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Abstract

A transfer on death deed is a form of deed that allows real property assets to pass at death outside of the probate process. Through the twentieth century, there has been a movement in the world of property law—dubbed “the nonprobate revolution”—that focuses on using will substitutes to transfer personal property assets at death without the typical probate process. This is important because the probate process can be quite lengthy and expensive. Until recently, the nonprobate option was not readily available where real property assets were a part of the estate. The transfer on death deed essentially evolved from the traditional life estate deed, but with an additional reservation of power by the transferor. Typically, the powers reserved are the power to grant, convey, sell, mortgage, or revoke. As the use of these life estate deeds with enhanced powers became more widely known, they grew in popularity. For the small- to moderate-sized estates, these deeds were the last piece to the nonprobate puzzle for estate planners. Initially, transfer on death deeds—or some form thereof—were recognized under the common law of many states. In 1989, Missouri was the first state to enact legislation that provided for the use of transfer on death deeds. Through the years, many states followed suit by adopting their own legislation. However, there were a number of legal uncertainties and debates that surrounded the use of the transfer on death deed. Namely, because there was such fragmentation in the manner that states recognized and governed the use of the transfer on death deed. In 2007, the Uniform Law Commission formed a Drafting Committee to draft a uniform law that would address these concerns. In 2009, the Uniform Law Committee adopted the Uniform Real Property Transfer on Death Act. This Note explores the history of how the transfer on death deed has evolved into the estate planning tool that it is today. This Note proposes that each state, and particularly Florida, should adopt the Uniform Real Property Transfer on Death Act to resolve the legal uncertainties that surround the transfer on death deed. To do so would restore the ability of real property owners and practitioners to utilize this essential tool without fear of unknown legal effects.

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