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TODDs
MCRA Torrens WorkshopNovember 15, 2017Presenter: Susan Ledray, Examiner of Titles,Hennepin County
1. Fee Owner: Everett, married to Anne
Transfer on Death Deed signed by Everett Smith, joined by AnneTo Anne, upon my death and upon the death of Anne, to Jo Smith and Julie Smith.
Fee Owner: Everett, married to Anne
Transfer on Death Deed signed by Everett Smith, joined by AnneTo Anne, upon my death and upon the death of Anne, to Jo Smith and Julie Smith.507.071Subd. 4 may designate multiple grantee beneficiaries to take title as joint tenants, as tenants in common or in any other form of ownership valid under the laws of this state.Subd. 5 A TODD may designate successor grantee beneficiaries or a class of successor grantee beneficiaries or both, but must state the condition under which the successor beneficiaries interest would vest.Successor likely means in a defined situation, Anne will take nothing, and Jo and Julie will take instead. It’s not to control Anne’s ability to determine the disposition of the property once she is the fee owner.Is the TODD void? Is it effective as to Anne only? Anne’s joinder is not equal to a TODD from Anne. Require a probate determination to issue a COT to Anne, unless Jo and Julie give a deed to Anne or Anne files a TODD to Jo and Julie.
2. Fee: Everett and Anne, married, as Joint Tenants
TODD signed by Anne is recorded, stating she is a widow, conveying the property to her son, Andrew.Later, a death certificate and Affidavit of Survivorship is recorded regarding Everett.Question: Since the Affidavit of Survivorship was recorded after the TODD does the TODD convey only her interest in the property or also the interest she acquired upon the death of Everett?
Answer
Based on deathctfand affidavit, issue a new COT to Anne.Carry forward the TODDDo not carry forward the Death Certificate and AffidavitAt the time Anne signed the TODD as widow, she was the sole owner since Everett was deceased. She merely documented that fact later.
3. Fee owner: Everett and Anne, married, as joint tenants
Anne, married, signs a TODD to son, dated 1/1/2017. (Spouse is not a grantor and does not consent.)TODD says “on the death of Anne” property goes to son.Everett dies 3/1/2017Anne files death certificate and affidavit of survivorship 4/1/2017Anne dies 6/1/2017
Anne and Everett, married, JT
Anne, married, signs a TODD to son, dated 1/1/2017. (Spouse is not a grantor and does not consent.)TODD says “on the death of Anne” property goes to son. Doesnotincludes “This instrument conveys any and all interests acquired by the grantor before, on or after the date of this instrument.”Everett dies 3/1/2017Anne files death certificate and affidavit of survivorship 4/1/2017Anne dies 6/1/2017Answer: Need probate determination, spouse did not join in, after-acquired title issue.507.071Subd. 24 Form of TODD: I…………(grantor owner or owners and spouses, if any, with marital status designated)507.071Subd. 2 A transfer on death deed must comply with all provisions of MN law applicable to deeds including 507.02.507.02 Conveyance of the homestead is void unless both spouses sign. Conveyance of non-homestead is valid but subject to the rights of non-signing spouse.
Anne and Everett, married, JT
Is it the homestead? We don’t know. If yes, TODD is void.If not the homestead, Everett’s rights likely were extinguished upon his death, since they owned as joint tenants.If theafter-acquired title statementis not included, whatdoesFred get?Subd. 21, a TODD does not include after acquired title unless the statement is included. Joint tenancy: Each owns the whole. When one dies, he is removed/disappears. So did Anne acquire anything after signing the TODD? Require a probate determination. There may be other children or devisee who could claim an interest arguing Anne did acquire something upon Everett’s death.
4. Anne and Everett, married, tenants in common
Anne records a TODD to son, Everett does not join inAnne diesShould the deed have been accepted for recording? Maybe507.071Subd. 8 “A transfer on death deed that otherwise satisfies all statutory requirements for recording may be recorded and shall be accepted for recording in the county in which the property described in the deed is located.” But no CRV and no certification by county auditor.507.02 Conveyance of the homestead is not valid unless both spouses sign (except purchase money mortgage.)507.02 Non-homestead: A spouse may convey real estate she owns, subject to the rights of the other spouse.If homestead, the TODD likely isn’t valid. If non-homestead, ½ goes to son, subject to the rights of Everett as spouse. What are those rights? Need a probate court determination.
5. Fee Owner: Charles, single
TODD from Charles to Fred, his friendCharles and Fred are in a car accidentCharles dies 1-1-2017Fred dies 1-3-2017, 48 hours after Charles
Fee Owner: Charles, single
TODD from Charles to Fred. They are friends, not relatives.Charles and Fred are in a car accidentCharles dies 1-1-2017Fred dies 1-3-2017, 48 hours after CharlesAnswer: TODD is void. Fred takes nothing unless he survives Charles by 120 hours.507.071Subd. 2 The TODD conveys the interest of the grantor upon the death of the grantor, but subject to survivorship provisions of section 524.2-702.524.2-702 (a) “A beneficiary who fails to survive by 120 hours the grantor owner upon whose death the conveyance to the beneficiary becomes effective” is deemed to have predeceased the grant owner.507.071Subd. 12 If all beneficiaries fail to survive the grantor owner, the TODD is void.
6. Fee Owner: Charles, single
TODD from Charles to Fred, his 1st cousinCharles dies 1-1-2017Fred dies 1-3-2017, 48 hours after
Fee Owner: Charles, single
TODD from Charles to Fred, his 1st cousinCharles dies 1-1-2017Fred dies 1-3-2017, 48 hours afterAnswer: The issue of Fred who survive Charles, take in place of Fred. My advice: Requires a probate court determination to issue a new Certificate of Title.507.071Subd. 11Antilapse: (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. Take equally is all of the same degree of kinship to the grantee beneficiary, or if they are of unequal degree, those of more remote degree take by right of representation.
Charles, TODD to Fred, 1stcousin (both die)
Why you need a Probate Court determinationProof of relationship (1stcousins)“Issue” is not defined. Black’s Law DictionaryNaturalissue is a term to describe the children born of their parents and not adopted. US Legal .com Issue, in the context of probate law, refers to all lawful, lineal descendants of the ancestor. Descendants are those who are the issue of an individual, such as children, grandchildren, and their children, to the remotest degree. Descendants are those in a descending line of birth from an individual, rather than an ascending line, such as to the parents of the individual.Proof of who are the issue of FredProof of their degree of relationship to FredDo not rely on a “self-serving” affidavit instead of a probate court determination.507.071Subd. 26
7. Fee Owner:Windwood, LLC
Windwood, LLC signs a TODD to Jeff JonesReject the TODD for recording. Grantor/owner cannot “die”.
8. Fee owner is John
John records a TODD to Mary forBlackacreWhile John is alive, Mary signs and presents for recording a mortgage onBlackacreReject it. 507.071Subd. 22 Mary has no interest and cannot encumber the property. Nor can someone with a lien against Mary file the lien against the property.
9. Fee Owner: John, single
John records a TODD to JerryJohn gets married to MaryJohn dies.Jerry files death certificate of John and Affidavit of Survivorship and Clearance CertificateMary has an interest in the property (spousal interest)Affidavit of Survivorship doesn’t require current marital status; UCB Form 50.2.3 Clearance certificate shows only predeceased spouse.Death certificate will show marital statusRequire a deed from Mary and new spouse, if any, before issuing a new COT to Jerry, OR a probate determination of the rights of Mary and Jerry
10. TODD recorded and Grantor has died
Clearance certificate contains a lien or is subject to a condition or restriction stated in the Clearance Certificate.If there are no other issues, you should issue a new COT to the grantee/beneficiary of the TODD, and carry forward the Clearance Certificate and state in the remarks “subject to lien (or condition)…”
11. Fee owner: John, single
John records TODD acknowledged 1/1/2017 to MaryJohn later records a TODD acknowledged 1/1/2016 to AnneJohn dies 3/1/2017A TODD is recorded from John to Barbara, acknowledged on 2/1/2017Mary is the new fee owner.507.071Subd. 13: If owner records more than one TODD for the same interest, the TODD with the latest acknowledgement date that is recorded before the death of the owner is effective and others are void.
12. Fee owners: A, B, and C as joint tenants
A and spouse and B, single, sign and record a TODD to XA diesB diesC diesX takes nothing. The TODD is void because the last surviving JT did not sign the TODD;Subd. 6If C dies, then A and B, X is the fee owner upon B’s death.If A and B gave a quitclaim deed to X (not a TODD), X would have 2/3s andC would have 1/3as tenants in common.
Conclusions
No certification or approval by the Examiner shall be required prior to recording the TODD in the office of the registrar of titles.Subd. 8This doesn’t mean you can’t seek examiner advice.The statute is silent on examiner approval for issuing a new COT on the death of the grantor.Affidavit of Survivorship, death certificate and clearance certificate may be recorded separately or combined and “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.”Get Examiner advice before cancelling COT when the TODD grantor dies.

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