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Committee approves clarifying change so transfer‑on‑death deed capacity matches will capacity
Summary
The committee agreed to a bill clarifying that the capacity required to execute or revoke a transfer‑on‑death deed is the same capacity required to execute a will, resolving title company concerns about power‑of‑attorney signings.
The committee approved Senate Bill 728, which clarifies that the mental capacity required to make or revoke a transfer‑on‑death deed is the same standard used for executing a will.
Committee counsel explained the measure would add language referencing code section 36‑12‑8 so that the transfer‑on‑death deed statute explicitly uses the will‑capacity standard. "That capacity is an individual having a sound mind in order to the age of 18," counsel said, summarizing the statutory standard. Sponsors said the change responds to title company practice that has refused to accept transfer‑on‑death deeds signed under a durable power of attorney and that the clarification would allow a person with a valid power of attorney to complete a transfer‑on‑death deed in appropriate circumstances.
Senators asked whether a durable power of attorney could currently be used to sign a will or a deed on behalf of an incapacitated person; counsel said the law has treated wills and transfer‑on‑death deeds differently in practice and that the bill harmonizes the standards. The committee voted to report the bill to the full Senate with a recommendation that it pass.
