Okla. Stat. tit. 16, sec 17.4
Title Examination Standards
Chapter 1, App.
Chapter 17. Title through Decedents' Estates
§17.4. Transfer-on-Death Deeds.
(iii) a subsequent deed which immediately vests in the grantee of the deed the title to the real property described in the TOD deed.
Authority: 58 O.S. §§ 1252A, 1254 A and B and 1257.
A deed appearing of record executed in accordance with the "Nontestamentary Transfer of Property Act" should be accepted as a conveyance of the grantor's interest in the real property described in such deed effective upon the death of the grantor, provided, an affidavit evidencing the death of such grantor has been recorded, as specified in the Act, and no evidence appears of record by which:
A. the conveyance represented by such deed has otherwise been revoked, disclaimed or has lapsed pursuant to the provisions of the Act, or B. the designation of the grantee beneficiary or grantee beneficiaries in such deed has been changed via a subsequent transfer-on-death deed pursuant to the provisions of the Act.
Authority: 58 O.S. § 1251, et seq .
Comment 1: On and after November 1, 2008, through October 31, 2011, a disclaimer under the provisions of the Act may be executed only within a period of time ending nine (9) months after the death of the owner/grantor. On and after April 20, 2015, for deaths occurring prior to November 1, 2011 and for which there is no disclaimer of interest in the real estate, the recording of the acceptance affidavit is not subject to the nine-month limitation set out in Section 1252(D). On and after November 1, 2011, the property reverts to the estate of the deceased grantor if the affidavit described in §1252C and D is not recorded within nine months of the grantor's death.
Comment 2: Pursuant to the provisions of the Act, releases for Oklahoma estate taxes and, if applicable, federal estate taxes for the deceased grantor, together with a death certificate, shall be attached to the affidavit evidencing the death of the grantor except no tax releases or death certificate are required in instances in which the grantor and grantee were husband and wife. No Oklahoma estate tax release is required for the estate of a grantor who died on or after Jan. 1, 2010.
Comment 3: The examiner should be aware that the grantor's interest is subject to the homestead rights of a surviving spouse pursuant to Article 12 Section 2 of the Oklahoma Constitution. The examiner should be provided with satisfactory evidence which must be recorded, such as an affidavit as to marital status or death certificate of the grantor showing no surviving spouse. If the evidence provided to the examiner reveals that the grantor had a spouse at the time of death, and the surviving spouse did not execute the Transfer on Death Deed under examination, the examiner shall require a quit claim deed from the surviving spouse, showing marital status and joined by spouse, if any.
Comment 4: The examiner should be aware that an ambiguity will arise in 58 O.S. §1254 (B) if the grantor records more than one transfer-on-death deed ("TOD deed") conveying fractional interests, unless the owner/grantor has expressed an intent in the subsequent deed or deeds not to revoke the previous deed or deeds. For instance, if X owns Greenacre and conveys 50% to A by TOD deed, and later X conveys 50% to B by a TOD deed, the conveyance to B would create uncertainty as to whether A and B each had 50%, for a total of 100%, or only B had 50% with the remaining 50% being vested in the grantor's estate.
Comment 5: On or after November 1, 2008, through October 31, 2011, in instances in which the TOD deed lists multiple grantee/beneficiaries as joint tenants, the death of one or more of such grantees prior to the death of the grantor in the deed may preclude the creation of the estate of joint tenancy for the surviving grantees under the precepts of the requisite unities for a joint tenancy estate. A question remains as to whether the interest of the grantor vests, via the TOD deed, in the surviving grantees as tenants-in-common or fails to vest in such grantees due to the fact the estate of joint tenancy may not have been created in such surviving grantees at the time of death of the grantor. On or after November 1, 2011, the death of a joint tenant beneficiary before the death of the grantor will not invalidate the joint tenancy estate of the surviving joint tenant beneficiaries.
Comment 6: On and after November 1, 2008 through October 31, 2011, if the grantor and grantee were husband and wife, it is not necessary to attach the death certificate described in Section 1252 D to the acceptance described in Section 1252 C.
Comment 7: On and after November 1, 2011, regardless of the marital status of the grantor and grantee, it is necessary to attach the death certificate described in Section 1252 D to the acceptance described in Section 1252 C.
Comment 8: Commencing Nov. 1, 2010, pursuant to 58 O.S. §1252 (C), the grantee/beneficiary, in order to accept the real estate pursuant to a TOD deed, shall record an affidavit with the County Clerk unless such grantee/beneficiary has recorded a timely executed disclaimer.
Comment 9: It is an unsettled point of law as to whether or not amendments to 58 O.S. § 1251 et seq. will apply retroactively to a TOD deed executed prior to the effective date of any amendment.
Comment 10: If the Grantor of a TOD deed revokes the TOD deed, no further instrument is required to terminate the potential interest of the Grantee of the revoked TOD deed. A TOD deed can be revoked by recording in the land records of the County where the TOD deed is recorded any one of the following executed by the Grantor of the TOD deed:
The 2008 Report of the Title Examination Standards Committee recommended adoption of Standard 17.4 in response to the enactment of 58 O.S.A. § 1251, et seq., Transfer-on-Death Deeds. 79 O.B.J. 2379 (10/18/2008). The Real Property Law Section approved this new Standard on November 20, 2008, and the House of Delegates adopted it on November 21, 2008.
The 2010 Report of the Title Examination Committee recommended adding additional comments to the standard to reflect the repeal of the Oklahoma Estate Tax and to highlight several issues which are left unanswered by the current provisions of 58 O.S. § 1251 et seq. The Real Property Committee approved the Committee's recommendation on November 18, 2010 and it was adopted by the House of Delegates on November 19, 2010. 81 O.B.J. 32 (12/04/10)
The 2011 Report of the Title Examination Standards Committee, 82 O.B.A.J. 2566 (2011), proposed comments to this standard to reflect issues which arise as a result of the 2011 amendment to 58 O.S. 1251 et seq. The proposal was approved by the Real Property Section on November 3, 2011, and adopted by the House of Delegates on November 4, 2011, 82 O.B.A.J. 2694 (2011).
The 2015 Title Examination Standards Sub-Committee proposed that Comment No. 1 of Standard 17.4 be amended to accurately reflect the provisions of the Non-Testamentary Transfer of Property Act as they have been amended from time to time and the comments renumbered. The Real Property Section approved the proposal on November 5, 2015 and the House of Delegates adopted the amendment on November 6, 2015. (superseded document available)
The Title Examination Sub-Committee of the Real Property Law Section recommended Comment 3 to Standard 17.4 be amended as follows to clarify the intent of the comment and the Title Examination Standards Sub-Committee and to add Comment 10 to clarify no additional instruments are required after a transfer on death deed has been revoked. The Real Property Section approved the proposal on November 7, 2019 and the House of Delegates adopted the amendment on November 8, 2019. (superseded document available)