Section 13.38 Deeds Effective on Death of Owner

• Library: Trusts and Powers 2013 Supp

D. (§13.38) Deeds Effective on Death of Owner

The instrument used to transfer property at death as authorized by § 461.025, RSMo 2000, has come to be known as a “beneficiary deed.” The only requirements for a deed to be effective as a beneficiary deed are that it expressly state that it is not to take effect until the death of the owner and that it be recorded before the death of the owner.

Ordinarily, a conveyance of real estate requires that the deed be delivered to the grantee, Williams v. Cole, 760 S.W.2d 944 (Mo. App. S.D. 1988), or to a third party with irrevocable instructions to turn over the deed to the grantee on the owner’s death, Pipes v. Sevier, 694 S.W.2d 918, 925 (Mo. App. W.D. 1985). Section 461.025 explicitly negates the requirement of delivery. The requirement that the deed be recorded before death is the formality that takes the place of the delivery requirement.

The requirement that the deed be recorded before the owner’s death is unique to beneficiary deeds; it does not exist for any other type of deed. Section 461.025 deals only with beneficiary deeds and explicitly states that it does not invalidate any other deed that is otherwise effective to convey title and that is not recorded until after the owner’s death.

In the past, some owners, seeking to avoid probate, would simply deliver a conventional warranty or quitclaim deed to the grantee on the understanding that it would not be recorded until after the owner had died. While this device is not invalidated by the NTLM, it is a poor substitute for a beneficiary deed from the owner’s point of view because it is irrevocable and because the grantee might record the deed before the owner dies. It is also less desirable for the grantee because the grantee takes title by virtue of the deed executed before death...