Colorado Beneficiary Deed

Beneficiary deeds in Colorado are governed by C.R.S. 15-15-401, et seq. (2012).

Under this statute, which was signed into law in 2004, a beneficiary deed is defined as "a deed, subject to revocation by the owner, which conveys an interest in real property and which contains language that the conveyance is to be effective upon the death of the owner and which may be in substantially the form described in section 15-15-404" (15-15-401(1)). To expand on this rather bare-bones definition, beneficiary deeds are useful estate planning tools that allow an individual who owns real estate in Colorado to pass that property to one or more designated grantee beneficiaries, but only after the owner's death. Note that this is a non-testamentary transfer, however, which means it is not included in a will, nor can it be cancelled by one (15-15-404(1), 15-15-405(4)). In addition, the conveyance is finalized without need for probate supervision.

The aspect of beneficiary deeds that makes them unique (and differentiates them from an ordinary life estate or joint tenancy deed) is the fact that the owner retains absolute ownership of and control over the property during his/her lifetime, and may revoke or change the beneficiary designation at will, without any obligation to notify the current grantee beneficiary (15-15-402). There is generally no consideration involved with these instruments because the future interest is not guaranteed. In fact, there is not even an obligation to inform the grantee beneficiary about the deed in the first place.

To revoke an executed and recorded beneficiary deed, the owner has two options:

1. Complete and record a revocation form (15-15-405(1)).

2. Complete and record another beneficiary deed, granting the land to someone else when the owner dies (15-15-405(2)).

Both options require that the revised instruments must be recorded during the owner's life to take effect, and any changes to the beneficiary designation are applied in order of execution, not by the recording date (15-15-405(3)). Even so, an unrecorded but executed revocation or modified beneficiary deed is void.

While beneficiary deeds are relatively straightforward instruments, there are a few important things to keep in mind about them:

- To take effect, the executed beneficiary deed must be recorded "prior to the death of the owner in the office of the clerk and recorder in the county where the real property is located" (15-15-404(1)).

- According to 15-15-403, no "person who is an applicant for or recipient of medical assistance for which it would be permissible for the department of health care policy and financing to assert a claim pursuant to section 25.5-4-301 or 25.5-4-302, C.R.S., shall be entitled to such medical assistance if the person has in effect a beneficiary deed. Notwithstanding the provisions of section 15-15-402 (1), the execution of a beneficiary deed by an applicant for or recipient of medical assistance as described in this section shall cause the property to be considered a countable resource in accordance with section 25.5-4-302 (6), C.R.S., and applicable rules."

- If the property identified on the beneficiary deed is held in joint ownership, 15-15-408 states that "title to the interest shall vest in the designated grantee-beneficiary only if the joint tenant-grantor is the last to die of all of the joint tenants of such interest. If a joint tenant-grantor is not the last joint tenant to die, the beneficiary deed shall not be effective, and the beneficiary deed shall not make the grantee-beneficiary an owner in joint tenancy with the surviving joint tenant or tenants. A beneficiary deed shall not sever a joint tenancy."

A word about grantee beneficiaries:
In most cases, the owner leaves the property to a family member. The statute does not, however, limit the conveyance to relatives. It defines grantee beneficiaries as "one or more persons or entities capable of holding title to real property designated in a beneficiary deed to receive an interest in real property upon the death of the owner. "Grantee-beneficiary" includes, but is not limited to, a successor grantee-beneficiary" (15-15-401(3)). If one or more named grantee beneficiaries are part of the owner's family, they are frequently identified as such for additional clarity.

Many owners wish to designate one or more successor grantee beneficiaries, in case the original one(s) are unable or unwilling to accept the real estate. If no successor is named and "one of multiple grantee-beneficiaries fails to survive the owner, and no provision for such contingency is made in the beneficiary deed, the share of the deceased grantee-beneficiary shall be proportionately added to, and pass as a part of, the shares of the surviving grantee-beneficiaries" (15-15-407(5)). Further, if no successor is named and there are no previously identified grantee beneficiaries in whom to vest title, the property typically reverts back to the deceased owner's estate for probate distribution.

As defined in 15-15-414, a "grantee-beneficiary may refuse to accept all or any part of the real property interest described in a beneficiary deed. A grantee-beneficiary may disclaim all or any part of the real property interest described in a beneficiary deed by any method provided by law. If a grantee-beneficiary refuses to accept or disclaims any real property interest, the grantee-beneficiary shall have no liability by reason of being designated as a grantee-beneficiary under this part 4."

Overall, Colorado beneficiary deeds are useful estate planning tools that can streamline the process of conveying ownership of real property to one or more designated grantee beneficiaries, free from the cost and complication of probate. They may, however, have an impact on taxes as well as eligibility for asset-based local, state, or federal programs. To ensure the most favorable outcome, carefully consider the associated risks and advantages before finalizing this or any other estate planning decision.

(Colorado Beneficiary Deed Package includes form, guidelines, and completed example)