Problems with Deeds on Death, Transfer on Death Deeds or Beneficiary Deeds
Updated: October 2020
When a person dies owning real property in his or her name, probate may be required in order to transfer that property to the heirs of the deceased person.
Because of the costs, delays and hassles associated with going through probate in the State of Nevada, many people desire to transfer, or to at least structure the future transfer of, their real property, prior to their deaths.
Common methods of probate avoidance for real estate include the following:
- Hold real property with a right of survivorship, either in joint tenancy or as community property;
- Convey outright title to real estate by way of pre-death gift;
- Establish a living revocable trust or other type of trust, to own and hold real property; or
- Use a beneficiary deed, deed upon death, or transfer on death deed (all synonyms referring to the same instrument) to make the transfer of real estate effective upon death.
As with all estate planning techniques, each of the above options carries with it potential burdens and benefits.
While using a joint tenancy or other titling options with rights of survivorship is sometimes to referred to as the “Poor Man’s Estate Plan” or “Home Spun Estate Planning”, this article will focus on the particulars and problems with using beneficiary deeds in Las Vegas, Henderson, Clark County and other parts of the State of Nevada.
In 2011, the State of Nevada passed the Uniform Real Property Transfer on Death Act, which can be found at NRS 111.655 to 111.699 (the “Deed upon Death Act”). In pertinent part, the Deed on Death Act allows for the recordation of a deed which will effectively transfer the real property to the named beneficiary upon the death of the grantor.
These deeds are revocable, so that if the grantor changes her mind she may revoke the conveyance. To be effective these Beneficiary Deeds must be recorded prior to the death of the grantor.
It should be noted that Transfer on Death Deeds do not “show up” on the Clark County Assessor’s website until someone files an Affidavit of Death (upon the passing of the grantor), but such instruments do “show up” on the Clark County Recorder’s website.
While Deeds upon Death may initially appear to be less expensive than establishing and using a revocable trust, there are many downsides which ought to be considered prior to going down the Transfer on Death route.
Some of those problems are as follows:
1. Transfer on death forms or deed upon death forms
Forms for beneficiary deeds are readily available online but may prove unreliable. Unless a grantor uses the correct language, as required by the Deed upon Death Act, the transfer will not be effective.
2. Difficult to get title insurance
Many title insurance companies are refusing to issue a title insurance policy until the new owner has owned the property for at least eighteen (18) months after the grantor’s death. This is because under Nevada law creditors of the decedent have eighteen months to file claims against the estate and would have priority claim on any assets belonging to the estate, including of course, the real property subject to a beneficiary deed. See #3 below.
If, in such case, the beneficiary desires to sell the property soon after the grantor’s death, especially to a non-cash buyer, the new buyer may have problems obtaining title insurance, and, therefore, may have problems borrowing money to buy the property, seeing how most mortgage companies require title insurance before making a loan.
It is possible that probate can be done to rectify this situation, but this, of course, defeats the purpose of the transfer on death deed which was to avoid probate.
3. Vulnerability to claims by grantor’s creditors
The reason title insurance may not be obtainable in Nevada until 18 months following the grantor’s death, as stated above in #2, is that NRS 111.689 allows the creditors of the grantor’s probate estate to enforce their liabilities against a property transferred pursuant to a deed upon death for up to 18 months following the grantor’s death.
The executor/personal representative of the decedent’s estate can of course petition the probate court for this 18-month creditor period to be shortened, however, it would require the opening of probate, which is obviously negates the major reason for trying to use a beneficiary deed in the first place!
With transfers of property to trusts, on the other hand, this creditor claim period may be shortened to just 120 days, upon publishing of the appropriate notice to creditors. This is four and one-half times faster than if a deed upon death is used.
On a related note, in 2019 the Nevada legislature updated NRS 164.025 to require that such notice to creditors of a decedent owning an interest in a trust publish such notice to both creditors of the trust AND the settlor of the trust, whereas before, only notice to the creditors of the trust was required.
4. Vulnerability to claims by beneficiary’s creditors
As the creditors of the grantor may have increased opportunity to attach the real estate being transferred by way of beneficiary deed, so also might the creditors of the beneficiary be able to attack the property upon the death of the grantor.
For example, in the event a beneficiary is going through a divorce, bankruptcy, insolvency or has a large judgment against them, the related creditors in those actions may be able to legally attach and take the value of such real property.
The homestead declaration and exemption may be of little use to a beneficiary, unless they decide to occupy the property as their primary residence, and unless they meet the required residency waiting requirements.
Many beneficiaries, however, decide to sell the property or place it into service as a rental property, once the original owner dies.
5. Real Property Transfer Taxes
When the deed upon death is recorded, there is no real estate transfer fee at that time. However, when the grantor dies and the new owner (the beneficiary) files his “Death of Grantor Affidavit,” as required by NRS 111.699, there will be a real property transfer tax due, unless the beneficiary and the grantor are not husband and wife or parent and child.
In the alternative, using a living revocable trust will help the beneficiary avoid the payment of real property transfer tax, regardless of the beneficiary’s relationship to the grantor.
This is because by law in Nevada, transfers of real property to or from a trust, without consideration, are exempt from this transfer tax.
With that said, even if the grantor and beneficiary on a deed upon death are related in the ways stated above, proving such relation to the Clark County Assessor can be difficult to say the least, inasmuch as birth certificates, marriage certificates, and name change documents must be presented in original form and may be difficult to obtain.
6. Beneficiaries do not handle contingencies well
The transfer upon death deed does not provide for solutions to contingencies in the same way a revocable trust can. For example, a trust will generally specify that upon Mom’s passing, any trust property, including real estate, will instead be distributed to Son, and if Son does not survive Mom, it is instead to be given to the children of Son.
Moreover, trusts can provided that distributions to minor children, or anyone else who may be incapacitated or vulnerable, will not be made until such beneficiaries attain certain ages, levels of education, or other benchmarks denoting maturity and sensibility.
Beneficiary deeds do not have these same capabilities built in and therefore, a transfer by deed upon death might be soon wasted or spent by a spendthrift child or otherwise vulnerable beneficiary. While trusts may cost a bit more in the beginning, they unusually provide greater flexibility and savings in the long-run.
Consult with an Estate Planning Attorney for Free
Because of the potential problems that a beneficiary of a Deed on Death might face, it is recommended that a person speak with a lawyer prior to drafting, signing or recording a deed upon death. Many options for transfer of real property on death exist.
In the proper circumstance, a lawyer might recommend that the deed upon death is right for you. In other cases, as described above, other options might be preferable.
Most estate planning lawyers should be willing to discuss these issues and your options with you free of charge. For many people, their home is their single largest investment. To avoid the potential problems caused by using deeds upon death, it might be worth consulting an expert.
Here at Grant Morris Dodds, we offer free consultation with our estate planning attorneys. Call us today to schedule your consultation or if you have any legal questions!
By David M. Grant, Esq., Macc