Chapter 212
Oregon Laws 2011
AN ACT
SB 815
Relating to
transfer on death deed; creating new provisions; and amending ORS 86.740,
93.030, 93.040, 107.115, 112.465, 112.570 and 125.440.
Be It Enacted by the People of the State of Oregon:
UNIFORM REAL
PROPERTY
TRANSFER ON
DEATH ACT
SECTION 1. Sec. 1 - Short
title. Sections 1 to 18 of this 2011 Act may be cited as the Uniform Real
Property Transfer on Death Act.
SECTION 2. Sec. 2 -
Definitions. As used in sections 1 to 18 of this 2011 Act:
(1) “Beneficiary” means a person that
receives property under a transfer on death deed.
(2) “Designated beneficiary” means a
person designated to receive property in a transfer on death deed.
(3) “Joint owner” means a joint
tenant, a tenant by the entirety and any other co-owner of property that is
held in a manner that entitles one or more of the owners to ownership of the
whole of the property upon the death of one or more of the other owners.
(4) “Person” means an individual,
corporation, business trust, personal representative, trustee, partnership,
limited liability company, association, joint venture, public corporation,
government or governmental subdivision, agency or instrumentality or any other
legal or commercial entity.
(5) “Property” means an interest in
real property located in this state.
(6) “Transfer on death deed” means a
deed that conveys property to a designated beneficiary at the transferor’s
death.
(7) “Transferor” means an individual
who makes a transfer on death deed.
SECTION 3. Sec. 3 - Applicability.
Sections 1 to 18 of this 2011 Act apply to a transfer on death deed made
before, on or after the effective date of this 2011 Act by a transferor dying
on or after the effective date of this 2011 Act.
SECTION 4. Sec. 4 -
Nonexclusivity. Sections 1 to 18 of this 2011 Act do not affect any method
of transferring property otherwise permitted by the law of this state.
SECTION 5. Sec. 5 - Authority
for transfer on death deed. (1) An individual may transfer property to one
or more designated beneficiaries effective at the transferor’s death by a
transfer on death deed.
(2) The individual may designate one
or more:
(a) Primary beneficiaries; and
(b) Alternate beneficiaries who take
the property only if none of the primary beneficiaries is qualified or survives
the transferor.
SECTION 6. Sec. 6 -
Revocability of transfer on death deed. A transfer on death deed is
revocable even if the deed or another instrument contains a contrary provision.
SECTION 7. Sec. 7 -
Nontestamentary nature of transfer on death deed. A transfer on death deed
is nontestamentary.
SECTION 8. Sec. 8 - Capacity of
transferor; fraud, duress or undue influence. (1) The capacity required to
make or revoke a transfer on death deed is the same as the capacity required to
make a will.
(2) A transfer on death deed or an
instrument revoking a transfer on death deed that is procured by fraud, duress
or undue influence is void.
(3) A proceeding must be commenced not
later than 18 months after the transferor’s death to:
(a) Contest the capacity of the
transferor; or
(b) Determine whether a transfer on
death deed or an instrument revoking a transfer on death deed is void because
it was procured by fraud, duress or undue influence.
SECTION 9. Sec. 9 -
Requirements. (1) A transfer on death deed:
(a) Except as provided otherwise in
paragraph (b) of this subsection, must contain the essential elements and
formalities of a properly recordable inter vivos deed;
(b) Must state that the transfer to
the designated beneficiary is to occur at the transferor’s death;
(c) Must identify the designated
beneficiary by name; and
(d) Must be recorded before the
transferor’s death in the deed records in the office of the county clerk for
the county in which the property is located.
(2) A beneficiary designation that
identifies beneficiaries only as members of a class is void.
SECTION 10. Sec. 10 - Notice;
delivery; acceptance; consideration. A transfer on death deed is effective
without:
(1) Notice or delivery to, or
acceptance by, the designated beneficiary during the transferor’s life; or
(2) Consideration.
SECTION 11. Sec. 11 -
Revocation by instrument; revocation by act. (1) An instrument is effective
to revoke a recorded transfer on death deed, or any part of it, only if the
instrument:
(a) Is acknowledged by the transferor
after the transferor acknowledges the deed to be revoked;
(b) Is recorded before the transferor’s
death in the deed records of the county in which the property is located; and
(c) Is one of the following:
(A) A transfer on death deed that
revokes the deed, or part of the deed, expressly or by inconsistency;
(B) An instrument of revocation that
expressly revokes the deed, or part of the deed; or
(C) An inter vivos deed that transfers
an interest in property that is the subject of a transfer on death deed to the
extent of the interest in property transferred by the inter vivos deed.
(2) If authority is expressly granted
by the transfer on death deed, a designated agent of the transferor may revoke
the transfer on death deed as provided in this section.
(3) If a transfer on death deed is
made by more than one transferor, revocation by one transferor does not affect
the transfer of another transferor’s interest in property by the transfer on
death deed.
(4) After a transfer on death deed is
recorded, the deed may not be revoked by a revocatory act on the deed.
(5) This section does not limit the
effect of an inter vivos transfer of the property.
SECTION 12. Sec. 12 - Effect of
transfer on death deed during transferor’s life. During a transferor’s
life, a transfer on death deed does not:
(1) Affect an interest or right of the
transferor or any other owner, including the right to transfer or encumber the
property;
(2) Affect an interest or right of a
designated beneficiary, even if the designated beneficiary has actual or
constructive notice of the deed;
(3) Affect an interest or right of a
secured, unsecured or future creditor of the transferor even if the creditor
has actual or constructive notice of the deed;
(4) Affect the eligibility of the
transferor or a designated beneficiary for any form of public assistance;
(5) Create a legal or equitable
interest in favor of the designated beneficiary; or
(6) Subject the property to claims or
process of a secured, unsecured or future creditor of the designated
beneficiary.
SECTION 13. Sec. 13 - Effect of
transfer on death deed at transferor’s death. (1) Except as provided
otherwise in the transfer on death deed and subject to ORS 107.115, 112.455 to
112.555 or 112.570 to 112.590 and sections 19, 20 and 21 of this 2011 Act, when
a transferor dies, the following rules apply to property that is subject to a
transfer on death deed and owned by the transferor at death:
(a) A designated beneficiary’s
interest in the property:
(A) Is transferred to the designated
beneficiary in accordance with the deed if the designated beneficiary survives
the transferor; or
(B) Lapses if the designated
beneficiary does not survive the transferor.
(b) If the transferor has identified multiple
designated beneficiaries to receive concurrent interests in the property:
(A) Concurrent interests are
transferred to the designated beneficiaries in equal and undivided shares with
no right of survivorship; and
(B) The share of a designated beneficiary
that lapses or fails for any reason is transferred to the remaining designated
beneficiaries in proportion to the interest of each designated beneficiary in
the remaining part of the property held concurrently.
(2) A beneficiary takes the property
subject to all conveyances, encumbrances, assignments, contracts, mortgages,
liens and other interests to which the property is subject at the transferor’s
death, including a claim or lien by a state authorized to seek public
assistance reimbursement if assets of the transferor’s probate estate are
insufficient to pay the amount of the claim or lien.
(3) If a transferor is a joint owner
and is:
(a) Survived by one or more joint
owners, the property subject to a transfer on death deed belongs to the surviving
joint owners with a right of survivorship.
(b) The last surviving joint owner,
the transfer on death deed is effective.
(4) A transfer on death deed transfers
property without covenant or warranty of title even if the deed contains a
contrary provision.
SECTION 14. Sec. 14 -
Disclaimer. A beneficiary may disclaim all or part of the beneficiary’s
interest as provided by ORS 105.623 to 105.649.
SECTION 15. Sec. 15 - Liability
for creditor claims and statutory allowances. (1) A transferor’s estate may
enforce a liability against property transferred at the death of the transferor
by a transfer on death deed to the extent that the probate estate of the
transferor is insufficient to satisfy:
(a) A claim allowed or established by
summary determination or separate action under ORS 114.505 to 114.560 or under
ORS chapter 115 against the probate estate; or
(b) A statutory allowance to a
surviving spouse or child under ORS 114.015.
(2) If the same transferor transfers
multiple properties by one or more transfer on death deeds, the liability under
this section is apportioned among the transferred properties in proportion to
the net value of each transferred property at the transferor’s death.
(3) A proceeding must be commenced not
later than 18 months after the transferor’s death to enforce the liability
under this section.
SECTION 16. Sec. 16 - Form of
transfer on death deed. Sections 1 to 18 of this 2011 Act govern the effect
of an instrument used to create a transfer on death deed. The following form may
be used to create a transfer on death deed:
____________________________________________________________________________
TRANSFER ON
DEATH DEED
(Sections 1 to
18 of this 2011 Act)
NOTICE TO
OWNER
You should carefully read all
information on this form. You may want to consult a lawyer before using this
form.
This form must be recorded before your
death or it will not be effective.
TAX STATEMENT
Until a change is requested, the
county clerk shall send tax statements to the following address: ______________________
IDENTIFYING
INFORMATION
Owner or Owners Making This Deed:
Printed name: ______________
Mailing address: ______________
Printed name: ______________
Mailing address: ______________
Legal description of the property:
____________________________
PRIMARY
BENEFICIARY
I designate the following
beneficiary if the beneficiary survives me:
Printed name: _____________________
Mailing address, if available:
_________________________
ALTERNATE
BENEFICIARY
(Optional)
If my primary beneficiary does not
survive me, I designate the following alternate beneficiary if that beneficiary
survives me:
Printed name: _____________________
Mailing address, if available:
_________________________
TRANSFER ON
DEATH
At my death, I transfer my interest
in the described property to the beneficiaries as designated above.
Before my death, I have the right to
revoke this deed.
SPECIAL TERMS
(Optional)
__________________________
RETURN OF DEED
After recording, the county clerk
shall return the deed to: ______________
SIGNATURE OF
OWNER OR OWNERS
MAKING THIS
DEED
Signature: ______________
Date: ______________
Signature: ______________
Date: ______________
State of _____________
County of ____________
This instrument was acknowledged before
me on _____ (date) by______________.
(name(s) of person(s))
____________________
(Signature of notarial officer)
(Seal, if any)
____________________
Title (and Rank)
My commission expires: ____________
____________________________________________________________________________
SECTION 17. Sec. 17 - Form of
instrument revoking transfer on death deed. Sections 1 to 18 of this
2011 Act govern the effect of an instrument used to revoke a transfer on death
deed. The following form may be used to create an instrument revoking a
transfer on death deed:
____________________________________________________________________________
INSTRUMENT
REVOKING
TRANSFER ON
DEATH DEED
NOTICE TO
OWNER
This instrument revoking a transfer
on death deed must be recorded before you die or it will not be effective. This
instrument is effective only as to the interests in the property of the owner
who signs this instrument.
IDENTIFYING
INFORMATION
Owner or Owners of Property Making
This Instrument of Revocation:
Printed name: ______________
Mailing address: ______________
Printed name: ______________
Mailing address: ______________
Legal description of the property:
_____________________________
REVOCATION
I hereby revoke all my previous
transfers of this property by transfer on death deed.
RETURN OF
INSTRUMENT
After recording, the county clerk
shall return the instrument to: ______________
SIGNATURE OF
OWNER OR OWNERS
MAKING THIS
DEED
Signature: ______________
Date: ______________
Signature: ______________
Date: ______________
State of ______________
County of ____________
This instrument was acknowledged
before me on _____ (date)
by ______________. (name(s) of person(s))
_________________________________
(Signature of notarial officer)
(Seal, if any)
_________________________________
Title (and Rank)
My commission expires: ____________
____________________________________________________________________________
SECTION 18. Relation to
Electronic Signatures in Global and National Commerce Act. Sections
1 to 18 of this 2011 Act modify, limit and supersede the federal Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. 7001, et seq., but do
not modify, limit or supersede 15 U.S.C. 7001(c), or authorize electronic delivery
of a notice described in 15 U.S.C. 7003(b).
MISCELLANEOUS
PROVISIONS
SECTION 19. Unless a transfer on
death deed provided for under sections 1 to 18 of this 2011 Act evidences a
different intent of the transferor, the divorce or annulment of the marriage of
the transferor after the recording of the transfer on death deed revokes all
provisions in the transfer on death deed in favor of the former spouse of the
transferor and the effect of the transfer on death deed is the same as though
the former spouse did not survive the transferor.
SECTION 20. (1) Property that
would pass by transfer on death deed under sections 1 to 18 of this 2011 Act
from a deceased transferor to a parent of the deceased transferor shall pass
and be vested as if the parent had predeceased the transferor if the transferor
was an adult when the transferor died and:
(a) The parent of the transferor
willfully deserted the transferor for the 10-year period immediately preceding
the date on which the transferor became an adult; or
(b) The parent neglected without just
and sufficient cause to provide proper care and maintenance for the transferor
for the 10-year period immediately preceding the date on which the transferor
became an adult.
(2) Property that would pass by
transfer on death deed under sections 1 to 18 of this 2011 Act from the
deceased transferor to a parent of the deceased transferor shall pass and be
vested as if the parent had predeceased the transferor if the transferor was a
minor when the transferor died and:
(a) The parent of the transferor
willfully deserted the transferor for the life of the transferor or for the
10-year period immediately preceding the date on which the transferor died; or
(b) The parent neglected without just
and sufficient cause to provide proper care and maintenance for the transferor
for the life of the transferor or for the 10-year period immediately preceding
the date on which the transferor died.
(3) For the purposes of subsections
(1) and (2) of this section, the court may disregard incidental visitations,
communications and contributions in determining whether a parent willfully
deserted the deceased transferor or neglected without just and sufficient cause
to provide proper care and maintenance for the transferor.
(4) For the purposes of subsections
(1) and (2) of this section, in determining whether the parent willfully
deserted the deceased transferor or neglected without just and sufficient cause
to provide proper care and maintenance for the deceased transferor, the court
may consider whether a custodial parent or other custodian attempted, without
good cause, to prevent or to impede contact between the transferor and the
parent whose transfer would be forfeited under this section.
(5) The transfer of property, as
defined in section 2 of this 2011 Act, to a parent of a deceased transferor may
be forfeited under this section only pursuant to an order of the court entered
after the filing of a petition under section 21 of this 2011 Act. A petition
filed under ORS 113.035 may not request the forfeiture of a transfer by a
transfer on death deed of a parent of a deceased transferor under this section.
SECTION 21. (1) A petition may be
filed in probate proceedings to assert that the interest in property, as
defined in section 2 of this 2011 Act, transferred by a transfer on death deed
to a parent of a deceased transferor is subject to forfeiture under ORS
112.047. A petition may be filed under this section only by a person who would
be benefited by a forfeiture of the parent’s share.
(2) A petition under this section must
be filed not later than:
(a) Four months after the date of
delivery or mailing of the information described in ORS 113.145 if that
information was required to be delivered or mailed to the person on whose
behalf the petition is filed; or
(b) Four months after the first
publication of notice to interested persons if the person on whose behalf the
petition is filed was not required to be named as an interested person in the
petition for appointment of a personal representative.
(3) The petitioner has the burden of
proving the facts alleged in a petition filed under this section by clear and
convincing evidence.
SECTION 22. ORS 86.740 is amended to
read:
86.740. (1) Subsequent to recording
notice of default as provided in ORS 86.735 and at least 120 days before the
day the trustee conducts the sale, notice of the sale shall be served pursuant
to ORCP 7 D(2) and 7 D(3) or mailed by both first class and certified mail with
return receipt requested, to the last-known address of the following persons or
their legal representatives, if any:
(a) The grantor in the trust deed.
(b) Any successor in interest to the
grantor whose interest appears of record, or of whose interest the trustee or
the beneficiary has actual notice.
(c) Any person, including the
Department of Revenue or any other state agency, having a lien or interest
subsequent to the trust deed if the lien or interest appears of record or the
beneficiary has actual notice of the lien or interest.
(d) Any person requesting notice as
provided in ORS 86.785.
(2) A notice served by mail under
subsection (1) of this section is effective when the notice is mailed.
(3)(a) The disability, insanity or
death of any person to whom notice of sale must be given under this section
does not delay or impair in any way the trustee’s right under a trust deed to
foreclose under the deed. If the disability, insanity or death occurs prior to
the recording of notice of default, the notice shall be given instead to the
guardian, the conservator of the estate of the person or the administrator or
personal representative of the person, as the case may be, in the manner and by
the time set forth in this section.
(b) If the disability, insanity or
death of any person to whom notice of sale must be given under this section
occurs on or after the recording of notice of default, the trustee shall, if
and when the trustee has knowledge of the disability, insanity or death,
promptly give the guardian, conservator of the estate or the administrator or
personal representative, as the case may be, the notice provided in ORS 86.745.
This notice shall be given by first class and certified mail with return
receipt requested, to the last-known address of the guardian, conservator or
administrator or personal representative.
(c) In the event there is no
administrator or personal representative of the estate of the person to whom
notice of sale must be given under this section, the notice may be given
instead to the heirs at law or devisees of the deceased person in the manner
and by the time set forth in this section.
(4) If the owner of real property
subject to foreclosure dies and the real property is also subject to a transfer
on death deed, as provided by sections 1 to 18 of this 2011 Act, notice of sale
must be given under this section to the beneficiary designated under the
transfer on death deed.
SECTION 23. ORS 93.030 is amended to
read:
93.030. (1) As used in this section, “consideration”
includes the amount of cash and the amount of any lien, mortgage, contract,
indebtedness or other encumbrance existing against the property to which the
property remains subject or which the purchaser agrees to pay or assume.
(2) All instruments conveying or
contracting to convey fee title to any real estate, and all memoranda of such
instruments, shall state on the face of [such]
the instruments the true and actual consideration paid for [such] the transfer, stated in
terms of dollars. However, if the actual consideration consists of or includes
other property or other value given or promised, neither the monetary value nor
a description of [such] the
other property or value need be stated so long as it is noted on the face of
the instrument that other property or value was either part or the whole
consideration.
(3) The statement of consideration as
required by subsection (2) of this section shall be made by a grantor or a
grantee. Failure to make such statement does not invalidate the conveyance.
(4) If the statement of consideration
is in the body of the instrument preceding the signatures, execution of the
instrument shall constitute a certification of the truth of the statement. If
there is a separate statement of consideration on the face of the instrument,
it shall be signed separately from the instrument, and such execution shall
constitute a certification of the truth of the statement by the person signing.
[No] A particular form is not
required for the statement so long as the requirements of this section are
reasonably met.
(5) [No] An instrument conveying or contracting to convey fee
title to any real estate [nor any
memorandum of such an instrument shall] or a memorandum of the
instrument may not be accepted for recording by any county clerk or
recording officer in this state unless the statement of consideration required
by this section is included on the face of the instrument.
[(6)
This section applies to instruments executed on or after January 1, 1968.]
(6) A transfer of death deed and an
instrument revoking a transfer of death deed are not instruments subject to
this section.
SECTION 24. ORS 93.040 is amended to
read:
93.040. (1) The following statement
shall be included in the body of an instrument transferring or contracting to
transfer fee title to real property except for owner’s sale agreements or
earnest money receipts, or both, as provided in subsection (2) of this section:
”BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE
SHOULD INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301
AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND
SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009. THIS INSTRUMENT DOES NOT
ALLOW USE OF THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF
APPLICABLE LAND USE LAWS AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS
INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH
THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY THAT THE UNIT OF
LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR PARCEL, AS DEFINED IN
ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE LOT OR PARCEL, TO
DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES, AS
DEFINED IN ORS 30.930, AND TO INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY
OWNERS, IF ANY, UNDER ORS 195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS
5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER
855, OREGON LAWS 2009.”
(2) In all owner’s sale agreements and
earnest money receipts, there shall be included in the body of the instrument
the following statement: ”THE PROPERTY DESCRIBED IN THIS INSTRUMENT MAY NOT BE
WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE PROPERTY IS
SUBJECT TO LAND USE LAWS AND REGULATIONS THAT, IN FARM OR FOREST ZONES, MAY NOT
AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND THAT LIMIT LAWSUITS AGAINST
FARMING OR FOREST PRACTICES, AS DEFINED IN ORS 30.930, IN ALL ZONES. BEFORE
SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON TRANSFERRING FEE TITLE SHOULD
INQUIRE ABOUT THE PERSON’S RIGHTS, IF ANY, UNDER ORS 195.300, 195.301 AND
195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424, OREGON LAWS 2007, AND
SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009. BEFORE SIGNING OR
ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE TITLE TO THE PROPERTY
SHOULD CHECK WITH THE APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY
THAT THE UNIT OF LAND BEING TRANSFERRED IS A LAWFULLY ESTABLISHED LOT OR
PARCEL, AS DEFINED IN ORS 92.010 OR 215.010, TO VERIFY THE APPROVED USES OF THE
LOT OR PARCEL, TO VERIFY THE EXISTENCE OF FIRE PROTECTION FOR STRUCTURES AND TO
INQUIRE ABOUT THE RIGHTS OF NEIGHBORING PROPERTY OWNERS, IF ANY, UNDER ORS
195.300, 195.301 AND 195.305 TO 195.336 AND SECTIONS 5 TO 11, CHAPTER 424,
OREGON LAWS 2007, AND SECTIONS 2 TO 9 AND 17, CHAPTER 855, OREGON LAWS 2009.”
(3) In all owners’ sale agreements and
earnest money receipts subject to ORS 358.505, there shall be included in the
body of the instrument or by addendum the following statement: ”THE PROPERTY DESCRIBED
IN THIS INSTRUMENT IS SUBJECT TO SPECIAL ASSESSMENT UNDER ORS 358.505.”
(4) An action may not be maintained
against the county recording officer for recording an instrument that does not
contain the statement required in subsection (1) or (2) of this section.
(5) An action may not be maintained
against any person for failure to include in the instrument the statement
required in subsection (1) or (2) of this section, or for recording an
instrument that does not contain the statement required in subsection (1) or
(2) of this section, unless the person acquiring or agreeing to acquire fee
title to the real property would not have executed or accepted the instrument
but for the absence in the instrument of the statement required by subsection
(1) or (2) of this section. An action may not be maintained by the person
acquiring or agreeing to acquire fee title to the real property against any
person other than the person transferring or contracting to transfer fee title
to the real property.
(6) A transfer of death deed and an
instrument revoking a transfer of death deed are not instruments subject to
this section.
SECTION 25. ORS 107.115 is amended to
read:
107.115. (1) A judgment of annulment
or dissolution of a marriage restores the parties to the status of unmarried
persons, unless a party is married to another person. The judgment gives the
court jurisdiction to award, to be effective immediately, the relief provided
by ORS 107.105. The judgment shall revoke:
(a) A will
pursuant to [the provisions of] ORS
112.315.
(b) A transfer on death deed
pursuant to section 19 of this 2011 Act.
(2) The marriage relationship is
terminated when the court signs the judgment of dissolution of marriage.
(3)(a) The Court of Appeals or Supreme
Court shall continue to have jurisdiction of an appeal pending at the time of
the death of either party. The appeal may be continued by the personal
representative of the deceased party. The attorney of record on the appeal, for
the deceased party, may be allowed a reasonable attorney fee, to be paid from
the decedent’s estate. However, costs on appeal may not be awarded to either
party.
(b) The Court of Appeals or Supreme
Court shall have the power to determine finally all matters presented on such
appeal. Before making final disposition, the Court of Appeals or Supreme Court
may refer the proceeding back to the trial court for such additional findings
of fact as are required.
SECTION 26. ORS 112.465 is amended to
read:
112.465. (1) Property that would have
passed by reason of the death of a decedent to a person who was a slayer or an
abuser of the decedent, whether by intestate succession, by will, by
transfer on death deed or by trust, passes and vests as if the slayer or
abuser had predeceased the decedent.
(2) Property that would have passed by
reason of the death of an heir or devisee of a decedent to a person who was the
slayer or abuser of the decedent, whether by intestate succession, by will,
by transfer on death deed or by trust, passes and vests as if the slayer or
abuser had predeceased the decedent unless the heir or devisee specifically
provides otherwise in a will or other instrument executed after the death of
the decedent.
SECTION 27. ORS 112.570 is amended to
read:
112.570. As used in ORS 112.570 to 112.590:
(1) “Co-owners with right of
survivorship” means joint tenants, tenants by the entirety and any other
co-owners of property or accounts that are held in a manner that entitles one
or more of the owners to ownership of the whole of the property or account upon
the death of one or more of the other owners.
(2) “Governing instrument” means:
(a) A deed;
(b) A will;
(c) A transfer on death deed under
sections 1 to 18 of this 2011 Act;
[(c)]
(d) A trust;
[(d)]
(e) An insurance or annuity policy account with a payable-on-death
designation;
[(e)]
(f) A pension, profit-sharing, retirement or similar benefit plan;
[(f)]
(g) An instrument creating or exercising a power of appointment or a
power of attorney; or
[(g)]
(h) Any other dispositive, appointive or nominative instrument of a type
similar to those instruments specified in this subsection.
(3) “Payor” means a trustee, insurer,
employer, governmental agency, political subdivision or any other person
authorized or obligated by law or by a governing instrument to make payments.
SECTION 28. ORS 125.440 is amended to
read:
125.440. A conservator may perform the
following acts only with prior court approval:
(1) Convey or release contingent or
expectant interests of the protected person in property, including marital
property rights and any right of survivorship incident to joint tenancy or
tenancy by the entirety.
(2) Create revocable or irrevocable
trusts of property of the estate. A trust created by the conservator may extend
beyond the period of disability of the protected person or beyond the life of
the protected person. A trust created by the conservator must be consistent
with the will of the protected person or any other written or oral expression
of testamentary intent made by the protected person before the person became
incapacitated. The court may not approve a trust that has the effect of
terminating the conservatorship unless:
(a) The trust is created for the
purpose of qualifying the protected person for needs-based government benefits
or maintaining the eligibility of the protected person for needs-based
government benefits;
(b) The value of the conservatorship
estate, including the amount to be transferred to the trust, does not exceed
$50,000;
(c) The purpose of establishing the conservatorship
was to create the trust; or
(d) The conservator shows other good
cause to the court.
(3) Exercise rights of the protected
person to elect options and change beneficiaries under insurance and annuity
policies and to surrender the policies for their cash value.
(4) Disclaim any interest the
protected person may have by testate or intestate succession, [or] by inter vivos transfer or by
transfer on death deed.
(5) Authorize, direct or ratify any
annuity contract or contract for life care.
(6) Revoke a transfer on death
deed.
SECTION 29. The Oregon Law
Commission shall make a copy of the commentary approved by the commission for
the provisions of sections 1 to 21 of this 2011 Act and the amendments to ORS
86.740, 93.030, 93.040, 107.115, 112.465, 112.570 and 125.440 by sections 22 to
28 of this 2011 Act available on a website maintained by the commission.
SECTION 30. The unit and section
captions used in this 2011 Act are provided only for the convenience of the
reader and do not become part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act.
SECTION 31. Sections 19 to 21 of
this 2011 Act and the amendments to ORS 86.740, 93.030, 93.040, 107.115,
112.465, 112.570 and 125.440 by sections 22 to 28 of this 2011 Act apply to a
transfer on death deed made before, on or after the effective date of this 2011
Act by a transferor dying on or after the effective date of this 2011 Act.
Approved by
the Governor June 2, 2011
Filed in the
office of Secretary of State June 2, 2011
Effective date
January 1, 2012
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