HB899: HB899 Property; transfer-on-death deeds; modify certain provisions

26 LC 49 2771S The House Committee on Judiciary offers the following substitute to HB 899: A BILL TO BE ENTITLED AN ACT To amend Code Section 31-10-26 of the Official Code of Georgia Annotated, relating to1 certified copies of vital records, duplicates, and data, so as to provide for vital record access2 to certain grantee beneficiaries; to amend Chapter 17 of Title 44 of the Official Code of3 Georgia Annotated, relating to transfer-on-death deeds, so as t o modify certain provisions4 regarding transfer-on-death deeds; to provide for property of solvent and of insolvent estates;5 to provide for the acceptance of a real estate transfer; to provide for revocation; to provide6 for limitations; to provide for curing defects; to amend Chapter 3 of Title 53 of the Official7 Code of Georgia Annotated, relating to year's support, so as to provide for precedence of8 transfer-on-death deeds; to provide for related matters; to pro vide for an effective date; to9 repeal conflicting laws; and for other purposes.10 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:11 SECTION 1.12 Code Section 31-10-26 of the Official Code of Georgia Annotated, relating to certified copies13 of vital records, duplicates and data, is amended by revising s ubparagraph (a)(1)(A) as14 follows:15 H. B. 899 (SUB) - 1 - 26 LC 49 2771S "(A) A certified copy of a vital record in that registrar's or custodian's custody or16 abstract thereof to any applicant having a direct and tangible interest in the vital record,17 including, but not limited to, any grantee beneficiary designated by a record owner in18 a deed titling an interest in real estate in a transfer-on-deat h form as provided in19 subsection (a) of Code Section 44-17-2;"20 SECTION 2.21 Chapter 17 of Title 44 of the Official Code of Georgia Annotate d, relating to22 transfer-on-death deeds, is amended by revising Code Section 44 -17-2, relating to23 requirements, as follows:24 "44-17-2.25 (a)(1) An interest in real estate may be titled in a transfer-on-death form by recording a26 deed, signed by the record owner of the interest, designating a grantee beneficiary or27 beneficiaries of the interest.28 (2) The record owner shall have the same legal capacity required to enter into a contract29 in order to execute a transfer-on-death deed. Such deed shall transfer ownership of such30 interest upon the death of the record owner.31 (3) An attorney in fact shall not be authorized to execute a t ransfer-on-death deed on32 behalf of a record owner.33 (4) A transfer-on-death deed need not be supported by consideration.34 (5) In a transfer-on-death deed, the record owner shall be authorized but not restricted35 to:36 (A) Designate one or more alternate grantee beneficiaries whose property interests are37 contingent upon a primary grantee beneficiary who either predeceases the record owner38 or dies during the acceptance period before accepting the property; and39 (B) Convey a beneficiary interest to an express trust by namin g the trustee as a40 designated grantee beneficiary.41 H. B. 899 (SUB) - 2 - 26 LC 49 2771S (6) In a transfer-on-death deed, the record owner shall not be authorized to:42 (A) Create or declare an express trust pursuant to Code Section 53-12-20; or43 (B) Create a beneficial interest in real property pursuant to Article 8 of Chapter 12 of44 Title 53.45 (7) A real estate transfer tax declaration form shall not be filed with a transfer-on-death46 deed filed by the record owner.47 ( b ) T h e s i g n a t u r e , c o n s e n t , o r a g r e e m e n t o f o r n o t i c e t o a g r antee beneficiary or48 beneficiaries of a transfer-on-death deed shall not be required for any purpose during the49 lifetime of the record owner.50 (c)(1) A transfer-on-death deed shall transfer ownership of th e record owner's interest51 in real estate to each grantee beneficiary upon both of the following being complete after52 the death of the record owner:53 (A) Execution of the affidavit required by subsection (d) of this Code section; and54 (B) Recording such affidavit as required by subsection (e) of this Code section.55 (2) An interest in real estate passing pursuant to a transfer- on-death deed may be56 accepted by each designated grantee beneficiary who is either a sui juris individual, a57 trustee, or any other legal entity over which such individual h as proper authority. If a58 designated grantee beneficiary is a ward or minor, a legal guardian or legal conservator59 may accept such interest in real estate pursuant to a transfer-on-death deed on behalf of60 such ward or minor.61 (3) A designated grantee beneficiary shall not accept such interest in real estate on behalf62 of another designated grantee beneficiary, except as provided for in paragraph (2) of this63 subsection.64 (c)(d) Each designated grantee beneficiary wishing to To accept real estate pursuant to a65 transfer-on-death deed, a designated grantee beneficiary shall execute an affidavit66 affirming:67 (1) Verification of the record owner's death;68 H. B. 899 (SUB) - 3 - 26 LC 49 2771S (2) Whether the record owner and the designated grantee beneficiary were married at the69 time of the record owner's death; and70 (3) The deed book and page number of the recorded transfer-on-death deed; and71 (3)(4) A legal description of the real estate.72 (d)(e) The designated grantee beneficiary shall attach a copy of the record owner's death73 certificate to the affidavit provided for in subsection (c) (d) of this Code section. For a74 record owner's death occurring on or after July 1, 2024, the designated grantee beneficiary75 shall record such affidavit, real estate transfer tax declaration form, and related documents76 with the office of the clerk of superior court of the county where the real estate is located77 within nine months of the record owner's death or the interest in the property shall revert78 to the deceased record owner's estate; provided, however, that for a record owner's death79 occurring before July 1, 2024, such recording of the affidavit provided for in subsection (c)80 of this Code section and related documents by the designated gr antee beneficiary or81 beneficiaries shall not be subject to the nine-month time limitation.82 (f) Notwithstanding the provisions of paragraph (1) of subsection (c) of this Code section83 to the contrary, a designated grantee beneficiary affidavit recorded pursuant to this Code84 section before July 1, 2026, in which one or more of the named designated grantee85 beneficiaries of a transfer-on-death deed explicitly accepts the interests being conveyed by86 such deed on behalf of all or some of the designated grantee be neficiaries named in the87 affidavit shall be effective to accept such interests if execut ed by at least one of the88 designated grantee beneficiaries accepting such interests.89 (g)(1) The personal representative of the estate of a deceased record owner shall provide90 each designated grantee beneficiary with notice of the transfer -on-death deed in91 accordance with the same requirements and conditions as provide d in Code92 Section 53-5-8.93 (2)(A) The personal representative of the solvent estate of a deceased record owner 94 shall be authorized to incur expenses for mortgage payments, property taxes, and any95 H. B. 899 (SUB) - 4 - 26 LC 49 2771S repairs that render the property in imminent danger of being destroyed if not completed96 as solely determined by the personal representative or the city or county code97 enforcement until the interest in such property is accepted by a designated grantee98 beneficiary or beneficiaries. The estate shall be entitled to repayment of such expenses99 incurred during such time and shall have a priority special lien against the property for100 any amount that is not repaid within one year after such acceptance. Such lien shall be101 inferior to any liens for property taxes or previously recorded security deeds.102 (B) If the special lien has not been paid in full at the expiration of the one-year period,103 the estate shall have 30 days to file a claim of lien in the office of the clerk of superior104 court of the county where the property is located. The lien shall attach to the property105 for a period of 365 days from the recording date of the lien in the same manner as106 provided in Code Section 44-14-367.107 (C) No later than two business days after the date the claim of lien is filed of record,108 the estate shall send a true and accurate copy of the claim of lien by registered mail,109 certified mail, or statutory overnight delivery to the owner of the property.110 (D) The estate shall have the right to commence a foreclosure of the lien prior to its111 expiration in the same manner as the enforcement of mechanic's liens pursuant to Code112 Section 44-14-361.113 (3) In the event that a property which is part of an insolvent estate is subject to imminent114 danger of foreclosure, condemnation, or destruction, after receiving notice by a secured115 lender or government entity, the personal representative of such insolvent estate shall be116 authorized to record an affidavit of notice in the office of th e clerk of superior court of117 the county where the property is located to which the notice of imminent foreclosure,118 condemnation, or destruction shall be attached. If no designated grantee beneficiary has119 completed the requirements of subsections (d) and (e) of this Code section, the estate's120 personal representative shall have the right to sell the property and pay off all debts, and121 any remaining proceeds shall revert back to the estate.122 H. B. 899 (SUB) - 5 - 26 LC 49 2771S (h) Each designated grantee beneficiary shall be deemed as hav ing direct and tangible123 interest in real estate for the purpose of applying for the issuance of a certified copy of the124 certificate of death of such record owner pursuant to subparagr aph (a)(1)(A) of Code125 Section 31-10-26."126 SECTION 3.127 Said chapter is further amended by revising subsection (a) and by adding a new subsection128 to Code Section 44-17-4, relating to revocation or amendment, as follows:129 "(a) A record owner of an interest in real estate who has title d such interest in a130 transfer-on-death deed form and designated a beneficiary or ben eficiaries in the manner131 provided in this chapter may revoke such designation of the gra ntee beneficiary or132 beneficiaries at any time prior to the death of such record own er, by executing,133 acknowledging, and recording in the office of the clerk of supe rior court of the county134 where the real estate is located an instrument revoking such designation. The instrument135 of revocation shall refer to the initial transfer-on-death deed, shall be signed by the record136 owner or such record owner's duly authorized attorney-in-fact, and such signature shall be137 attested by an officer as provided in Code Section 44-2-15 and attested by two one other138 witnesses witness. Such revocation may be included in another deed or other instrument139 of conveyance that is recorded. The signature, consent, or agreement of or notice to the140 designated grantee beneficiary or beneficiaries to the revocation shall not be required."141 "(d) In any case where the record owner subsequently sells or conveys an interest in real142 estate before such record owner's death or conveys an interest in real estate to a trustee of143 such record owner's express trust, or where the death of a sole designated grantee144 beneficiary occurs before acceptance, the transfer-on-death deed intended for conveyance145 to the designated grantee beneficiary is rendered revoked."146 H. B. 899 (SUB) - 6 - 26 LC 49 2771S SECTION 4.147 Said chapter is further amended by revising Code Section 44-17- 5, relating to grantee148 beneficiary rights and prior death of designated grantee beneficiary, as follows:149 "44-17-5.150 (a) A grantee beneficiary or the beneficiaries of a transfer-o n-death deed shall take the151 interest in real estate of the record owner at the death of suc h record owner upon the152 acceptance of such interest pursuant to Code Section 44-17-2, free and clear of any claims153 or interest as to a person who became the spouse of the record owner subsequent to the154 execution of the transfer-on-death deed, subject to all recorded conveyances, assignments,155 contracts, mortgages, liens, and security pledges made by the record owner or to which the156 record owner was subject during the lifetime of such record own er, including, but not157 limited to, any recorded executory contract of sale, option to purchase, lease, license,158 easement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner159 that is less than all of the record owner's interest in the property; provided, however, that160 a nonconsensual lien against the grantee beneficiary or beneficiaries shall not attach to the161 property until the recording of the affidavit described in subs ections (d) and (e) of Code162 Section 44-17-2. A transfer-on-death deed takes precedence and priority over all unsecured163 debts of the record owner's estate filed upon the death of the record owner, unless the164 property is unredeemed.165 (b) If one or more of the designated grantee beneficiaries die s prior to the death of the166 record owner, the transfer to those beneficiaries who predeceas e the record owner shall167 lapse and shall be deemed revoked, and the lapsed interest shall be split evenly among the168 remaining designated grantee beneficiaries who are living at th e time of the death of the169 record owner and shall not revert to the estate. Similarly, if one or more of the designated170 grantee beneficiaries die after the death of the record owner, but before acceptance of the171 property, the transfer to such beneficiaries who die after the record owner shall lapse and172 shall be deemed revoked, and the lapsed interest shall be split evenly among the remaining173 H. B. 899 (SUB) - 7 - 26 LC 49 2771S designated grantee beneficiaries who are living at the time of the death of the record owner174 and shall not revert to the estate. In the event the grantee beneficiary or beneficiaries are175 designated in the deed to be joint tenants with right of surviv orship, the death of one or176 more of the designated grantee beneficiaries prior to the death of the record owner shall not177 invalidate an otherwise validly created joint tenancy estate as to those designated grantee178 beneficiaries who are living at the time of the death of the record owner."179 SECTION 5.180 Chapter 3 of Title 53 of the Official Code of Georgia Annotated, relating to year's support,181 is amended by revising Code Section 53-3-5, relating to filing of petition, as follows:182 "53-3-5.183 (a) Except as provided by subsection (a) of Code Section 44-17-5, upon Upon the death184 of any individual leaving an estate solvent or insolvent, the surviving spouse or a guardian185 or other person acting in on behalf of the surviving spouse or in on behalf of a minor child186 may file a petition for year's support in the probate court hav ing jurisdiction over the187 decedent's estate. If the petition is brought by a guardian acting on behalf of a minor child,188 no additional guardian ad litem shall be appointed for such minor child unless ordered by189 the court.190 (b) The petition shall set forth, as applicable, the full name of the surviving spouse, the full191 name and birthdate birth date of each surviving minor child, and a schedule of the property,192 including household furniture, that the petitioner proposes to h a v e s e t a p a r t a s y e a r ' s193 support. The petition shall describe fully and accurately any real property the petitioner194 proposes to have set apart as year's support with a legal descr iption sufficient under the195 laws of this state to pass title to the real property.196 (c) A petition for year's support shall be filed within 24 months of the date of death of the197 decedent."198 H. B. 899 (SUB) - 8 - 26 LC 49 2771S SECTION 6.199 This Act shall become effective upon its approval by the Governor or upon its becoming law200 without such approval.201 SECTION 7.202 All laws and parts of laws in conflict with this Act are repealed.203 H. B. 899 (SUB) - 9 -