Bulletin: NH2024001

Dear Associates: 

The Uniform Real Property Transfer on Death Act (the "Act") authorizes a new type of deed in New Hampshire, known as a Transfer on Death Deed (TODD). The Act has been codified under NH RSA Chapter 563-D and applies to a TODD made on or after July 1, 2024, by a Transferor dying on or after July 1, 2024. The requirements of a TODD are set forth in 563-D:9 as shown further below.

A TODD is a legal means of transferring real property effective upon the grantor’s death. Prior to death, an owner of real property located in New Hampshire, referred to as the “Transferor,” may make a non-testamentary transfer on death to a grantee, referred to as a “Designated Beneficiary,” by executing and recording a TODD, which transfer will not become effective until the death of the Transferor. An optional form for a TODD is included in the Act at RSA 563-D:19.

563-D:9 Requirements. A TODD is void unless it:

1. Meets the requirements set forth in RSA 477:3;
2. Bears the title "Transfer on Death Deed;"
3. States that the transfer to the Designated Beneficiary is to occur at the Transferor’s death; and
4. Is recorded:

• Prior to the Transferor’s death;
• Within 60 days following the date of execution; and
• At length in the registry of deeds for the county or counties in which the real estate lies.

(Note: A TODD is exempt from NH Transfer Tax where no consideration is exchanged. RSA 78-B:2 XXV)

If the requirements of a TODD are met and there is no valid recorded revocation meeting the requirements set forth in RSA 563-D:11, then upon the death of the Transferor the Designated Beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, other interests to which the property is subject to at the Transferor’s death, and claims of creditors of the estate of the Transferor as provided in RSA 563-D:16.

Given that there is a time period that must pass for both claims made by creditors and a time period to contest the validity of a TODD, it may be necessary to add specific requirements and exceptions to your title commitments and if necessary, to final title policies in transactions where the title discloses a Transfer on Death Deed.

Please note the following underwriting guidelines when the title discloses a TODD:

• If title to the property is held in the name of the Transferor, and the Transferor is alive and selling the property, the following requirement must be included in Schedule B, Part 1 (Requirements) of your Title Commitment: “Revocation of the TODD granted by [name of Transferor]."
• If the Transferor in the TODD has conveyed the property to a third party, examine the deed to confirm that the deed includes language which revokes the previously granted TODD. If it does not, the following requirement must be included in Schedule B, Part 1 (Requirements) of your Title Commitment: “Revocation of the TODD granted by [name of Transferor]."
• If the record title to the property is in the name of the Transferor, but the Designated Beneficiary, or someone claiming under the Designated Beneficiary, claims ownership of the property and the record title does not disclose a recorded death certificate of the Transferor, the following requirement must be included in Schedule B, Part 1 (Requirements) of your Title Commitment: “Obtain and record a death certificate of [name of deceased Transferor]."
• If the transaction involves the Designated Beneficiary or someone claiming under the Designated Beneficiary, the following requirement must be included in Schedule B, Part 1 (Requirements) of your Title Commitment: “Evidence satisfactory to the Company that the Estate of [name of deceased Transferor], deceased is not subject to Federal Estate Lien."
• If you are asked to insure a sale or a refinance transaction of the property less than two (2) years after the death of the Transferor, please contact your Stewart Title Guaranty Company (STGC) underwriter. We may require the filing of a probate proceeding for the deceased Transferor prior to insuring in these circumstances.
• If you have reason to believe that the Transferor lacked capacity at the time of execution of the TODD, executed the TODD as a result of duress or undue influence, or if there are circumstances which may affect the validity of the execution of the TODD, please contact your STGC underwriter.

At this time and until further notice, prior to insuring any transaction where the chain of title discloses a TODD, please contact your STGC underwriting counsel prior to committing to issue policies of title insurance where the search discloses a TODD in the chain of title. 

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

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