AnalysisNew York becomes the latest state to enact the Uniform Law Commission’s (ULC) Uniform Real Property Transfer on Death Act, authorizing individuals to create a transfer on death deed to convey their property outside of the typical probate process. While the new law requires a transfer on death deed to contain the essential elements and formalities of a properly recordable inter vivos deed (which includes acknowledgment before a Notary or notarial officer), Senate 8306 goes one step further and explicitly requires a transfer on death deed to be acknowledged before a Notary. The ULC’s official comment on the acknowledgment requirement states: “In all states, the essential elements of a properly recordable deed include the requirement that the deed be acknowledged by the grantor before a notary public or other individual authorized by law to take acknowledgments…. In the context of transfer on death deeds, the requirement of acknowledgment fulfills at least four functions. First, it cautions a transferor that he or she is performing an act with legal consequences. Such caution is important where, as here, the transferor does not experience the wrench of delivery because the transfer occurs at death. Second, acknowledgment helps to prevent fraud. Third, acknowledgment facilitates the recording of the deed. Fourth, acknowledgment enables the rule in Section 11 that a later acknowledged deed prevails over an earlier acknowledged deed (Editor: See paragraph 9(a)(2) of S. 8306). No better statement of the value of having a document acknowledged before a Notary can be found elsewhere.
Read Senate 8306 (See Part O, Section 12 beginning on page 41).