AS PASSED BY HOUSE AND SENATES.79
2004Page 1
S.79
AN ACT RELATING TO JOINT TENANCY
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 27 V.S.A. § 2 is amended to read:
§ 2. ESTATE IN COMMON PREFERRED TO JOINT TENANCY; JOINT
TENANCY WITH UNEQUAL SHARES
(a) Conveyances and devises of lands, whether for years, for life or in fee, made to two or more persons, shall be construed to create estates in common and not in joint tenancy, unless it is expressed therein that the grantees or devisees shall take the lands jointly or as joint tenants or in joint tenancy or to them and the survivors of them. This provision shall not apply to devises or conveyances made in trust or made to husband and wife or to conveyance in which it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy.
(b)(1) An instrument may create a joint tenancy in which the interests of the joint tenants are equal or unequal.
(2) Unless the instrument creating a joint tenancy contains language indicating a contrary intent:
(A) It shall be presumed that the joint tenants’ interests are equal.
(B) Upon the death of a joint tenant, the deceased joint tenant’s interest shall be allocated among the surviving joint tenants, as joint tenants, in proportion to their respective joint interests at the time of the deceased joint tenant’s death.
Sec. 1a. Subdivision (m)(3) of Sec. 148 of No. 142 of the Acts of 2002 is amended to read:
(3) The current rule permitting the applicant or recipient to retain jointly-owned real estate when one or more of the co-owners refuses to sell shall be repealed with respect to joint interests created within the 36-month lookback period and, instead, a rebuttable presumption shall exist that full equity value of the real estate is owned by the applicant or recipient. If the applicant or recipient succeeds in rebutting the presumption by showing that one or more of the co-owners have purchased shares of the property, the department shall consider the applicant’s or recipient’s proportional (not pro rataper capita) contribution toward the value of the property in calculating the resource value to the applicant or recipient. This rule shall not apply to joint-interests created prior to the lookback period. The “refusal to sell” rule will continue to apply to joint interests created prior to the lookback period. The applicant’s or recipient’s resource value in any joint tenancy shall be calculated based upon the applicant’s or recipient’s proportional (not per capita) contribution to the value of the jointly held property, regardless of any express or presumed ownership shares under 27 V.S.A. § 5.
Sec. 2. 27 V.S.A. § 309(a) is amended to read:
(a) Unless otherwise expressly stated or agreed, in any offer of sale or purchase, or contract for the purchase and sale of real property, it shall be presumed that real property taxes assessed and payable during a municipality’s fiscal year in which the transfer occurs shall be prorated as follows so that as between the parties, but not otherwise:
(1) In municipalities where the municipal tax and the school tax fiscal periods are July 1 to June 30, the seller shall bear the burden of real estate taxes allocable to the period beginning with the first dayJuly 1 of that fiscal year and ending on the day before closing. The buyer shall bear the burden of real estate taxes allocable to the period beginning with the day of closing and ending on the last day of that fiscal yearJune30.
(2) In municipalities where the municipal tax fiscal period is other than July 1 to June 30, the seller shall bear the burden of real estate taxes allocable to municipal taxes for the period beginning on the first day of the municipality’s fiscal year and ending on the day before closing. The seller shall also bear the burden for real estate taxes allocable to school taxes for the period beginning July 1 of that fiscal year and ending on the day before closing. The buyer shall bear the burden of real estate taxes allocable to both school and municipal taxes for the period beginning with the day of closing and ending with the last day of the respective fiscal year.
Sec. 3. 27 V.S.A. § 351 is added to read:
§ 351. Estates and trusts; conveyances, satisfactions,
grants, and releases
(a) A conveyance or grant of an interest in real or personal property made to the estate of a decedent, to the estate of a ward, to the ward’s guardian, or to a trust, including a trust in the form of a pension or profit-sharing plan, that names the estate, the guardian, or the trust as the grantee of the interest is a valid and effective conveyance or grant to the personal representative, to the ward, or to the trustee of the trust, in like manner and effect as if the ward, or the personal representative or trustee in his or her fiduciary capacity, had been named the grantee of the conveyance or grant.
(b) A discharge, mortgage discharge, release, conveyance, grant, or satisfaction of an interest in real or personal property that is made by an estate, a guardian, or a trust described in subsection (a) of this section, that names the estate, the guardian, or the trust as the holder or grantor of the interest, and that is executed by the personal representative or trustee authorized to execute the instrument is valid in like manner and effect as if the personal representative, guardian, or trustee had been named the holder or the grantor in the instrument.
Sec. 4. 27 V.S.A. § 352 is added to read:
§ 352. Certificate of trust
(a) The settlor or trustee of a trust, at any time after execution or creation of a trust, may execute a certificate of trust that sets forth less than all of the provisions of a trust instrument and any amendments to the instrument. The certificate of trust may be used as evidence of authority to sell, convey, pledge, mortgage, lease, or transfer title to any interest in real or personal property. The certificate of trust shall be upon the representation of the settlors, grantors, or trustees that the statements contained in the certificate of trust are true and correct. The signature of the grantors or trustees must be under oath before a notary public or other official authorized to administer oaths. The certificate of trust must include:
(1) the name of the trust, if one is given;
(2) the date of the trust instrument;
(3) the name of each grantor or settlor;
(4) the name of each original trustee;
(5) the name and address of each trustee empowered to act under the trust instrument at the time of execution of the certificate;
(6) an abstract of the provisions of the trust instrument authorizing the trustee to act in the manner contemplated by the instrument;
(7) a statement that the trust instrument has not been revoked or amended as to the authorizing provisions;
(8) a statement that no provisions of the trust instrument limit the authority so granted; and
(9) a statement as to whether the trust is supervised by any court and, if so, a statement that all necessary approval has been obtained for the trustees to act.
(b) A certificate of trust executed under subsection (a) of this section may be recorded in the land records of the municipality where the land identified in the certificate of trust or any attachment to it is situated. When it is so recorded or filed for recording, or in the case of personal property, when it is presented to a third party, the certificate of trust serves to document the existence of the trust, the identity of the trustees, the powers of the trustees and any limitations on those powers, and other matters set forth in the certificate of trust, as though the full trust instrument had been recorded, filed, or presented.
(c) A certificate of trust is conclusive proof as to the matters contained in it, and any party may rely upon the continued effectiveness of the certificate unless:
(1) a party dealing with the trustee or trustees has actual knowledge of facts to the contrary;
(2) the certificate is amended or revoked under subsection (d) of this section; or
(3) the full trust instrument is recorded, filed, or presented.
(d) Amendment or revocation of a certificate of trust may be made only by a written instrument executed by the settlor or trustee of a trust. Amendment or revocation of a certificate of trust is not effective as to a party unless that party has actual notice of the amendment or revocation. For purposes of this subsection, “actual notice” means that a written instrument of amendment or revocation has been received by the party or, in the case of real property, that either a written instrument of amendment or revocation has been received by the party or that a written instrument of amendment or revocation identifying the real property involved has been recorded in the municipal land records where the real property is situated.
Sec. 5. 27 V.S.A. § 341(a) is amended to read:
§ 341. REQUIREMENTS GENERALLY; RECORDING
(a) Deeds and other conveyances of lands, or of an estate or interest therein, shall be signed by the party granting the same and signed by one or more witnesses and acknowledged by the grantor before a town clerk, notary public, master, county clerk, or judge or register of probate and recorded at length in the clerk’s office of the town in which such lands lie. Such acknowledgment before a notary public shall be valid without an official seal being affixed to his or her signature.
Sec. 6. 27 V.S.A. § 463 is amended to read:
§ 463. BY SEPARATE INSTRUMENT
(a) Mortgages may be discharged by an acknowledgment of satisfaction, executed by the mortgagee or his attorney, executor, administrator or assigns, which shall be substantially in the following form:
I hereby certify that the following described mortgage is paid in full and satisfied, viz:______mortgagor to ______mortgagee, dated ______1920 , and recorded in book ______, page ______, of the land records of the town of ______.
(b) When such satisfaction is signed in the presence of one or more witnesses, acknowledged before a town clerk, notary public, master, county clerk, or judge or register of probate and recorded, it shall discharge such mortgage and bar actions brought thereon.
Sec. 7. SEVERABILITY
If any provision of this act or its application to any person or circumstance is held invalid or in violation of the constitution or laws of the United States, the invalidity or the violation shall not affect other provisions of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
Sec. 8. 24 V.S.A. § 2432 is amended to read:
§ 2432. POWERS AND DUTIES, INVESTMENTS
(a) The trustees shall apply the income of such estate to the purpose for which it is held, and deeds or contracts made by them shall be in the name of the town. They may lease, sell, or convey real estate so held, and invest the funds received therefrom. They may loan money belonging to such estate, at annual or semi-annual interest, and as security for such loans shall take deeds or mortgages of real estate in this state.
(b) TheyThe trustees may invest the same in bonds ofin:
(1) Any security, including a revenue obligation, issued, insured, or guaranteed by the United Statesor in;
(2) suchSuch municipal bonds or other bonds as are a lawful investment for savings banks, savings institutions and trust companies in this state, or in shares of a savings and loan association of this state or share accounts of a federal savings and loan association with its principal office in this state, when and to the extent to which the withdrawal or repurchase value of such shares or accounts may be insured by the Federal Savings and Loan Insurance Corporation, or in thethat are rated at the time of the transaction by a nationally recognized statistical rating organization in one of its four highest categories;
(3) Repurchase agreements or debt securities of any federally insured financial institution as defined in subdivision 11101(32) of Title 8;
(4) The shares of an investment company, or ana unit investment trust, which is registered under the federal investment company act of 1940, as amended, if such mutual investment fund has been in operation for at least ten years and has net assets of at least $10,000,000.00,$500,000,000.00; or
(5) may deposit the same insavings banks, trust companies or national banks in this state; and theDeposits in federally insured financial institutions as defined in subdivision 11101(32) of Title 8.
(c) The trustees shall have full power to hold, purchase, sell, assign, transfer, and dispose of any of the securities and investments in which any of the funds shall have been invested, as well as the proceeds of such investments. The trustees are encouraged to invest in financial institutions operating in the state and in investments within the state that will result in reinvestment in Vermont. The provisions of this section as to future investments shall not require the liquidation or disposition of securities legally acquired and held.
Sec. 9. EFFECTIVE DATE; RETROACTIVITY
(a) This act shall take effect on July 1, 2004.
(b) Sec. 6 of this act shall apply retroactively to conveyancing instruments whenever executed.
(c) Sec. 3 of this act shall apply retroactively to trust instruments whenever created or executed and to past and future conveyances, grants, mortgage discharges, satisfactions, and releases. However, if a notice of the pendency of an action or proceeding contesting the validity of such a document is recorded or filed before November 1, 2004 in the land records of the municipality in which the real property affected by the action or proceeding is located, this section does not affect such action or proceeding.
(d) Sec. 5 of this act shall apply retroactively to all deeds or other conveyances of lands or of an estate or interest therein whenever signed or executed, whether directly by the grantor or by virtue of a power of attorney, provided that this section shall not be construed to apply to any such document the validity of which is being contested in a suit begun or pending before a court or which has been invalidated by a court for lack of a signature of a witness prior to November 1, 2004.