CHAPTER 14. TRANSFER ON DEATH PROPERTY ACT
IC 32-17-14
Chapter 14. Transfer on Death Property Act
IC 32-17-14-1
Citation
Sec. 1. This chapter may be cited as the Transfer on Death
Property Act.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-2
Applicability
Sec. 2. (a) Except as provided elsewhere in this chapter, this
chapter applies to a transfer on death security, transfer on death
securities account, and pay on death account created before July 1,
2009, unless the application of this chapter would:
(1) adversely affect a right given to an owner or beneficiary;
(2) give a right to any owner or beneficiary that the owner or
beneficiary was not intended to have when the transfer on death
security, transfer on death securities account, or pay on death
account was created;
(3) impose a duty or liability on any person that was not
intended to be imposed when the transfer on death security,
transfer on death securities account, or pay on death account
was created; or
(4) relieve any person from any duty or liability imposed:
(A) by the terms of the transfer on death security, transfer on
death securities account, or pay on death account; or
(B) under prior law.
(b) Subject to section 32 of this chapter, this chapter applies to a
transfer on death transfer if at the time the owner designated the
beneficiary:
(1) the owner was a resident of Indiana;
(2) the property subject to the beneficiary designation was
situated in Indiana;
(3) the obligation to pay or deliver arose in Indiana;
(4) the transferring entity was a resident of Indiana or had a
place of business in Indiana; or
(5) the transferring entity's obligation to make the transfer was
accepted in Indiana.
(c) This chapter does not apply to property, money, or benefits
paid or transferred at death under a life or accidental death insurance
policy, annuity, contract, plan, or other product sold or issued by a
life insurance company unless the provisions of this chapter are
incorporated into the policy or beneficiary designation in whole or
in part by express reference.
(d) This chapter does not apply to a transfer on death transfer if
the beneficiary designation or an applicable law expressly provides
that this chapter does not apply to the transfer.
(e) Subject to IC 9-17-3-9(h) and IC 9-31-2-30(h), this chapter
applies to a beneficiary designation for the transfer on death of a
motor vehicle or a watercraft.
(f) The provisions of:
(1) section 22 of this chapter; and
(2) section 26(b)(9) of this chapter;
relating to distributions to lineal descendants per stirpes apply to a
transfer on death or payable on death transfer created before July 1,
2009.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.25.
IC 32-17-14-3
Definitions
Sec. 3. The following definitions apply throughout this chapter:
(1) "Beneficiary" means a person designated or entitled to
receive property because of another person's death under a
transfer on death transfer.
(2) "Beneficiary designation" means a written instrument other
than a will or trust that designates the beneficiary of a transfer
on death transfer.
(3) "Governing instrument" refers to a written instrument
agreed to by an owner that establishes the terms and conditions
of an ownership in beneficiary form.
(4) "Joint owners" refers to persons who hold property as joint
tenants with a right of survivorship. However, the term does not
include a husband and wife who hold property as tenants by the
entirety.
(5) "LDPS" means an abbreviation of lineal descendants per
stirpes, which may be used in a beneficiary designation to
designate a substitute beneficiary as provided in section 22 of
this chapter.
(6) "Owner" refers to a person or persons who have a right to
designate the beneficiary of a transfer on death transfer.
(7) "Ownership in beneficiary form" means holding property
under a registration in beneficiary form or other written
instrument that:
(A) names the owner of the property;
(B) directs ownership of the property to be transferred upon
the death of the owner to the designated beneficiary; and
(C) designates the beneficiary.
(8) "Person" means an individual, a sole proprietorship, a
partnership, an association, a fiduciary, a trustee, a corporation,
a limited liability company, or any other business entity.
(9) "Proof of death" means a death certificate or a record or
report that is prima facie proof or evidence of an individual's
death.
(10) "Property" means any present or future interest in real
property, intangible personal property (as defined in
IC 6-4.1-1-5), or tangible personal property (as defined in
IC 6-4.1-1-13). The term includes:
(A) a right to direct or receive payment of a debt;
(B) a right to direct or receive payment of money or other
benefits due under a contract, account agreement, deposit
agreement, employment contract, compensation plan,
pension plan, individual retirement plan, employee benefit
plan, or trust or by operation of law;
(C) a right to receive performance remaining due under a
contract;
(D) a right to receive payment under a promissory note or a
debt maintained in a written account record;
(E) rights under a certificated or uncertificated security;
(F) rights under an instrument evidencing ownership of
property issued by a governmental agency; and
(G) rights under a document of title (as defined in
IC 26-1-1-201).
(11) "Registration in beneficiary form" means titling of an
account record, certificate, or other written instrument that:
(A) provides evidence of ownership of property in the name
of the owner;
(B) directs ownership of the property to be transferred upon
the death of the owner to the designated beneficiary; and
(C) designates the beneficiary.
(12) "Security" means a share, participation, or other interest in
property, in a business, or in an obligation of an enterprise or
other issuer. The term includes a certificated security, an
uncertificated security, and a security account.
(13) "Transfer on death deed" means a deed that conveys an
interest in real property to a grantee by beneficiary designation.
(14) "Transfer on death transfer" refers to a transfer of property
that takes effect upon the death of the owner under a beneficiary
designation made under this chapter.
(15) "Transferring entity" means a person who:
(A) owes a debt or is obligated to pay money or benefits;
(B) renders contract performance;
(C) delivers or conveys property; or
(D) changes the record of ownership of property on the
books, records, and accounts of an enterprise or on a
certificate or document of title that evidences property
rights.
The term includes a governmental agency, business entity, or
transfer agent that issues certificates of ownership or title to
property and a person acting as a custodial agent for an owner's
property. However, the term does not include a governmental
office charged with endorsing, entering, or recording the
transfer of real property in the public records.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.26.
IC 32-17-14-4
Transfers that are not considered transfer on death transfers;
beneficiary designation requirements and form
Sec. 4. (a) The following transfers of ownership are not
considered transfer on death transfers for purposes of this chapter:
(1) Transfers by rights of survivorship in property held as joint
tenants or tenants by the entirety.
(2) A transfer to a remainderman on the termination of a life
tenancy.
(3) An inter vivos or a testamentary transfer under a trust
established by an individual.
(4) A transfer made under the exercise or nonexercise of a
power of appointment.
(5) A transfer made on the death of a person who did not have
the right to designate the person's estate as the beneficiary of
the transfer.
(b) A beneficiary designation made under this chapter must do the
following:
(1) Designate the beneficiary of a transfer on death transfer.
(2) Make the transfer effective upon the death of the owner of
the property being transferred.
(3) Comply with this chapter, the conditions of any governing
instrument, and any other applicable law.
(c) For purposes of construing this chapter or a beneficiary
designation made under this chapter, the death of the last surviving
owner of property held by joint owners is considered the death of the
owner.
(d) Except as otherwise provided in this chapter, a transfer on
death direction is accomplished in a form substantially similar to the
following:
(1) Insert Name of the Owner or Owners.
(2) Insert "Transfer on death to" or "TOD" or "Pay on death to"
or "POD".
(3) Insert the Name of the Beneficiary or Beneficiaries.
(e) An owner may revoke or change a beneficiary designation at
any time before the owner's death.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-5
General rules concerning transfer on death transfers
Sec. 5. A transfer on death transfer:
(1) is effective with or without consideration;
(2) is not considered testamentary;
(3) is not subject to the requirements for a will or for probating
a will under IC 29-1; and
(4) may be subject to an agreement between the owner and a
transferring entity to carry out the owner's intent to transfer the
property under this chapter.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-6
Authority of a transferring entity
Sec. 6. For the purpose of discharging its duties under this
chapter, the authority of a transferring entity acting as agent for an
owner of property subject to a transfer on death transfer does not
cease at the death of the owner. The transferring entity shall transfer
the property to the designated beneficiary in accordance with the
beneficiary designation and this chapter.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-7
Agreement between owner and transferring entity
Sec. 7. (a) If any of the following are required by the transferring
entity, an agreement between the owner and the transferring entity is
necessary to carry out a transfer on death transfer, which may be
made in accordance with the rules, terms, and conditions set forth in
the agreement:
(1) The submission to the transferring entity of a beneficiary
designation under a governing instrument.
(2) Registration by a transferring entity of a transfer on death
direction on any certificate or record evidencing ownership of
property.
(3) Consent of a contract obligor for a transfer of performance
due under the contract.
(4) Consent of a financial institution for a transfer of an
obligation of the financial institution.
(5) Consent of a transferring entity for a transfer of an interest
in the transferring entity.
(b) When subsection (a) applies, a transferring entity is not
required to accept an owner's request to assist the owner in carrying
out a transfer on death transfer.
(c) If a beneficiary designation, revocation, or change is subject
to acceptance by a transferring entity, the transferring entity's
acceptance of the beneficiary designation, revocation, or change
relates back to and is effective as of the time the request was
received by the transferring entity.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.27.
IC 32-17-14-8
Transferring entity's acceptance of a beneficiary designation
Sec. 8. (a) If a transferring entity accepts a beneficiary designation
or beneficiary assignment or registers property in beneficiary form,
the acceptance or registration constitutes the agreement of the owner
and the transferring entity that, subject to this section, the owner's
property will be transferred to and placed in the name and control of
the beneficiary in accordance with the beneficiary designation or
transfer on death direction, the agreement between the parties, and
this chapter.
(b) An agreement described in subsection (a) is subject to the
owner's power to revoke or change a beneficiary designation before
the owner's death.
(c) A transferring entity's duties under an agreement described in
subsection (a) are subject to the following:
(1) Receiving proof of the owner's death.
(2) Complying with the transferring entity's requirements for
proof that the beneficiary is entitled to receive the property.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-9
Beneficiary designation; effects; requirements
Sec. 9. (a) Except as provided in subsection (c), a beneficiary
designation that satisfies the requirements of subsection (b):
(1) authorizes a transfer of property under this chapter;
(2) is effective on the death of the owner of the property; and
(3) transfers the right to receive the property to the designated
beneficiary who survives the death of the owner.
(b) A beneficiary designation is effective under subsection (a) if
the beneficiary designation is:
(1) executed; and
(2) delivered;
to the transferring entity before the death of the owner.
(c) A transferring entity shall make a transfer described in
subsection (a)(3) unless there is clear and convincing evidence of the
owner's different intention at the time the beneficiary designation
was created.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.28.
IC 32-17-14-10
Assignment of contract rights
Sec. 10. (a) A written assignment of a contract right that:
(1) assigns the right to receive any performance remaining due
under the contract to an assignee designated by the owner; and
(2) expressly states that the assignment does not take effect
until the death of the owner;
transfers the right to receive performance due under the contract to
the designated assignee beneficiary if the assignment satisfies the
requirements of subsection (b).
(b) A written assignment described in subsection (a) is effective
upon the death of the owner if the assignment is:
(1) executed; and
(2) delivered;
to the contract obligor before the death of the owner.
(c) A beneficiary assignment described in this section is not
required to be supported by consideration or delivered to the assignee
beneficiary.
(d) This section does not preclude other methods of assignment
that are permitted by law and have the effect of postponing the
enjoyment of the contract right until after the death of the owner.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.29.
IC 32-17-14-11
Transfer on death deeds
Sec. 11. (a) A transfer on death deed transfers the interest
provided to the beneficiary if the transfer on death deed is:
(1) executed by the owner or owner's legal representative; and
(2) recorded with the recorder of deeds in the county in which
the real property is situated before the death of the owner.
(b) A transfer on death deed is void if it is not recorded with the
recorder of deeds in the county in which the real property is situated
before the death of the owner.
(c) A transfer on death deed is not required to be supported by
consideration or delivered to the grantee beneficiary.
(d) A transfer on death deed may be used to transfer an interest in
real property to either a revocable or an irrevocable trust.
(e) If the owner records a transfer on death deed, the effect of the
recording the transfer on death deed is determined as follows:
(1) If the owner's interest in the real property is as a tenant by
the entirety, the conveyance is inoperable and void unless the
other spouse joins in the conveyance.
(2) If the owner's interest in the real property is as a joint tenant
with rights of survivorship, the conveyance severs the joint
tenancy and the cotenancy becomes a tenancy in common.
(3) If the owner's interest in the real property is as a joint tenant
with rights of survivorship and the property is subject to a
beneficiary designation, a conveyance of any joint owner's
interest has no effect on the original beneficiary designation for
the nonsevering joint tenant.
(4) If the owner's interest is as a tenant in common, the owner's
interest passes to the beneficiary as a transfer on death transfer.
(5) If the owner's interest is a life estate determined by the
owner's life, the conveyance is inoperable and void.
(6) If the owner's interest is any other interest, the interest
passes in accordance with this chapter and the terms and
conditions of the conveyance establishing the interest. If a
conflict exists between the conveyance establishing the interest
and this chapter, the terms and conditions of the conveyance
establishing the interest prevail.
(f) A beneficiary designation in a transfer on death deed may be
worded in substance as "(insert owner's name) conveys and warrants
(or quitclaims) to (insert owner's name), TOD to (insert beneficiary's
name)". This example is not intended to be exhaustive.
(g) A transfer on death deed using the phrase "pay on death to" or
the abbreviation "POD" may not be construed to require the
liquidation of the real property being transferred.
(h) This section does not preclude other methods of conveying
real property that are permitted by law and have the effect of
postponing enjoyment of an interest in real property until after the
death of the owner. This section applies only to transfer on death
deeds and does not invalidate any deed that is otherwise effective by
law to convey title to the interest and estates provided in the deed.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.30.
IC 32-17-14-12
Transfer on death transfers of tangible personal property
Sec. 12. (a) A deed of gift, bill of sale, or other writing intended
to transfer an interest in tangible personal property is effective on the
death of the owner and transfers ownership to the designated
transferee beneficiary if the document:
(1) expressly creates ownership in beneficiary form;
(2) is in other respects sufficient to transfer the type of property
involved; and
(3) is executed by the owner and acknowledged before a notary
public or other person authorized to administer oaths.
(b) A beneficiary transfer document described in this section is
not required to be supported by consideration or delivered to the
transferee beneficiary.
(c) This section does not preclude other methods of transferring
ownership of tangible personal property that are permitted by law
and have the effect of postponing enjoyment of the property until
after the death of the owner.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-13
Direct transfer to a transferee to hold as owner in beneficiary form
Sec. 13. (a) A transferor of property, with or without
consideration, may execute a written instrument directly transferring
the property to a transferee to hold as owner in beneficiary form.
(b) A transferee under an instrument described in subsection (a)
is considered the owner of the property for all purposes and has all
the rights to the property provided by law to the owner of the
property, including the right to revoke or change the beneficiary
designation.
(c) A direct transfer of property to a transferee to hold as owner
in beneficiary form is effective when the written instrument
perfecting the transfer becomes effective to make the transferee the
owner.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-14
Registration in beneficiary form
Sec. 14. (a) Property may be held or registered in beneficiary form
by including in the name in which the property is held or registered
a direction to transfer the property on the death of the owner to a
beneficiary designated by the owner.
(b) Property is registered in beneficiary form by showing on the
account record, security certificate, or instrument evidencing
ownership of the property:
(1) the name of the owner and, if applicable, the estate by which
two (2) or more joint owners hold the property; and
(2) an instruction substantially similar in form to "transfer on
death to (insert name of beneficiary)".
An instruction to "pay on death to (insert name of the beneficiary)"
and the use of the abbreviations "TOD" and "POD" are also
permitted by this section.
(c) Only a transferring entity or a person authorized by the
transferring entity may place a transfer on death direction described
by this section on an account record, a security certificate, or an
instrument evidencing ownership of property.
(d) A transfer on death direction described by this section is
effective on the death of the owner and transfers the owner's interest
in the property to the designated beneficiary if:
(1) the property is registered in beneficiary form before the
death of the owner; or
(2) the transfer on death direction is delivered to the
transferring entity before the owner's death.
(e) An account record, security certificate, or instrument
evidencing ownership of property that contains a transfer on death
direction written as part of the name in which the property is held or
registered is conclusive evidence, in the absence of fraud, duress,
undue influence, lack of capacity, or mistake, that the direction was:
(1) regularly made by the owner;
(2) accepted by the transferring entity; and
(3) not revoked or changed before the owner's death.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.31.
IC 32-17-14-15
Beneficiary's rights before the death of the owner; effect of the
death of a joint owner
Sec. 15. (a) Before the death of the owner, a beneficiary has no
rights in the property because of the beneficiary designation. The
signature or agreement of the beneficiary is not required for any
transaction relating to property transferred under this chapter. If a
lienholder takes action to enforce a lien, by foreclosure or otherwise
through a court proceeding, it is not necessary to join the beneficiary
as a party defendant in the action unless the beneficiary has another
interest in the real property that has vested.
(b) On the death of one (1) of two (2) or more joint owners,
property with respect to which a beneficiary designation has been
made belongs to the surviving joint owner or owners. If at least two
(2) joint owners survive, the right of survivorship continues as
between the surviving owners.
(c) On the death of a tenant by the entireties, property with respect
to which a beneficiary designation has been made belongs to the
surviving tenant.
(d) On the death of the owner, property with respect to which a
beneficiary designation has been made passes by operation of law to
the beneficiary.
(e) If two (2) or more beneficiaries survive, there is no right of
survivorship among the beneficiaries when the death of a beneficiary
occurs after the death of the owner unless the beneficiary designation
expressly provides for survivorship among the beneficiaries. Except
as expressly provided otherwise, the surviving beneficiaries hold
their separate interest in the property as tenants in common. The
share of any beneficiary who dies after the owner dies belongs to the
deceased beneficiary's estate.
(f) If no beneficiary survives the owner, the property belongs to
the estate of the owner unless the beneficiary designation directs the
transfer to a substitute beneficiary in the manner required by section
22 of this chapter.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-16
Changing or revoking a beneficiary designation
Sec. 16. (a) A beneficiary designation may be revoked or changed
during the lifetime of the owner.
(b) A revocation or change of a beneficiary designation involving
property owned as tenants by the entirety must be made with the
agreement of both tenants for so long as both tenants are alive. After
an individual dies owning as a tenant by the entirety property that is
subject to a beneficiary designation, the individual's surviving spouse
may revoke or change the beneficiary designation.
(c) A revocation or change of a beneficiary designation involving
property owned in a form of ownership (other than as tenants by the
entirety) that restricts conveyance of the interest unless another
person joins in the conveyance must be made with the agreement of
each living owner required to join in a conveyance.
(d) A revocation or change of a beneficiary designation involving
property owned by joint owners with a right of survivorship must be
made with the agreement of each living owner.
(e) A subsequent beneficiary designation revokes a prior
beneficiary designation unless the subsequent beneficiary
designation expressly provides otherwise.
(f) A revocation or change in a beneficiary designation must
comply with the terms of any governing instrument, this chapter, and
any other applicable law.
(g) A beneficiary designation may not be revoked or changed by
a will or trust unless the beneficiary designation expressly grants the
owner the right to revoke or change the beneficiary designation by a
will or trust.
(h) A transfer during the owner's lifetime of the owner's interest
in the property, with or without consideration, terminates the
beneficiary designation with respect to the property transferred.
(i) The effective date of a revocation or change in a beneficiary
designation is determined in the same manner as the effective date of
a beneficiary designation.
(j) An owner may revoke a beneficiary designation made in a
transfer on death deed by executing and recording before the death
of the owner with the recorder of deeds in the county in which the
real property is situated either:
(1) a subsequent deed of conveyance revoking, omitting, or
changing the beneficiary designation; or
(2) an affidavit acknowledged or proved under IC 32-21-2-3
that revokes or changes the beneficiary designation.
(k) A physical act, such as a written modification on or the
destruction of a transfer on death deed after the transfer on death
deed has been recorded, has no effect on the beneficiary designation.
(l) A transfer on death deed may not be revoked or modified by
will or trust.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.32.
IC 32-17-14-17
Powers of an attorney in fact, a guardian, a conservator, or an
agent
Sec. 17. (a) An attorney in fact, guardian, conservator, or other
agent acting on the behalf of the owner of property may make,
revoke, or change a beneficiary designation if:
(1) the action complies with the terms of this chapter and any
other applicable law; and
(2) the action is not expressly forbidden by the document
establishing the agent's right to act on behalf of the owner.
(b) An attorney in fact, guardian, conservator, or other agent may
withdraw, sell, pledge, or otherwise transfer property that is subject
to a beneficiary designation notwithstanding the fact that the effect
of the transaction may be to extinguish a beneficiary's right to receive
a transfer of the property at the death of the owner.
(c) The rights of a beneficiary to any part of property that is
subject to a beneficiary designation after the death of the owner are
determined under IC 29-3-8-6.5 if:
(1) a guardian or conservator takes possession of the property;
(2) the guardian sells, transfers, encumbers, or consumes the
property during the protected person's lifetime; and
(3) the owner subsequently dies.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-18
Lost, destroyed, damaged, or involuntarily converted property
subject to a beneficiary designation
Sec. 18. If property subject to a beneficiary designation is lost,
destroyed, damaged, or involuntarily converted during the owner's
lifetime, the beneficiary succeeds to any right with respect to the
loss, destruction, damage, or involuntary conversion that the owner
would have had if the owner had survived. However, the beneficiary
has no interest in any payment or substitute property received by the
owner during the owner's lifetime.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-19
Effect of conveyances, assignments, contracts, set offs, licenses,
easements, liens, and security interests
Sec. 19. (a) A beneficiary of a transfer on death transfer takes the
owner's interest in the property at the death of the owner subject to
all conveyances, assignments, contracts, set offs, licenses, easements,
liens, and security interests made by the owner or to which the owner
was subject during the owner's lifetime.
(b) A beneficiary of a transfer on death transfer of an account with
a bank, savings and loan association, credit union, broker, or mutual
fund takes the owner's interest in the property at the death of the
owner subject to all requests for payment of money issued by the
owner before the owner's death, whether paid by the transferring
entity before or after the owner's death, or unpaid. The beneficiary
is liable to the payee of an unsatisfied request for payment to the
extent that the request represents an obligation that was enforceable
against the owner during the owner's lifetime.
(c) Each beneficiary's liability with respect to an unsatisfied
request for payment is limited to the same proportionate share of the
request for payment as the beneficiary's proportionate share of the
account under the beneficiary designation. Each beneficiary has the
right of contribution from the other beneficiaries with respect to a
request for payment that is satisfied after the owner's death, to the
extent that the request for payment would have been enforceable by
the payee during the owner's lifetime.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-20
Beneficiary required to survive the owner
Sec. 20. An individual who is a beneficiary of a transfer on death
transfer is not entitled to a transfer unless the individual:
(1) survives the owner; and
(2) survives the owner by the time, if any, required by the terms
of the beneficiary designation.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-21
Trusts as designated beneficiaries
Sec. 21. (a) A trustee of a trust may be a designated beneficiary
regardless of whether the trust is amendable, revocable, irrevocable,
funded, unfunded, or amended after the designation is made.
(b) Unless a beneficiary designation provides otherwise, a trust
that is revoked or terminated before the death of the owner is
considered nonexistent at the owner's death.
(c) Unless a beneficiary designation provides otherwise, a legal
entity or trust that does not:
(1) exist; or
(2) come into existence effective as of the owner's death;
is considered nonexistent at the owner's death.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-22
Substitution for designated beneficiaries who do not survive the
owner
Sec. 22. (a) Notwithstanding sections 9 and 20 of this chapter, a
designated beneficiary's rights under this chapter are not
extinguished when the designated beneficiary does not survive the
owner if:
(1) subsection (b) applies in the case of a designated beneficiary
who is a lineal descendant of the owner; or
(2) subsection (d) applies in the case of a designated beneficiary
who is not a lineal descendant of the owner.
(b) If a designated beneficiary who is a lineal descendant of the
owner:
(1) is deceased at the time the beneficiary designation is made;
(2) does not survive the owner; or
(3) is treated as not surviving the owner;
the beneficiary's right to a transfer on death transfer belongs to the
beneficiary's lineal descendants per stirpes who survive the owner
unless the owner provides otherwise under subsection (c).
(c) An owner may execute a beneficiary designation to which
subsection (b) does not apply by:
(1) making the notation "No LDPS" after a beneficiary's name;
or
(2) including other words negating an intention to direct the
transfer to the lineal descendant substitutes of the nonsurviving
beneficiary.
(d) An owner may execute a beneficiary designation that provides
that the right to a transfer on death transfer belonging to a beneficiary
who is not a lineal descendant of the owner and does not survive the
owner belongs to the beneficiary's lineal descendants per stirpes who
survive the owner. An owner's intent to direct the transfer to the
nonsurviving beneficiary's lineal descendants must be shown by
either of the following on the beneficiary designation after the name
of the beneficiary:
(1) The words "and lineal descendants per stirpes".
(2) The notation "LDPS".
(e) When two (2) or more individuals receive a transfer on death
transfer as substitute beneficiaries under subsection (b) or (d), the
individuals are entitled to equal shares of the property if they are of
the same degree of kinship to the nonsurviving beneficiary. If the
substitute beneficiaries are of unequal degrees of kinship, an
individual of a more remote degree is entitled by representation to
the share that would otherwise belong to the individual's parent.
(f) If:
(1) a designated beneficiary of a transfer on death transfer does
not survive the owner;
(2) either subsection (b) or (d) applies; and
(3) no lineal descendant of the designated beneficiary survives
the owner;
the right to receive the property transferred belongs to the other
surviving beneficiaries. If no other beneficiary survives the owner,
the property belongs to the owner's estate.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-23
Effect of divorce or annulment
Sec. 23. (a) If, after an owner makes a beneficiary designation, the
owner's marriage is dissolved or annulled, any provision of the
beneficiary designation in favor of the owner's former spouse is
revoked on the date the marriage is dissolved or annulled.
Revocation under this subsection is effective regardless of whether
the beneficiary designation refers to the owner's marital status. The
beneficiary designation is given effect as if the former spouse had not
survived the owner.
(b) Subsection (a) does not apply to a provision of a beneficiary
designation that:
(1) has been made irrevocable, or revocable only with the
spouse's consent;
(2) is made after the marriage is dissolved or annulled; or
(3) expressly states that the dissolution or annulment of the
marriage does not affect the designation of a spouse or a
relative of the spouse as a beneficiary.
(c) A provision of a beneficiary designation that is revoked solely
by subsection (a) is revived by the owner's remarriage to the former
spouse or by a nullification of the dissolution or annulment of the
marriage.
(d) This section does not apply to any employee benefit plan
governed by the Employee Retirement Income Security Act of 1974.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-24
Fraud, duress, undue influence, mistake, or lack of capacity
Sec. 24. (a) A beneficiary designation or a revocation of a
beneficiary designation that is procured by fraud, duress, undue
influence, or mistake or because the owner lacked capacity is void.
(b) A beneficiary designation made under this chapter is subject
to IC 29-1-2-12.1.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-25
Rights of surviving spouses and children
Sec. 25. (a) An election under IC 29-1-3-1 does not apply to a
valid transfer on death transfer. In accordance with IC 32-17-13, a
transfer on death transfer may be subject to the payment of the
surviving spouse and family allowances under IC 29-1-4-1.
(b) A beneficiary designation designating the children of the
owner or children of any other person as a class and not by name
includes all children of the person regardless of whether the child is
born or adopted before or after the beneficiary designation is made.
(c) Except as provided in subsection (d), a child of the owner born
or adopted after the owner makes a beneficiary designation that
names another child of the owner as the beneficiary is entitled to
receive a fractional share of the property that would otherwise be
transferred to the named beneficiary. The share of the property to
which each child of the owner is entitled to receive is expressed as
a fraction in which the numerator is one (1) and the denominator is
the total number of the owner's children.
(d) A beneficiary designation or a governing instrument may
provide that subsection (c) does not apply to an owner's beneficiary
designation. In addition, a transferring entity is not obligated to apply
subsection (c) to property registered in beneficiary form.
(e) If a beneficiary designation does not name any child of the
owner as the designated beneficiary with respect to a particular
property interest, a child of the owner born or adopted after the
owner makes the beneficiary designation is not entitled to any share
of the property interest subject to the designation.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.33.
IC 32-17-14-26
General rules applying to a beneficiary designation
Sec. 26. (a) If an agreement between the owner and a transferring
entity is required to carry out a transfer on death transfer as described
in section 7 of this chapter, a transferring entity may not adopt rules
for the making, execution, acceptance, and revocation of a
beneficiary designation that are inconsistent with this chapter. A
transferring entity may adopt the rules imposed by subsection (b) in
whole or in part by incorporation by reference.
(b) Except as otherwise provided in a beneficiary designation, a
governing instrument, or any other applicable law, the following
rules apply to a beneficiary designation:
(1) A beneficiary designation or a request for registration of
property in beneficiary form must be made in writing, signed by
the owner, dated, and, in the case of a transfer on death deed,
compliant with all requirements for the recording of deeds.
(2) A security that is not registered in the name of the owner
may be registered in beneficiary form on instructions given by
a broker or person delivering the security.
(3) A beneficiary designation may designate one (1) or more
primary beneficiaries and one (1) or more contingent
beneficiaries.
(4) On property registered in beneficiary form, a primary
beneficiary is the person shown immediately following the
transfer on death direction. Words indicating that the person is
a primary beneficiary are not required. The name of a
contingent beneficiary in the registration must have the words
"contingent beneficiary" or words of similar meaning to
indicate the contingent nature of the interest being transferred.
(5) Multiple surviving beneficiaries share equally in the
property being transferred unless a different percentage or
fractional share is stated for each beneficiary. If a percentage or
fractional share is designated for multiple beneficiaries, the
surviving beneficiaries share in the proportion that their
designated shares bear to each other.
(6) A transfer of unequal shares to multiple beneficiaries for
property registered in beneficiary form may be expressed in
numerical form following the name of the beneficiary in the
registration.
(7) A transfer on death transfer of property also transfers any
interest, rent, royalties, earnings, dividends, or credits earned or
declared on the property but not paid or credited before the
owner's death.
(8) If a distribution by a transferring entity under a transfer on
death transfer results in fractional shares in a security or other
property that is not divisible, the transferring entity may
distribute the fractional shares in the name of all beneficiaries
as tenants in common or as the beneficiaries may direct, or the
transferring entity may sell the property that is not divisible and
distribute the proceeds to the beneficiaries in the proportions to
which they are entitled.
(9) On the death of the owner, the property, minus all amounts
and charges owed by the owner to the transferring entity,
belongs to the surviving beneficiaries and, in the case of
substitute beneficiaries permitted under section 22 of this
chapter, the lineal descendants of designated beneficiaries who
did not survive the owner are entitled to the property as follows:
(A) If there are multiple primary beneficiaries and a primary
beneficiary does not survive the owner and does not have a
substitute under section 22 of this chapter, the share of the
nonsurviving beneficiary is allocated among the surviving
beneficiaries in the proportion that their shares bear to each
other.
(B) If there are no surviving primary beneficiaries and there
are no substitutes for the nonsurviving primary beneficiaries
under section 22 of this chapter, the property belongs to the
surviving contingent beneficiaries in equal shares or
according to the percentages or fractional shares stated in the
registration.
(C) If there are multiple contingent beneficiaries and a
contingent beneficiary does not survive the owner and does
not have a substitute under section 22 of this chapter, the
share of the nonsurviving contingent beneficiary is allocated
among the surviving contingent beneficiaries in the
proportion that their shares bear to each other.
(10) If a trustee designated as a beneficiary:
(A) does not survive the owner;
(B) resigns; or
(C) is unable or unwilling to execute the trust as trustee
and no successor trustee is appointed in the twelve (12)
months following the owner's death;
the transferring entity may make the distribution as if the trust
did not survive the owner.
(11) If a trustee is designated as a beneficiary and no affidavit
of certification of trust or probated will creating an express trust
is presented to the transferring entity within the twelve (12)
months after the owner's death, the transferring entity may make
the distribution as if the trust did not survive the owner.
(12) If the transferring entity is not presented evidence during
the twelve (12) months after the owner's death that there are
lineal descendants of a nonsurviving beneficiary for whom
LDPS distribution applies who survived the owner, the
transferring entity may make the transfer as if the nonsurviving
beneficiary's descendants also failed to survive the owner.
(13) If a beneficiary cannot be located at the time the transfer is
made to located beneficiaries, the transferring entity shall hold
the missing beneficiary's share. If the missing beneficiary's
share is not claimed by the beneficiary or by the beneficiary's
personal representative or successor during the twelve (12)
months after the owner's death, the transferring entity shall
transfer the share as if the beneficiary did not survive the
owner.
(14) A transferring entity has no obligation to attempt to locate
a missing beneficiary, to pay interest on the share held for a
missing beneficiary, or to invest the share in any different
property.
(15) Cash, interest, rent, royalties, earnings, or dividends
payable to a missing beneficiary may be held by the transferring
entity at interest or reinvested by the transferring entity in the
account or in a dividend reinvestment account associated with
a security held for the missing beneficiary.
(16) If a transferring entity is required to make a transfer on
death transfer to a minor or an incapacitated adult, the transfer
may be made under the Indiana Uniform Transfers to Minors
Act, the Indiana Uniform Custodial Trust Act, or a similar law
of another state.
(17) A written request for the execution of a transfer on death
transfer may be made by any beneficiary, a beneficiary's legal
representative or attorney in fact, or the owner's personal
representative.
(18) A transfer under a transfer on death deed occurs
automatically upon the owner's death subject to the
requirements of subdivision (20) and does not require a request
for the execution of the transfer.
(19) A written request for the execution of a transfer on death
transfer must be accompanied by the following:
(A) A certificate or instrument evidencing ownership of the
contract, account, security, or property.
(B) Proof of the deaths of the owner and any nonsurviving
beneficiary.
(C) An inheritance tax waiver from states that require it.
(D) In the case of a request by a legal representative, a copy
of the instrument creating the legal authority or a certified
copy of the court order appointing the legal representative.
(E) Any other proof of the person's entitlement that the
transferring entity may require.
(20) On the death of an owner whose transfer on death deed has
been recorded, the beneficiary shall file an affidavit in the
office of the recorder of the county in which the real property
is located. The affidavit must contain the following:
(A) The legal description of the property.
(B) A certified copy of the death certificate certifying the
owner's death.
(C) The name and address of each designated beneficiary
who survives the owner or is in existence on the date of the
owner's death.
(D) The name of each designated beneficiary who has not
survived the owner's death or is not in existence on the date
of the owner's death.
(E) A cross-reference to the recorded transfer on death deed.
(c) A beneficiary designation is presumed to be valid. A party
may rely on the presumption of validity unless the party has actual
knowledge that the beneficiary designation was not validly executed.
A person who acts in good faith reliance on a transfer on death deed
is immune from liability to the same extent as if the person had dealt
directly with the named owner and the named owner had been
competent and not incapacitated.
As added by P.L.143-2009, SEC.41. Amended by P.L.6-2010,
SEC.34.
IC 32-17-14-27
Powers and duties of a transferring entity
Sec. 27. (a) An owner who makes arrangements for a transfer on
death transfer under this chapter gives to the transferring entity the
protections provided in this section for executing the owner's
beneficiary designation.
(b) A transferring entity may execute a transfer on death transfer
with or without a written request for execution.
(c) A transferring entity may rely and act on:
(1) a certified or authenticated copy of a death certificate issued
by an official or an agency of the place where the death
occurred as showing the fact, place, date, and time of death and
the identity of the decedent; and
(2) a certified or authenticated copy of a report or record of any
governmental agency that a person is missing, detained, dead,
or alive, and the dates, circumstances, and places disclosed by
the record or report.
(d) A transferring entity has no duty to verify the information
contained within a written request for the execution of a beneficiary
designation. The transferring entity may rely and act on a request
made by a beneficiary or a beneficiary's attorney in fact, guardian,
conservator, or other agent.
(e) A transferring entity has no duty to:
(1) except as provided in subsection (g), give notice to any
person of the date, manner, and persons to whom a transfer will
be made under beneficiary designation;
(2) attempt to locate any beneficiary or lineal descendant
substitute;
(3) determine whether a nonsurviving beneficiary or descendant
had a lineal descendant who survived the owner;
(4) locate a trustee or custodian;
(5) obtain the appointment of a successor trustee or custodian;
(6) discover the existence of a trust instrument or will that
creates an express trust; or
(7) determine any fact or law that would:
(A) cause the beneficiary designation to be revoked in whole
or in part as to any person because of a change in marital
status or other reason; or
(B) cause a variation in the distribution provided in the
beneficiary designation.
(f) A transferring entity has no duty to withhold making a transfer
based on knowledge of any fact or claim adverse to the transfer to be
made unless before making the transfer the transferring entity
receives a written notice that:
(1) in manner, place, and time affords a reasonable opportunity
to act on the notice before making the transfer; and
(2) does the following:
(A) Asserts a claim of beneficial interest in the transfer
adverse to the transfer to be made.
(B) Gives the name of the claimant and an address for
communications directed to the claimant.
(C) Identifies the deceased owner.
(D) States the nature of the claim as it affects the transfer.
(g) If a transferring entity receives a timely notice meeting the
requirements of subsection (f), the transferring entity may discharge
any duty to the claimant by sending a notice by certified mail to the
claimant at the address provided by the claimant's notice of claim.
The notice must advise the claimant that a transfer to the claimant's
asserted claim will be made at least forty-five (45) days after the date
of the mailing unless the transfer is restrained by a court order. If the
transferring entity mails the notice described by this subsection to the
claimant, the transferring entity shall withhold making the transfer
for at least forty-five (45) days after the date of the mailing. Unless
the transfer is restrained by court order, the transferring entity may
make the transfer at least forty-five (45) days after the date of the
mailing.
(h) Neither notice that does not comply with the requirements of
subsection (f) nor any other information shown to have been
available to a transferring entity, its transfer agent, or its employees
affects the transferring entity's right to the protections provided by
this chapter.
(i) A transferring entity is not responsible for the application or
use of property transferred to a fiduciary entitled to receive the
property.
(j) Notwithstanding the protections provided a transferring entity
by this chapter, a transferring entity may require parties engaged in
a dispute over the propriety of a transfer to:
(1) adjudicate their respective rights; or
(2) furnish an indemnity bond protecting the transferring entity.
(k) A transfer by a transferring entity made in accordance with
this chapter and under the beneficiary designation in good faith and
reliance on information the transferring entity reasonably believes to
be accurate discharges the transferring entity from all claims for the
amounts paid and the property transferred.
(l) All protections provided by this chapter to a transferring entity
are in addition to the protections provided by any other applicable
Indiana law.
As added by P.L.143-2009, SEC.41.
IC 32-17-14-28
Effect of improper distributions
Sec. 28. (a) The protections provided to a transferring entity or to
a purchaser or lender for value by this chapter do not affect the rights
of beneficiaries or others involved in disputes that:
(1) are with parties other than a transferring entity or purchaser
or lender for value; and
(2) concern the ownership of property transferred under this
chapter.
(b) Unless the payment or transfer can no longer be challenged
because of adjudication, es