Opinion No. (1977) ( 1977 )

REQUESTED BY: Ronald D. Lahners, Lancaster County Attorney, County-City Building, Lincoln, Nebraska. Is a deed of distribution, executed pursuant to the provisions of section 30-24,105, R.R.S. 1943, subject to the documentary tax required by the provisions of section 76-901, R.R.S. 1943.

No.

Section 30-2401, R.R.S. 1943, of the Probate Code which became effective January 1, 1977, provides that upon death a person's property passes pursuant the provisions of his will, or in the absence of a will, to his heirs as provided by the laws of intestacy. Also, section 30-2499 provides that:

"In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. . . ."

The comment following section 30-2499 states:

"Title to a decedent's property passes to his heirs and devisees at the time of his death. See section 30-2401. This section adds little to section 30-2401 except to indicate how successors may establish record title in the absence of administration."

Notwithstanding the fact that title to real estate passes at the time of death of the owner the Probate Code, section 30-24,105, provides for the execution of a `deed of distributor' when a personal representation makes `distribution in kind.' Specifically, section 30-24,105 provides:

"If distribution in kind is made the personal representative shall execute an instrument or deed of distribution assigning, transferring or releasing the assets the distributee as evidence of the distributee's title to the property."

The comments following this section of the Code states:

"This and sections following should be read with section 30-2470 which permits the personal representative to leave certain assets decedent's estate in the possession of the person presumptively entitled thereto. The `release' contemplated by this section would be used as evidence that the personal representative had determined that he would not need to disturb the possession of an heir or devisee for purposes of administration."

From our examination of the above provisions of the Probate Code it is our opinion that a `deed of distribution' is not necessary in every instance where a decedent was the owner of real estate at the time of death, and that when a `deed of distribution' is executed by personal representative it is not a grant, or conveyance of title to the real estate, but is merely a release of right to possess the real estate which the personal representative may have during the administration of the estate. Since section 76-901 provides for a tax on a transfer of title to real estate and a `deed of distribution' does not transfer title, deed issued pursuant to section 30-24,105 is not subject to such a tax.