What Is a Transfer-on-Death Deed in Oklahoma? In Plain Words

The words the statute uses, in plain words

• Real estate. Land and the interests in it. Section 1252 says an “interest in real estate” means any estate or interest in, over or under land, including surface, minerals, structures and fixtures. In plain words: the ground itself, what is under it such as minerals, and what is built on it.
• Record owner. The owner whose ownership is on record. The statute speaks of the deed being signed by the record owner of the interest.
• Grantee beneficiary. The person named in the deed to receive the interest when the owner dies. The statute also calls this person the grantee. A beneficiary, in plain words, is a person named to receive something.
• Consideration. Something of value given in exchange, such as payment. Section 1252 says a transfer-on-death deed need not be supported by consideration. In plain words: the statute does not require payment for the deed.
• Record (as a verb). To file a document with the county clerk so it becomes part of the official county record. The statute speaks of recording a deed, and of recording documents with the office of the county clerk where the real estate is located.
• Affidavit. A written statement affirmed by the person who makes it. Section 1252 speaks of an affidavit affirming certain facts, and of an affidavit properly sworn to before a notary.
• Legal description. The formal description of the real estate used in records, as distinct from a street address. Section 1252 requires the beneficiary affidavit to include a legal description of the real estate.

What the deed does, under Section 1252

Paraphrase of Section 1252, part A: an interest in real estate may be titled in transfer-on-death form by recording a deed, signed by the record owner, that designates a grantee beneficiary or beneficiaries. The deed transfers ownership of the interest upon the death of the owner.

Paraphrase of Section 1252, part B: during the lifetime of the record owner, the signature, consent or agreement of the grantee beneficiary is not required for any purpose, and notice to the beneficiary is not required either.

Paraphrase of Section 1257: a record owner who executes a transfer-on-death deed remains the legal and equitable owner until the owner’s death, and during the owner’s lifetime is considered an absolute owner as regards creditors and purchasers. In plain words: while the owner is alive, the statute still treats the owner as the full owner.

The form the statute prints, under Section 1253

Paraphrase of Section 1253: an interest in real estate is titled in transfer-on-death form by executing, acknowledging and recording — in the office of the county clerk in the county where the real estate is located, and prior to the death of the owner — a deed in substantially the form the statute prints. In that form, the owner is described as being of competent mind and having the legal capacity to execute the document, and the form names the beneficiary as grantee beneficiary and describes the interest in real estate.

The warning printed inside the statutory form says, in the statute’s own words:

“THIS TRANSFER-ON-DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL ESTATE. THE GRANTOR HAS THE RIGHT TO WITHDRAW OR RESCIND THIS DEED AT ANY TIME. ANY BENEFICIARY NAMED IN THIS DEED IS HEREBY ADVISED THAT THIS DEED MAY BE WITHDRAWN OR RESCINDED WHETHER OR NOT MONEY OR ANY OTHER CONSIDERATION WAS PAID OR GIVEN.”

The form part of Section 1253 also describes the owner and the witnesses appearing before a notary, with the owner declaring that the deed is a revocable transfer-on-death of the real estate described in it, and the witnesses signing as witnesses. Section 1253 also says that instead of the words “transfer-on-death” the abbreviation “TOD” may be used.

Changing or cancelling the deed, under Section 1254

Paraphrase of Section 1254, part A: the designation of the grantee beneficiary may be revoked at any time prior to the death of the record owner, by executing, acknowledging and recording an instrument revoking the designation in the office of the county clerk in the county where the real estate is located. The signature, consent or agreement of the beneficiary, and notice to the beneficiary, are not required for the revocation.

Paraphrase of Section 1254, part B: the designation may also be changed at any time prior to the death of the record owner, by executing, acknowledging and recording a subsequent transfer-on-death deed. A subsequent designation revokes all prior designations by the record owner for that interest in real estate.

Paraphrase of Section 1254, part C: a transfer-on-death deed executed, acknowledged and recorded in accordance with the Act may not be revoked by the provisions of a will. In plain words: the statute says a will’s provisions do not cancel this kind of deed.

What the named person does after the owner dies, under Section 1252

Paraphrase of Section 1252, part C: a designated grantee beneficiary may accept real estate under a transfer-on-death deed only on behalf of himself or herself, or on behalf of a legal entity over which he or she has proper authority. A beneficiary shall not accept the real estate on behalf of another designated beneficiary.

Paraphrase of Section 1252, part D: each designated grantee beneficiary wishing to accept the real estate shall execute an affidavit affirming three things:

• Verification of the record owner’s death;
• Whether the record owner and the designated beneficiary were married at the time of the record owner’s death; and
• A legal description of the real estate.

Paraphrase of Section 1252, part E: the grantee shall attach a copy of the record owner’s death certificate to the beneficiary affidavit. For a record owner’s death occurring on or after November 1, 2011, the beneficiary shall record the affidavit and related documents with the office of the county clerk where the real estate is located within nine (9) months of the grantor’s death; otherwise, the interest in the property reverts to the deceased grantor’s estate. For a death occurring before November 1, 2011, that nine-month time limitation does not apply. The same part also says an affidavit properly sworn to before a notary shall be received for record and recorded by the county clerk without having been acknowledged, and when recorded is effective as if it had been acknowledged.

What comes with the interest, under Section 1255

Paraphrase of Section 1255, part A: grantee beneficiaries take the interest of the record owner in the real estate at the death of the grantor owner, subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner, or to which the record owner was subject during the record owner’s lifetime. The statute’s list includes, among other things, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and any interest the record owner conveyed that is less than all of the record owner’s interest. In plain words: recorded claims and agreements that were already attached to the interest during the owner’s life stay attached. The same part says a non-consensual lien against the grantee beneficiary shall not attach to the property until the recording of the affidavit described in Section 1252. A lien, in plain words, is a legal claim against property. Non-consensual here means not agreed to.

Paraphrase of Section 1255, part B: if one or more of the grantee beneficiaries dies prior to the death of the grantor owner, the transfer to those beneficiaries who die first shall lapse. Lapse, in plain words, means that part of the transfer no longer takes effect. The same part gives an exception: if the beneficiaries are designated in the deed to be joint tenants with right of survivorship, the death of one or more of them before the grantor owner does not invalidate an otherwise validly created joint tenancy estate as to the beneficiaries who are living at the time of the grantor owner’s death.

Joint owners, under Section 1256

Paraphrase of Section 1256: a record joint owner of an interest in real estate may use the Act’s procedures to title the interest in transfer-on-death form. But title to the interest vests in the designated beneficiary or beneficiaries only if that record joint owner is the last to die of all of the record joint owners of the interest. A deed in transfer-on-death form shall not sever a joint tenancy. Section 1256 defines “joint owner” as a person who owns an interest in real estate as a joint tenant with right of survivorship. In plain words: joint tenants are co-owners, and when one dies the survivor’s ownership continues under the joint tenancy.

What kind of document this is, under Sections 1251 and 1258

Paraphrase of Section 1251: Sections 1 through 8 of the 2008 act are known as the “Nontestamentary Transfer of Property Act.” Nontestamentary, in plain words, means not by a will.

Paraphrase of Section 1258: a deed in transfer-on-death form, executed in conformity with the Act, shall not be considered a testamentary disposition, and shall not be invalidated due to nonconformity with other provisions in Title 58 or Title 84 of the Oklahoma Statutes. A testamentary disposition, in plain words, is a gift made by a will that takes effect at death.