Drafting Note:
Read This Before Using Document
A transfer on death deed (TOD deed) is a nontestamentary instrument that allows a real property owner (referred to throughout this Standard Document as a transferor) to designate one or more beneficiaries to receive ownership of the real property on the transferor's death without either:
The formalities required for a will or trust.
Requiring a probate or trust administration to transfer the property to the beneficiaries named on the TOD deed.
(SDCL 29A-6-403 and 29A-6-406; see Effect of a TOD Deed After Transferor's Death.)
South Dakota's Real Property Transfer on Death Act, effective July 1, 2014, provides for a revocable TOD deed, provided the TOD deed was executed, acknowledged, and recorded after that date (SDCL 29A-6-401 to 29A-6-435).
A TOD deed has the added benefit during the transferor's life of:
Conveying no current rights to the designated beneficiary (see Effect of a TOD Deed During Transferor's Life).
Being fully revocable or amendable at any time while the transferor has capacity so (see Revocation of a TOD Deed). (SDCL 29A-6-407).
Counsel should understand the client's circumstances and any estate planning, probate, and conservatorship issues before recommending the use of a TOD deed to transfer property.
When to Use a TOD Deed
A TOD deed may be useful, when, for example:
Real property is not to be immediately sold after the real property owner's death.
The transferor of real property wants to avoid probate in an estate of modest value and the transferor's other assets may be transferred by using other types of nonprobate transfers.
The transferor of real property does not want to use a trust to hold and convey the property because of its cost or complexity.
When to Avoid Using a TOD Deed
A TOD deed is generally not preferred if, for example:
Covenant or warranty of title is important to the transferor or designated beneficiary when there may be title issues with the property. A South Dakota TOD deed does not include any covenant or warranty of title (SDCL 29A-6-418; see Effect of a TOD Deed After Transferor's Death).
Potential multiple TOD deed beneficiaries do not get along or may disagree about how the real property should be managed after the transferor's death (see Drafting Note, Beneficiary or Beneficiaries).
The transferor has creditors, because the beneficiary remains liable to the creditors or personal representatives of the deceased transferor for an amount equal to the value of the TOD deed property as of the transferor's death, subject to all legal exemptions (SDCL 29A-6-423).
While owning property jointly (with or without a survivorship right) does not prohibit an owner from transferring the owner's interest in the property using a TOD deed (or all owners from transferring their interests by TOD deed), there are special considerations in transferring jointly owned property by TOD deed (see Joint Ownership of Property with Rights of Survivorship).
If no petition for appointment of a personal representative is pending or was granted in any jurisdiction and certain other circumstances exist, South Dakota permits the transfer of a decedent's interest in real property by affidavit, provided the total value of all of the decedent's real property interests in South Dakota do not exceed $50,000 in value (SDCL 29A-3-1203). If the decedent owns South Dakota real property interests not exceeding $50,000, a TOD deed may not be necessary or advisable to transfer these interests.
Counsel should ensure a TOD deed is the most appropriate device for their client's specific circumstances and determine whether or what type of further estate planning may be desirable or necessary.
Qualifying Real Property
A TOD deed can convey an interest in real property located in South Dakota that is transferable on the transferor's death (SDCL 29A-6-402(5); see Drafting Note, Legal Description of Property).
Statutory Form
South Dakota provides an optional statutory form of a TOD deed (SDCL 29A-6-430). Counsel generally should use this statutory form to create TOD deeds. This Standard Document is based on the South Dakota statutory form.
Requirements to Create a TOD Deed
Capacity Requirements
To create a TOD deed, the transferor must have the capacity to make a will (SDCL 29A-6-407). The transferor has the capacity to make a will if the transferor is at least eighteen years old and has testamentary capacity (sound mind). In South Dakota, testamentary capacity means the individual, without prompting can comprehend:
The nature and extent of the individual's property.
The persons who are the natural objects of the transferor's bounty.
The disposition that the transferor wants to make of the transferor's property.
(SDCL 29A-2-501; In re Estate of Long, 846 N.W.2d 782, 786 (S.D. 2014).)
TOD Deed Instrument Requirements
The TOD deed instrument must:
Designate a beneficiary.
State that the transfer to the designated beneficiary occurs at the transferor's death.
Contain the essential elements and form of a properly recorded inter vivos deed required by the standard of title. The State Bar of South Dakota Title Standards are provided in the appendix to SDCL ch. 43-30 (SDCL § T STD APP CH 43-30 Introduction to 26-02.)
Be signed, dated, and acknowledged before a notary public by the transferor.
Be recorded before the transferor's death with the register of deeds of the county where the real property is located.
(SDCL 7-9-7.4 and 29A-6-408.)
Recording Requirements in South Dakota
To be recorded, the transferor must acknowledge the TOD deed before a notary public or other authorized official (SDCL 7-9-7.4 and 29A-6-408). South Dakota statute provides the specific form of acknowledgment of deeds in South Dakota Codified Laws chapter 18-5 (SDCL 18-5-8 to 18-5-13 and see Drafting Note, Signature and Notarial Acknowledgment).
South Dakota statutes contain additional requirements for deeds (including TOD deeds) submitted for recording, including:
The pages of the deed must:
consist of one or more individual sheets measuring no larger than 8.5 inches by 14 inches and no smaller than 8.5 inches by 11 inches;
not be attached to a page that covers up any information or printed material on the document;
be printed, typewritten, or computer generated in black ink in no smaller than 10-point type. Dates, notarial acknowledgments, signatures, and other items may be in black or blue ink if the document is predominantly in black ink and the items in blue ink are sufficiently dark;
be on white paper of not less than 20-pound weight; and
provide margins of at least 3 inches at the top of the first page, with other margins a minimum of one inch.
The deed must contain a descriptive title immediately below the three inch top margin on the first page. Counsel should identify the TOD deed as a Revocable Transfer on Death Deed (SDCL 29A-6-430).
The names of the transferor and transferee and address of the transferee must appear legibly in the deed (SDCL 7-9-7).
(SDCL 43-28-23.)
Each county register of deeds may have additional policies and procedures governing recordation of deeds and other documents in their particular county. Counsel should consult the applicable county register of deeds, a South Dakota licensed attorney (if counsel is not one), or a local title company to determine if their form of TOD deed complies with state and local laws and practices before the client executes the document.
The county register of deeds briefly reviews any deed to be recorded, including TOD deeds, for compliance with applicable state and local recording requirements. The register of deeds either rejects the deed for noncompliance or accepts and records it in the public records. This process is generally completed within a few hours. But, it can take longer, especially during year-end or other heavy use periods or during times of governmental budgetary constraints. Any failure of a deed to comply with the recording requirements can also delay recording.
Effect of a TOD Deed During Transferor's Life
During the transferor's life, execution and recordation of a TOD deed does not:
Affect the transferor's ownership rights. For example, the transferor may convey, encumber or otherwise deal with the TOD deed real property. That property is also subject to the transferor's creditors.
Create any legal or equitable right in the beneficiary or subject the specified real property to the beneficiary's creditors.
Transfer any right, title, or interest in the specified real property.
Change the beneficiary's eligibility for public assistance.
(SDCL 29A-6-414.)
Effect of a TOD Deed After Transferor's Death
On the transferor's death, a TOD deed transfers:
All of the transferor's interest in the specified real property to the designated or, when applicable, contingent beneficiaries (SDCL 29A-6-415(1)).
The property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests on the property (SDCL 29A-6-416).
Property transferred on the transferor's death by a TOD deed:
- Generally remains liable to the transferor's creditors (SDCL 29A-6-416 and 29A-6-420).
- Remains subject to any lien or other limitation on the transferor's interest that is of record at the transferor's death (SDCL 29A-6-416 and 29A-6-420).
- Is transferred without any covenants or warranties of title, even if the TOD deed states otherwise (SDCL 29A-6-418; see State Q&A, Real Estate Ownership: South Dakota: Question 5). A purchaser or lender for value of the TOD deed property acting without actual knowledge that the TOD deed was improper acquires an interest in the property free of any claims of liability. The purchaser or lender for value does not have a duty to verify information provided in the affidavit of confirmation, which is recorded by the TOD deed beneficiary after the transferor's death. (SDCL 29A-6-425; see Memorializing Transfer on Death.)
Other South Dakota statutes governing the effect of nonprobate transfers on death are generally applicable to TOD deeds, except to the extent the TOD deed laws provide a contrary rule. These include the laws regarding:
Revocation of nonprobate interests by divorce or homicide.
Survival and simultaneous death requirements.
Elective share.
(SDCL 29A-6-415; see Drafting Note, Beneficiaries or Beneficiary.)
Memorializing Transfer on Death
After the transferor dies, the beneficiary must record an affidavit of confirmation, in the county where the specified real property is located, to provide notice of the transferor's death and the vesting of the TOD deed property in the beneficiary (SDCL 29A-6-427). South Dakota provides an optional form of affidavit of confirmation (SDCL 29A-6-432).
Revocation of a TOD Deed
A transferor with capacity to make a will may revoke a TOD deed at any time (SDCL 29A-6-410; see Requirements to Create a TOD Deed). An instrument revoking a TOD deed must be:
Acknowledged by the transferor after the acknowledgment of the TOD deed being revoked.
Recorded with the register of deeds of the county where the real property is located, before the transferor's death.
Executed and recorded in the same manner as execution and recordation of a TOD deed (see Recording Requirements in South Dakota).
(SDCL 29A-6-410.)
The following instruments may be used to revoke a TOD deed:
A TOD deed that revokes the TOD deed in whole or in part, either expressly or by inconsistency (for example, by transferring the same property to a different beneficiary).
An instrument of revocation that expressly revokes all or part of the TOD deed. For an optional statutory form of revocation, see SDCL 29A-6-431.
An inter vivos deed that expressly revokes all or part of the TOD deed.
Whichever instrument is used must be acknowledged by the transferor after the transferor acknowledged the TOD deed and recorded before the transferor's death with the register of deeds of the county where the real property is located. (SDCL 29A-6-410.)
If more than one transferor makes a TOD deed, revocation by one transferor does not affect the TOD deed regarding the interests of the other transferors (SDCL 29A-6-411).
Joint Ownership of Property with Rights of Survivorship
For a TOD deed for a real property interest held in joint tenancy with right of survivorship:
If the transferor is the last joint tenant or spouse to die, the TOD deed real property transfers on the transferor's death by the TOD deed. Even if the TOD deed does not name a spouse, the spouse (or minor children) may still have a right to the property under South Dakota's elective share or homestead laws. (SDCL 29A-2-202 and 43-31-13; see State Q&A, Wills: South Dakota: Question 8).
If the transferor is not the last joint tenant or spouse to die, at the transferor's death the transferor's interest in the TOD deed real property is governed by the survivorship right, not by the TOD deed, and the real property belongs to the surviving joint owner or owners with right of survivorship.
If a TOD deed is made by more than one transferor, a TOD deed of joint owners with right of survivorship is revoked in its entirety only if it is revoked by all living joint owners.
(SDCL 29A-6-411 and 29A-6-417.)
A tenant in common (joint ownership with no survivorship right) may transfer that tenant's interest in the real property to a beneficiary using a TOD deed and on the transferor's death the beneficiary owns the transferor's interest.
Multiple Instruments Affecting Same Property
If a timely-recorded TOD deed and another instrument transfer the same property and the other instrument is:
Not recorded before the transferor's death, the TOD deed prevails.
Recorded before the transferor's death and makes a revocable disposition of the same property (such as another TOD deed), the later executed and recorded instrument prevails.
Recorded before the transferor's death and makes a distribution of property inconsistent with the TOD deed, the later recorded instrument prevails.
(SDCL 29A-6-410.)
Assumptions
This Standard Document assumes that:
The real property being transferred is within a single county in South Dakota.
The TOD deed is to be recorded with the county recorder of the county where the real property is located (see Recording Requirements in South Dakota).
The real property being transferred qualifies as a type of property permitted by statute to be transferred by a TOD deed (see Drafting Note, Qualifying Real Property).
The transferor wants to use a TOD deed for the applicable conveyance of the real property.
Bracketed Language
The drafting party should replace bracketed language in ALL CAPS with case-specific facts or other information. Bracketed language in sentence case is optional language that the drafting party may include, modify, or delete in its discretion. A forward slash between words or phrases indicates that the drafting party should include one of the words or phrases contained in the brackets in the document.
Introduction Section:
Prepared by: [PREPARER'S NAME]
[ADDRESS]
[CITY, STATE, ZIP CODE]
[TELEPHONE NUMBER]
REVOCABLE TRANSFER ON DEATH DEED
Drafting Note:
Return Address
Counsel should leave at least three inches of blank space at the top of the first page (see Drafting Note, Recording Requirements in South Dakota). However, counsel should include the name, address, and telephone number of the document preparer in the left most 3 inches of the top margin. The recorder returns the recorded TOD deed to the preparer at this address. (SDCL 7-9-1 and 43-28-23.) The preparer may be counsel or the transferor, if the transferor prefers the original, recorded TOD deed will be returned to the transferor.
Title of the TOD Deed
Counsel should always title a TOD deed as Revocable Transfer on Death Deed, as is done in this Standard Document. This title must be included immediately below the blank space at the top of the first page reserved for the return address and the recorder's use, as required by the recording statutes. (See Drafting Note, Requirements to Create a TOD Deed.)
Notice to Owner: This deed will transfer ownership of the property described below when you die. You should carefully read all of the information on this form. You should consult a lawyer before using this form.
This form must be recorded with the register of deeds before your death or it will not be effective. Any change to this deed must also be recorded to be effective.
Identifying Information
Owner(s) of Property Who Join in This Deed:
[TRANSFEROR NAME] [and [TRANSFEROR NAME]]
Address:
Marital Status of Owner(s): [single/married]
Drafting Note:
Identifying Information
The name of the transferor should exactly match the name shown on the vesting instrument by which the transferor acquired the specified real property. Counsel should include the names and addresses of co-owners if there is more than one owner transferring an interest in the TOD deed property.
County Register of Deeds offices typically review deeds, including TOD deeds, for correct information and may reject a deed that contains an incomplete or incorrect transferor name. In certain circumstances, the use of the transferor's current name (if different from the name under which the transferor acquired title), followed by "formerly known as" or "which acquired title as" and the name under which transferor acquired title, is acceptable.
Counsel should also include the transferor's:
- Mailing address.
- Marital status, where indicated.
(SDCL 29A-6-430.)
Legal Description of Property:
[LEGAL DESCRIPTION]
Drafting Note:
Legal Description of Property
Counsel should include the legal description of the real property in this section of the TOD deed. If the legal description is not prepared by a title company, counsel should prepare the legal description using the legal description in the current vesting deed for the real property that is the subject of the TOD deed. If the transferor does not have a copy of the vesting deed, counsel can usually request a copy of the current vesting deed from the register of deeds in the county where the property is located at a nominal fee.
Counsel should be careful to include the legal description exactly as it appears on the vesting deed. Otherwise, there may be title problems. If the vesting deed does not reflect the title accurately (for example, there is a spelling error or portions of the legal description are missing), counsel should notify the client and, if necessary, contact an experienced real estate attorney to correct title.
In any event, transferor's counsel should review and approve the legal description exhibit to ensure the following:
- Any legal description that is different from that used in the deed by which the transferor obtained the property complies with the county's platting restrictions. A transfer of land smaller than permitted by the county (for example, where a property owner divided up the land into smaller parcels) may require a new plat. Counsel should confirm the restrictions with the register of deeds in the county where the property is located or contact an experienced real estate attorney.
- The legal description does not:
- include any property or interest that was previously conveyed by the transferor or which the transferor does not want to convey to the beneficiary; or
- fail to include all property and interests held by the transferor that the transferor wants to convey to the beneficiary.
Beneficiary or Beneficiaries
I revoke all my prior transfer on death deeds concerning the property, and name the following beneficiary(ies) to receive the property (in equal shares, and as tenants in common, and not as joint tenants with rights of survivorship, unless I say otherwise):
Name and address of Beneficiary(ies)
[BENEFICIARY NAMES AND ADDRESSES]
This transfer is ___ / is not______ subject to the requirement that the named beneficiary survive me by one hundred twenty hours.
Name and address of Contingent Beneficiary(ies)
[CONTINGENT BENEFICIARY NAMES AND ADDRESSES]
If no primary beneficiary survives me, I name the following contingent beneficiary(ies) to receive the property (in equal shares, and as tenants in common, and not as joint tenants with rights of survivorship, unless I say otherwise):
[CONTINGENT BENEFICIARY DISTRIBUTION SCHEME]
Drafting Note:
Beneficiary or Beneficiaries
This paragraph identifies the names and addresses of the primary and contingent beneficiary or beneficiaries. Counsel must print the full names and addresses of the beneficiaries to receive the property after the transferor's death, including contingent beneficiaries, if any.
The TOD deed must specifically name each beneficiary. The transferor cannot provide for a class gift without specifically naming the beneficiaries (for example, the transferor cannot make a gift to "my children," where the children are not specifically named). (SDCL 29A-6-402 and 29A-6-408.) Counsel may state the relationship each named beneficiary has to the transferor (for example, my spouse, son, daughter, friend) if specifically naming each beneficiary.
Unless the TOD deed expressly states otherwise, if the transferor designates multiple primary beneficiaries to receive concurrent interests in the real property, the property transfers to the beneficiaries in equal shares as tenants in common (without rights of survivorship) (SDCL 29A-6-430 and 43-2-12). The transferor can instead specify that multiple beneficiaries receive:
- Equal interests in the property as joint tenants with a right of survivorship.
- Unequal interests in the property.
The transferor is not required to deliver the TOD deed to the beneficiaries and the beneficiaries are not required to accept the TOD deed, during the transferor's life for the TOD deed to be effective on the transferor's death (SDCL 29A-6-409).
Survival Requirement
The transferor should indicate, by checking the relevant language in the TOD deed, whether the TOD deed transfer is or is not subject to the statutory requirement that the named beneficiary survive the transferor by 120 hours. This survival requirement applies unless the transferor affirmatively waives it in the TOD deed. (SDCL 29A-6-415(2).)
Statutory Provisions and Rules of Construction Affecting Beneficiaries
The rules of construction applicable to wills generally apply to TOD deeds, except as limited by the TOD deed terms or by statute (SDCL 29A-6-415 and 29A-2-701). These rules include, for example, the lapse rules applicable to will bequests.
Lapse
The share of any beneficiary predeceasing the transferor lapses (SDCL 29A-6-415(2)). However, unless the TOD deed expressly provides otherwise, the South Dakota anti-lapse rules apply. Under these rules, a transfer to a beneficiary predeceasing the transferor lapses unless the beneficiary both:
- Is a grandparent, descendant of a grandparent, stepchild, or descendant of a stepchild of the testator.
- Left descendants surviving the testator.
(SDCL 29A-2-603 and 29A-6-415(a).)
In this case, the descendants take by representation the property to which the beneficiary was entitled if the beneficiary survived the transferor (SDCL 29A-2-603(a)).
If the share of a TOD deed beneficiary lapses, anti-lapse rules do not apply, and there are no other named beneficiary (or all named beneficiaries die before the transferor), the TOD deed has no effect (SDCL 29A-2-603 and 29A-6-415(2)).
Disclaimer
In South Dakota, a TOD deed beneficiary may disclaim (reject) the beneficiary's share by valid disclaimer, which must be recorded in the register of deeds in the county where the property is located (SDCL 29A-6-419).
South Dakota Disclaimer
In South Dakota, a disclaimer must, among other things:
- Be made within nine months of the transferor's death.
- Be in writing.
- Declare the writing to be a disclaimer.
- Be recorded to provide record notice and therefore include all information and comply with all requirements necessary for recording (for example, it must include a legal description of the property, be signed by the disclaimant, and be acknowledged before a person authorized to administer oaths) (see Drafting Note, Recording Requirements in South Dakota).
(SDCL 29A-2-801 and 29A-6-419.)
An original of the disclaimer must be served or delivered as provided by law for the disclaimer to be effective. The method of service and identity of the person required to receive the disclaimer varies depending on the interest disclaimed. (SDCL 29A-2-801.)When disclaiming an interest from a TOD deed, the individual that is disclaiming the real property interest must provide notice to the personal representative of the decedent’s estate. (SDCL 29A-2-801(e)). The best practice is to also record the disclaimer in the register of deeds in the county where the property is located. (SDCL 29A-2-801(l)).
The right to disclaim an interest in property is barred by and any attempted disclaimer is invalidated by:
- An assignment, conveyance, encumbrance, pledge, or transfer of property or interest or a contract for transfer.
- A written waiver of the right to disclaim.
- An acceptance of the property interest to be disclaimed.
- The interest sought to be disclaimed is sold in a judicial sale before the disclaimer is effective.
(SDCL 29A-2-801(k).)
Qualified Federal Disclaimer
Under federal law, a disclaimer is qualified if:
- It is in writing.
- The writing is received by the holder of the legal title to the property no more than nine months after the later of the day:
- the transfer creating the interest is made; or
- the disclaimant turns 21.
- The disclaimant did not accept the interest or any of its benefits.
- The interest passes without any direction by the disclaimant and passes to:
- the decedent's spouse; or
- any person other than the disclaimant.
(26 U.S.C. § 2518(b) and 26 C.F.R. § 25.2518-2.)
The nine-month deadline for making a qualified disclaimer is absolute. There are no extensions (26 C.F.R. § 25.2518-2(c)).
The disclaimant of a TOD deed interest should comply with both South Dakota and federal disclaimer requirements so that the disclaimer is effective for purposes of both state and federal property ownership and taxation laws.
Effect of Valid Disclaimer
Unless otherwise provided in the TOD deed, the disclaimed interest passes as if the beneficiary had predeceased the transferor (SDCL 29A-2-801). If there are no other named beneficiaries (or all named beneficiaries die before the transferor), the TOD deed has no effect (SDCL 29A-6-415(2)).
Divorce
Unless otherwise provided in the TOD deed, a transfer to a spouse named as a TOD deed beneficiary is revoked by the divorce of the transferor and the spouse or the annulment of their marriage, unless the transferor and the spouse both:
· Remarry each other.
· Remain married to each other at the transferor's death.
(SDCL 29A-2-802 and 29A-6-415.) A decree of separation not terminating the marriage is not a divorce for revocation purposes (SDCL 29A-2-802 and 29A-6-415).
Homicide
Any beneficiary that feloniously and intentionally kills the transferor forfeits the transfer to the beneficiary under the TOD deed (SDCL 29A-2-803(b), (c)). The beneficiary's share passes as if the beneficiary disclaimed the beneficiary's share and the beneficiary's interest in the TOD deed property is transferred as if the beneficiary had predeceased the transferor (SDCL 29A-2-803(e); see Effect of Valid Disclaimer).
Elective Share and Homestead Rights
In South Dakota, a surviving spouse generally can choose an elective share percentage of the value of the decedent's augmented estate instead of any bequest or lack of bequest by the decedent to the surviving spouse in the decedent's will. This augmented estate value includes the value of decedent's nonprobate property transferred to others, such as the value of a property interest transferred by TOD deed to a beneficiary that is not the surviving spouse. In addition to the elective share right, the surviving spouse (and on the surviving spouse's death, any of the decedent's minor children until the youngest reaches age 18) has a right to occupy the homestead until it is otherwise disposed of under law (SDCL 29A-2-202 and 43-31-13; see State Q&A, Wills: South Dakota: Disinheriting a Testator's Spouse.)
Transfer on Death
I hereby convey and transfer upon my death all my interests (whether now owned or hereafter acquired) in the described property to the above listed beneficiary(ies).
Before my death, I may revoke this deed, or any part of this deed.
Drafting Note:
Transfer on Death and Revocation
This section of the TOD deed includes:
- The required language authorizing transfer of the real property interests stated in the TOD deed to the named beneficiaries on the transferor's death (see Drafting Note, Effect of a TOD Deed After Transferor's Death). As provided in the language of the statutory TOD deed, these real property interests include those specified in the TOD deed that the transferor has at the transferor's death, including interests in real property the transferor acquired after the date the transferor signed the TOD deed (if the interests are specified in the TOD deed).
- Language stating that the transferor may revoke the TOD deed or any part of it before the transferor's death (see Drafting Note, Revocation of a TOD Deed).
Signature(s) of Owner(s) Who Join in this Deed
______________________________
(signature)
______________________________
(date)
______________________________
(signature)
______________________________
(date)
This document is exempt from documentary transfer tax under SDCL 43-4-22(18).
This document is exempt from completing and submitting the certificate of value under SDCL 7-9-7(5).
ACKNOWLEDGMENT OF NOTARY
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
| STATE OF SOUTH DAKOTA COUNTY OF [NAME] |
) ) ss. ) |
On this the [DATE] day of [MONTH], [YEAR], before me, [NOTARY PUBLIC OR OTHER AUTHORIZED OFFICER NAME], the undersigned officer, personally appeared [TRANSFEROR NAME], known to me or satisfactorily proven to be the person whose name [TRANSFEROR NAME] subscribed to the within instrument and acknowledged that [he/she/they] executed the same for the purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
___________________________
Name of Officer.
___________________________
Title of officer.
Signature: _______________________________ (Seal)
Drafting Note:
Signature and Notarial Acknowledgment
The transferor must sign and date the TOD deed and acknowledge the transferor's signature before a notary public or other authorized individual:
- To make the TOD deed effective.
- To allow the TOD deed to be recorded.
(SDCL 29A-6-408(3) and 43-28-8.)
The acknowledgment language should be used only with TOD deeds executed in South Dakota. South Dakota statute provides the specific form of acknowledgment of deeds, including TOD deeds, in South Dakota (SDCL 18-5-6 to 18-5-13).
Counsel should:
- Fill in:
- the county where the TOD deed is executed;
- the date the TOD deed is executed; and
- the transferor's name.
- Consult with the notary or other officer before completing the notary's name and title or leave a long blank line for the notary or other officer to fill in when they sign and seal the acknowledgment.
Transfer Fees and Taxes and Certificate of Value
In South Dakota:
- Deeds generally must be recorded with a certificate of value. TOD deeds are exempt from this requirement (SDCL 7-9-7(5)).
- The transfer of property includes a transfer tax unless the transfer falls under an exemption. TOD deeds are exempt from transfer taxes because no consideration is involved in the transfer (no money or other value was exchanged for the transfer of property under the TOD deed). (SDCL 43-4-22(18)).
TOD deed must include language reciting these exemptions.
