Transfer of Property Rights at Death
Estate Planning and Probate, Corporate Formation and Organization, Business and Commercial Law, Contract Law, Real Estate Law, General Practice
Transfer of Property Affected by Joint Tenancy:
What to do when an owner of a real property which is titled in joint tenancy dies?
The current C.R.S. § 38-31-102 provides that a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The supplementary affidavit, which shall be properly sworn to or affirmed by a person of legal age having personal knowledge of the facts and having no record interest in the real property, shall include the legal description of the real property and a statement that the person referred to in the certificate was at the time of death the owner of a joint tenancy interest in the real property. When recorded, the original certificate or verification document and supplementary affidavit, or certified copies thereof, shall be accepted in all courts of the state of Colorado as prima facie proof of the death of the joint tenant. The certificate or verification document and supplementary affidavit provided for in this section may also be used to provide proof of the death of a life tenant or any other person whose record interest in real property terminates upon the death of such person to the same extent as a joint tenant as provided in this section.
Senate Bill 16-133, which has been signed, and which presumably will be effective August 10, 2016, eliminates the requirements that: (1) the signer of a supplementary affidavit have no record interest in the real property, and (2) the affiant state that the decedent at the time of death actually owned the property. The affiant will need only to state that the decedent is the same person who was named as a grantee in a particular recorded deed or similar instrument giving rise to the ownership of the property.
Senate Bill 16-133 includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution. The bill amends provisions concerning determination-of-heirship proceedings, as follows:
- Clarifies the definition of "interested person" so that anyone affected by the ownership of property may commence a proceeding;
- Describes when a non-probated will may be used as part of a proceeding;
- Clarifies certain notice requirements; and
- Ensures that a judgment and decree will convey legal title as opposed to equitable title.
The bill enacts portions of section 5 of the "Uniform Power of Appointment Act", with amendments.
Transfer of Property Affected by a Beneficiary Deed:
Current C.R.S. § 15-15-401, provides that a beneficiary deed “means a deed, subject to revocation by the owner, which conveys an interest in real property and which contains language that the conveyance is to be effective upon the death of the owner.” The beneficiary deed is a wonderful tool to avoid probating an estate, which would otherwise own real property. In the State of Colorado, unless prior to the grantor’s death title to the real property is transferred to a trust, or in joint tenancy (as discussed above), or via a beneficiary deed (which gets recorded in the real estate records of the county where the real property is located prior to the grantor’s death) , such will be probated in an estate administration proceeding. Otherwise, title to that real property cannot be transferred.
Here is a handful of things to know about beneficiary deeds:
- A beneficiary deed is not effective unless it is recorded in the proper county prior to the death of the grantor. To be recorded, a beneficiary deed must comply with C.R.S. §38-35-109(2) (legal address of grantee). A beneficiary deed may (but must not) be acknowledged.
- A successor grantee-beneficiary may be listed in the event the primary grantee-beneficiary does not survive the grantor.
- For purposes of effectuating the subject transfer of title, consideration is unnecessary. At this time, no documentary fee is due and no Real Property Transfer Declaration will be required for filing.
- The grantee-beneficiary is not required to sign the deed or be notified of the grant. It is important to understand that the grantee-beneficiary has no interest in the real property until the death of the grantor. The grantor during his or her lifetime retains full power to convey, lease, mortgage, and encumber the real property as well as to revoke the beneficiary deed.
- The beauty of the beneficiary deed is that its execution, arguably, would not violate a strict due-on-sale clause in a prior deed of trust or mortgage until the grantor’s death, if at all.
- A subsequent beneficiary deed revokes a prior beneficiary deed of all or part of the same real property. The most recently executed beneficiary deed controls, regardless of the order of recording.
- A valid beneficiary deed cannot be revoked, altered or amended by the Last Will and Testament of the owner-grantor.
- The grantee-beneficiary will take title to the real property subject to all interests of which the grantee-beneficiary has either actual or constructive notice, plus any other interests recorded within four months after the death of the grantor.
- A beneficiary deed may terminate the grantor’s eligibility for Medicaid. The grantee-beneficiary’s interest is subject to claims of the State for recovery of Medicaid assistance to the grantor.
- A beneficiary deed does not sever a joint tenancy. Consequently, the grantee-beneficiary does not participate in joint tenancy property unless the grantor of the Beneficiary deed is the sole surviving joint tenant at the grantor’s death.
- The real property conveyed by a beneficiary deed is subject to the claims of creditor’s of the grantor’s estate and to payment of statutory allowances to a surviving spouse and children. Claims of creditors of the estate are not barred until one year after the date of death, and claims of others, including heirs and devisees, are not barred until three years after the date of death or one year after the recording of a death certificate.
- Beneficiary deeds are effective for owners who die after August 4, 2004.
If you would like to discuss the above-referenced matter(s), please contact Jina K.
- El Paso County Bar Association Certificate of Appreciation – Law Day (2012)
- Colorado Bar Association Certificate of Achievement – (2012)
- Colorado State High School Mock Trial Coach (2012)
- Gray’s Pupilage Wendelken S. Inn of Court Appreciation Award (2009)
- Gray’s Pupilage Wendelken S. Inn of Court Nominee
- American Inns of Court Best Program – Justice in Baghdad, Culture, Conflict, and Challenges (2008)
- Colorado Springs Business Journal Rising Stars Award (April 24, 2008)
- Bryan S. Gardner Outstanding Young Lawyer Award (Oct. 16, 2007)
- Nominated for the University of Denver Outstanding Student Award (2005)
- El Paso County and Colorado Bar Associations
- El Paso County Bar Association (EPCBA) Board of Governors (Board of Governors elected rep. & Trustee, (2014-17)
- Board of Trustees (Trustee, 2010-12)
- EPCBA Strategic Planning Force Committee (Member, 2010)
- EPCBA Lawyer Referral Services (Member)
- EPCBA New Members/Swearing-In (Chair, 2008-current)
- Ben S. Wendelken American Inn of Court (Executive Committee Member 2007-14)
- American Inns of Court Program Awards Committee (2012-13)
- EPCBA New Lawyers Section (Chair 2006-2010)
- American Bar Association State Membership Chair Program (2009)
- Legal Aid Foundation (Committee Member 2005 – 08)
Law School Activities
- Denver Journal of International Law and Policy (2003-05)
- International Human Rights Advocacy Center (2003-05)
- Asylum Project (2003-05)
- University of Denver Clinical Programs, Advanced Criminal Law Clinic (2005)
Council of Neighbors and Organizations (Attorney/Advisory Committee Member, December 2014 – current). CONO works to be a strong, diverse organization recognized throughout the Pikes Peak region as an impartial neighborhood representative serving the needs of neighborhoods, building community and increasing the capacity of local governments and public and private organizations to resolve community issues. For more information, go to: http://www.cscono.org/index.html
- The Chamber of Commerce (Member)
- Genny’s Hope Foundation (Board of Directors Member 2012 - current). GHF's mission is to increase the number of committed enrollments on the bone marrow donor registry by generating awareness, interest, and the desire of donors to test and register. GHF recruits new bone marrow/stem cell donors and helps them get enrolled at Be the Match, the U.S. registry, or DKMS, an international center. Money raised is used to pay for lab processing of cheek swab kits and to raise awareness for the need to increase donor. registrations.
- Downtown Partnership, Colorado Springs (Member)
- El Paso County Bar Foundation (Board of Directors Member, 2008-14; Ex-officio Member currently)
- Commercial Women’s Network (Member)
- Participate as a volunteer in community Law Day Activities; Christmas in February (post-holiday party for unprivileged children organized and hosted by the CBA-YLD in Colorado Springs)
- Support non-profit Bulgarian organizations which provide homeless children with food, medicine, clothes, shoes, and school supplies through coordination with the Government Center for Social Integration and the Red Cross.
- Colorado Bar Association Mediation Training (40-hour Certification, Jan. 2011)
- Colorado Bar Association Leadership Training (COBALT) (2010)
- University of Denver (J.D., 2005)
- Colorado State University (B.A., Political Science – International and Comparative Studies, cum laude, May 2001)
- State Management School New Bulgarian University (Associate Degree, Business Administration and Management, May 1995)
- El Paso County Bar Association
- Colorado Bar Association