Nebraska Deed Forms for Real Estate Transfers

What Types of Deeds are Used in Nebraska?

Nebraska law defines the word deed generally to include nearly all written documents that create, transfer, mortgage, or otherwise affect rights to or ownership of real estate. However, this does not include wills or short-term leases.¹ Nebraska recognizes numerous types of deeds within that wide definition. The three most common Nebraska deed forms for transferring real estate ownership from its current owner (the grantor) to a new owner (the grantee) are warranty deeds, special warranty deeds, and quitclaim deeds.

1. Warranty deeds. A Nebraska warranty deed form—sometimes called a general warranty deed—transfers real estate guaranteed to have a good, clear title. The current owner provides warranty of title—a legal promise that the property’s title is subject to no liens, mortgages, conflicting ownership claims, or other defects.² The warranty extends back to the beginning of the property’s chain of title and covers any defects not specifically excluded.³ The new owner can get payment from the current owner if an unknown defect causes the new owner financial loss.⁴
2. Special warranty deeds. A Nebraska special warranty deed form transfers real estate with limited warranty of title. The current owner promises a clear title, but the warranty only covers title problems that arose while the current owner owned the property.⁵ A special warranty deed is also called a limited warranty deed. It does not protect the new owner against title problems that are rooted in a time before the current owner acquired the property.
3. Quitclaim deeds. A Nebraska quitclaim deed form transfers—with no warranty—whatever property rights the current owner can lawfully transfer when signing the deed.⁶ The current owner makes no statements or promises about whether he or she truly owns the real estate.⁷ The new owner receives the current owner’s rights, if any, and accepts the risk of any problems with the property’s title.

Title Defects and Nebraska Title Insurance

A deed’s warranty of title decides which party bears the risk of title defects—problems with the property’s title that reduce its value or marketability. Defects can be unpaid liens and mortgages, an unclear chain of title, or the lack of a legal right allowing physical access to the property.

Either party to a deed—or a third-party lender—can protect themselves from the financial risk of title defects by getting title insurance. Title insurance is a contract with an insurance company under which the insurer agrees to protect the insured from financial loss caused by title defects.⁸ A title insurer charges one big payment when issuing a policy.⁹ The insurer agrees to cover any loss resulting from defects that existed on the policy date.

What Types of Estate Planning Deeds are Used in Nebraska?

Deeds are an important part of estate planning because they provide a way to transfer real estate to a property owner’s heirs. A deed’s warranty of title is usually less important in estate planning than the deed’s timing and legal effect on ownership rights.

The following are common estate-plan-related deeds honored in Nebraska:

• Transfer-on-death deeds. A Nebraska transfer-on-death deed form—often called a TOD deed—transfers real estate after the owner’s death.¹⁰ A TOD deed has no legal impact on the owner’s property rights during the owner’s life. In other words, the owner keeps the right to sell, transfer, or mortgage the property or revoke the TOD deed.¹¹ When the owner dies, title passes directly to the beneficiary, avoiding probate.
• Life estate deed. A Nebraska life estate deed form can work like a TOD deed—allowing the owner to keep ownership rights for life and transfer title to a remainderman when the owner dies. The big difference is that the remainderman gets a valid legal right to future possession while the owner remains living.¹² As a result, a life estate deed restricts the owner’s power to sell or mortgage the real estate during life. Life estate deeds have become less popular due to their limitations compared to TOD deeds.
• Personal representative deed. A personal representative deed—or sometimes executor’s deed—is issued by the court-appointed personal representative of a deceased property owner’s estate. It transfers title from the deceased owner’s estate to the owner’s heir or a devisee named in the owner’s will.¹³ A devisee is another person named in the will to receive property. Personal representative deeds are created within the court-supervised process of carrying out the will and may require the court’s approval.

Methods for Multiple Owners to Hold Title to Nebraska Real Estate

Nebraska law allows two or more persons to co-own real estate, and a Nebraska deed can transfer property to more than one person.¹⁴ A Nebraska deed naming multiple new owners usually chooses one of the co-ownership forms allowed under Nebraska law.

• Tenancy in common. Tenancy in common—sometimes called co-tenancy—is Nebraska’s usual form of co-ownership. A deed to multiple new owners creates a tenancy in common if it does not name another co-ownership form.¹⁵ Tenants in common own separate, partial property rights that each owner can transfer separately—by deed during life or by will at death.
• Joint tenancy. Joint tenancy is a popular way for married spouses to co-own Nebraska real estate due to the right of survivorship. A deceased joint tenant’s rights do not become part of the probate estate. The rights instead belong to the surviving joint tenant automatically—so the survivor solely holds title—due to the right of survivorship. Joint tenants own all rights to real estate together rather than owning separate parts of the whole.
• Tenancy by the entirety. Nebraska does not honor tenancy by the entirety—a co-ownership form reserved for married spouses. In states that do honor it, it is like joint tenancy but often provides extra protection against creditors.

Two or more persons who wish to co-own Nebraska real estate jointly may do so as beneficiaries of a revocable living trust or other type of trust. They first create the trust—appointing a trustee to manage trust assets and naming themselves as beneficiaries.¹⁶ A beneficiary of a Nebraska trust can also be trustee as long as the same person is not the sole beneficiary and sole trustee. The trust then owns the property through a deed the current owner signs in favor of the trust.

Spousal Ownership of Real Estate in Nebraska

Nebraska, like other states, has special real estate rules for married property owners. A married person creating a Nebraska deed or estate plan should consider the items below.

Nebraska Homestead Rights

Nebraska’s homestead laws protect a non-owner spouse’s rights to a family homestead by requiring both spouses’ consent to transfer it. A deed that transfers a Nebraska homestead owned by a married person, then, must be signed by both spouses even if only one spouse is the legal owner.¹⁷ A deed that transfers a homestead without a non-owner spouse’s signature can affect the title and, in turn, the property’s future marketability.

Nebraska law defines a homestead as a “dwelling house . . . and the land on which the same is situated”¹⁸ The homestead includes up to 160 acres of land outside a city or town or up to two connected lots in town.

Nebraska law does not require a deed to state the previous owner’s or new owner’s marital status. However, Nebraska deeds often include it to avoid future problems with a property’s title.

Spousal Intestate Share

A surviving spouse’s inheritance rights in a deceased spouse’s estate can affect how married owners choose to hold title to property and make estate plans. A surviving spouse of a Nebraskan who dies with no will receives the entire estate if the deceased spouse leaves no surviving children or parents.¹⁹ Otherwise, the surviving spouse receives $100,000 plus one half of the estate if the deceased spouse’s children are all children of the surviving spouse. The surviving spouse’s share is one half of the estate if the deceased spouse leaves children who are not the surviving spouse’s children.

Spousal Elective Share

A surviving spouse’s elective share is a legally guaranteed right to a deceased spouse’s estate—even if the deceased spouse’s will provides a lower share.²⁰ Nebraska’s spousal elective share is up to one half of the “augmented estate.” This includes the probate estate’s value after administrative expenses and allowances, non-probate transfers, and the value of certain assets the surviving spouse owns. A spouse can give up rights to the spousal elective share by signing a marital property agreement before or after the marriage.

Community Property

Nebraska is not a community property state. However, the legal difference between marital property and individual property may matter a lot during divorce proceedings. Division of marital property in a divorce depends on multiple factors and may cause real estate owned by only one spouse to be given to the non-owner spouse.²¹

Where Are Deeds Filed in Nebraska?

Each Nebraska county has a register of deeds office. This office is responsible for maintaining the county’s land records and accepting deeds and other documents for recording.²² Nebraska deeds are recorded in the register of deeds office for the county where the real estate is located.²³ The county clerk performs the register of deeds’ duties in counties with no elected register of deeds.²⁴

What Is the Effect of Recording a Nebraska Deed?

The register of deeds indexes a recorded deed by party names, date, property description, and assigned book and page number.²⁵ Indexing allows a person examining real estate records to research a property’s chain of title and transaction history.

Recording a deed with the register of deeds provides gives creditors and later purchasers written and delivered notice of the property transfer.²⁶

Does Nebraska Allow Electronic Recording?

Nebraska has adopted the Uniform Electronic Transactions Act (UETA). This law authorizes electronic recording of real estate deeds, among other things.²⁷ Nebraska law instructs each county to provide a way to file deeds electronically.²⁸ An electronic signature meets the requirement that all deeds be signed.²⁹ Register of deeds offices still accept deeds in paper format with “wet” signatures.

What Is the Cost to File a Nebraska Deed?

The person requesting recording must pay a filing fee to the register of deeds to record a Nebraska deed. The filing fee is $10.00 for the deed’s first page and $6.00 for each extra page.³⁰ Most deeds also require payment of transfer tax—or documentary stamp tax—before the register of deeds accepts the deed for recording.³¹

Does Nebraska Charge a Transfer Tax for Real Estate Transfers?

Nebraska charges a documentary stamp tax for most real estate transfers.³² The state calculates the tax based on the real estate’s value—using a rate of $2.25 per $1,000.00 in property value. A property’s value is the consideration, or payment, that has been or will be made for the transfer. Consideration includes the amount of any liens the new owner takes on. The tax calculated for real estate transferred as a gift or for nominal consideration is based on the property’s current market value.

Documentary stamp tax must be paid to the register of deeds at the time of recording—unless the deed is exempt from the tax.³³

Which Deeds Are Exempt from Nebraska’s Transfer Tax?

Nebraska’s documentary stamp tax law lists 25 types of deeds that do not require paying the tax.³⁴ Nebraska law treats a deed as taxable unless either:

• The face of the deed clearly shows that the deed is exempt; or
• The person requesting recording presents enough documentary proof that the deed is exempt.³⁵

Common kinds of exempt deeds include:

• Deeds made due to a divorce decree or other court order;³⁶
• Deeds that transfer real estate to a trust if the transfer would be exempt if made directly from the current owner to the trust’s beneficiary, or deeds from a trustee to a beneficiary;³⁷
• Personal representative deeds that transfer real estate from a deceased person’s estate to an heir under a will, or to a person who is legally next in line when there is no will;³⁸
• Deeds between spouses or between parent and child for no payment;³⁹
• Deeds to family business entities or trusts if closely related family members hold all rights to the entity or trust and no payment is involved other than those rights;⁴⁰
• Deeds confirming, correcting, changing, or adding to a previously recorded deed if the deed does not change the property rights and involves no further payment;⁴¹
• Deeds made under a corporation’s plan to merge or combine filed with the secretary of state;⁴²
• Mineral deeds.⁴³

Does Nebraska Require Any Other Forms When Recording a Deed?

A person requesting recording of a Nebraska deed must submit to the register of deeds a completed real estate transfer statement (Form 521).⁴⁴ Form 521 is published by the Department of Revenue. The new owner (the grantee) or the owner’s legal agent must sign it.⁴⁵ The register of deeds passes the form to the county assessor to update the county’s tax records and calculate property taxes.

Nebraska Deeds to and from Trusts

A trust typically holds title to Nebraska real estate in the name of the trust itself—though a trustee may also hold title when acting as the trustee. Nebraska law does not require recording of a certificate of trust—or certification of trust—when a trust owns real estate. A third party—such as a title insurer—may insist on a certificate of trust to verify the trust relationship in the land records. A Nebraska certificate of trust confirms the trust’s existence, the parties’ identities, and the key terms they agree to.⁴⁶ It need not include all agreed terms of the trust.

Deeds to Trusts

A deed transferring Nebraska real estate to a trust is sometimes called a deed to trust. It typically names the trust, the trustee, and the title and date of the document that created the trust. A Nebraska deed to trust need not name the trust’s beneficiaries in the deed. The trustee should sign a certificate of exemption and present it to the register of deeds when recording the deed if the deed is exempt from Nebraska’s documentary stamp tax.⁴⁷

Deeds from Trusts

A trust’s trustee signs a deed transferring real estate from the trust to another party. Deeds from trusts should include the trustee’s name, the name of the trust, and the date the trust formed. The deed should show that the trustee is acting as trustee and not as a private person. A deed that transfers Nebraska real estate from a trust should not be confused with a trust deed—also called a deed of trust. The trust deed is like a mortgage document.

1. Neb. Rev. Stat. § 76-203.
2. Neb. Rev. Stat. § 76-206.
3. See Morello v. Land Reutilization Comm., 659 N.W.2d 310 (Neb. 2003).
4. Grand Island Hotel Corp. v. Second Island Development Co., 214 N.W.2d 253 (Neb. 1974).
5. Morello v. Land Reutilization Comm., 659 N.W.2d 310 (Neb. 2003).
6. Gustafson v. Gustafson, 476 N.W.2d 819 (1991).
7. Morello v. Land Reutilization Comm., 659 N.W.2d 310 (Neb. 2003).
8. Neb. Rev. Stat. § 44-1981(20).
9. Title insurance rates in Nebraska are approved and published by the Nebraska Department of Insurance. See Neb. Rev. Stat. § 44-1997. Consumers can look at title insurers’ published rate schedules on the department’s website.
10. Neb. Rev. Stat. § 76-3405.
11. Neb. Rev. Stat. § 76-3414(1).
12. See Neb. Rev. Stat. § 76-107.
13. See Neb. Rev. Stat. § 30-2476(23).
14. See, e.g., Neb. Rev. Stat. § 76-118.
15. Neb. Rev. Stat. § 76-275.07.
16. See Neb. Rev. Stat. §§ 76-275.07, et seq. (setting forth requirements for creation of trust).
17. Neb. Rev. Stat. § 40-104.
18. Neb. Rev. Stat. § 40-101.
19. Neb. Rev. Stat. § 30-2302.
20. See Neb. Rev. Stat. §§ 30-2313, et seq.
21. See Neb. Rev. Stat. § 42-365; Keim v. Keim, 424 N.W.2d 112 (Neb. 1988).
22. Neb. Rev. Stat. § 23-1506.
23. Neb. Rev. Stat. § 76-245.
24. Neb. Rev. Stat. § 23-1502.
25. Neb. Rev. Stat. § 23-1508.
26. Neb. Rev. Stat. § 76-238.
27. Neb. Rev. Stat. §§ 86-612 – 86-643.
28. Neb. Rev. Stat. § 86-611(8).
29. Neb. Rev. Stat. § 23-1503.01(3).
30. Neb. Rev. Stat. § 33-109(1).
31. Neb. Rev. Stat. § 76-904.
32. Neb. Rev. Stat. § 76-901.
33. Neb. Rev. Stat. § 76-903.
34. See Neb. Rev. Stat. §§ 76-902(1)-(25).
35. Neb. Rev. Stat. § 76-901.
36. Neb. Rev. Stat. § 76-902(12).
37. Neb. Rev. Stat. §§ 76-902(19)-(20).
38. Neb. Rev. Stat. § 76-902(15).
39. Neb. Rev. Stat. § 76-902(5)(a).
40. Neb. Rev. Stat. § 76-902(5)(b).
41. Neb. Rev. Stat. § 76-902(4).
42. Neb. Rev. Stat. § 76-902(8).
43. Neb. Rev. Stat. § 76-902(11).
44. Neb. Rev. Stat. § 76-903.
45. Neb. Rev. Stat. § 76-214.
46. Neb. Rev. Stat. § 30-38,103.
47. See Neb. Rev. Stat. § 76-902(19).