North Dakota Transfer on Death Deed

North Dakota Transfer on Death Deed;

Death of the Transferor

An individual who executes a North Dakota Transfer on Death Deed is referred to as a transferor.

North Dakota Transfer on Death Deed (“TODD”) – Death of the Transferor

N.D.C.C. 30.1-32.1-10 identifies a few general rules – subject to a number of exceptions – which will apply upon the death of the transferor with respect to a real property interest that is the subject of a North Dakota Transfer on Death Deed, which was owned by the transferor at death (hereinafter, the “Transfer on Death Property“.)

North Dakota TODD – Legal Effect During Transferor’s Life

N.D.C.C. 30.1-32.1-09, and Title Standard 12-15 of the North Dakota State Bar Association’s real property “title standards“, identify that a North Dakota Transfer on Death Deed:

conveys no interest in the Transfer on Death Property to the designated beneficiary, and
does not affect any interest or right of the transferor, or any other owner, in the Transfer on Death Property,

until the death of the transferor – providing that such transferor survives the death of all other joint owners.

North Dakota Transfer on Death Deed – Survivorship Requirement

N.D.C.C. 30.1-32.1-10, and Title Standard 12-15 identify that the designated beneficiary must survive the death of the transferor in order to be entitled to any rights in the Transfer on Death Property identified in a Transfer on Death Deed.

North Dakota TODD – Subject to Probate Claims

N.D.C.C. 30.1-32.1-12, and Title Standard 12-17 of the North Dakota State Bar Association’s real property “title standards“, identify that any interest received by a beneficiary identified in a North Dakota Transfer on Death Deed may be subject to any unpaid claims against the transferor’s estate if such estate is insufficient to satisfy:

claims made against the Estate; or

statutory allowances to a surviving spouse or children,

providing that any such claims or allowances are the subject of a collection action commenced within 18 months of the date of the transferor’s death.

North Dakota Transfer on Death Deed – Ownership by the Transferor

There is no requirement that the transferor have exclusive ownership of the Transfer on Death Property at the time that the Transfer on Death Deed is executed, since ownership of the Transfer on Death Property at the time of death of the transferor is sufficient.

However, the lack of exclusive ownership of the Transfer on Death Property at the time of execution of the Transfer on Death Deed may be an issue when:

one joint tenant executes a Transfer on Death Deed, and

that joint tenant fails to survive all of the other joint tenants.

At the time that a joint tenant signs a North Dakota Transfer on Death Deed, a joint tenant-transferor would not have the unilateral right to execute a Transfer on Death Deed with any assurance that it would be effective after the death of that joint tenant-transferor.

However, the joint tenant-transferor will acquire sole ownership rights upon the deaths of all of the other joint tenants – unless the joint tenant-transferor fails to survive the other joint tenants.

Therefore, the Transfer on Death Deed would be effective at the death of the joint tenant-transferor only if such transferor survived the deaths of all of the other joint tenants.

North Dakota TODD – Survival by a Designated Beneficiary

The Transfer on Death Property identified in a North Dakota Transfer on Death Deed will be transferred to the designated beneficiary identified in the North Dakota Transfer on Death Deed only if the designated beneficiary survives the death of the transferor.

North Dakota Transfer on Death Deed – Survival by Multiple Designated Beneficiaries

If there is more than one designated beneficiary identified in a Transfer on Death Deed, the Transfer on Death Property will be transferred to those designated beneficiaries who survive the death of the transferor in equal and undivided shares as tenants in common – with no rights of survivorship – unless the Transfer on Death Deed provides otherwise.

Therefore, unless a North Dakota Transfer on Death Deed provides to the contrary, if the North Dakota Transfer on Death Deed identifies two or more designated beneficiaries to receive concurrent interests in the Transfer on Death Property upon the death of the transferor, the share of any designated beneficiary which lapses, or fails for any reason:

is transferred to the other designated beneficiary or designated beneficiaries, pursuant to N.D.C.C. 30.1-32.1-10(1)d,
in proportion to the interest of each in the remaining part of the Transfer on Death Property held concurrently.

North Dakota TODD – Lapse in the Event of Non-survival

If a designated beneficiary fails to survive the death of the transferor, the intended transfer of the Transfer on Death Property to such designated beneficiary will lapse and become ineffective – unless the Transfer on Death Deed provides otherwise.

It does not appear that North Dakota’s statutory anti-lapse provisions identified in N.D.C.C. 30.1-09-05:

are applicable to North Dakota transfer on death deeds, and
may not be effective to divert the intended transfer of the Transfer on Death Property to the surviving successors of the designated beneficiary.

Therefore, a North Dakota Transfer on Death Deed should be written in such a manner that it makes provision for contingent beneficiaries upon the deaths of the primary beneficiaries, if a complete lapse of the intended transfer of the Transfer on Death Property is not an acceptable result.

In addition, a North Dakota Transfer on Death Deed should be written in such a manner that minors would not acquire ownership interests in North Dakota real property upon the death of the transferor – due to the legal incapacity of minors to contract for the sale or leasing of such interests.

Minnesota Transfer on Death Deed – Anti-Lapse Provision

Minnesota’s Transfer on Death Deed statute specifically makes Minnesota’s antilapse statute identified in M.S. 507.071, Subd. 11 applicable to Minnesota Transfer on Death Deeds, by providing as follows:

(a) If a grantee beneficiary who is:

a grandparent or

lineal descendant of a grandparent

of the grantor owner fails to survive the grantor owner,

the issue of the deceased grantee beneficiary who survive the grantor owner take in place of the deceased grantee beneficiary.

If they are all of the same degree of kinship to the deceased grantee beneficiary, they take equally.

If they are of unequal degree, those of more remote degree take by right of representation.

(b) For the purposes of this subdivision, words of survivorship such as, in a conveyance

to an individual, “if he or she survives me,” or,

in a class gift, to “my surviving children,”

are a sufficient indication of intent to condition the conveyance or transfer upon the beneficiary surviving the grantor owner.

Therefore, the consequences of a grantee beneficiary identified in a Minnesota Transfer on Death Deed dying before the transferor are clear.

If a Minnesota grantee beneficiary [which North Dakota refers to as a designated beneficiary] who is:

a grandparent, or
a lineal descendant of a grandparent,

of the Minnesota grantor owner [which North Dakota refers to as a transferor],

fails to survive the death of the Minnesota grantor owner [which North Dakota refers to as a transferor],

the issue of the deceased grantee beneficiary [which North Dakota refers to as a designated beneficiary]

who survive the grantor owner [which North Dakota refers to as a transferor]

by one hundred twenty hours,

will receive the Transfer on Death Property instead of the deceased grantee beneficiary [which North Dakota refers to as a designated beneficiary], and the gift to the grantee beneficiary will not lapse, unless the Minnesota Transfer on Death Deed provides otherwise.

North Dakota TODD – Liens and Encumbrances

N.D.C.C. 30.1-32.1-10(2) identifies that any designated beneficiary will receive the Transfer on Death Property upon the death of the transferor subject to all title matters of record, by providing as follows:

Subject to chapter 47-19, [Record Title] a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor’s death.

N.D.C.C. 30.1-32.1-09, and Title Standard 12-15, also identify that the Transfer on Death Property will be subject to prior conveyances, liens, and other interests to which the Transfer on Death Property is subject at the transferor’s death.

Effective Date of North Dakota Transfer on Death Deed

N.D.C.C. 30.1-32.1-10(2) identifies the “effective” date of recording a North Dakota Transfer on Death Deed for title transfer purposes, by providing in part as follows:

For purposes of this subsection and chapter 47-19 [Record Title], the recording of the transfer on death deed is deemed to have occurred at the transferor’s death.

North Dakota TODD – Surviving Joint Tenants

N.D.C.C. 30.1-32.1-10(3) identifies that the death of a transferor who had executed a North Dakota Transfer on Death Deed has no effect on the rights of a surviving joint tenant, by providing in part as follows:

If a transferor is a joint owner and is: . . . Survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship;

North Dakota Transfer on Death Deed – Death of Last Surviving Co-Owner

N.D.C.C. 30.1-32.1-10(3) identifies that a Transfer on Death Deed will be effective upon the death of the last surviving joint tenant transferor, by providing in part as follows:

If a transferor is a joint owner and is: . . . The last surviving joint owner, the transfer on death deed is effective.

North Dakota TODD – No Warranties of Title

N.D.C.C. 30.1-32.1-10(4) identifies that a Transfer on Death Deed:

functions as a quitclaim deed, and
provides no warranties of title,

by providing in part as follows:

A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.

North Dakota Transfer on Death Deed – Proof of Death

N.D.C.C. 30.1-32.1-10 generally identifies that the Transfer on Death Property will be transferred to the designated beneficiary if the designated beneficiary survives the death of the transferor.

However, North Dakota‘s version of the Uniform Real Property Transfer on Death Act does not identify any procedures which would provide evidence of the death of the transferor.

North Dakota TODD – Filing Death Certificates

N.D.C.C. 47-19-06 does authorize the filing of a certified copy of a death certificate in order to evidence the death of a transferor, by providing in part as follows:

in all cases where

an estate, title, or interest in, . . . , lands has been or may be created,

which estate, title, interest, . . . was or is to continue only during the life of any person named or described in the instrument by which the estate, title, interest, . . . was created,

a copy of the death certificate . . . of the person upon whose life the estate, title, interest, . . . was or is limited,

duly certified by any officer who is required by the laws of the state or country in which the record is made, to keep a record of the death of persons occurring within the jurisdiction of the officer,
may be recorded in the office of the recorder of the county in which the lands are situated.

The legal description of any property to which the recording of the death certificate relates must be attached to the death certificate.

N.D.C.C. 47-19-06 also identifies the effect of filing a certified copy of a death certificate to evidence the death of the transferor, by providing in part as follows:

The certified copy of death certificate, . . . is prima facie evidence of the death of the person and the termination of . . . all the estate, title, interest, . . . as was or is limited upon the life of that person.

Therefore, the filing of a copy of the death certificate in the manner identified above:

will provide the record title with evidence of the death of the transferor, and
should be effective to terminate the transferor’s property interest.

North Dakota Transfer on Death Deed – Proof of Survivorship by Designated Beneficiaries

While N.D.C.C. 47-19-06 will provide record evidence of the death of the transferor, neither that provision, nor North Dakota‘s version of the Uniform Real Property Transfer on Death Act, identifies any procedure to prove that the designated beneficiaries survived the death of the transferor – North Dakota Transfer on Death Deeds – Death of the Transferor.

North Dakota Transfer on Death Deed – Affidavits of Survivorship

While N.D.C.C. Section 47-19-06 provides authority for filing a certified copy of a Death Certificate in order to terminate:

a joint tenancy interest, or
a life estate,

it does not specifically authorize the filing of an Affidavit of Survivorship, either separately, or attached to the certified copy of the Death Certificate.

Title Standards 4-05, and 18-01 of the North Dakota State Bar Association’s real property “title standards” identify that the filing of an Affidavit – whether or not attached to a Death Certificate – should be sufficient in order to terminate:

a joint tenancy, or
a life estate interest,

but say nothing about providing evidence of survivorship with respect to North Dakota Transfer on Death Deeds.

Presumably, if the sole surviving designated beneficiary is the Affiant with respect to an Affidavit of Survivorship identifying the death the transferor – the execution, acknowledgment, and recording of the Affidavit of Survivorship should be conclusive evidence of survivorship by the Affiant – designated beneficiary.

However, there does not appear to be any statutory authority for providing evidence in the public title record as to the survival of persons other than the Affiant.

Therefore, North Dakota’s current Transfer on Death Deed statutory provisions may work best when:

the designated beneficiary is a single person, and
the Affiant is the designated beneficiary.

However, North Dakota’s Transfer on Death Deed statutes expressly authorize multiple designated beneficiaries.

Nevertheless, since survivorship by the designated beneficiary or designated beneficiaries is a statutory prerequisite to the effective transfer of North Dakota Transfer on Death Property pursuant to a Transfer on Death Deed, North Dakota should perhaps provide a statutory procedure for providing evidence of survivorship – as does Minnesota.

Minnesota TODD – Affidavits of Survivorship

Minnesota’s Transfer on Death Deed statute addresses the survivorship of the grantee beneficiary – which North Dakota refers to as a designated beneficiary – in a more comprehensive manner, and is designed to identify not only:

the death of the transferor, but also

the survivorship of the designated beneficiary,

pursuant to M.S. 507.071, Subd. 20, which provides in part as follows:

An affidavit of identity and survivorship with a certified copy of a record of death as an attachment

may be combined with a clearance certificate under this section and

the combined documents may be recorded separately or as one document

in each county in which the real estate described in the clearance certificate is located.

The affidavit,record of death, and clearance certificate, whether combined or separate, shall be prima facie evidence of the facts stated in each, and the registrar of titles may rely on the statements to transfer title to the property described in the clearance certificate.

In Minnesota, an Affidavit of Identity and Survivorship – which is designed to vest title in the grantee beneficiary – will not be effective unless it is accompanied by a clearance certificate identifying the absence of any claim for the recovery of medical assistance benefits by the State of Minnesota.

North Dakota has no statutory requirement for the recording of an Affidavit of Survivorship, nor a Medical Assistance clearance certificate.

Nevertheless, N.D.C.C. 30.1-32.1-12 identifies that claims against the Transfer on Death Property can be made if the value of the transferor / decedent’s other property is insufficient to pay claims against the transferor / decedent’s estate, or statutory allowances to beneficiaries.

For information on ancillary probate in North Dakota, see also http://www.dahlelawnorthdakota.com/north-dakota-probate/ancillary-probate/

Conclusion

North Dakota Transfer on Death Deed – Death of the Transferor

Owners of North Dakota real property interests – including mineral rights – who are contemplating transferring such interests pursuant to a North Dakota Transfer on Death Deed are invited to contact Minnesota and North Dakota attorney Gary C. Dahle for assistance.

Attorneys not licensed in Minnesota or North Dakota are invited to refer possible Minnesota or North Dakota Transfer on Death Deed issues to Minnesota and North Dakota attorney Gary C. Dahle, at 763-780-8390, or [email protected].

Topics of Interest:

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

Phone: 763-780-8390 Fax: 763-780-1735 [email protected]

Legal Disclaimer

Information provided herein is only for general informational and educational purposes. North Dakota’s version of the Uniform Real Property Transfer on Death Act involves many complex legal issues. If you have a specific legal problem about which you are seeking advice, consult with a North Dakota attorney of your choice. Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of North Dakota, and in the State of Minnesota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of North Dakota and Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

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