebraska. 

§20.  Bona fide purchaser or lender for value  

a. takes free and clear of claims of estate, personal representative, surviving spouse, creditors, or others claiming by, through, or under the transferor

b. DOES NOT take free and clear of liability for inheritance tax  

The foregoing section is unique to Nebraska. 

§21. Health and Human Services may require revocation to qualify/remain qualified for Medicaid. 

The foregoing section is unique to Nebraska. 

§22. Intentionally omitted. 

§23. Intentionally omitted. 

All following sections are not part of the TODD Act, but were included in LB 536, and affect other statutory sections, as indicated. 

§24. Renunciation Amends §30-2352, Nebraska Probate Code 

a.  designated beneficiary may renounce any interest by filing a written instrument of renunciation.

b. renunciation made after property has been assigned, transferred, encumbered, conveyed, or pledged is ineffective as to any interest so assigned, transferred, encumbered, conveyed, or pledged.

§25. Murder Amends  §30-2354, Nebraska Probate Code. 

Person who feloniously kills or feloniously aids or abets the killing of the transferor who signed the TODD will be treated, for inheritance purposes, as if he or she predeceased the transferor. 

§26-28 Intentionally omitted.

§29.  Amends §76-214 to   

a. require filing of Real Estate Transfer Statement at the time transferor’s death certificate is filed;

b. require date of death, name of the decedent, and whether the title is affected as a result of a transfer on death deed; joint tenancy deed; expiration of a life estate; or other means.

§30. Intentionally omitted. 

§31. Requires filing of the death certificate. 

§32. Takes TODD out of the operation of the recording acts so that the TODD doesn’t take effect upon recording.  Amends §76-238 – the recording act. 

§33. TODD cannot be revoked until the instrument of revocation is executed, acknowledged and filed with the Register of Deeds.  Amends §76-246, which provides that an instrument of revocation must be recorded with the Register of Deeds. 

§34. Intentionally omitted. 

§35. Additional documentary stamp tax exemptions  (Not a part of the codified TODD Act, but included in LB 536).  Amends §76-902; documentary tax exemptions.  

a. deeds between ex-spouses for the purpose of conveying any rights to property acquired or held during the marriage;

b. transfer on death deeds or revocations of transfer on death deeds

c. certified or authenticated death certificates pertaining to transfer on death deeds 

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