MS 2022-09-J-Michel-September-6-2022-Revocable-Transfer-on-Death-Deed September 6, 2022

If I file a transfer-on-death deed in Mississippi, do I have to reapply for my homestead exemption?

Short answer: No. A revocable transfer-on-death deed does not affect the owner's homestead rights during life, so no reapplication is required after filing. The homestead exemption keeps rolling forward annually until ownership, use, or occupancy actually changes.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Mississippi enacted the Real Property Transfer-On-Death Act, which lets a homeowner record a deed that takes effect at death and transfers the property to a named beneficiary. The deed is revocable: the owner keeps control during life and can amend or cancel it at any time. The question Senator Michel asked the AG was whether recording such a deed should trigger a fresh homestead exemption application at the tax assessor's office.

The AG: no.

Three statutes and one case do all the work. § 91-27-9 says an individual "may transfer the individual's interest in real property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed." § 91-27-23(1)(B) is the key clause: "during a transferor's life, a transfer-on-death deed does not . . . affect an interest or right of the transferor or any other owner, including . . . homestead rights in the real property." The Mississippi Supreme Court in Hale v. State Democratic Exec. Comm., 168 So. 3d 946 (Miss. 2015), said it directly: "(A) valid homestead exemption on a property persists unless the resident takes affirmative action to cancel or alter it."

The homestead-application statute, § 27-33-31, also fits cleanly. After an applicant files a valid claim once (on or after Jan. 1, 1991), the exemption rolls forward each year automatically as long as the same person owns, uses, and occupies the same property. A new application is required only if those facts change.

A transfer-on-death deed does not change ownership while the transferor is alive. It does not change the property description. It does not change the use or occupancy. So the trigger for a new application never fires. The exemption simply continues.

What this means for you

If you have filed (or are about to file) a transfer-on-death deed in Mississippi

You do not need to go back to the tax assessor and reapply for homestead. Your existing exemption stays in place. Keep the recorded deed and your homestead paperwork together with your other estate-planning records. If you ever stop using the property as your homestead (for example, you move and rent it out), that is a separate event that does require notifying the assessor.

If you are an estate-planning attorney

This opinion settles a worry some clients have raised about TOD deeds in Mississippi. You can advise clients that recording the deed is not, by itself, a homestead-exemption event. You may still want to confirm with the local tax assessor that nothing was inadvertently triggered (for example, if the recording was misclassified as a transfer of ownership in the assessor's records), but the legal answer is clean.

If you work in a tax assessor's or tax collector's office

Mississippi homestead claims renew annually based on continuity of ownership, use, and occupancy under § 27-33-31. A recorded transfer-on-death deed is not a transfer of present ownership. It is a future-effective conveyance that takes effect only at the transferor's death. You should not require a new application solely because a TOD deed appears in the chain of title.

If you are a title examiner or real estate agent

The recorded TOD deed will appear in title searches but does not divest the owner during life. If the property is sold during the owner's life, the TOD deed becomes irrelevant (the sale revokes it as a practical matter; the named beneficiary takes nothing). The deed only matters if the property is still owned by the transferor at death.

If you are a beneficiary named in someone else's TOD deed

The grantor's homestead exemption is the grantor's. You have no current interest until the grantor dies, and you cannot file or modify anything on the grantor's homestead. After the grantor's death, the exemption no longer applies (the prior owner is gone), and you, as the new owner, would file your own homestead application if you intend to use the property as your primary residence.

Common questions

Q: What is a transfer-on-death deed in Mississippi?
A: A recorded instrument that conveys real property to one or more named beneficiaries, with the transfer becoming effective only at the transferor's death. It is revocable during the transferor's life. The Mississippi Real Property Transfer-On-Death Act (Title 91, Chapter 27) governs the form and effect of these deeds. The transferor keeps full control of the property during life: they can sell, mortgage, lease, or change beneficiaries.

Q: Why doesn't filing the deed disturb the homestead exemption?
A: Because the deed does not transfer present ownership. § 91-27-23(1)(B) is explicit that the deed does not affect the transferor's interests, including homestead rights, during life. § 27-33-31 keys reapplication to actual changes in property description, ownership, use, or occupancy. None of those changes happens at the moment of recording.

Q: Does this answer change if I add a remainder interest the old-fashioned way (with a regular deed reserving a life estate)?
A: That is a different structure and a different answer. A reserved life estate creates a present remainder interest in someone else, which is a present transfer of ownership. Mississippi practice and the homestead statute treat that as a change in ownership that may affect the exemption. Talk to an attorney before using a life-estate deed for estate-planning reasons; the TOD deed is generally cleaner.

Q: What if I sell the property after recording the TOD deed?
A: A sale during your life conveys the property to the buyer; the TOD deed has no effect because there is nothing left for the beneficiary to take at your death. Your homestead would also end at the sale, because you no longer own and occupy the property.

Q: What if I move out but don't sell?
A: § 27-33-31 ties continued exemption to continued occupancy. If you move out and stop occupying as your primary residence, the homestead exemption ends (and a new application would be needed if you reestablish residence later, by yourself or by the new owner).

Q: Can the beneficiary of a TOD deed apply for homestead before my death?
A: No. The beneficiary has no present ownership interest. After your death, the beneficiary becomes the owner and can apply for their own homestead exemption if they will use the property as their primary residence.

Q: Is there any benefit to filing a TOD deed for homestead-tax purposes?
A: The TOD deed does not change your tax bill during life. Its purpose is non-probate transfer at death. Homestead consequences are neutral, which is the AG's point.

Background and statutory framework

Mississippi adopted the Real Property Transfer-On-Death Act in Title 91, Chapter 27. The Act is modeled on the Uniform Real Property Transfer on Death Act, with Mississippi-specific provisions. The core idea is to give homeowners a non-probate way to pass real estate. The deed sits in the records, has no present effect, and only takes effect when the transferor dies. The transferor can revoke it, sell the property, or change beneficiaries at will.

Homestead in Mississippi is governed by Title 27, Chapter 33. § 27-33-31 sets the rule for reapplication: once a valid homestead claim is on file, the exemption rolls forward annually unless ownership, property description, use, or occupancy changes. The legislature deliberately avoided requiring annual reapplication in steady-state cases.

The Mississippi Supreme Court's Hale opinion crystalized the principle that a homestead exemption "persists" until the resident takes affirmative action to cancel or alter it. Recording a TOD deed is not such an action; the deed itself is a present non-event for ownership purposes.

The opinion also cites the standard rule of statutory interpretation: when statutory text is plain, the court applies the statute as written. The text of § 91-27-23(1)(B) is plain about non-effect during life. The text of § 27-33-31 is plain about no reapplication absent a change in the named factors. The two statutes line up cleanly with the same answer.

Citations

Miss. Code Ann. § 91-27-9 (transfer of real property by transfer-on-death deed)
Miss. Code Ann. § 91-27-23(1)(B) (no effect on transferor's interests, including homestead, during life)
Miss. Code Ann. § 27-33-31 (homestead exemption continues without reapplication absent change in ownership, use, or occupancy)
Hale v. State Democratic Exec. Comm., 168 So. 3d 946 (Miss. 2015) (homestead exemption persists absent affirmative action to cancel)
Hedgepeth v. Johnson, 975 So. 2d 235 (Miss. 2008) (plain-language statutory interpretation)
Coleman v. State, 947 So. 2d 878 (Miss. 2006) (plain-language statutory interpretation)

Source

Original opinion text

September 6, 2022

The Honorable J. Walter Michel
Senator, District 25
241 Richardson Road
Ridgeland, Mississippi 39157
Re:

Revocable Transfer-on-Death Deed

Dear Senator Michel:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Is an individual who files a revocable transfer-on-death deed required to reapply for homestead
exemption?
Brief Response
No, an individual is not required to reapply for homestead exemption after filing a transfer-on-death deed.
Applicable Law and Discussion
"(A) valid homestead exemption on a property persists unless the resident takes affirmative action
to cancel or alter it." Hale v. State Democratic Exec. Comm., 168 So. 3d 946, 952 (Miss. 2015).
Pursuant to the Mississippi Real Property Transfer-On-Death Act "(a)n individual may transfer
the individual's interest in real property to one or more beneficiaries effective at the transferor's
death by a transfer-on-death deed." Miss. Code Ann. § 91-27-9. "During a transferor's life, a
transfer-on-death deed does not . . . affect an interest or right of the transferor or any other owner,
including . . . homestead rights in the real property." Miss. Code Ann. § 91-27-23(1)(B).
Section 27-33-31 provides the responsibilities of the homestead applicant and states, in relevant
part:

Any person who has on file with the tax assessor a valid allowed claim for
homestead exemption filed on or after January 1, 1991, shall not be required to
annually thereafter reapply for such claim for exemption but shall be credited with
such exemption each year so long as such person is entitled to homestead exemption
on the same property and there has been no change in the property description,
ownership, use or occupancy since January 1 of the preceding year. In the event
changes have occurred in the status of the homestead in the property description,
ownership, use or occupancy since January 1 of the preceding year, and in the event
such person is still eligible for homestead exemption, he shall file a new application
and provide all the information required under this section as for the initial
application.
"When the words of a statute are plain and unambiguous, there is no room for statutory
interpretation or construction, and we apply the statute according to the meaning of those words."
Hedgepeth v. Johnson, 975 So. 2d 235, 238 (Miss. 2008) (quoting Coleman v. State, 947 So. 2d
878, 881 (Miss. 2006)). Based upon the plain language of the above cited statutes, the filing of a
transfer-on-death deed does not affect the owner/transferor's homestead rights in the real property.
Thus, the owner/transferor is not required to reapply for homestead exemption after filing a
transfer-on-death deed.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General