Transfer on Death Deeds: It Is Time to Establish the Rules of the Game

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Transfer on Death Deeds: It Is Time to Establish

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469

TRANSFER ON DEATH DEEDS: IT IS TIME TO ESTABLISH THE

RULES OF THE GAME

Stephanie Emrick

Abstract

A transfer on death deed is a form of deed that allows real property

assets to pass at death outside of the probate process. Through the

twentieth century, there has been a movement in the world of property

law—dubbed “the nonprobate revolution”—that focuses on using will

substitutes to transfer personal property assets at death without the typical

probate process. This is important because the probate process can be

quite lengthy and expensive. Until recently, the nonprobate option was

not readily available where real property assets were a part of the estate.

The transfer on death deed essentially evolved from the traditional life

estate deed, but with an additional reservation of power by the transferor.

Typically, the powers reserved are the power to grant, convey, sell,

mortgage, or revoke. As the use of these life estate deeds with enhanced

powers became more widely known, they grew in popularity. For the

small- to moderate-sized estates, these deeds were the last piece to the

nonprobate puzzle for estate planners.

Initially, transfer on death deeds—or some form thereof—were

recognized under the common law of many states. In 1989, Missouri was

the first state to enact legislation that provided for the use of transfer on

death deeds. Through the years, many states followed suit by adopting

their own legislation.

However, there were a number of legal

uncertainties and debates that surrounded the use of the transfer on death

deed. Namely, because there was such fragmentation in the manner that

states recognized and governed the use of the transfer on death deed. In

2007, the Uniform Law Commission formed a Drafting Committee to

draft a uniform law that would address these concerns. In 2009, the

Uniform Law Committee adopted the Uniform Real Property Transfer on

Death Act. This Note explores the history of how the transfer on death

deed has evolved into the estate planning tool that it is today. This Note

proposes that each state, and particularly Florida, should adopt the

Uniform Real Property Transfer on Death Act to resolve the legal

* J.D. 2017, University of Florida Levin College of Law. I dedicate this Note to my

husband, Don, and my children, Walker, Trey, and Avery. This Note, and law school in general,

would not have been possible without their unwavering love, patience, and sacrifices.

Additionally, I want to express my heartfelt gratitude to my mother, Karen, and my grandparents,

Joe and Joan, for their relentless support and encouragement; and to Norm and Janice Fugate for

their endless generosity and always believing in me. Also, I want to thank Professor Jeffrey

Dollinger for bringing my attention to this issue and for our invaluable discussions on the topic

and Professor Danaya Wright for her assistance and input through the research and drafting

process. Finally, I would like to recognize the editors and staff of the Florida Law Review for

their tireless efforts throughout this writing and publishing process.

Emrick: Transfer on Death Deeds: It Is Time to Establish the Rules of the

Published by UF Law Scholarship Repository,

470 FLORIDA LAW REVIEW [Vol. 70

uncertainties that surround the transfer on death deed. To do so would

restore the ability of real property owners and practitioners to utilize this

essential tool without fear of unknown legal effects.

INTRODUCTION .....................................................................................470

I. WHAT EXACTLY IS A TRANSFER ON DEATH DEED? ...............473

A. What Is Probate? And Why Do We

Want to Avoid It?............................................................474

B. Intended Function of the Transfer on

Death Deed.....................................................................476

II. ORIGIN AND HISTORY OF THE TRANSFER ON

DEATH DEED ..........................................................................481

A. Common Law Recognition .............................................481

B. Legislative Recognition ..................................................484

C. Non-Recognition.............................................................487

III. WHY CLARITY IS NECESSARY ................................................488

A. Legal Uncertainties ........................................................488

B. Effective Drafting and Planning.....................................492

CONCLUSION.........................................................................................496

INTRODUCTION

It has been said that “[d]eath is certain but probate is optional.”

In the

twentieth century, one of the main innovations in property law was

transferring certain forms of property at death, outside of probate,

through varying forms of will substitutes.

In his 1984 article, Professor

John H. Langbein discussed the four main will substitutes of that time

that constituted “the core of the nonprobate system: life insurance,

pension accounts, joint [bank] accounts, and revocable trusts.”

1. Kent D. Schenkel, The Trust-As-Will Portmanteau: Trill or Spork?, 27 QUINNIPIAC

PROB. L.J. 40, 40 (2013).

2. See discussion infra Section I.A.

3. Grayson M.P. McCouch, Probate Law Reform and Nonprobate Transfers, 62 U. M

IAMI

L. REV. 757, 759 (2008) (discussing the era of large-scale probate avoidance that began in the

mid-twentieth century); Memorandum from Thomas P. Gallanis to the Drafting Comm. for

Uniform TOD Real Prop. Act (Feb. 14, 2007), http://www.uniformlaws.org/shared/docs/

real%20property%20tod/todrpa_gallanismemo_021407.pdf.

4. John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession,

97 H

ARV.L.REV. 1108, 1109 (1984).

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2018] TRANSFER ON DEATH DEEDS 471

Originally, the nonprobate revolution

largely involved assets of personal

property that could be registered with a transfer on death or payable on

death beneficiary designation,

also known as transfer on death accounts

or TOD accounts.

The most alluring features of will substitutes or

transfer on death accounts seem to be the ease and flexibility of creation,

the owner’s unfettered control during life,

and the direct distribution to

the beneficiaries upon death.

More recently, the nonprobate revolution

has spilled over into real property assets.

Transfer on death deeds are the most recent “tool in the probate

avoidance toolbox” to emerge from the nonprobate revolution.

This

trend has fueled a frenzy of discussion, ranging from legal journals

and

periodicals

to online blogs.

Before the transfer on death form of deed

came on the scene, the legal community turned primarily to trusts,

joint

tenancy,

and contracts

to avoid probate of real property assets. In the

twenty-first century, widespread legislation has been introduced and

enacted regarding transfer on death deeds, or a form thereof

—including

the adoption of the Uniform Real Property Transfer on Death Act.

5. The term “nonprobate revolution” seems to have been originally coined by Professor

John H. Langbein in his 1984 article entitled The Nonprobate Revolution and the Future of the

Law of Succession, which has since been cited to hundreds of times.Id. at 1108.

6. Id. at 1109.

7. Julie Garber, What is a Transfer on Death, or TOD, Account?,B

ALANCE (Feb. 4, 2017),

https://www.thebalance.com/what-is-a-transfer-on-death-or-tod-account-3505253.

8. Dennis M. Horn & Susan N. Gary, Death Without Probate: TOD Deeds—The Latest

Tool in the Toolbox,24P

ROB.&PROP.12,12–13 (2010) (discussing the need for “flexible legal

tools to allow individuals” to convey their real property at death).

9. Id. at 14 (“Because the TOD Deed creates no rights in the beneficiary until the owner

dies, the owner can change his or her mind during life, and the beneficiary’s creditors cannot

attach the beneficiary’s interest in the property during the owner’s life.”).

10. Grayson M.P. McCouch, Will Substitutes Under the Revised Uniform Probate Code, 58

ROOK.L.REV. 1123, 1194 (1993) (“Will substitutes flourish because they implement simple,

routine deathtime transfers more promptly and efficiently than the probate system.”).

11. Horn & Gary, supra note 8, at 14.

12. Id.

13. Michael A. Kirtland & Catherine Anne Seal, The Significance of the Transfer-on-Death

Deed,21 P

ROB.&PROP. 42, 42–43 (2007) (“The concept of transfer-on-death deeds is directly

comparable to the use of pay-on-death or transfer-on-death accounts at banks or with brokerage

houses.”).

14. Julie Garber, How to Use TOD or Beneficiary Deeds to Avoid Probate,BALANCE (May

6, 2017), https://www.thebalance.com/use-deeds-avoid-probate-3505250.

15. Schenkel, supra note 1, at 40.

16. Kirtland & Seal, supra note 13, at 43.

17. Susan N. Gary, Transfer-on-Death Deeds: The Nonprobate Revolution Continues, 41

EAL PROP.PROB.&TR. J. 529, 534 (2006).

18. See infra Part II.

19. U

NIF.PROBATE CODE § 6-401 (amended 2010).

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472 FLORIDA LAW REVIEW [Vol. 70

This Note explores how the nonprobate revolution has seeped into the

world of real property from a broad view, and explains the intricacies and

legal effects of transferring real property, as opposed to personal

property, upon death. Further, this Note argues that enacting legislation

to govern the issue resolves legal uncertainties that allow for more

effective use. In Part I, this Note describes the typical probate process and

explains why many seek to avoid it. Part I then discusses the intended

function of transfer on death deeds in general terms, describes how it

avoids probate in most cases, and highlights the situations where the

transfer on death deed will be most applicable.

Part II delves into the origin and legal history of the transfer on death

deed. First, this Part explores the common law roots that serve as the basis

for the transfer on death deeds that are in use today.

Specifically, this

Part considers whether those roots emerged from property law,

succession law, or are a unique hybrid of the two combined. Second, this

Part discusses the legislative creations that states have enacted to allow

for this type of real property transfer upon death and examines the

interplay between the legislation and existing common law theories. In

particular, this Part discusses the first forms of legislation enacted in the

last century,

the Uniform Real Property Transfer on Death Act finalized

by the Uniform Law Commission in 2009,

and more recent forms of

legislation adopted.

Interestingly, despite uniform legislation, the states

have adopted diverse methods of allowing such transfers of real property.

These methods include varied versions of legislation, as well as the

extension of common law forms. Despite the differences between the

states’ legislative acts, a core set of issues surrounds the general notion

of transferring real property upon death to a designated beneficiary

without a will or probate.

Finally, this Part discusses the states that do

not recognize the transfer on death form of transfer for real property either

through common law or legislation.

In Part III, this Note discusses some of the major legal issues that

continue to create uncertainty and debate in the legal field relating to this

20. See infra Section I.B.

21. See infra Section I.A.

22. In 1989, Missouri was the first to enact legislation allowing for the transfer of real

property upon death through the use of a beneficiary deed. See M

O.REV.STAT. § 461.025 (1989).

Eight years later, Kansas followed Missouri and became the second state to enact legislation that

allowed real estate to be titled in transfer on death form by recording a deed designating a

beneficiary. Id.; see KAN.STAT.ANN. § 59-3501 (1997).

23. U

NIF.PROBATE CODE § 6-401 (amended 2010).

24. See infra Section II.B.

25. See infra Section II.B (exploring the legal roots of the transfer on death form of deed).

26. See infra Section II.C.

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2018] TRANSFER ON DEATH DEEDS 473

form of deed.

This Note explores cases from across the nation to

identify the key legal issues that arise and how the results may have

differed if the factual circumstances had occurred in a state with a

different legal scheme. Because this legislation is new in a legal sense,

there is limited case law on its application. Part III includes a discussion

of how key issues and circumstances have different legal effects based

upon the states’ form of recognition.

Finally, this Part of the Note argues

that every state should enact legislation to deal with nonprobate transfers

of real property so that the uncertainty and debate surrounding the legal

effects can be resolved, allowing clients in each state to plan with more

confidence and practitioners to serve those clients more effectively.

Additionally, this Part discusses how to best minimize the negative legal

effects while maximizing the upside of legal efficiency, and why

uniformity among the states would be ideal for effective application.

Finally, this Note concludes with a call to the Florida legislature to

enact some form of the Uniform Real Property Transfer on Death Act,

recognizing transfers of real property upon the death of a life tenant.

Whether the legislature agrees with the suggestions or takes a different

view, this Note asserts that any legislation clearly articulating how the

transfer on death deed (commonly referred to in Florida as an enhanced

life estate deed) operates will be great step toward clarity on the issues.

I. WHAT EXACTLY IS A TRANSFER ON DEATH DEED?

Essentially, a transfer on death deed acts in the same way that a

transfer on death account at a bank would work, but for real property.

Before the transfer on death form of deed, the nonprobate options for real

property owners were limited to traditional deeds that transferred some

property interest at the time of the transfer,

or to revocable trusts that

allowed the property owner to maintain control during life, but were cost

27. See infra Part III.

28. See infra Part III.

29. Many states allow for the use of pay-on-death and transfer-on-death accounts for bank

and investment accounts, but most of these state statutes are based on the Uniform Nonprobate

Transfers on Death Act which does not provide for use of the transfer-on-death designation on

real property. See Kirtland & Seal, supra note 13, at 42–43.

30. If a property owner deeds the property as joint tenants with right of survivorship or

tenancy by the entirety (if a married couple), an immediate property interest vests in both tenants.

See 2T

IFFANY REAL PROP. § 418 (3d ed. 2016). A traditional life estate deed allows the property

owner to retain possession of the property during life, but vests a remainderman interest in the

beneficiary that is irrevocable. See 121 M

ICHELLE L. EVANS,AM.JUR.PROOF OF FACTS 3D 101 § 4

(2011). Thus, the property owner is still giving up some level of control of the property during

life. See id.

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474 FLORIDA LAW REVIEW [Vol. 70

prohibitive and in many cases unnecessarily complicated.

This forced

real property owners to give up a certain level of ownership and control

or incur significant legal costs if the owner wished to avoid probate.

The transfer on death deed is a mechanism for real property owners to

designate a beneficiary, or beneficiaries, to directly receive ownership of

a real property asset at the owner’s death—without the probate process.

The hallmark of the transfer on death deed is that “[d]uring the owner’s

lifetime, the beneficiaries have no interest in the land, and the owner

retains full power to revoke or amend the beneficiary designation.”

other words, the execution of a transfer on death deed, or its equivalent,

does not transfer a current interest in the property to the beneficiary.

Accordingly, the execution of a transfer on death deed by an owner of

real property does not, in and of itself, constitute a completed gift for

property or tax purposes.

Transfer on death deeds are widely viewed as

cost-effective tools to avoid the probate system.

A. What Is Probate? And Why Do We Want to Avoid It?

The term “probate” is commonly used to refer to the entire legal

process of administering the decedent’s estate—generally under a court’s

supervision.

Technically, however, the word “probate” derives from the

Latin word meaning “proof.”

Black’s Law Dictionary defines “probate”

as “[t]he judicial procedure by which a testamentary document is

established to be a valid will; the proving of a will to the satisfaction of

the court.”

In other words, probate technically only refers to the legal

process by which the validity of a will is established and accepted by the

court.

When a decedent passes intestate—without a will—the court

participates in proceedings to appoint a fiduciary for the administration

31. A revocable trust allows the property owner to amend or revoke the beneficiary of the

property during the owner’s life, but the fees and costs associated with a trust are significant for

a person with modest assets. See Gary, supra note 17, at 540.

32. Horn & Gary, supra note 8, at 14.

33. See Memorandum from Thomas P. Gallanis to the Drafting Comm. for Uniform TOD

Real Prop. Act, supra note 3.

34. Gary, supra note 17, at 532.

35. Id.

36. David Major, Comment, Revocable Transfer on Death Deeds: Cheap, Simple, and Has

California’s Trusts & Estates Attorneys Heading for the Hills, 49 S

ANTA CLARA L. REV. 285, 285

(2009).

37. Thomas P. Gallanis, Frontiers of Succession, 43 REAL PROP.TR.&EST. L.J. 419, 428

(2008).

38. Id.

39. Probate,B

LACK’S LAW DICTIONARY (10th ed. 2014).

40. Understanding Probate in Florida, Practical Law Estate Planning (2017).

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2018] TRANSFER ON DEATH DEEDS 475

of the estate.

While these proceedings are not actually probate

proceedings, they are often referred to as such.

In broad terms,

“probate” is understood to refer to “the body of substantive and

procedural rules that govern the devolution of decedents’ estates by will

or intestacy.”

Indeed, probate is “the standard procedure at the heart of

the law of succession.”

For purposes of this Note, “probate” refers

broadly to all aspects of the administration of an estate and is not confined

to the limited technical meaning of the proceeding of proving the will.

It is no surprise that many seek to avoid probate. The process is

“widely perceived as costly, slow, and cumbersome.”

Additionally,

probate proceedings in most states are a matter of public record, while

many seek to keep their financial and family matters private.

The costs

in probate proceedings have been estimated to be between 5–10% of the

value of the estate,

and generally involve the fees paid to the personal

representatives and the attorneys as well as the court costs to initiate the

proceedings.

The personal representative and attorney fees may be

calculated based upon the state’s statutory fee schedule or negotiated

privately between the parties.

Next, there is legitimacy to the perception

that the probate process is slow.

Realistically, “regardless of how simple

an estate appears to be or actually is, it is almost impossible to close an

estate through the probate system in less than one year.”

The mechanics of the probate process are “highly complex and

intricate in every respect.”

As an initial matter of complexity and delay,

the probate process is usually a judicial proceeding where the control lies

with the local probate court.

Further, there are a multitude of issues that

may arise during the proceeding that could dramatically increase the cost

and time of the probate, including, but not limited to, out-of-state assets

41. PLANNING AN ESTATE:AGUIDEBOOK OF PRIN.&TECH. § 6:1 (4th ed.).

42. Id.

43. McCouch, supra note 3, at 758.

44. Gallanis, supra note 37, at 428.

45. P

LANNING AN ESTATE:AGUIDEBOOK OF PRIN.&TECH. § 6:1 (4th ed.).

46. McCouch, supra note 3, at 758.

47. Horn & Gary, supra note 8, at 12.

48. Regina L. Rathnau, Estate Planning: Benjamin Franklin Said We Certainly Need It,47

GPS

OLO 10, 11 (2013).

49. G

EORGE M. TURNER,1REVOCABLE TRUSTS 5TH § 7:2 (2016).

50. See id. (analyzing the cost of probate and the controversies that arise).

51. See E

DWARD F. KOREN,2EST.TAX &PERS.FIN.PLAN. § 19:15 (Mar. 2017) (discussing

the length of time required to probate a typical estate and the potential delays that can prolong the

process).

52. T

URNER, supra note 49, § 7:4.

53. Id. § 7:7.

54. McCouch, supra note 3, at 758.

Emrick: Transfer on Death Deeds: It Is Time to Establish the Rules of the

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476 FLORIDA LAW REVIEW [Vol. 70

of the decedent that may require separate probate proceedings

or a

contested will that must be resolved before the administration of the

estate can continue.

A will contest often presents complex litigation

issues of interpretation

and inter-family disputes regarding the wishes

of the decedent,

in addition to the added time and expense to complete

the probate process.

Finally, the publicity of the nature and the

distribution of the decedent’s assets “is the price a decedent pays for using

‘court-regulated devices’ such as wills or testamentary trusts.”

Therefore, it is not surprising that the nonprobate revolution seeking

complete probate avoidance has continued to develop and flourish in

recent years.

B. Intended Function of the Transfer on Death Deed

There are numerous options for nonprobate transfers of property upon

death, but the options are much more limited when the asset is real

property rather than personal property.

Before the common usage of

transfer on death deeds, the nonprobate transfer options took

three basic forms: (1) a contract with a third party that directs

the third party to distribute the asset to a designated

beneficiary on the death of the owner; (2) a title that contains

a right of survivorship and also gives the beneficiary current

property rights when the owner adds the beneficiary to the

title; and (3) a trust.

The concept of transfer on death designations through contract is a

familiar one in the world of personal property. The Uniform Probate Code

includes an entire section entitled “Nonprobate Transfers on Death” that

allows for the nonprobate transfer of inter alia insurance policies,

securities, bank accounts, pensions, and individual retirement accounts.

Transfer on death designations of this type typically require legislative

55. Id.

56. F

RANCIS C. AMENDOLA ET AL., 95 C.J.S. Wills § 561 (2017).

57. See E. Gary Spitko, The Will as an Implied Unilateral Arbitration Contract, 68 F

LA.L.

EV. 49, 50 (2016).

58. See Lauren A. Kirkpatrick, Treading on Sacred Ground: Denying the Appointment of a

Testator’s Nominated Personal Representative, 63 F

LA.L.REV. 1041, 1041 (2011).

59. See 96 A

M.JUR. Trials 343 § 1 (2005) (discussing at length the preparation and trial of

a case involving a will contest).

60. Frances H. Foster, Trust Privacy, 93 CORNELL L. REV. 555, 559–63 (2008).

61. Gary, supra note 17, at 538.

62. Id. at 534.

63. U

NIF.PROBATE CODE § 6-101 (amended 2010).

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2018] TRANSFER ON DEATH DEEDS 477

entitlement for recognition within a state’s probate system.

Owners of

real property can transfer or take title to the property in joint tenancy with

the right of survivorship, which immediately vests an interest in the

property to each of the joint tenants.

The interest held by a joint tenant

vanishes upon the death of that joint tenant—effectively transferring the

deceased tenant’s interest to the remaining living joint tenants outside of

probate.

Trusts—both revocable and irrevocable—are another mechanism

often used in estate planning to effectuate nonprobate transfers.

However, while many hoped that trusts would serve as “functional wills”

and thus supplant the traditional will, this hope has not come to fruition.

Modern trusts tend to be complex and require the expertise of someone

with a sophisticated understanding of the planning process.

The

intricacies associated with these trusts generally lead to significant costs

that make them unattainable by those with limited financial resources.

For real property assets, transfer on death deeds act to combine

elements of contract and joint tenancy to achieve a transfer mechanism

that captures the best elements of each and eliminates many of the

drawbacks.

The key advantages of this combination include retained

control for the transferor, simplicity,

and revocability.

The hallmark

of the transfer on death deed is that the owner or grantor retains control

during their lifetime.

Like in contract, the transfer on death deed does

not transfer any property interest to the beneficiary at the time that the

transfer on death designation is made.

Because no property interest

vests in the beneficiary until the transferor’s death, the transferor retains

complete control to amend, modify, or revoke the beneficiary designation

during the transferor’s lifetime.

Additional benefits are also derived

from the interest transferring upon death rather than inter vivos at the time

of the transfer. First, unlike taking title as joint tenants with right of

64. Joan M. Burda, Unmarried Couples and Real Estate,31PRAC.REAL EST.LAW.5, 9

(2015).

65. Gary, supra note 17, at 535.

66. Id.

67. Schenkel, supra note 1, at 40.

68. Id.

69. Major, supra note 36, at 294.

70. Id.

71. Gary, supra note 17, at 534.

72. Major, supra note 36, at 305. Major purports that the transfer on death deed provides

“[s]implification for the many who are trying to plan their estates.” Id.

73. Gary, supra note 17, at 542–43.

74. Id. at 542.

75. Id.

76. Id.

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478 FLORIDA LAW REVIEW [Vol. 70

survivorship, this form of transfer does not trigger the negative tax

consequences of a completed gift during the owner’s lifetime.

Next, the

property is protected from the creditors of any of the beneficiaries until

the time of the transferor’s death.

The property is also protected from

creditors as a non-probate asset, except to the extent that the property

itself secures the underlying debt.

Finally, the transferor may continue

to exercise the normal rights as a property owner, including the right to

sell or mortgage the property and receive applicable tax exemptions.

The cost of transferring real property assets through transfer on death

deeds is much less expensive than the cost of transferring property

through a trust or a will.

The cost of a probate proceeding is often

substantial, and in most cases substantially exceeds the cost of having a

transfer on death deed prepared.

While preparing a trust to avoid

probate may in fact cost less than the probate proceeding itself, the

preparation of the trust, along with the subsequent transfer of assets into

the trust, will almost always exceed the costs associated with transfer on

death deeds.

For an average person with few assets, “the overall cost of

using a revocable trust to transfer those assets may be substantial in

comparison with the value of the assets being transferred.”

Additionally, the transfer on death deed allows the transferor the

ability to revoke the transfer at any time during the transferor’s lifetime.

“Generally, all that is required is the filing of a revocation of the [transfer

on death deed] prior to the grantor owner’s death.”

Because no property

interest passes to the beneficiary until the death of the transferor, such

revocation does not require the named beneficiary, or beneficiaries, to

join.

If a transferor wishes to modify the beneficiaries to a particular

piece of real property, the transferor can simply execute and record a

subsequent transfer on death deed, which will supersede the previous

77. Id.; see also Catherine Anne Seal & Michael A. Kirtland, The Transfer-on-Death Deed

in the Elder Law Setting, 4 NAELA J. 71, 73–75 (2008) (discussing the tax concerns of

transferring real property assets during life).

78. Gary, supra note 17, at 542.

79. Amanda Kreshover, Transfer on Death Deed,H

OUSTON LAWYER, March/April 2016, at

40.

80. Id.

81. Gary, supra note 17, at 542.

82. Id.

83. Id. at 543.

84. Id.

85. Keriann L. Riehle, TODDs: A Transfer on Death Dilemma? A Comprehensive Analysis

of Minnesota’s Transfer on Death Deed Statute–Minn. Stat. § 507.071, 9 W

M.MITCHELL J.L. &

RAC.1, 2(2015).

86. Id. at 2.

87. Gary, supra note 17, at 542.

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2018] TRANSFER ON DEATH DEEDS 479

transfer and become the effective deed.

When juxtaposed with the

traditional joint tenancy, the revocability of the transfer on death deed

provides a clear advantage to the transferors in modifying their estate

plans during life.

This transfer on death deed has been referred to by a multitude of

terms through the years, but the most common term used in legislation

seems to be transfer on death deed.

This term is often written as transfer-

on-death deed, shortened to TOD deed,

or occasionally fully

abbreviated to TODD.

However, the terms “beneficiary deed,”

revocable transfer on death (TOD) deed,

nontestamentary transfer,

and deed upon death

are frequently used as well with little or no

distinction as to how the transfers operate.

From the common law perspective, this type of deed is generally an

extension of the traditional life estate deed with an additional reservation

of powers by the grantor.

Accordingly, this type of transfer is

commonly referred to as an enhanced or modified life estate deed.

However, this form of transfer has garnered numerous nicknames, such

as power of sale deeds or Italian deeds.

Of these nicknames, the most

common by far is the Lady Bird deed.

100

There is a common

misconception that the nickname Lady Bird deed originated when

President Lyndon Johnson transferred property to his wife using this form

of deed.

101

In actuality, the nickname originated with Florida attorney

88. 2 PATTON AND PALOMAR ON LAND TITLES § 333 (3d ed.) note 5.70 (2016) (“A

subsequent beneficiary deed revokes all previous beneficiary designations in their entirety, even

if the subsequent deed does not convey the owner’s entire interest in the property. At the owner’s

death, the most recently executed beneficiary deed or revocation of all beneficiary deeds recorded

before the owner’s death controls, regardless of the order of recording.”).

89. Riehle, supra note 85, at 2.

90. This is the term preferred by the NCCUSL in drafting the Uniform Real Property

Transfer on Death Act. According to the Comment to Paragraph 6 “[t]he term ‘transfer on death

deed’ is preferred, to be consistent with the transfer on death registration of securities.” U

NIF.

EAL PROP.TRANSFER ON DEATH ACT § 2 cmt. to para. 6 (NAT’L CONFERENCE OF COMM’RS ON

UNIF.STATE LAWS 2009).

91. See K

AN.STAT.ANN. § 59-3501 (2016).

92. See In re Estate of Carlson, 367 P.3d 486, 489 (Okla. 2016).

93. See A

RIZ.REV.STAT.ANN. § 33-405 (2016).

94. See C

AL.PROB.CODE § 5642 (West 2016).

95. See W

YO.STAT.ANN. § 2-18-101 (2016).

96. See N

EV.REV.STAT.ANN. § 111.661 (West 2016).

97. Kary C. Frank, Ladybird Deeds Purposes and Usefulness,95MICH. B.J. 30, 30 (2016).

98. Id.

99. John A. Facey, III et al., “Top Ten” Pitfalls in Preparing Lady Bird Johnson Deeds,34

T. B.J. 42, 42 (Winter 2008/2009).

100. Frank, supra note 97, at 30.

101. See Opinion of the Michigan Probate Court, In the Matter of the Estate of Dolores Ann

Davis (Lady Bird Deed), 18 Q

UINNIPIAC PROB. L.J. 247, 248–49 (2005).

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480 FLORIDA LAW REVIEW [Vol. 70

Jerome Ira Solkoff, who used a fictional cast of characters to illustrate the

usefulness of the enhanced life estate form of transferring real

property.

102

This form of transfer, however, can actually be traced back

through common law of estates as a form of remainder.

103

There is debate

surrounding the actual interest conveyed to the beneficiary at the time of

the transfer which this Note will discuss in greater detail, but for now,

understand that the legal roots are deep.

104

Of course, there are also disadvantages to using the transfer on death

deed. The primary concern associated with using transfer on death deeds

is the possibility of legal mistakes.

105

Like most aspects of the law, this is

a concern when a non-lawyer attempts to use a legal mechanism without

consulting a lawyer.

106

In the realm of transfer on death deeds, however,

there is heightened concern that legal practitioners are equally susceptible

to creating unintended legal consequences, due to the novelty of the deed

and the lack of established legal precedent.

107

Indeed, while there are

known legal traps to watch for in using transfer on death deeds, the

limited litigation and short history of the transfer on death deed create

uncertainty of what unknown legal implications are lurking around the

corner.

Chief among the negative implications of using the transfer on death

deed is that the deed will not effectuate the true intent of the owner of the

real property due to legal uncertainty.

108

This situation may arise where

an owner fails to name a contingent beneficiary,

109

executes conflicting

estate planning documents,

110

or unintentionally transfers a current

interest in the real estate that becomes subject to the beneficiary’s

creditors

111

or results in unintended tax consequences.

112

Additionally,

there is lack of certainty as to the effectiveness of the transfer on death

deed when it is challenged after the owner’s death. Further, there is

concern that the fragmented nature of the legal mechanisms employed to

102. Kary C. Frank, The Search for the Lady Bird Deed, 34 MICH.PROB.&EST.PLAN.J.25,

26 (2015) (presenting an intriguing historical perspective of how the Lady Bird deed came to be

and garnered its nickname).

103. Frank, supra note 97, at 30.

104. See infra Section II.A (discussing the question of how the interest conveyed to the

beneficiary fits within the future interest classifications, or if it fits at all).

105. Gary, supra note 17, at 543.

106. Id. at 545.

107. Id. at 543–46.

108. Major, supra note 36, at 299.

109. Gary, supra note 17, at 543.

110. Kent D. Schenkel, Testamentary Fragmentation and the Diminishing Role of the Will:

An Argument for Revival, 41 C

REIGHTON L. REV. 155, 159 (2008).

111. Gary, supra note 17, at 544.

112. Seal & Kirtland, supra note 77, at 73–74 (discussing the tax implications of creating a

completed gift during the owner’s lifetime).

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transfer differing asset types creates added complexity for the legal

practitioner.

113

In turn, this added layer of planning could actually

necessitate, rather than circumvent, additional time and expense.

Should a transfer on death deed fail to operate as a matter of law, the

probate system serves as a standby to distribute the decedent’s

property.

114

Where a transfer does not necessarily fail, however, but

merely creates an ambiguous transfer, the probate system will not save

the day.

115

II. ORIGIN AND HISTORY OF THE TRANSFER ON DEATH DEED

This form of deed follows suit with the continuing nonprobate

revolution—a relatively recent trend of seeking legal substitutes to the

traditional will and probate system, commonly referred to as nonprobate

transfers or will substitutes.

116

Today, the states handle transfer on death

deeds in a myriad of ways. There are, however, three general categories:

states that recognize them through common law, states that recognize

them by statute, and states that do not recognize them at all.

117

A. Common Law Recognition

Florida estate planning and elder law attorney Jerome Ira Solkoff

prepared the first “enhanced life estate type of transfer” in 1982.

118

While

this is the first traceable deed in this form, the type of transfer is not a

new phenomenon.

119

Indeed, the common law of estates allowed for this

type of transfer by deed.

120

There is, however, question as to how the

named beneficiary’s interest created through this transfer type fits within

the law of future interests, or if it even fits at all.

121

Commonly, the

interest held by the life tenant in an enhanced life estate deed is

113. Schenkel, supra note 110, at 160 (discussing how nonprobate devices force an attorney

engaging in estate planning to conduct a careful analysis of each individual asset and any

nonprobate device previously utilized).

114. If a transfer on death deed is determined invalid, then the deed will be treated as void

and the property will pass as an asset of the deceased’s estate. See Pippin v. Pippin, 154 S.W.3d

376, 381 (Mo. Ct. App. 2004).

115. It could cause title clouds, interfamilial disagreements, or even litigation. See Brief for

Appellant at 2, Brock v. Willhoite, No. 5D16-1925 (Fla. Dist. Ct. App. Sept. 29, 2016), 2016 WL

6403914.

116. Gary, supra note 17, at 542; Langbein, supra note 4, at 1109.

117. See infra Sections II.A–II.C (discussing how different states treat the transfer on death

deed, or some form thereof).

118. Frank, supra note 102, at 26.

119. Frank, supra note 97, at 31.

120. Id.

121. The author is grateful to Professor Danaya Wright for the thought-provoking

discussions and thorough analysis on this issue specifically and this topic in its entirety.

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482 FLORIDA LAW REVIEW [Vol. 70

considered analogous to a devise to a life tenant with the power of

appointment.

122

For over a century now, the issue with this type of devise

or grant has been whether the enhanced powers to the life tenant—

specifically, the reservation of the absolute power of disposition—

operate to enlarge the traditional life estate interest of the life tenant to a

fee interest.

123

In other words, if a life estate deed reserves to the life

tenant the absolute right to transfer or encumber the property in fee, or to

revoke the beneficiary designation completely, does the life tenant really

only have the traditional life estate interest, or does he actually have

something more? The next logical question then becomes exactly what

interest does the remainderman have upon the execution of the enhanced

life estate deed, and continuing for the duration of the life tenant’s

lifetime? Because the traditional life estate deed has evolved by creative

legal uses through common law to include the reservation of these added

powers, the answers to these questions are not clear and often vary state

by state, or case by case in some instances.

124

As to the life tenant’s interest, the majority rule is where a life estate

is coupled with an unlimited or absolute power to dispose of the fee

interest of the property, the life estate interest is not enlarged or

transformed into a fee or absolute interest.

125

Accordingly, the minority

rule is that “where an absolute power of disposition, either express or

implied, is added to a life estate in real property, the life estate is thereby

enlarged to a fee.”

126

While the majority view that a life estate interest

with the enhanced power to sell or transfer fee has been accused of being

legally inconsistent, courts have determined otherwise.

127

There are differing opinions as to what interest the remainderman or

beneficiaries have when an enhanced life estate deed is executed and

remains unrevoked through the duration of the life tenant’s lifetime. In

122. Patricia P. Jones, Transfers into Trusts and Related Issues, May 17, 2002, Broward Bar

Lady Bird Deed Presentation, https://www.browardbar.org/wp-content/uploads/staley-

memorial/SpeakerLeonardEMondschein/Lady-Bird-Deed-Presentation_42-pages.pdf.

123. H. C. J., Annotation, Absolute Power of Disposition in Life Tenant as Elevating Life

Estate to Fee, 36 A.L.R. 1177 (Originally published in 1925) (discussing case law prior to 1925

dealing with the issue of life estate deeds that reserve the absolute power of disposition of the fee

interest to the life tenant).

124. Id. (“[I]n a few jurisdictions there are some cases which are apparently in conflict. This,

however, is not due to any real inconsistency among the decisions of such jurisdictions, but to the

well-known characteristic of will cases, viz., that each case is a law unto itself and is decided so

as to give effect, if possible, to the testator’s intention as disclosed by the various provisions and

expressions of the instrument and the circumstances of the parties.”).

125. 1 T

IFFANY REAL PROP. § 56 (3d ed. 2016); see also H. C. J., supra note 123, at 13

(analyzing thoroughly the historical cases across numerous jurisdictions that have adopted the

majority rule).

126. H. C. J., supra note 123, at pt. 2.

127. Gaylord v. Goldblatt, 423 So. 2d 203, 204 (Ala. 1982).

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2018] TRANSFER ON DEATH DEEDS 483

fact, historically there have been cases that hold that where a life estate is

granted, reserving the absolute power of disposal in the life tenant, the

gift over to the remainderman at the death of the life tenant is actually

void.

128

However, all jurisdictions that previously held this view have

since resolved that the remainder that follows is valid.

129

The beneficiary

or remainder interest resulting from an enhanced life estate deed has been

referred to as a vested remainder subject to total divestment,

130

but has

also been categorized as a contingent remainder, or possibly just an

expectancy interest. This Note does not seek to get into the future interest

weeds, but merely to emphasize the distinction between whether that

interest should be considered vested or contingent.

131

Regardless of what

one labels the remainder interest, if the life tenant does not subsequently

convey the fee title to the property during her lifetime, the fee title to the

property will vest fully in the remainder beneficiary upon the life tenant’s

death.

132

However, the importance of the distinction between whether the

interest is vested or contingent is in determining when the property

interest actually passes—upon execution of the deed or upon death of the

life tenant. In other words, the question is whether the remainder

beneficiary has any interest in the property so long as the life tenant is

alive. This distinction can be critical, especially in circumstances where

the remainderman dies before the life tenant.

133

128. 3 SIMES AND SMITH,THE LAW OF FUTURE INTERESTS § 1488 (3d ed. 2016) (discussing

how this position was the minority position and how the legislature has enacted legislation to

seemingly bring their states in line with the majority position).

129. Id.

130. Frank, supra note 97, at 31 (referencing a definition provided by Gerry W. Beyer,

Governor Preston E. Smith Regents, Professor of Law, Texas Tech University School of Law);

see also Suzanne M. Barry, Enhanced Life Estates Deed Growing in Popularity, in T

HE TITLE

CORNER (Old Republic Nat’l Title Ins. Co., Tampa, Fla.), Jan.–Mar. 2016, at 4, 4.

131. Stephen L. Mackey, Fund Insures Enhanced Life Estates: Fund Insurability of Life

Estate Deeds with Enhanced Powers in the Life Estate Holders Results in Better Tricks from an

Old Dog!,F

UND CONCEPT, Aug. 1999, at 124, 124 (“A vested remainder and a vested remainder

subject to divestment are actual estates in property. A remainder is vested if there is a present right

to future possession even though that present right may be eliminated by some future event. When

a present right may be eliminated by the occurrence of some future contingency, then that

remainder is vested subject to divestment. Alternatively, a contingent remainder takes effect on

the occurrence of an event that may or may not occur prior to the termination of the preceding

estate. With a vested remainder there is uncertainty as to whether the estate will even be enjoyed

in possession. With a contingent remainder, the right to the actual estate is uncertain.”).

132. See supra Section I.B.

133. If the remainder beneficiary’s interest is considered vested at the time of the enhanced

life estate deed, then the remainder beneficiary’s interest will pass to the remainder beneficiary’s

heirs or devisees. See In re Estate of Martin, 110 So. 2d 421, 422 (Fla. Dist. Ct. App. 1959);

However, if the remainder beneficiary’s interest is considered contingent, then title will not pass

to the remainder beneficiary’s estate. See In re Travis v. Ashton, 23 So. 2d 725, 727 (Fla. 1945).

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Additionally, because each state that recognizes the enhanced life

estate deed through common law has shaped its law through historic (and

some more recent) cases, the terminology and definitions have become

quite diverse and inconsistent.

134

B. Legislative Recognition

As the popularity of enhanced life estate deeds continued to grow,

states began to respond by enacting legislation to govern this form of

deed. The first state to enact specific legislation was Missouri in 1989 as

a part of the “Nonprobate Transfers Law of Missouri”.

135

Nearly a decade

later, numerous other states eventually began to follow suit.

136

In 2007,

the Uniform Law Commission formed a Drafting Committee with the

goal of producing a Uniform Transfer on Death for Real Property Act.

137

While the Drafting Committee was working on producing the proposed

uniform law, Montana,

138

Oklahoma,

139

Minnesota,

140

and Indiana

141

enacted their own form of legislation, bringing the total number of states

with legislation to thirteen.

The Drafting Committee looked at the legislation each state had

currently adopted carefully, in addition to the comprehensive study

completed by the California Law Revision Commission, to identify the

major issues and compare and contrast the relevant statutory language

from each.

142

The Drafting Committee identified nine categories of issues

that they wished to address in their final uniform act.

143

First, they

addressed Operational Issues including, inter alia, execution formalities

and the effect of co-ownership with right of survivorship.

144

Next, the

134. See supra Section I.B. (discussing the multitude of terms used to refer to this form of

deed).

135. See H.B. 145, 85th Gen. Assemb., Reg. Sess. (Mo. 1989) (codified as amended at M

EV.STAT.§§461.003–.081 (2016)).

136. In 1997, Kansas adopted legislation, followed by Ohio in 2000, New Mexico in 2001,

Arizona in 2002, Nevada in 2003, Colorado in 2004, Arkansas in 2005, and Wisconsin in 2006.

See K

AN.STAT.ANN. § 59-3501 (2016); OHIO REV.CODE.ANN. § 5302.22 (LexisNexis 2016);

N.M. S

TAT.ANN. § 45-6-401 (2016); ARIZ.REV.STAT.ANN. § 33-405 (2016); NEV.REV.STAT.

§ 111.109 (2010); C

OLO.REV.STAT. § 15-15-402 (2016); ARK.CODE ANN. § 18-12-608 (2016);

IS.STAT. § 705.15 (2016).

137. See Memorandum from Thomas P. Gallanis to the Drafting Comm. for Uniform TOD

Real Prop. Act, supra note 3.

138. M

ONT.CODE ANN. § 76-6-121 (2016).

139. OKLA.STAT. tit. 58, § 1253 (2016).

140. M

INN.STAT. § 507.071 (2016).

141. I

ND.CODE § 32-17-14-11 (2016).

142. See Memorandum from Thomas P. Gallanis to the Drafting Comm. for Uniform TOD

Real Prop. Act, supra note 3.

143. Id.

144. Id. at 4–20.

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Drafting Committee contemplated issues relating to the rights of the

Transferor,

145

the Beneficiary,

146

Family Members,

147

Creditors,

148

and

Third-Party Purchasers.

149

Finally, they also considered the issues of

Taxation,

150

Medicaid Eligibility and Reimbursement,

151

and the

Implementation of the Revocable TOD Deed.

152

The Drafting Committee

held numerous meetings and consulted with a variety of experts in the

field before finalizing the Uniform Real Property Transfer on Death Act

(URPTODA) at the Uniform Law Commission’s 2009 Annual

Meeting.

153

The final version of the URPTODA includes a Prefatory Note that

makes clear that “[d]uring the owner’s lifetime, the beneficiaries have no

interest in the property, and the owner retains full power to transfer or

encumber the property or to revoke the TOD deed.”

154

The Prefatory Note

concludes that “[t]he time is ripe for a Uniform Act to facilitate this

emerging form of nonprobate transfer and to bring uniformity and clarity

to its use and operation.”

155

While there are too many intricacies in the URPTODA for this Note

to discuss at length, there are a few important points to highlight. First,

the URPTODA introduces clear definitions for the terminology used in

connection with this form of transfer of real property.

156

Next, in a very

concise statement in Section 5 of the URPTODA, the proposed law

makes it explicitly clear that the transfer of property via a transfer on

death deed is “effective at the transferor’s death,” thus making it clear

that the transfer is not an inter vivos transfer.

157

Further, the URPTODA

makes clear that “[a] transfer on death deed is revocable even if the deed

or another instrument contains a contrary provision.”

158

The Comment to

Section 6 clarifies that even if the transferor includes a promise in the

145. Id. at 20–30.

146. Id. at 31–49.

147. Id. at 50–51.

148. Id. at 52–53.

149. Id. at 56.

150. Id. at 57–58.

151. Id. at 58–59.

152. Id. at 59–66.

153. Links to the Drafting Committee’s Agendas, Memo, Drafts, etc. can be found at

Committees: Real Property Transfer on Death Act,U

NIF.LAW COMM’N,

http://www.uniformlaws.org/Committee.aspx?title=Real%20Property%20Transfer%20on%20D

eath%20Act (last visited Mar. 3, 2018).

154. UNIF.REAL PROP.TRANSFER ON DEATH ACT,PREFRATORY NOTE (NAT’L CONFERENCE

COMM’RS ON UNIF.STATE LAWS 2009).

155. Id.

156. Id. §2.

157. Id. § 5.

158. Id. § 6.

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486 FLORIDA LAW REVIEW [Vol. 70

transfer on death deed that the deed will be irrevocable, the deed remains

revocable, and recourse must be sought under other law.

159

Section 7

states clearly that a “transfer on death deed is nontestamentary,” which

makes clear that a transfer on death deed does not have to be executed

with the formalities of a will, nor does a transfer on death deed need to

be probated.

160

Of important note, Section 12 resolves the question of

who has what interest at what time. So long as the transferor is alive, a

transfer on death deed does not affect the interest or right of any of the

parties involved, nor does it affect eligibility for public assistance, and

the designated beneficiary does not have any interest in the property—

neither legal or equitable—so creditors of the designated beneficiary

cannot attach to the property.

161

As mentioned, these issues are just the tip of the iceberg, but the

important takeaway idea is that the URPTODA makes the legal effect of

the deed very clear. This allows clients and practitioners to plan estates

more effectively and efficiently because the operation of the deed is

understood. The clarity and certainty that the URPTODA brings to this

murky area of the law is likely the reason why even states that previously

recognized a form of the transfer on death deed have either introduced or

enacted a form of the URPTODA legislation.

162

It is also important to note that several states have enacted legislation

that differs from the URPTODA.

163

California is an interesting example,

since the Drafting Committee for the URPTODA included the materials

from California’s Law Revision Commission in their introductory

memorandum.

164

In 2009, Indiana adopted a comprehensive Transfer on

Death Property Act which includes a section specifically dealing with

Transfer on Death Deeds.

165

And in 2015, Massachusetts introduced

legislation that differed from the URPTODA.

166

Interestingly,

Mississippi introduced legislation in 2016 to adopt the URPTODA,

167

but

also introduced legislation that differed from the URPTODA in 2016

168

159. Id. § 6 cmt.

160. Id. §7.

161. Id. § 12.

162. In 2011, Nevada repealed previous legislation and enacted the URPTODA. N

EV.REV.

TAT. § 111.655 (2016).

163. See M

INN.STAT. § 507.071; see also WYO.STAT.ANN. § 2-18-101 (2016); Riehle, supra

note 85, at 2 (analyzing Minnesota’s current transfer on death deed statute).

164. Memorandum from Thomas P. Gallanis to the Drafting Comm. for Uniform TOD Real

Prop. Act, supra note 33, at 3.

165. I

ND.CODE § 32-17-14-11 (2016).

166. H.B. 1565, 189th Gen. Ct. (Mass. 2015-2016).

167. S.B. 2736, Reg. Sess. (Miss. 2016).

168. S.B. 2068, Reg. Sess. (Miss. 2016).

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2018] TRANSFER ON DEATH DEEDS 487

and again in 2017.

169

Perhaps the most interesting legislation that differs

from the URPTODA, however, is in Ohio, where the legislature amended

the prior law to allow for the transfer of real property at death through an

affidavit.

170

C. Non-Recognition

As of the date of this Note, it appears there are currently seventeen

states that do not recognize a transfer on death deed through common law

or enacted legislation.

171

That does not mean, however, that those states

have not contemplated the idea. Since the adoption of URPTODA,

several states that do not currently recognize the transfer on death deed—

or some form thereof—have introduced a form of the legislation that has

not been enacted, including Alabama,

172

Connecticut,

173

Maryland,

174

and Utah.

175

In an effort to simplify the estate planning process, there

have been numerous calls from legislators and practitioners to adopt the

use of transfer on death deeds through the URPTODA.

176

The main takeaway is the vast array of ways that the different states

treat the transfer-on-death form of deed. This level of diversity has

created confusion and controversy in the functional and practical legal

effect of using a transfer on death deed. Moreover, the terminology,

technical requirements, revocability, and operation vary from state to

state depending on their laws.

177

For the states that recognize the use of

transfer on death deeds, they have become a common tool for

practitioners to accomplish transfers of real property at death in the same

manner previously only reserved for personal property assets. However,

the lack of legal jurisprudence and consistency in statutory schemes leads

to confusion and uncertainty for legal practitioners and their clients. For

169. H.B. 806, Reg. Sess. (Miss. 2017).

170. O

HIO REV.CODE ANN. § 5302.22.

171. As of the date of this Note, the following states do recognize transfer on death deeds—

or some form thereof—as a matter of law: Alabama, Connecticut, Delaware, Georgia, Idaho,

Kentucky, Louisiana, Maine, Maryland, New Hampshire, New Jersey, New York, North Carolina,

Pennsylvania, Rhode Island, South Carolina, and Vermont.

172. H.B. 406 (Ala. 2016).

173. S.B. 1162, Gen. Assemb., Jan. Sess. (Conn. 2013); S.B. 117, Gen. Assemb., Feb. Sess.

(Conn. 2016).

174. H.B. 946 (Md. 2013); H.B. 59 (Md. 2014); H.B. 186 (Md. 2015).

175. H.B. 224, 2010 Gen. Sess. (Utah 2010); H.B. 199, 2016 Gen. Sess. (Utah 2016); H.B.

14, 2017 Gen. Sess. (Utah 2017).

176. See Michael A. Kirtland & Catherine Anne Seal, Beneficiary Deeds and Estate

Planning,A

LA.LAW., Mar. 2005, at 123; Tyler H. Gablenz, Simplify the Process: Why

Connecticut Should Adopt the Use of Transfer on Death Deeds, 28 Q

UINNIPIAC PROB. L.J. 165,

166 (2015).

177. 2 PATTON AND PALOMAR ON LAND TITLES § 333 (3d ed.) (discussing generally the

various ways that states handle the transfer on deed, or some form thereof).

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488 FLORIDA LAW REVIEW [Vol. 70

the transfer on death deed to emerge in common usage as a successful

estate planning tool, it is imperative that each state, including Florida,

enact clear legislation that will define and establish the rules of the game.

III. WHY CLARITY IS NECESSARY

The only thing that is clear regarding transfer on death deeds is that

uncertainty abounds. This Note proposes that each state should enact a

suggested form

178

of the URPTODA to resolve the uncertainty and

confusion. While having some form of legislation would be a step in the

right direction, the varied language of each state’s statute makes it

difficult for unified legal jurisprudence to form.

179

Thus, while many

cases have come through the courts with similar salient facts, their

holdings tend to be isolated to that particular state because they relate to

the particular language used in that state’s statute.

180

In addition, certainty

of title is essential for real property.

181

In states like Florida, where there

is no legislation, many title insurers are cautious when insuring real

property that involves a transfer on death deed, or an enhanced life estate

deed as they call it in Florida.

182

This Part discusses the uncertainties that

surround the legal effects and drafting of the transfer on death deed, and

why it is imperative that each state enact the URPTODA to relieve, or at

least reduce, the level of these uncertainties. First, this Note analyzes

circumstances where legal uncertainties have led to litigation and how the

URPTODA would have mitigated the risk of that litigation. Second, this

Note discusses the practical hurdles that practitioners face in estate

planning and drafting effective transfer on death deeds.

A. Legal Uncertainties

The overarching reason for each state to enact the URPTODA is

because the statutes are strictly construed as to the requirements of a

178. The URPTODA has several parts that allow for states to select from bracketed

alternative proposed language to fit within their state’s current laws. See, e.g.,U

NIF.REAL PROP.

RANSFER ON DEATH ACT §§ 2(3), 13(a) (NAT’L CONFERENCE OF COMM’RS ON UNIF.STATE LAWS

2009).

179. Riehle, supra note 85, at 1 (analyzing how transfer on death deeds are utilized in other

states, and as such a recent innovation, there is little jurisprudence on the issue).

180. See Delcour v. Rakestraw, 340 S.W.3d 320, 321–22 (Mo. Ct. App. 2011) (focusing on

the language of the statute that was particular to that state).

181. See 63C A

M.JUR.2D Property § 25 (“[P]ublic policy favors certainty in title to real

property . . . .”).

182. Benjamin T. Jepson, Insuring Title Out of Enhanced Life Estates,THE FUND CONCEPT,

Oct. 2016, at 97, 100 (discussing the risks involved with enhanced life estate deeds and indicating

that “transaction specific underwriting authorization will depend largely on the facts of each

transaction to be insured”) (on file with the author).

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transfer on death deed.

183

Thus, clear legislation that establishes how the

deed will operate and the legal effects of the conveyance will provide

clarity and certainty for owners and practitioners alike to utilize the

transfer on death deed without the unnecessary risk of litigation or

unintended consequences. For example, there has been litigation

involving the required formalities for transfer on death deeds, or some

form thereof. Because the transfer on death deed is ultimately just another

form of deed, there have been cases—similar to standard inter vivos deed

cases—that contest the validity of the deed based on formalities such as

notarization.

184

Another common factual issue that often arises is the

formality of recording the transfer on death deed.

185

“The requirement

that the [transfer on death] deed be recorded before death is the formality

that takes the place of the delivery requirement.”

186

If a state has enacted

the URPTODA, it is clear that a transfer on death deed “must contain the

essential elements and formalities of a properly recordable inter vivos

deed.”

187

Unlike a standard inter vivos deed, however, the transfer on

death deed “must state that the transfer to the designated beneficiary is to

occur at the transferor’s death and must be recorded before the

transferor’s death in the public records.”

188

Thus, because the

effectiveness of the transfer on death deed will be determined upon a

strict interpretation of the requirements set out in the law, states should

enact URPTODA and avoid the unnecessary uncertainty of the

formalities required.

Another legal uncertainty that arises from the lack of clarity, and often

leads to litigation, is who can be a grantor or a beneficiary for an effective

transfer on death deed. The courts in Colorado have decided that a trust

may not be a grantor—and thus execute an effective transfer on death

deed—because the language of their state law implies that the owner must

be a natural person.

189

The importance of the language used in the statute

183. Groh v. Ballard, 965 S.W.2d 872, 873 (Mo. Ct. App. 1998) (“[T]he General Assembly

has made clear that beneficiary deeds used to effect a nonprobate transfer of property are subject

to requirements of [the Nonprobate Transfers Law].”).

184. See, e.g., In re Estate of Frie, 315 P.3d 278, 6 (Kan. Ct. App. 2014) (unpublished

disposition) (discussing the validity of a transfer on death deed that allegedly was not properly

acknowledged before a notary public at the time of execution).

185. Estate of Dugger v. Dugger, 110 S.W.3d 423, 428 (Mo. Ct. App. 2003) (holding that

recordation was required prior to death for the transfer on death deed to be valid).

186. Id. at 428 (citing J

ACKSON &EICKHOFF,JR., II MO.TRUSTS,POWERS OF ATTORNEY,

CUSTODIANSHIPS, AND NONPROBATE MATTERS § 13.37 (Mo. Bar 1998, 2001)).

187. U

NIF.REAL PROP.TRANSFER ON DEATH ACT, § 9(1) (NAT’L CONFERENCE OF COMM’RS

UNIF.STATE LAWS 2009).

188. Id. §§ 9(2)–(3).

189. Fischbach v. Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009) (holding that a

beneficiary deed was invalid because the grantor was a trust and the statutory language required

that the “owner” must be a natural person, not an entity).

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was also central to the 2011 Missouri case, Delcour v. Rakestraw.

190

that case, the court considered the language of the recently amended

definition of “owner.”

191

Prior to the amendment, the court in Pippin

invalidated a beneficiary deed executed by the owner to transfer upon the

death of the owner and a non-owner to the beneficiaries.

192

In 2005, the

legislature amended the definition to resolve the issue of who constituted

an “owner.”

193

Even though the salient facts in both cases were nearly

identical—namely, that the transfer was not to occur until the death of

both an owner and a non-owner—the court held that “[t]he 2005

amendment does not affect Pippin’s application here or yield a different

outcome.”

194

These two cases illustrate the complexity involved in

drafting the language of the statute to achieve the desired result. Thus,

each state, and particularly Florida, should enact the URPTODA to put

in place a statutory scheme that establishes the rules of the game. Any

state enacting legislation will bring clarity to the use of transfer on death

deeds within that state. If the majority of the states across the nation

enact—at least in substantial form—the URPTODA, however, there will

be a heightened level of precedent that will be persuasive for other

jurisdictions.

One of the most significant legal uncertainties—and likely the most

litigated issue that arises on the subject of transfer on death deeds—is

whether the life tenant with reserved additional powers retains the power

to revoke the remainder interest and restore the full fee simple title to

themselves or convey it to a third party, without the joinder of the

remainder beneficiaries.

195

In Bohr v. Nodway Valley Bank,

196

the court

found that the life tenant did not only possess a life estate, but “the express

power to effectively restore her status as a fee owner in the [p]roperty by

sale or other conveyance of the [p]roperty or by any other act deemed

legally sufficient to revoke the remainder interest.”

197

This holding is

similar to the landmark Florida case, Oglesby v. Lee,

198

which held that

190. 340 S.W.3d 320, 322 (Mo. Ct. App. 2011).

191. Id. at 322–23 (“(8) ‘Owner,’ a person or persons having a right, exercisable alone or

with others, regardless of the terminology used to refer to the owner in any written beneficiary

designation, to designate the beneficiary of a nonprobate transfer, and includes joint owners. The

provisions of this subdivision shall apply to all beneficiary deeds executed and filed at any time,

including, but not limited to, those executed and filed on or before August 28, 2005.”).

192. Pippin v. Pippin, 154 S.W.3d 376, 381 (Mo. Ct. App. 2004).

193. Delcour, 340 S.W.3d at 322–23.

194. Id. at 321 (reversing and remanding the case to the lower court for findings in

conformity with their opinion).

195. See Jepson, supra note 182 (discussing the “so called ‘fickle life tenant’ problem”).

196. 411 S.W.3d 352, 352 (Mo. Ct. App. 2013).

197. Id. at 359.

198. 73 So. 840, 840 (Fla. 1917)

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where a father used a life estate deed with an enhanced reservation of

power to give a remainder interest to his daughter, a subsequent deed by

the father to a third party extinguished the daughter’s remainder

interest.

199

And in the 2014 case, Jennings v. Atkinson,

200

the Missouri

Court of Appeals went so far as to hold that a deed from a husband and

wife to just the wife was enough to extinguish the rights of the remainder

beneficiaries under a prior beneficiary deed.

201

Interestingly, there was a recent appellate case in Florida that seemed

to straddle the issue of whether a life tenant can revoke the remainder

beneficiary interest—or in other words use her power to convey the entire

fee back to herself.

202

In this case, the grantors previously held the

property at issue as joints tenants

203

with full rights of survivorship.

204

The grantors, an unmarried couple, executed a quit claim deed

205

themselves for life, and upon the death of both grantors, the remainder to

go one half to his trust and one half to her trust.

206

However, the grantors

did not include in the deed the form of tenancy that they wished to hold

the property for the remainder of their lifetime.

207

Following the first

199. Id. at 841.

200. 456 S.W.3d 461, 461 (Mo. Ct. App. 2014).

201. Id. at 467.

202. Brief for Appellant, supra note 115, at 2.

203. 7-51 P

OWELL ON REAL PROPERTY § 51.01 (2017 ed. Michael Wolf) (“The joint estate

consists of a property interest held by two or more persons concurrently, with the survivor of them

to take the entire interest.”).

204. Brief for Appellant, supra note 115, at 4.

205. D

ANAYA C. WRIGHT,THE LAW OF ESTATES AND FUTURE INTERESTS, 52 (Foundation

Press 2015); 14-81A P

OWELL ON REAL PROPERTY § 81A.03(1)(c) (2017 ed. Michael Wolf).

206. The conveyance language of the quit claim deed stated:

“to the same LEROY TURNER, a single man... and NANCY S. BROCK, a

single woman... for and during their lifetimes, without any liability for waste,

and with full power and authority in said life tenants to sell, convey, mortgage,

encumber, lease (including a lease for a term exceeding the life estate) or

otherwise manage and dispose of the property described herein, in fee simple,

with or without consideration, without joinder of the remainder person, and with

full power and authority to retain any and all proceeds or rentals generated

thereby, and upon the deaths of LEROY TURNER and NANCY S. BROCK,

remainder in fee simple unto the acting Trustee of THE LEROY TURNER

TRUST, dated June 22, 2011, as to an undivided one-half interest, and unto the

acting Trustee of THE NANCY S. BROCK REVOCABLE LIVING TRUST,

dated February 19, 2004, as to an undivided one-half interest, as Tenants-in-

Common.”

Brief for Appellant, supra note 115, at 4.

207. Under Florida law, co-owners of real property are presumed to be tenants in common.

Fla. Stat. § 689.15 (2017). The operative language of the statute states: “transfer or conveyance

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grantor’s death, the second grantor conveyed the full fee simple title of

the property to herself, wholly divesting the remainder trusts of any

interest.

208

The children of the deceased grantor—and the beneficiaries of

the first grantor’s trust and thus, half of the property—filed suit alleging

that the second grantor did not have the right to convey the full fee simple

title to the property wholly to herself because she only had a life estate

interest in one half of the property.

209

Indeed, the complexities of this case

do not solely arise based on the legal uncertainty of revocability or

divestment of remainder interests, but those issues do create an additional

layer of complex legal issues that must be sorted through.

The litigation that abounds on the issue of revocability and divestment

of remainder interests could be avoided—or at least reduced—if each

state adopted the URPTODA. The URPTODA makes clear provisions for

what is required to revoke a transfer on death deed.

210

Additionally, it

makes every transfer on death deed revocable, regardless of whether

irrevocable language is included in the deed.

211

The clear provisions in

the URPTODA allow grantors and beneficiaries to understand the extent

of their rights. Importantly, this would also provide clarity and certainty

to the attorneys representing or advising the grantors or beneficiaries as

to their legal rights under a deed in this form. Thus, each state should

adopt the URPTODA to avoid unnecessary litigation and interfamilial

disagreements.

B. Effective Drafting and Planning

Where there is uncertainty in the law, people are often hesitant to act

because they want to know what the results of their plan or strategy will

be before they implement it.

212

As noted, before the advent of the transfer

on death deed—or some form thereof—“probate was still necessary to

clear title when a decedent died owning real property.”

213

While attorneys

are often cautious or slow to utilize new or novel instruments, the

URPTODA’s provisions are clear, easily understood, and include a

heretofore or hereafter made to two or more shall create a tenancy in common, unless the

instrument creating the estate shall expressly provide for the right of survivorship . . . .” Id.

208. Brief for Appellant, supra note 115, at 6.

209. Id. at 2, 6.

210. U

NIF.REAL PROP.TRANSFER ON DEATH ACT §11(NAT’L CONFERENCE OF COMM’RS ON

UNIF.STATE LAWS 2009).

211. Id. §6.

212. Julie Ann Garber, Estate Planning Strategies for Today’s Clients, in E

STATE PLANNING

CLIENT STRATEGIES (2011) (discussing how people are hesitant to do any estate planning where

there is uncertainty in the law due to estate tax laws).

213. John H. Langbein, Major Reforms of the Property Restatement and the Uniform

Probate Code: Reformation, Harmless Error, and Nonprobate Transfers, 38 A

CTEC L.J. 1, 16

(2012).

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helpful sample form of transfer on death deed for practitioners and

owners of real property.

214

In states that have enacted the law, the

motivation has been to provide individuals with a means to transfer one

of their most important assets outside of probate while also avoiding

“unintended adverse effects and complications.”

215

Avoiding unintended

consequences and complications is precisely why each state should enact

the URPTODA.

As previously discussed, there are a myriad of legal uncertainties that

surround the use of transfer on death deeds, or some form thereof, in

states that either do not have legislation or have legislation that differs

from the URPTODA.

216

Trying to engage in effective estate planning,

without certainty of the legal effects, is like playing a game without

knowing the rules, or at least where the rules are subject to change at any

moment. Accordingly, if a practitioner determines that the benefits of

using the transfer on death deed outweigh the risk of the uncertainties, it

is difficult for the practitioner to effectively draft the transfer on death

deed—namely because the requirements and potential outcomes are

unclear. Enacting the URPTODA provides the owners of real property

and their attorneys with the clarity and understanding necessary to

effectively formulate an estate plan and, if appropriate, draft a proper

transfer on death deed. The URPTODA establishes the rules of the game;

chiefly: (1) the formalities that are required for a valid transfer on death

deed; (2) the effect of the execution of the transfer on death deed to the

grantor and beneficiaries interest, both while the grantor is living and

upon death; and (3) the revocability of, and process to revoke, a transfer

on death deed.

The first major point of clarity provided by the URPTODA is the

formalities required for the transfer on death deed to be effective. In a

state that has enacted the URPTODA, a valid transfer on death deed

differs in many ways from other inter vivos deeds. It is imperative that

these formalities are both understood and satisfied because the statutes

are strictly construed.

217

For example, a transfer on death deed requires

the “essential elements and formalities” of a typical deed, but the clause

214. Richard A. Crow & Richard L. Spencer, Real Estate Law, 78 TEX. B.J. 657, 658 (2015)

(addressing the recently enacted Texas Real Property Transfer on Death Act, the requirements for

the deed to be effective, and the important aspects of the deed’s revocability).

215. Jared N. Kawashima & Dwight K. Muraoka, The Hawaii Uniform Real Property

Transfer on Death Act — Another Tool in the Estate Planner’s Arsenal,16H

AW.B.J.43,43

(2013).

216. See supra Section III.A (discussing several legal uncertainties that have resulted in

litigation).

217. See Groh v. Ballard, 965 S.W.2d 872, 873 (Mo. Ct. App. 1998) (holding that where the

strict requirements of the Nonprobate Transfers Law were not adhered to, the resulting deed will

be held invalid).

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494 FLORIDA LAW REVIEW [Vol. 70

transferring title must state that the transfer does not occur until death.

218

Further, a transfer on death deed must be recorded prior to the transferor’s

death in order to be effective.

219

This varies slightly from states like

Florida where the law “has always been that an unrecorded deed does not

affect its validity as between the parties and their privies.”

220

This is an

important distinction for a practitioner to be aware of. Imagine a client

that owns real property but does not wish to publicize her intended

dispositions of property until death. Under these facts, in a state that has

enacted the URPTODA, a transfer on death deed would no longer be a

potential tool for this client to utilize. This is a prime example where a

practitioner, unaware that the recording requirement differed from the

standard inter vivos transfer, may provide improper advice to his client—

who would be unaware that the deed would not execute as expected upon

his death. A similar distinction lies in the formality of notice, delivery,

and acceptance. The URPTODA clearly states that, unlike an inter vivos

deed, the transfer on death deed is effective without notice, delivery, or

acceptance during the transferor’s lifetime.

221

Thus, states that enact the

URPTODA will have clear guidelines as to the formalities that are the

same as inter vivos deeds, and those that differ.

Another essential point of certainty that the URPTODA provides is

the legal effect of a transfer on death deed at the time of execution. There

has been a longstanding debate as to whether the transfer is testamentary

or nontestamentary, whether the beneficiary receives an interest at the

time of the deed’s execution or only upon the transferor’s death, and

whether the grantor has transferred or relinquished any rights or powers

by including the remainder beneficiaries.

222

These uncertainties lead to

significant legal consequences, including whether creditor claims can

attach to the property.

223

The URPTODA addresses these concerns head

on and provides as follows:

218. UNIF.REAL PROP.TRANSFER ON DEATH ACT §§ 9(2)–(3) (NAT’L CONFERENCE OF

COMM’RS ON UNIF.STATE LAWS 2009).

219. Id. § 9(3).

220. Fryer v. Morgan, 714 So.2d 542, 545 (Fla. Dist. Ct. App. 1998); Fla. Stat. § 695.01

(2016).

221. U

NIF.REAL PROP.TRANSFER ON DEATH ACT § 10 (NAT’L CONFERENCE OF COMM’RS ON

UNIF.STATE LAWS 2009).

222. See Ronald R. Volkmer, Nebraska’s Real Property Transfer on Death Act and Power

of Attorney Act: A New Era Begins, 46 CREIGHTON L. REV. 499, 503 (2013) (discussing the

“fundamental divide” between inter vivos and testamentary transfers; and how the URPTODA

abolishes the “fundamental legal distinction” and legislatively creates the “legal fiction” of a

nontestamentary transfer that does not occur until the transferor’s death).

223. See In re Estate of Carlson, 367 P.3d 486, 495 (Okla. 2016) (discussing whether creditor

claims of mortgagee should be paid from the estate when the secured property passes outside of

probate via transfer on death deed).

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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 transferee, even if the

transferee has actual or constructive notice of the deed;

(3) affect an interest or right of a secured or unsecured

creditor or future creditor of the transferor, even if the

creditor has actual or constructive notice of the deed;

(4) affect the transferor’s or designated beneficiary’s

eligibility 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 creditor of

the designated beneficiary.

224

This section of the URPTODA, along with Section 7 which clearly

states that a transfer on death deed is nontestamentary, is essential to

definitively answering a large number of the outstanding questions. It has

been said that the URPTODA “is attempting to abridge a fundamental

legal distinction that has been embedded in real property law for

centuries. When it comes to real property, there has always been a

fundamental divide between inter vivos and testamentary transfers.”

225

However, the URPTODA abolishes this fundamental legal distinction, or

at least creates an exception to the rule, and clearly establishes that a

transfer on death deed is a nontestamentary transfer that “does not operate

until the transferor’s death.”

226

While some “[t]raditionalists may cringe”

at this idea, practitioners and real property owners alike should

celebrate.

227

This is precisely the legal certainty that practitioners need to

effectively plan the estates of their clients. In fact, this is the most

compelling reason for states to enact the URPTODA, because without

clear legislation, the potential for litigation and outright confusion

regarding the legal uncertainties of these fundamental distinctions is quite

high.

224. UNIF.REAL PROP.TRANSFER ON DEATH ACT §12(NAT’L CONFERENCE OF COMM’RS ON

UNIF.STATE LAWS 2009).

225. See Volkmer, supra note 222, at 502–03.

226. U

NIF.REAL PROP.TRANSFER ON DEATH ACT § 12 cmt. (NAT’L CONFERENCE OF

COMM’RS ON UNIF.STATE LAWS 2009).

227. See Volkmer, supra note 222, at 503.

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Revocability is another major issue with transfer on death deeds to

which the URPTODA brings clarity. Section 6 states unequivocally that

“[a] transfer on death deed is revocable even if the deed or another

instrument contains a contrary provision.”

228

The commentary following

this section explains that the mandatory rule, that the transferor retains

the power to revoke the deed, is a fundamental feature of the transfer on

death deed.

229

The URPTODA further provides the exclusive methods of

revoking an executed, recorded, and effective transfer on death deed.

230

Of note, the URPTODA allows for revocation of a transfer on death deed

by subsequent deed or instrument of revocation, but does not allow for

revocation by act or will.

231

This point is essential for estate planners to

effectively plan for their clients. It is imperative that practitioners are

aware that they will have the added responsibility of identifying any prior

transfer on death deeds that have been recorded and making sure that

those deeds are either aligned with their client’s current wishes or that

that they are properly revoked.

232

Additionally, recall the discussion from

the previous section on Brock v. Willhoite. This legislation may have

given the practitioner in that case the legal certainty or awareness needed

to have drafted the original and subsequent deeds effectively. Ideally, the

practitioner in that case would have contemplated the language of

subsections (b)(1)–(2), which provides the rules governing revocation

when the transfer on death deed is made by multiple owners.

233

However,

in that case, the practitioner did not have the luxury of legislation that

clearly established how the interests would run and the requirements for

effective revocation—as Florida has not enacted a transfer on death deed

law. Thus, states should enact the URPTODA to effectively provide their

practitioners with the rules that will govern transfers of real property via

a transfer on death deed and place them in a position to effectively advise

their clients with legal certainty.

ONCLUSION

The use of transfer on death deeds—or some form thereof—has

become a very popular tool for estate planners across much of the

country. While the underlying concept and function of the transfer on

228. UNIF.REAL PROP.TRANSFER ON DEATH ACT §6(NAT’L CONFERENCE OF COMM’RS ON

UNIF.STATE LAWS 2009).

229. Id. §6cmt.

230. Id. §11.

231. Id.

232. See Comment to Section 11 for discussion on how the URPTODA’s position differs

from the Restatement (Third) of Property (Wills and Other Donative Transfers) on whether

subsequent wills can revoke prior will substitutes like a transfer on death deed. U

NIF.REAL PROP.

RANSFER ON DEATH ACT §11(NAT’L CONFERENCE OF COMM’RS ON UNIF.STATE LAWS 2009).

233. Id.

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death deed is essentially the same, the means that each state uses to

accomplish the nonprobate transfer goal is quite different. As previously

discussed, this discontinuity creates legal uncertainties for both owners

of real property and their attorneys. Potentially, these uncertainties

preclude the use of the transfer on death deed where the transfer on death

deed would have been an ideal instrument to achieve the owners’ wishes.

On the other hand, the legal uncertainties make using and drafting transfer

on death deeds a malpractice landmine. Ineffective use and drafting leads

to a multitude of problems, including unnecessary litigation and title

issues. The bottom line is that transfer on death deeds are an essential tool

for smaller estates looking to avoid probate, but those same estates cannot

endure the uncertain legal effects that are currently associated with

transfer on death deeds in states like Florida, which has not enacted

legislation.

Each state, and particularly Florida, should adopt the URPTODA to

establish the rules of the game with clarity and provide certainty of the

legal effects associated with transfer on death deeds. Similar will

substitutes have been available for other property assets for quite some

time now. Real property assets should not be an exception but should

continue along the same nonprobate revolution trajectory. It is true that

real property is not as fungible as personal property in many cases, but

the same real property protections remain in place for a transfer on death

deed that are in place for inter vivos transfers or will formation. Thus, the

focus should not be on the type of property owned, but rather the means

by which the transferor wishes to transfer that property. Providing

certainty of the legal effects will promote donative freedom to owners of

real property and remove many of the hurdles that practitioners collide

with in drafting this form of deed. Further, clear legislation such as the

URPTODA will establish the rules necessary to utilize transfer on death

deeds in a manner that preserves clear, insurable chains of title, consistent

with other existing legislation aimed at preserving marketable title. At the

end of the day, real property owners and attorneys should be able to

know—with a high degree of certainty—what the legal effects on real

property will be when they utilize a tool like a transfer on death deed.

Adopting the UPRTODA provides that level of certainty.

Emrick: Transfer on Death Deeds: It Is Time to Establish the Rules of the

Published by UF Law Scholarship Repository,

Florida Law Review, Vol. 70, Iss. 2 [], Art. 6

https://scholarship.law.ufl.edu/flr/vol70/iss2/6