Bulletin: OR2011008

Dear Associates:

On January 1, 2012, the law governing the use of a Transfer on Death Deed in the state of Oregon takes effect.

A Transfer on Death Deed allows an individual who owns real property to pass title to their property upon their death, avoiding the need for a probate. Key elements of this new law are as follows:

• A Transfer on Death Deed must be recorded prior to the transferor’s death in the county where the property is located.
• A Transfer on Death Deed is revocable any time during the transferor’s life (even if the document states otherwise). The instrument revoking the Transfer on Death Deed must be recorded prior to the transferor’s death. A Transfer on Death Deed cannot be revoked by a will.
• A Transfer on Death Deed or an instrument revoking the deed that is procured by fraud, duress or undue influence is void.
• A proceeding to contest a Transfer on Death Deed must be commenced not later than 18 months after the transferor’s death.
• The beneficiary of a Transfer on Death Deed must be identified by name and cannot be a class designation, such as "the living children of my sister".
• A Transfer on Death Deed does not impact the transferor’s ability to transfer or encumber the property.
• A Transfer on Death Deed does not affect creditors.
• A Transfer on Death Deed does not make the property subject to claims or process of the designated beneficiary’s creditors.
• If a transferor is a joint owner and is survived by one or more joint owners, the property belongs to the surviving joint owners with a right of survivorship.  If the transferor is a joint owner and is the last surviving joint owner, the Transfer on Death Deed is effective upon the death of the transferor.
• A Transfer on Death Deed carries no warranties, even if the document states otherwise. The designated beneficiary takes title subject to all interests that the property was subject to at the time of the transferor’s death.
• Unless the deed states otherwise, the divorce of the transferor after the recording of the Transfer on Death Deed revokes all provisions in a Transfer on Death Deed in favor of the former spouse of the transferor.
• Transfer on Death Deeds that are recorded prior to January 1, 2012 are effective as long as the transferor dies on or after the effective date of act.

Despite the fact that it is recorded, the Transfer on Death Deed has no effect on the property while the transferor is alive. The Transfer on Death Deed takes effect immediately upon the death of the transferor. Please see the following underwriting guidelines for disclosure of these instruments on the title report.

• If title to the property is still held in the name of the transferor and the transferor is still alive, disclose the Transfer on Death Deed on Schedule B, Section II as a Note rather than a special exception. This note will not appear on a loan policy or an owner’s policy issued at the conclusion of this transaction.
• If the transferor in the Transfer on Death Deed has conveyed the property to a third party, the Transfer on Death Deed is automatically revoked and it is not necessary to disclose this document on your report.
• If you are notified from a source other than a recorded death certificate that the transferor is deceased, show the Transfer on Death Deed as an exception in your report and include a sub-paragraph calling for a certified copy of the death certificate. Do not insure title through the Transfer on Death Deed until the certified copy is obtained and recorded.
• If you are asked to insure a sale or refinance of the property less than 18 months after the death of the transferor, we will require a probate prior to insuring.

It is important that you contact your local underwriter if you have any questions pertaining to a Transfer on Death Deed or a revocation of a Transfer on Death deed.

If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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