Maine Transfer on Death Deed Form

What Is a Maine Transfer-on-Death (TOD) Deed?

A Maine transfer-on-death deed—or TOD deed—is a legal document used to transfer Maine real estate on the death of an owner. While living, the owner keeps full control over the property, including the right to revoke the deed or sell or mortgage the property. At the owner’s death, the property passes to the beneficiaries named in the TOD deed without a need for probate.

The Maine legislature first authorized TOD deeds by passing the Maine Uniform Real Property Transfer on Death Act.¹. The Act applies to TOD deeds made before, on, or after September 1, 2019, by an owner dying on or after September 1, 2019.²

What Is the Purpose of a Maine TOD Deed?

A Maine TOD deed is designed to let the owner avoid probate at death without giving up control during life. It is often used instead of a living trust, which exists for the same purposes (though a Maine TOD deed can also be used to transfer property to a living trust at death).

A Maine TOD deed is nontestamentary, meaning the property described in the TOD deed is not passed down in a will or viewed as part of the owner’s probate estate.³ An owner who signs a valid Maine TOD deed removes the property described in the TOD deed from his or her probate estate.

What Is the Benefit of Avoiding Probate?

Probate is a legal process that can last for months and require the assistance of an attorney. Probate also means giving up privacy and making the deceased owner’s financial affairs public. A Maine TOD deed is designed to avoid the cost, time, and loss of privacy involved in Maine probate.

What Types of Property Can Be Transferred Using a Maine TOD Deed?

The Maine Uniform Real Property Transfer on Death Act applies only to real estate located in Maine.⁴ It does not apply to other types of property, like cars, or to real estate located in other states.

What Is the Effect of a Maine TOD Deed While the Owner Is Alive?

A major purpose of a Maine TOD deed is to keep control in the hands of the original property owner while the owner is alive. The Uniform Real Property Transfer on Death Act meets that goal by listing six things that do not happen when a Maine property owner makes a TOD deed. While the original owner is alive, a Maine TOD deed does not:

1. Affect the property rights of the owner or any other owner, including the owner’s right to sell or mortgage the property;⁵
2. Affect any interest or right of a beneficiary (even if the beneficiary knows about the deed);⁶
3. Affect the interest or right of a creditor (even if the creditor knows about the deed);⁷
4. Affect whether the owner or any beneficiary can receive any form of public assistance (like Medicaid);⁸
5. Give the beneficiary any legal interest in the property;⁹ or
6. Make the property available to claims by creditors of a beneficiary.¹⁰

Taken together, these rules help ensure that the property owner holds control over the property during life and that the beneficiary does not get property rights until the owner’s death.

Can the Owner Sell the Property after Recording a TOD Deed?

Yes. The Maine Uniform Real Property Transfer on Death Deed Act says clearly that while the owner is still alive, a Maine TOD deed does not affect the owner’s right to sell or mortgage the property described in the deed.¹¹ The beneficiary named in the deed takes the property “subject to” any prior sale or other transfer of the property.¹² If the owner no longer owns the property described in the TOD deed at the time of death, the beneficiary named in the TOD deed receives no interest in the property.

Is a Maine TOD Deed Revocable?

Yes. A Maine TOD deed can always be canceled (revoked) by the owner, even if the deed says it cannot.¹³ The deed may be revoked by three types of documents:

1. A transfer-on-death deed that revokes the deed or part of the deed in clear wording or by disagreeing with it;¹⁴
2. A revocation document that revokes the deed or part of the deed by a clear statement;¹⁵ or
3. A deed made during the owner’s life that revokes the transfer-on-death deed or part of the deed. ¹⁶

Each of these documents must be stamped by a notary after the date on which the TOD deed is notarized and recorded. The documents must then be filed before the owner’s death in the registry of deeds in the county where the deed is recorded.¹⁷

Unlike some other documents, such as wills, a Maine TOD deed cannot be revoked by a revocatory act. Such acts include burning, marking up, tearing up, or otherwise destroying the deed.¹⁸

If a transfer-on-death deed is made by more than one owner, and one owner revokes the deed, that revocation does not affect the interest of any other owner.¹⁹ If the property is owned by joint owners, a TOD deed affecting the property can be revoked only by all of the living joint owners. ²⁰

What Is the Effect of a Maine TOD Deed When the Owner Dies?

The Maine Uniform Real Property Transfer on Death Act includes a series of default rules that describe what happens when the owner dies, assuming the deed does not include a backup plan. On the death of the owner (or, if there are multiple owners, on the death of the last owner to die):

1. The property is transferred to the beneficiary as described in the deed;²¹
2. If the beneficiary dies before the owner, the transfer to that beneficiary fails (lapses);²²
3. If the deed names multiple beneficiaries to own the property, each beneficiary has an equal interest in the property with no right of survivorship.²³ There is one exception: If the deed names at least two beneficiaries to own the property jointly and the share of any beneficiary who dies before the owner lapses or fails for any reason, that share is transferred to the other or others. Each surviving beneficiary gets a part of the transferred share based on the amount of it each one already owns.²⁴

These rules are only default rules; the TOD deed can—and, in most cases, should—change how these rules are applied. It can do so by including custom language to tailor the deed to the owner’s goals.²⁵

A beneficiary named in a TOD deed takes the property subject to all transfers, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the owner’s death.²⁶

A transfer-on-death deed transfers property without covenant or warranty of title even if it says it includes these items.²⁷

Can a Maine TOD Deed Leave Property to Multiple Beneficiaries?

Yes. A Maine TOD deed may leave property to “one or more beneficiaries.”²⁸ Under the default rules, each beneficiary has equal ownership of the property with no right of survivorship,²⁹ The owner can create a right of survivorship in the beneficiaries by including custom language in the deed.

Can Joint Owners Sign a Maine TOD Deed?

Yes. The Uniform Transfer on Death Deed Act says one or more joint owners can sign a single deed. Joint owners include anyone who owns property along with one or more other persons with a right of survivorship.³⁰ If two owners co-own the property as joint tenants, they are joint owners within the meaning of the law. Multiple owners who hold title as tenants in common are not seen as joint owners.

The right of survivorship that is included in joint ownership control over any conflitcting provisions in the TOD deed. If joint owners make a deed and one owner dies, that owner’s ownership passes under the right of survivorship to the remaining joint owner or owners.³¹ On the death of the last surviving joint owner, the transfer-on-death deed takes effect to transfer the property to the named beneficiaries.³² These rules help faciltate estate plan that provides for the surviving spouse during life and transfers property to children only on the death of the second spouse.

A TOD deed made by joint owners can only be revoked by all living joint owners.³³

What Happens If the Beneficiary Named in a Maine TOD Deed Dies before the Owner?

Under the default rules, if the beneficiary dies before the owner, the transfer to that beneficiary fails (lapses).³⁴ If the deed names at least two beneficiaries to own the property jointly and one of them dies before the owner, that beneficiary’s lapsed share transfers to the surviving beneficiaries on a pro rata basis.³⁵

These default rules may be changed by language in the deed.³⁶ In many cases, the use of customized “anti-lapse” provisions helps ensure the property passes as intended and does not become part of the owner’s probate estate.

Must the Owner Notify the Beneficiaries of the Maine TOD Deed?

No. During the owner’s life, the owner need not notify any named beneficiary of the TOD deed.³⁷

Can a Maine TOD Deed Be Used When the Property is Mortgaged?

Yes. A beneficiary who inherits property under a TOD deed takes the property subject to all transfers, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the owner’s death.³⁸ Assuming the transfer is to a relative, it should not affect the existing mortgage.³⁹

Must a Maine TOD Deed Be Recorded?

Yes. A Maine TOD deed must be recorded before the owner’s death in the public records in the registry of deeds for the county where the property is located.⁴⁰ Failure to record the deed before the owner’s death invalidates the deed.

Can a Maine TOD Deed Be Signed by an Agent under a Power of Attorney?

The mental ability required to make or revoke a transfer-on-death deed is the same as for a will.⁴¹ An owner may lack the mental ability to make a Maine TOD deed due to dementia or some other cause. If so, then an agent should use caution when deciding whether to make a TOD deed for that owner, especially if the TOD deed will leave the property to the agent. It is almost always best to have the owner sign the deed if at all possible.

What Are the Requirements for a Maine TOD Deed?

Each Maine TOD deed must meet statutory requirements. A Maine TOD deed must:

1. Meet all of the requirements of Maine law that apply to other types of Maine deeds, including identification of the owners and a valid legal description;⁴²
2. State that the transfer to the beneficiary will occur at the owner’s death;⁴³ and
3. Be recorded before the owner’s death in the public records in the registry of deeds for the county where the property is located.⁴⁴

Because these requirements are specific to Maine, the use of a generic, fill-in-the-blank TOD deed form is unlikely to meet Maine requirements or to take advantage of the customization opportunities available under the Maine Uniform Real Property Transfer on Death Act.

1. Me. Stat. tit. 18-C §§ 6-401, et seq.
2. Me. Stat. tit. 18-C § 6-403.
3. Me. Stat. tit. 18-C § 6-407.
4. Me. Stat. tit. 18-C § 6-402(5).
5. Me. Stat. tit. 18-C § 6-412(1).
6. Me. Stat. tit. 18-C § 6-412(2).
7. Me. Stat. tit. 18-C § 6-412(3).
8. Me. Stat. tit. 18-C § 6-412(4).
9. Me. Stat. tit. 18-C § 6-412(5).
10. Me. Stat. tit. 18-C § 6-412(6).
11. Me. Stat. tit. 18-C § 6-412(1).
12. Me. Stat. tit. 18-C § 6-413(2).
13. Me. Stat. tit. 18-C § 6-406.
14. Me. Stat. tit. 18-C § 6-411(1)(A)(1).
15. Me. Stat. tit. 18-C § 6-411(1)(A)(2).
16. Me. Stat. tit. 18-C § 6-411(1)(A)(C).
17. Me. Stat. tit. 18-C § 6-411(1)(B).
18. Me. Stat. tit. 18-C § 6-411(3).
19. Me. Stat. tit. 18-C § 6-411(2)(A).
20. Me. Stat. tit. 18-C § 6-411(2)(B).
21. Me. Stat. tit. 18-C § 6-413(1)(A).
22. Me. Stat. tit. 18-C § 6-413(1)(B).
23. Me. Stat. tit. 18-C § 6-413(1)(C).
24. Me. Stat. tit. 18-C § 6-413(1)(D).
25. See Me. Stat. tit. 18-C § 6-413(1)(A) (“Except as otherwise provided in the transfer on death deed”).
26. Me. Stat. tit. 18-C § 6-413(2).
27. Me. Stat. tit. 18-C § 6-413(4).
28. Me. Stat. tit. 18-C § 6-405.
29. Me. Stat. tit. 18-C § 6-413(1)(C).
30. Me. Stat. tit. 18-C § 6-402(3).
31. Me. Stat. tit. 18-C § 6-413(3)(A).
32. Me. Stat. tit. 18-C § 6-413(3)(B).
33. Me. Stat. tit. 18-C § 6-411(2)(B).
34. Me. Stat. tit. 18-C § 6-413(1)(B).
35. Me. Stat. tit. 18-C § 6-413(1)(D).
36. See Me. Stat. tit. 18-C § 6-413(1)(A) (“Except as otherwise provided in the transfer on death deed”).
37. Me. Stat. tit. 18-C § 6-410.
38. Me. Stat. tit. 18-C § 6-413(2).
39. See 12 USC 1701j-3(d)(5) (a mortgage creditor cannot trigger a due-on-sale clause in response to “a transfer to a relative resulting from the death of a borrower.”).
40. Me. Stat. tit. 18-C § 6-409(3).
41. Me. Stat. tit. 18-C § 6-408(1).
42. Me. Stat. tit. 18-C § 6-409(1).
43. Me. Stat. tit. 18-C § 6-409(2).
44. Me. Stat. tit. 18-C § 6-409(3).