A Minnesota Transfer on Death Deed (“TODD”) is often used as a probate avoidance technique with respect to Minnesota real property titles.
A Minnesota TODD operates as a conditional conveyance of an interest in Minnesota real property
with the conveyance only taking effect upon the death(s) of the Grantor Owners.
A Minnesota TODD must be either filed, or recorded, in the proper county real estate office before the death of the Grantor Owner(s) in order to achieve the objective of avoiding probate upon the death of the Grantor Owner(s) with respect to any real property interest identified in the Transfer on Death Deed.
If all of the requirements are satisfied, a Minnesota TODD will be effective upon the death of the Grantor Owner to transfer a Grantor Owner’s title interest in real property to the beneficiary or beneficiaries identified in the Transfer on Death Deed.
However, any such conveyances will be subject to all outstanding liens and encumbrances affecting title – including any claim for reimbursement of medical assistance expenses incurred on behalf of a Grantor Owner.
Prior to the death of the Grantor Owner(s), a Minnesota Transfer on Death Deed:
The primary benefit of using a Minnesota TODD is that record title to real property can be established more quickly in persons who would otherwise acquire title to such property upon the death(s) of the Grantor Owner(s), without the delay and expense involved in opening a probate court file.
The basic requirements for an effective Minnesota Transfer on Death Deed include the following:
A Grantor Owner is defined by Minnesota statutes to be an owner named as a grantor in a Minnesota TODD upon whose death the transfer of the real property is conditioned.
A Grantor Owner does not include a spouse who joins in a Minnesota Transfer on Death Deed solely for the purpose of conveying or releasing statutory or other marital interests in the real property to be conveyed or transferred by the Transfer on Death Deed.
A Beneficiary, or a Grantee Beneficiary, is defined by Minnesota statutes to be a person or entity named as a grantee beneficiary in a Minnesota TODD, including a successor grantee beneficiary.
If the spouse of a Grantor Owner fails to sign a Minnesota Transfer on Death Deed with respect to real property that is their homestead, the deed will be void and ineffective for any purpose.
Therefore, both spouses must sign all Minnesota Transfer on Death Deeds, regardless of which spouse “owns” the property – because all Minnesota real property is assumed to be the grantor’s homestead in the absence of a court order declaring it to be otherwise.
A Minnesota TODD cannot be used to avoid paying for the cost of nursing home care, for two reasons:
A Minnesota Transfer on Death Deed can be revoked prior to the death of the Grantor Owner.
If a Grantor Owner desires to change a decision to execute and record a Minnesota TODD, the Grantor Owner may do so by recording a Revocation of Transfer on Death Deed in the same recording office in which the original Minnesota Transfer on Death Deed was recorded.
Alternatively, if a Grantor Owner conveys and delivers the same real property described in a Minnesota TODD to a third party pursuant to a non-conditional deed of conveyance, the conveyance to the Grantee Beneficiary or Beneficiaries identified in the Minnesota Transfer on Death Deed will be void and of no effect.
The Grantee Beneficiaries of a Minnesota TODD need not consent to, accept delivery of, nor put their signatures upon, the Transfer on Death Deed.
However, after the death(s) of the Grantor Owner(s), the Grantee Beneficiaries may refuse to accept the interests conveyed to them in a Minnesota Transfer on Death Deed pursuant to a statutory procedure which requires filing disclaimers with both local officials, and the Internal Revenue Service.
After the death(s) of the Grantor Owner(s), the following documents must be filed with the county recording office in which the Minnesota TODD was originally recorded:
All disputes regarding Minnesota Transfer on Death Deeds are subject to review by, and the jurisdiction of, the appropriate Minnesota probate court.
While “fill in the blank” Minnesota TODD forms can either be downloaded, or otherwise obtained, from many sources – the preparation of such documents is best left to licensed attorneys, who can not only fill in the blanks properly, but also provide appropriate counsel regarding the legal effect of, and perhaps the tax consequences of, the execution, delivery, and recording of the Transfer on Death Deed.
There is much that can go wrong when a Minnesota Transfer on Death Deed:
While Minnesota TODD forms may appear to be simple and self explanatory, preparing one is not a job for the do-it-yourselfer.
There are actually different forms for different situations, depending on the number of Grantor Owners, their marital status, and the manner in which they currently hold title to the real property.
Selection of an improper form could result in the Transfer on Death Deed either:
If a Minnesota TODD makes use of either an improper or an incomplete legal description, the document may not be accepted for recording by the County real estate office.
Real property legal descriptions can be lengthy, complicated, and easy to mess up.
In addition, the complete legal description does not always appear on the real property tax records generally available to the public.
Therefore, do-it-yourselfers may be inclined to use an incomplete or improper legal description taken from the real property tax records without realizing their error.
However, such a mistake could be fatal to obtaining the probate avoidance benefits offered by a properly executed and recorded Transfer on Death Deed.
If a Minnesota Transfer on Death Deed is:
it will not be recordable in the county real estate records.
If the Grantor Owner dies after executing a Transfer on Death Deed which contains such flaws, it may not be effective for any purpose.
Such a mistake could be fatal to obtaining the probate avoidance benefits offered by a properly executed and recorded Transfer on Death Deed.
All Minnesota real property offers one of two types of title ownership evidence:
Real property that offers the Abstract Property form of title evidence has not been registered pursuant to the Torrens real property registration system.
The office of the County Recorder accepts documents for recording which relate to Abstract Property in Minnesota.
The office of the County Registrar of Titles accepts documents for filing which relate to Torrens Property in Minnesota.
In some Minnesota counties, both the office of the County Recorder, and the office of the County Registrar of Titles, are located behind the same counter where the real property records are maintained.
However, in other Minnesota counties, the County Recorder and the County Registrar of Titles will each have a separate counter – sometimes in different parts of the same building.
The recording or filing of a document in the proper office is essential to its effectiveness.
If a Minnesota TODD is recorded in the office of the County Recorder, when it should have been filed with the County Registrar of Titles, it may be ineffective for all purposes.
Likewise, if a Minnesota Transfer on Death Deed is filed with the County Registrar of Titles, when it should have been recorded in the office of the County Recorder, it may be ineffective for all purposes.
Such mistakes could be fatal to obtaining the probate avoidance benefits offered by a properly executed and recorded Transfer on Death Deed.
If the Grantor Owner dies:
it will not be effective for any purpose.
Sometimes, a person may own part of the real estate interests in certain real property, but later, prior to death, acquires all of the ownership interests in such real property.
However, if a Minnesota TODD is executed and recorded in the proper county real estate office before a Grantor Owner acquires all of the ownership interests in such real property, the Transfer on Death Deed will be ineffective to avoid probate with respect to those ownership interests subsequently acquired by the Grantor Owner – unless the Transfer on Death Deed indicates that it also conveys after-acquired title.
Many do-it-yourselfers would not know how to achieve this result, and may miss out on the benefits of its application.
For the above identified reasons, among others, it is always prudent, and cost effective, to have a Minnesota TODD prepared by a licensed Minnesota attorney, who can supervise its execution, and its recording or filing in the proper County real estate office.
Please contact Minnesota Attorney Gary C. Dahle for assistance with the preparation, execution, or recording of any Minnesota Transfer on Death Deed.
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Information provided herein is only for general informational and educational purposes. The laws relating to Minnesota transfer on death deeds involve many complex legal issues. If you have a specific legal problem about which you are seeking advice, either consult with your own attorney or retain an attorney of your choice. Gary C. Dahle, Attorney at Law, is licensed to practice law only in the State of Minnesota, and in the State of North Dakota, in the United States of America.
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