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Transfer on Death/TOD Deed: What It Is and When to Use It

Dalia Ramirez

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Table of Contents

How does a transfer on death deed work? 

Which states recognize transfer on death deeds, how do you set up a transfer on death deed, advantages of a transfer on death deed, problems with transfer on death deeds, alternatives to a transfer on death deed.

A transfer on death deed is a property deed that automatically transfers ownership of an asset to a specified beneficiary when the owner dies. The objective is to avoid having the asset go through probate, a court-supervised process that distributes a person's assets after death.

A TOD deed is relatively simple and inexpensive to set up, unlike trusts , which can work similarly to protect your assets from probate. 

Here's what to know about transfer on death deeds and how to set one up.

» Not sure how to start your estate planning?  Here's a 7-step checklist

With this type of deed, you'll designate a beneficiary who will automatically own the property upon your death.

If you don't live in a state that allows TOD deeds, but own property in a state that does allow TOD deeds, you might still be able to use a TOD deed — but check with an estate planning lawyer .

You typically can still use the property as you wish while alive. A TOD deed generally does not affect the current owner's rights. The beneficiaries don't have access to assets until the owner dies [0] Cornell Law School Legal Information Institute . Transfer-on-Death (TOD) . Accessed Mar 10, 2023. View all sources .

You (and, depending on where you live, a person to whom you give power of attorney ) can change or revoke the TOD deed while you're alive.

Depending on where you live, you may be able to name a contingent beneficiary in case your first beneficiary dies before you do.

TOD deeds are available in several U.S. states and the District of Columbia. These states allow TOD deeds: Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Illinois, Indiana, Kansas, Maine, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming. In addition, Ohio has a TOD affidavit rule similar to a TOD deed [0] American College of Trust and Estate Counsel . Transfer on Death Deeds Survey . Accessed Mar 10, 2023. View all sources .

TOD deeds typically include the following, though specific requirements may vary by state.

A legal description of the property.

The names of the grantor (the current owner/owners).

The names of the intended beneficiaries.

According to state law, language that specifies a transfer to the "grantee beneficiary" upon the death of the owner.

Notary provisions or witness signatures, depending on the state requirements.

Registration and filing with your county property records (there may be a small fee).

Some states may offer specific transfer on death deed templates for free download. However, if you want extra help or professional advice about whether this deed is right for you, consider hiring an estate planning attorney.

» MORE: How charitable trusts work

Avoid probate . Property with a TOD deed typically does not have to pass through the probate process to transfer to its beneficiaries. In some states, probate is a long, expensive process and can subject your assets to additional taxes.

Avoid federal gift tax paperwork . Giving away property while alive may count as a gift in the eyes of the IRS and may require the giver to file a gift tax return . TOD deeds may avoid this by transferring the property after you die.

Maintain Medicaid eligibility . You may not qualify for full Medicaid benefits if you've transferred property during the five years before applying. Property with a TOD deed doesn't count as an instant transfer of the property and thus shouldn't affect your eligibility [0] UNT Dallas College of Law . How A Transfer On Death Deed Affects Medicaid Benefits . Accessed Dec 19, 2023. View all sources .

It might prevent property from being used to repay Medicaid benefit costs . For example, U.S. federal law allows states to claim a person's property after death to recover Medicaid costs for long-term medical care. However, in some states, property with TOD deeds may not be part of your estate and can't be claimed by Medicaid.

» MORE: Why joint tenants with right of survivorship (JTWROS) status can avoid probate too

Creditors may come after the new owner(s) of the property. State laws vary, but if the decedent had any debt, creditors typically have a set period of time to file a claim on the decedent's assets, even if those assets have been transferred to someone else. This can make it hard to get title insurance on the property immediately, which can in turn make it hard to sell the property [0] For example, State Bar of Montana . You’ve been warned: Lurking issues remain with transfer on death deeds . Accessed Dec 19, 2023. View all sources .

Beneficiaries may get equal shares of the asset. In some states, such as California, multiple beneficiaries on TOD deeds can't inherit unequal shares of the property, and you can't name a backup beneficiary [0] California Law Revision Commission . Revocable Transfer on Death Deed: Follow-Up Study . Accessed Dec 19, 2023. View all sources . In addition, your estate plan may be too complex for a TOD deed if you have multiple children to whom you'd like to pass property.

Not available in many states. If you live in a state that doesn't allow TOD deeds, you'll need to find an alternative estate planning method.

Unintentional disinheritance. If the owner doesn't update the transfer on death deed after the birth of a new child or grandchild, someone might be excluded inadvertently when the owner dies.

Raises the risk that estate planning documents don't match. Things can get tied up in probate court if the transfer on death deed indicates that a property should go to one person but the will says it should go to someone else.

May create uncertainty if a beneficiary dies before the property owner does. If that occurs, questions may arise about whether the beneficiary's heirs inherit the beneficiary's share or if the property should be divided among the surviving beneficiaries.

» MORE: What is an advance directive?

Lady bird deeds . Also called enhanced life estate deeds, these deeds allow owners to maintain control of the property until death, when the property automatically transfers to a beneficiary without going through probate. They're only available in five states — Florida, Texas, Michigan, Vermont, and West Virginia — and are often used to maintain Medicaid eligibility.

Revocable living trusts . These trusts remove assets from your estate so they can bypass probate upon your death. Living trusts can give you continued control over the asset during your life, but they can be more expensive and complex to set up than a deed. Living trusts are not the same as living wills.

Life estate deeds are available in most states and keep your property out of probate but require your beneficiaries' permission to make any changes.

Wills . These can include property transfers but may undergo probate after your death.

On a similar note...

what is a transfer of deed upon death

what is a transfer of deed upon death

Understanding the transfer on death deed

If you own real property and are looking for a way to avoid probate, you need to understand the benefits of a transfer on death deed. This simple document may help you to simply and inexpensively avoid probate for real estate.

Ready to start your estate plan?

what is a transfer of deed upon death

by   Edward A. Haman, Esq.

Edward A. Haman is a freelance writer, who is the author of numerous self-help legal books. He has practiced law in H...

Read more...

Updated on: January 22, 2024 · 4min read

How a TOD deed works

Advantages of a tod deed, creating a transfer on death deed.

Probate can be expensive and time-consuming, but it may be avoidable. For real estate, one way is with a transfer on death deed (TOD deed).

what is a transfer of deed upon death

In a TOD deed, the current owner designates one or more persons as beneficiary. The beneficiary automatically becomes the owner of the property when the current owner dies. A beneficiary can be an individual or an organization such as a charity. In some states a TOD deed is referred to as a beneficiary deed, TOD instrument or deed upon death.

As of September 2019, the District of Columbia and the following states allow some form of TOD deed: Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Illinois, Indiana, Kansas, Maine, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming. Ohio has replaced the TOD deed with a TOD affidavit, but the effect is the same. With a trend toward permitting TOD deeds, more states may be added in the future. A few states, such as Michigan, have a similar but technically different document, commonly called a Lady Bird deed .

If your property is not located in a state that allows TOD deeds, you may still be able to avoid probate by other means, such as transferring property to a living trust .

Deeds held by married couples typically state that they own property “as joint tenants with rights of survivorship" or as “tenants by the entireties." If one spouse dies, the surviving spouse automatically becomes sole owner. A married couple may also create a TOD deed. The beneficiary will not acquire the property until the second spouse dies, but the surviving spouse can revoke the TOD deed before then.

A beneficiary should be designated by name, never just by their relationship to you. If you designate two or more beneficiaries, indicate how they will take title — typically either “as joint tenants with rights of survivorship" or “as tenants in common." You may also designate alternative or successor beneficiaries, in case the first beneficiary dies.

Following are a few benefits of the TOD deed compared with other methods of transferring property upon death:

  • Transfer by will. Even with a will, the property must go through probate to be transferred to the new owner. A TOD deed avoids probate.
  • Joint ownership. Having someone on the deed as a joint owner with rights of survivorship will avoid probate. Upon the death of one owner, title automatically goes to the surviving joint owner or owners. But all joint owners have equal rights in the property. Therefore, selling or mortgaging the property will require the agreement of all joint owners. With a TOD deed, you keep full control of the property.
  • Transfer to a living trust. While transferring property to a living trust can avoid probate without sacrificing control, setting up a trust requires a more complicated document than a TOD deed. If an attorney prepares the document, creating a living trust will be significantly more expensive than a TOD deed. But for large estates with various types of property, a comprehensive estate plan that includes a living trust may be advantageous.

Other advantages of a TOD deed may include:

  • Maintaining homestead advantages. Many states offer asset protection and taxation benefits for a person's principal residence. These benefits may be lost with certain types of ownership transfers, but not with a TOD deed.
  • Tax savings. Designating a beneficiary is not an immediate transfer, so no federal gift tax is owed. The beneficiary acquires ownership on the current owner's date of death. If the beneficiary later sells the property, any capital gain will be based upon the value of the property at the original owner's date of death, not the value when the original owner acquired the property.
  • Maintaining Medicaid eligibility. If a person applying for Medicaid has made a gift of property within a certain period before applying, that gift may delay the receipt of benefits. Upon a Medicaid recipient's death, the government may seek reimbursement from the recipient's probate estate. A TOD deed is not usually considered a gift of the property, nor is the property part of the probate estate subject to reimbursement.

As with any real estate deed, the document must comply with state law. All real estate deeds must include certain information, such as the names of the grantor (current owner) and grantee (beneficiary), legal description of the property, signature of the grantor, and legally required witness and notary provisions. Other requirements may include minimum type size and formatting to allow space for recording stamps.

Special language must be used to create a TOD deed, clearly stating the name of the beneficiary, who is usually referred to as the “grantee beneficiary," and that transfer will take place upon the death of the current owner.

Prior to the death of the current owner, the TOD deed must be recorded in the property records of the county where the property is located. This is simply a matter of taking the original TOD deed to the county public records office — usually the county clerk or register of deeds — and paying a small fee. The records clerk will take the deed, stamp it to indicate the date it was received, take whatever other action is necessary to have it officially entered in the county records and return the original to you.

Preparing a TOD deed is not complicated but must be done in compliance with state law. Some states have an approved form, and using it may be the safest way to be sure your compliance.

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What Is Transfer on Death (TOD)?

  • Understanding Transfer on Death
  • Process for Brokerage Firms
  • New Accounts
  • Transfer on Death FAQs

The Bottom Line

  • Trust & Estate Planning

Transfer on Death (TOD): What It Is and How the Process Works

what is a transfer of deed upon death

Roger Wohlner is an experienced financial writer, ghostwriter, and advisor with 20 years of experience in the industry.

what is a transfer of deed upon death

Investopedia / Joules Garcia

The transfer on death (TOD) designation lets someone receive assets at the time of their benefactor's death without going through probate. A TOD designation also lets the account holder or security owner specify the percentage of assets each person receives, which helps the executor distribute the person's assets after death.

With a transfer on death registration, the named beneficiaries have no access to or control over a person's assets as long as the person is alive.

A transfer on death designation is generally used for brokerage accounts, stocks, bonds, and other investment types.

Key Takeaways

  • Transfer on death (TOD) applies to certain assets that must be passed on without going through probate.
  • Those named in a TOD don't have access to the assets before the owner's death.
  • To execute a TOD, the brokerage must receive the appropriate documents to verify the assets can be transferred.

Understanding Transfer on Death (TOD)

It is important that beneficiaries of a TOD are aware of the assets they will inherit so they may prepare accordingly ahead of time. Transfers on Death ensure an investor's securities and security-related accounts are passed on to the person or people they want them to be passed to without going through a lengthy probate process.

The Uniform Transfer on Death Securities Registration Act lets owners name beneficiaries for their stocks, bonds, or brokerage accounts . When someone registers with a stockbroker or bank, they are the owner of that account. They can then name beneficiaries and percentage allocations on the beneficiary form provided by the broker or bank.

Individual retirement accounts, 401(k)s, and other retirement accounts are not TOD accounts. These have named beneficiaries, with regulations determining when you can begin making withdrawals, how much you can withdraw, or how they are taxed. A TOD simply transfers all assets associated with an account to the people named.

Transfer on Death (TOD) Process for Brokerage Firms

After receiving notification of an account holder's death, the brokerage firm requests a death certificate, current court letter of appointment, stock power of attorney, affidavit of domicile, or other documents as proof of death. The required documents depend on the type of account, such as a single or joint account, whether one or both account holders are deceased, and whether the account is a trust account and the trustee or grantor is deceased.

Firms may reject documents for the following reasons:

  • If they are not signed in the appropriate capacity, such as by the executor, survivor, or trustee
  • If the forms are completed incorrectly, such as by transposing certificate numbers
  • If the information has been altered
  • If the documents are outdated or missing the necessary court seal

For these reasons, a person must pay close attention when completing and submitting forms.

Transfer on Death New Accounts

In most cases, a new account is set up for the beneficiary, and the deceased person's securities and funds are transferred into it. Typically, no buying, selling, transferring of the account to another firm, or other activities may occur until the account is open and legal ownership has been established.

Opening a new account involves filling out an application and having the beneficiary provide the required personal information. Brokers use the information to learn about the account owner (beneficiary), meet their financial needs, and follow legal and regulatory obligations.

Example of Transfer on Death

Imagine an investor and active day trader with $50,000 in a margin account with their broker and stocks worth $200,000 in their brokerage account. When this investor set up these accounts, they filed a TOD form, stipulating who the assets should be transferred to upon death and in what percentages. The account owner can update this form at any time.

Assume the owner of the account is unmarried with two adult children. They leave 50% of their brokerage account and stocks to their son (named) and 50% to their daughter (named). Upon death, and after the appropriate paperwork is filed, half of the account balance and stocks will transfer to the son and the other half to the daughter.

What Does TOD Stand for?

TOD stands for transfer on death and is a legal means of ensuring specific people receive money and assets like stocks and bonds from brokerage accounts if the account owner dies. This is a straightforward and simple process. It involves filing a form naming the persons or people the account owner wishes to receive the assets. When the owner dies, the assets are transferred upon verification of death and identity.

What Is the Difference Between TOD and Beneficiary?

A transfer on death is an instrument that transfers ownership of specific accounts and assets to someone. A beneficiary is someone that is named to receive something of value.

What's the Difference Between TOD and POD?

A payable on death (POD) designation is an arrangement between a bank and a client that designates beneficiaries to receive assets after the client's death, without going through probate. A POD designation is usually associated with bank accounts and certificates of deposit, while a TOD is used for stocks, bonds, deeds, and similar assets.

Are TOD Accounts Taxable to the Beneficiary?

While a transfer on death designation can help avoid the probate process, the assets are still subject to applicable estate taxes, capital gains taxes, and inheritance taxes.

What Are the Disdvantages of a TOD?

One consideration to keep in mind with TOD accounts is that the assets are still considered part of the estate of the deceased. That means that creditors can seek to have debts repaid before beneficiaries have access to the assets.

A transfer on death, or TOD, is a designation that allows a creditor's assets to pass directly to their beneficiary after they die. The account owner specifies the percentage of assets each beneficiary is to receive, allowing their executor to distribute the assets without first passing through probate.

what is a transfer of deed upon death

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what is a transfer of deed upon death

Transfer-On-Death Deeds: What Are They & How Do They Work?

How beneficial can be signing a tod deed upon your death, what is a transfer-on-death deed.

If you own real property, such as a home, in your sole name but you have not created a trust and transferred your property’s title to the trust , it is virtually guaranteed that your beneficiaries (or heirs) will have to deal with probate after your death. If the time and expense required to create a living trust does not make sense for your situation but you still want to avoid the probate process, a transfer-on-death (TOD) deed may be the solution. A TOD deed (also known as a beneficiary deed) does what it sounds like it does—it transfers your real property to your selected beneficiaries upon your death, similar to a payable-on-death designation for a bank account or a transfer-on-death registration for an investment account. During your lifetime, you continue to own and control the real property, so you can sell it, lease it, refinance it, give it away, or do anything else with it you choose. You also continue to be responsible for paying the mortgage and taxes and maintaining the property. If you still own the property at your death, the TOD deed works to automatically transfer the property to your named beneficiaries without having to go through probate. And if you change your mind during your lifetime about whom you have named as beneficiaries in the TOD deed, you can amend or revoke it at any time.

Learn Everything About TOD Deed In Arizona

How Do You Use a TOD Deed?

More than twenty-five states now allow the use of TOD deeds, and more states are considering adopting laws that allow them. You do not have to actually live in a state that allows TOD deeds to be able to use one, but the property must be located in such a state. The requirements for creating a TOD deed vary by state, but in essence, the process includes the following basic steps.

Steps To Complete The TOD Deed

With the assistance of an experienced estate planning or real estate attorney , determine the specific form or language required for the TOD deed to comply with the relevant state’s law. Remember to look at the requirements in the state where the property is located . A TOD deed will look much like any other property deed, but it will contain specific language that makes it clear that the deed does not take effect until after your (the owner’s) death.

Name The Beneficiaries Of Your Properties

Your beneficiary can be one or more people or organizations, such as a business or a charity. You may want to consider naming a contingent, or alternate, beneficiary in case your first choice for beneficiary passes away before you do. You want to be sure to use the beneficiary’s legal name rather than categories or relationships, such as “my children.” For example, if you are naming your two daughters as your beneficiaries, you should use “Jane Doe and Julie Smith” instead of “my daughters.” If you name more than one beneficiary, you should indicate on the deed how the beneficiaries will own the property (as equal joint tenants with rights of survivorship, as tenants-in-common, each as to an equal one-half share, or some other form of co-ownership).

Legal Description Of Your Property In The TOD Deed

Be sure to use your property’s correct legal description in the TOD deed. Your property’s legal description may be found on the current deed recorded in the official property records, your sales contract, or your mortgage documents. However, legal descriptions are not always copied accurately. It is important to consult an experienced real estate or estate planning attorney or a title company regarding the preparation of deeds and the accuracy of legal descriptions on deeds.

Sign The TOD Deed Depending On Your Marital Status

If you are the property’s sole owner, you are usually the only person who needs to sign the deed. However, if you are married and live in a community property state or if you have declared the property your homestead, it may be prudent or required that both you and your spouse sign the deed, a joinder, or a waiver to show that your spouse has no objection. An experienced real estate or estate planning attorney or title company can ensure that your intended transfer meets all legal requirements and is properly documented.

If you co-own property with someone else as tenants in common, you can use a TOD deed to designate a beneficiary for your share of the property. If you co-own the property as joint tenants, all co-owners will need to sign the deed, and it will not be effective until the last surviving owner passes away. If only one co-owner signs the TOD deed, it will not be effective unless the signer is the last owner to die. Keep in mind that even if you and your co-owner sign a TOD deed, if you die first, the surviving co-owner can revoke the TOD deed before their death.

Example: Julie and John own property as joint tenants with rights of survivorship, meaning that when one of them dies, the other becomes the owner of the entire property. They sign and record a TOD deed that names their niece Stacy as the beneficiary. When Julie passes away, John becomes the property’s sole owner. At John’s death, if John has not revoked the TOD deed or sold the property, Stacy becomes the property’s owner.

If your state requires it, have the owners’ signatures notarized. An attorney or title company can usually arrange for a notary to be present if necessary. The beneficiary does not need to sign the TOD deed. In fact, a beneficiary does not even need to be told about the deed (although it is usually a good idea to do so). However, the deed will be recorded and become a matter of public record, so you will not be able to keep it a secret either.

The Importance Of Recording Your TOD Deed

File the deed with the proper land records authority, such as the county clerk, recorder’s office, land registrar, or office of land records in the county where the property is located. This will require paying a minimal recording fee. Recording the deed is a very important step because the TOD deed will be effective only if you record it. A beneficiary cannot record the TOD deed after you die and have it be effective. Again, consider working with an experienced real estate or estate planning attorney or title company to ensure that the TOD deed is accurate and effective.

What Are The Benefits Of a TOD Deed?

There are a number of reasons why you might want to use a TOD deed. As already discussed, a TOD deed can be used to avoid the public and sometimes costly and time-consuming probate process. In an effort to avoid probate, some property-owning parents will put their adult children’s names on their existing deed. The problem with this approach is that because the adult child is a current owner, the parents’ property becomes immediately subject to the child’s creditors, divorce settlement, etc. In addition, this approach may cause unintended gift tax consequences. If the property is subject to a mortgage, there may also be real estate transfer, conveyance, or documentary stamp tax consequences and even the inadvertent triggering of the mortgage’s due-on-sale clause. A TOD deed avoids this problem because there is no immediate transfer or change in beneficial ownership—a child beneficiary has no ownership in or legal right to the property until after their parents’ death.

Another benefit of TOD deeds is that they can be created cheaply and easily. In addition, a TOD deed can be changed or revoked at any time, but be sure to follow your state’s laws for effective revocation. A TOD deed will take precedence over a last will and testament, even if the will was written later, so it is important to remember that a will cannot change or revoke a TOD deed.

What Are The Disadvantages Of Signing a TOD Deed?

One of the downsides of a TOD deed is that if you have multiple beneficiaries, there are legal idiosyncrasies you might not know about that can significantly impact the other beneficiaries’ inheritances or result in an outcome that does not reflect your ultimate wishes.

Example: Mom has four adult children. She creates a TOD deed naming her four children as the beneficiaries of her home as joint tenants with rights of survivorship. Mom’s oldest child dies, leaving two children. Mom is incapacitated and cannot update the TOD deed. When Mom dies, the home will go to her remaining three living children, leaving the deceased oldest child’s two children (Mom’s grandchildren) with nothing. However, if the TOD deed named her four children as beneficiaries of her home as tenants in common, each beneficiary would inherit a separate but equal share, and in this example, the deceased child’s one-quarter share will be distributed according to their estate plan (and not automatically revert to their surviving siblings).

Contact Our Team Of Estate Planning Attorneys In Arizona

In sum, a TOD deed can be an inexpensive and simple way to avoid the probate process upon your death and transfer your real property to your intended beneficiaries. However, it is important to understand the practical and legal implications for your individual situation and wishes. Contact Gunderson Law Group if you have questions about whether using a TOD deed is appropriate for your circumstances.

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Arizona Location 1400 E. Southern Ave. Suite 850 Tempe, AZ 85282 Office: (480) 750-7337 Email: [email protected]

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Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD Deeds

Templates and forms.

The “Revocable Transfer on Death Deed,” also called “TOD Deed” or “beneficiary deed,” is a simple way to leave a residence to your beneficiaries without the need for probate. The current owner or “transferor” names the intended heirs as “beneficiaries.” The deed has no effect until the transferor dies, so you can change your mind, refinance, or sell the property if you choose. When you die, the beneficiaries receive the property without going to court, although they do have to notify all heirs and file or record several documents.

As of Jan. 1, 2022, TOD deeds must now be signed by two witnesses, and after the donor dies, the beneficiaries must notify all heirs and file multiple papers.

Removing Transferor’s Name after a Death

Beneficiaries who are transferring real estate into their name should use our guide Transferring Title to Beneficiaries after a Transfer on Death Deed Takes Effect .

A TOD deed is intended to be an inexpensive way to plan who inherits your home after you die. It can only be used to transfer a property with one to four residential dwelling or condominium units, or a single-family residence with less than 40 acres of agricultural land. A mobile home may be transferred only if it is a “fixture.”

Advantages:

  • Avoids probate, if done correctly and if no unexpected family changes occur (like beneficiaries who die before transferor);
  • Simple, inexpensive alternative to a living trust or other probate avoidance techniques;
  • Can be revoked at any time during the lifetime of the transferor;
  • Same tax advantages as transfers by trust or inheritance under a will.

Disadvantages:

  • Technical requirements are simple but very strict, and errors can void the TOD deed;
  • The home is not protected from your debts. If you die with a mortgage or other debt, your beneficiaries may get nothing;
  • If you co-own the property as joint tenancy or community property with right of survivorship, the other owner receives your share of the property upon your death. The TOD deed has no effect unless you outlive your co-owner. If co-owners want to use a TOD deed, they must each sign a separate one;
  • Title companies may refuse to issue title insurance for three years after your death, blocking sales or refinancing of the property, out of concern the TOD deed will be challenged;
  • If a beneficiary dies before the transferor, their share won’t go to their heirs. Instead, the remaining beneficiaries split it. If no beneficiaries survive, your home will probably need to go through probate;
  • After your death, the beneficiaries must take several steps to transfer the property, including notifying any possible heirs, allowing them to challenge the TOD deed.

Filling Out and Recording a TOD deed

These steps help you fill out a “Revocable Transfer on Death (TOD) Deed,” which you can download from our website at the link above.

Locate the Current Deed for the Property

You will need information from your current deed (the deed you received when you bought or received the property) in Step 2.

If you do not have a copy of the current deed, you can purchase one from the Recorder’s Office. In Sacramento, this costs $1 per page. You can call the Sacramento office at (916) 874-6334 or visit one of the office locations (see Sacramento Clerk/Recorder website for addresses and more information).

Make sure you are looking at the deed which gives you ownership of the property. Look for a name like “Grant Deed,” “Quitclaim Deed,” “Interspousal Deed,” “Corporation Deed,” or “Transfer Deed.” Ignore any “Deed of Trust.” That is related to the mortgage on your property. It will not have all the information you need.

Read the “Common Questions” Listed on Page 3-4 of the TOD Deed

Before you sign the deed, you are required to read the questions and answers about how the TOD deed works. They are written in small type on page three and four contain important information you need to know prior to filling out the deed, including how to complete it; how to revoke it; its effects on taxes, Medi-Cal eligibility and reimbursement requirements; and more.

Prefer a larger version? Download a large-print version of the common questions from our website.

Fill Out the TOD Deed (Do Not Sign)

The TOD deed can be typed, filled out online then printed, or neatly handwritten in dark blue or black ink.

You will need the following information:

  • Assessor’s Parcel Number.
  • Your name as spelled on the current deed.
  • Names of “beneficiaries” (your intended heirs).
  • The legal description of the property. This must match the current deed exactly . Attach the legal description as an exhibit if it is too long for the page.

A sample completed “Revocable Transfer on Death (TOD) Deed” with more detailed instructions is available at the end of this guide.

Sign in Front of a Notary; Have Two Witnesses Sign

You will need to sign the TOD deed in front of a notary. The notary will charge a fee for this service. You can find notaries at many banks, mailing services, and title companies.

Two witnesses need to sign. Their signatures do not need to be notarized. They must either witness you signing, or witness you acknowledging the form. (In other words, you must tell them, in person, what the form is and that you have signed it.)

Beneficiaries do not need to sign the TOD deed, but it is legal for them to be a witness. However, if anyone challenges the TOD deed, the court must presume that the beneficiary/witness tricked or forced you to sign, and must invalidate the deed unless the beneficiary can prove otherwise.

Record the Deed at the Recorder’s Office within 60 Days of Notarizing It

You must record a TOD deed within 60 days of notarizing it or it becomes invalid. This is the easiest way for TOD deeds to fail.

Record the TOD deed in the county where the property is located. The Recorder’s Office charges a recording fee and additional fees as set by state law. Current Sacramento fees are available at the County Clerk/Recorder’s website .

Revoking a TOD Deed

You can revoke a TOD deed at any time for any reason. If you sell the property, the deed is automatically revoked. To revoke it without selling it, fill out and record a “Revocation of Revocable Transfer on Death (TOD) Deed.”

Download the “ Revocation of Revocable Transfer on Death (TOD) Deed ” form from the link above.

Locate your TOD Deed for the Property

You will need information from your TOD deed to complete Step 2.

If you do not have a copy of your TOD deed, you can purchase one from the Recorder’s Office. In Sacramento, this costs $1 per page. You can contact the Sacramento office at (916) 874-6334 or visit one of the office locations (see the Sacramento County Clerk/Recorder’s website for addresses and more information).

Fill Out the TOD Revocation (Do Not Sign)

The revocation can be typed, filled out online then printed, or neatly handwritten in dark blue or black ink. You will need the following information from the TOD deed:

  • The legal description of the property. This must match the TOD deed exactly . Attach the legal description as an exhibit if it is too long for the page.
  • Your name as spelled on the TOD deed.
  • The date you signed the TOD deed, the date you recorded the TOD deed, and the book/reel and page/image numbers stamped on the upper right of the TOD deed. (If your county uses instrument numbers, you will need that number. Sacramento County does not use instrument numbers).
  • Names of “beneficiaries” (your intended heirs), and their relationship to you, as written on your TOD deed.

A sample completed “Revocation of Revocable Transfer on Death (TOD) Deed” with more detailed instructions is available at the end of this guide.

You will need to sign the Revocation in front of a notary. The notary will charge a fee for this service. You can find notaries at many banks, mailing services, and title companies.

Record the Revocation at the Recorder’s Office within 60 Days of Notarizing It

You must record a TOD Deed Revocation within 60 days of notarizing it or it becomes invalid. This is the easiest way for TOD Deed Revocations to fail.

Record the Revocation in the county where the property is located. The Recorder’s Office charges a recording fee and additional fees as set by state law. Current Sacramento fees are available at the County Clerk/Recorder’s website .

Senior Legal Hotline Toll Free: (800) 222-1753; Sacramento County: (916) 551-2140 Legal Services of Northern California Free legal assistance for Sacramento residents age 60 and over on almost any civil issue, including property transfers and deeds.

Capitol Pro Bono 916-551-2102 Free estate planning assistance for low-income residents.

For More Information

On the web:.

California Advocates for Nursing Home Reform (CANHR) “Transferring Your Home with a Transfer on Death Deed (TOD) – What You Need to Know” Links several resources discussing advantages and disadvantages of TOD deeds, including a webinar for estate planning attorneys. CANHR also has a referral service to help you find attorneys specializing in elder law.

Sacramento County Public Law Library “Revocable Transfers on Death Deeds” (video) This free five-part series of videos provides detailed information on TOD deeds by Jim Hildreth. It does not include the 2022 changes to the law.

At the Law Library:

California Estate Planning (KFC 195 .A16 C3) This book, published by CEB, discusses TOD deeds some of their tax and other implications, and possible alternatives in chapter 7. Electronic Access: On the Law Library’s computers, using OnLaw .

Sample Forms and Instructions

what is a transfer of deed upon death

This material is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.

transfer-on-death deed

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Transfer-on-death deed is a deed that automatically transfers property to a designated beneficiary upon the death of the property owner without probate , facilitating the executor's disposition of the property owner's assets after death. The beneficiary may be an individual or an organization, such as a charity . A substitute or successor beneficiary may also be named in case the first beneficiary dies. The beneficiary does not have access to the assets until the death of the asset owner. Also termed beneficiary deed . See also: transfer-on-death (TOD) .

[Last updated in September of 2021 by the Wex Definitions Team ]

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How to Use a TOD or Beneficiary Deeds to Avoid Probate

These deeds make real estate a non-probate asset in some states

what is a transfer of deed upon death

  • How Transfer-on-Death Deeds Work

States That Recognize Transfer on Death Deeds

  • How a TOD Deed Avoids Probate

When the Owner Changes His Mind

Determining whether you should consider a tod deed, frequently asked questions (faqs).

A  transfer-on-death (TOD) deed, also known as a "beneficiary deed," is a special type of deed that can be used to transfer ownership of real estate outside probate in a growing number of U.S. states. 

How Transfer-on-Death Deeds Work 

If you own real estate in your sole name without a co-owner, you have limited options if you want to pass the property to a beneficiary at your death without the necessity of  probate . Assets placed in a  living trust  can avoid probate, but it's far simpler and less expensive to simply transfer the property by beneficiary deed if you live in a state that recognizes this option.

You can create and sign a transfer-on-death deed now, moving your property from your sole name into the name of your beneficiary, but the deed is not valid and does not take effect until you die. You continue to own the property during your lifetime, so you retain the right to mortgage it or sell it. Your beneficiary has no legal right to it until your death.

You do have to record the deed with the county land records office where the property is located.  If you change your mind—perhaps you decide you want to leave the property to someone else at a later point in time—you can simply revoke the deed or create and record a new one to supersede the old one and transfer the property to someone else.

Because you're not technically giving the property away during your lifetime, the deed will not incur a gift tax. However, the property will contribute to the value of your estate for estate tax purposes.

As of 2021, the following states recognize transfer on death or beneficiary deeds.

  • California  
  • District of Columbia
  • North Dakota
  • South Dakota
  • West Virginia

At least five other states—Florida, Michigan, Texas, Vermont, and West Virginia—recognize an " enhanced life estate deed ," sometimes referred to as a "Lady Bird Deed." An enhanced life estate deed functions in a manner similar to a transfer on death deed.

How a TOD Deed Avoids Probate

First, the owner signs a new deed that states who she would like to inherit the real estate at her death. Some states require that an attorney must prepare the new deed. For example, Florida law strongly recommends that an attorney prepare an enhanced life estate deed in order to avoid inadvertently preparing a regular life estate deed instead.

The new deed must be signed and recorded with public land records office, usually in the county where the real estate is located. Recording it should not incur real estate transfer taxes, because there won't be an immediate transfer of ownership. Recording fees can vary from state to state.

Finally, the death certificate is also recorded among the same public land records office after the original owner dies. This puts the world on notice that title to the real estate has been transferred into the name of the beneficiary listed in the TOD deed  due to the owner's death.

If the owner of the real estate should have a change of heart and decide that he does not  want his named beneficiary to inherit his property, it's a simple matter to "undo" the deed. He can sign and record a new TOD deed naming someone else instead. This rescinds the previous deed because the most recent TOD deed is considered to be the valid one in most states.

It's always a good idea to also file a statement of revocation of the first deed with public land records, however. This way there's absolutely no confusion or doubt about your intent. 

The ultimate goal of a TOD deed is to avoid the costly probate process after the owner of real estate dies. But the laws governing these types of deeds or similar documents can vary widely from state to state. In the end,​ a TOD deed might not be the right choice in certain situations.

Consult with an estate planning attorney  to determine whether one of these deeds is right for you and your family. 

What are the disadvantages of transfer-on-death deeds?

There could potentially be issues with a title company refusing to insure the property. Transfer-on-death deeds can also be subject to some of the same issues as wills. They can be challenged or contested by an unhappy heir who expected to receive the property and then ties the matter up in court.

Can a beneficiary deed only transfer real estate?

Technically, a deed refers specifically to real estate, but several assets can be transferred in the same manner. Banks and credit unions offer payable-on-death accounts, and the Uniform Transfer-on-Death Securities Act allows brokerage accounts, stocks, and bonds to have beneficiary designations as well.

How will a transfer-on-death deed affect my mortgage?

You have the right to take a mortgage against the property during your lifetime, and you can do a transfer-on-death deed for a property that has a mortgage against it. But your beneficiary will have to pay the mortgage after your death when the property transfers to them. Any other liens against the property will follow it as well, becoming the responsibility of your beneficiary.

NOTE: State laws change frequently, and the following information may not reflect recent changes. For current legal advice, please consult with an attorney, because the information contained in this article is not legal advice and is not a substitute for legal advice.

Superior Court of California, County of Alameda. " What Are the Advantages of a Living Trust? "

AARP. " Transfer on Death Deed (TODD) ," Page 1.

Alaska Court System. " Transfer on Death Deed - What Does the Transfer on Death (TOD) Deed Do? "

Alaska Court System. " Transfer on Death Deed - Do I Have to File the TOD Deed in Court? "

Alaska Court System. " Transfer on Death Deed - How Do I Revoke the TOD Deed After It Is Recorded? "

Internal Revenue Service. " Estate and Gift Taxes ."

FindLaw. " Transfer on Death Tax Implications ."

Alaska Court System. " Transfer on Death Deed ."

Arizona State Legislature. " 33-405. Beneficiary Deeds; Recording; Definitions ."

FindLaw. " Arkansas Code Title 18. Property § 18-12-608. Beneficiary Deeds--Terms--Recording Required ."

Sacramento County Public Law Library & Civil Self Help Center. " Transfer on Death (TOD) Deeds ," Page 1.

Colorado General Assembly. " Probate, Trusts, and Fiduciaries ," Pages 1-2.

District of Colombia, Office of Tax and Revenue. " Revocable Transfer-on-Death Deed ," Pages 1-3.

Hawaii State Legislature. " Uniform Real Property Transfer on Death Act ."

Illinois General Assembly. " (755 ILCS 27/) Illinois Residential Real Property Transfer on Death Instrument Act ."

FindLaw. " Indiana Code Title 32. Property § 32-17-14-11 ."

Kansas Legislative Sessions. " Article 35 - Transfer-on-Death ."

Minnesota Legislature, Office of the Revisor of Statutes. " 507.071 Transfer on Death Deeds ."

Missouri Revisor of Statutes. " 461.025. Deeds Effective on Death of Owner — Recording, Effect ."

Montana Code Annotated 2019. " 72-6-415. Optional Form of Transfer on Death Deed ."

Nebraska Legislature. " Nebraska Revised Statute 76-3402 ."

Nevada Legislature. " NRS 111.771 Property Held in Beneficiary Form; Registration in Beneficiary Form; Transfer-on-Death Directions ."

State Bar of New Mexico. " Transfer on Death Deed ," Pages 1-2.

North Dakota Legislative Branch. " Chapter 30.1-32.1 Uniform Real Property Transfer on Death Act ," Pages 1-3.

Ohio Laws and Rules. " 5302.23 Designating Transfer on Death Beneficiary ."

Legal Aid Services of Oklahoma. " Non-Testamentary Transfer–on-Death-Deed ."

Oregon State Legislature. " Uniform Real Property Transfer on Death Act ."

South Dakota Legislature. " Part 4. Uniform Real Property Transfer on Death Act - 29A-6-403 ."

Texas Constitution and Statutes. " Texas Real Property Transfer on Death Act ."

Virginia General Assembly. " § 64.2-635. Optional Form of Transfer on Death Deed ."

Washington State Legislature. " Chapter 64.80 RCW Uniform Real Property Transfer on Death Act ."

West Virginia Legislature. " Chapter 36. Estates and Property ."

Wisconsin State Legislature. " 705.15 Nonprobate Transfer of Real Property on Death ."

State of Wyoming Legislature. " HB0201 - Transfer on Death Deed ."

American Council on Aging. " How Lady Bird Deeds Protect a Medicaid Recipient's Home for Loved Ones ."

Gibbs Law Office. " Using a Lady Bird Deed in Florida [Overview, Pros and Cons] ."

Sacramento County Public Law Library & Civil Self Help Center. " Transfer on Death (TOD) Deeds ," Page 3.

Sacramento County Public Law Library & Civil Self Help Center. " Transfer on Death (TOD) Deeds ," Page 5.

Sacramento County Public Law Library & Civil Self Help Center. " Transfer on Death (TOD) Deeds ," Page 4.

HG.org Legal Resources. " What Are Transfer on Death Deeds? "

Cornell Law School Legal Information Institute. " Transfer-on-Death (TOD) ."

TexasLawHelp.org. " Transfer on Death (TOD): Information and Answers ."

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Home » Transfer-on-Death Deed (TOD Deed)

Transfer-on-Death Deed (TOD Deed)

Jeramie Fortenberry

Jeramie Fortenberry

Attorney (J.D., LL.M.)

Last updated May 21, 2023

What is a Transfer-on-Death Deed?

A transfer-on-death deed form (also called a TOD deed form ) is a deed that serves as a substitute for a will. Like a will, a transfer-on-death deed allows property owners to designate one or more people or organizations to inherit property on the property owner’s death. But unlike a will, a transfer by transfer-on-death deed is a nonprobate transfer. No probate proceeding is needed to transfer the property to the new owners after the original owner dies.

A TOD deed form requires special language to ensure that the deed qualifies as a transfer-on-death deed. This language is automatically included by our online deed preparation service.

Get a TOD Deed Today

As discussed in How to Avoid Probate of Real Estate , a transfer-on-death deed is a new and popular tool to avoid probate. If you own property in a state that recognizes TOD deeds, a TOD deed is often the best choice to avoid probate. Unlike life estate deeds and right of survivorship deeds , a TOD deed form avoids probate without sacrificing control. A property owner that creates a TOD deed retains the right to change or revoke the deed during life without the consent of the beneficiaries.

A transfer-on-death deed form works like a beneficiary designation on a bank or investment account. The property owner names someone to inherit the property at the owner’s death. During the owner’s life, the owner can change his or her mind. The property owner may cancel the designation, sell the property, or name a different beneficiary or group of beneficiaries. This retained control during life—coupled with the ability to avoid probate at death—makes transfer-on-death deeds an attractive choice for many property owners.

States that Recognize Transfer-on-Death Deeds

Transfer-on-death deeds are the newest type of deed for avoiding probate. Missouri was the first state to recognize transfer-on-death deeds in 1989. Since then, transfer-on-death deeds have gained popularity, spurred mostly by the enactment of the Uniform Real Property Transfer on Death Act ( URPTODA ) in 2009. URPTODA was promulgated by the Uniform Law Commission as a model act for states to use in creating their laws. The enactment of a model act like URPTODA can prompt states to act more quickly when considering legislation.

Since URPTODA was introduced, 16 states have enacted it. Other states have created their own laws that are similar to URPTODA. More than half of U.S. jurisdictions now recognize some form of transfer-on-death deed. These jurisdictions include:

* States that have adopted the Uniform Real Property Transfer on Death Act

As of 2023, New Hampshire, Kentucky, Rhode Island, and Connecticut, are all considering the adoption of URPTODA. Regardless of whether these states enact URPTODA, there is a definite trend toward recognition of transfer-on-death deeds.

Other Names for Transfer-on-Death Deeds

The term transfer-on-death deed is often abbreviated to TOD deed or simply TODD . Some states that recognize have their own names. In Arizona, Arkansas, Colorado, and Missouri, TOD deeds are called beneficiary deeds . In Illinois , a TOD deed is called a transfer-on-death instrument . In Nevada, a TOD deed is called a deed upon death . These names all refer to the same type of deed.

TOD Deeds vs. Lady Bird Deeds

A transfer-on-death deed serves the same purposes as a lady bird deed (also known as a ladybird deed or enhanced life estate deed ). Both provide continued control during life and pass the property at death. Lady bird deeds are only recognized in a handful of states (including Florida , Texas , and Michigan ). Although the two deeds serve the same purposes, they are based on different sources of law and are not identical.

If a state only offers TOD deeds, then a TOD deed is often the best choice for avoiding probate. But there some states, like Texas , may offer both TOD deeds and lady bird deeds. In those states, it can be a close call between a lady bird deed and a TOD deed. In Texas, for example, lady bird deeds are often a better choice than a TOD deed for the reasons listed in our discussion of Texas TOD deeds vs. lady bird deeds .

Benefits of Transfer-on-Death Deeds

Transfer-on-death deeds have several advantages that make them popular estate planning tools. The Uniform Law Commission identified three primary benefits of transfer-on-death deeds.

  • For avoiding probate, a TOD deed is an inexpensive alternative to a living trust. People have long used living trusts to avoid probate, but—according to the Uniform Law Commission—the cost of establishing and funding a trust can be “prohibitively expensive for smaller estates.” TOD deeds allow lower-income families to avoid probate using a more straightforward means, without the expense of a living trust.
  • A TOD deed allows the property owner to keep control of their property. If the owner wants to change or revoke the deed before death, he or she may do so. The TOD beneficiary named in the deed has no interest in the property and no say in the matter. This retained control distinguishes TOD deeds from other deed forms—like life estate deeds or joint tenancy with right of survivorship—that forfeit at least some control to the desired beneficiary.
  • TOD deeds are proven. Although there were concerns when TOD deeds were first introduced, these concerns have proven to be unfounded. According to the Uniform Law Commission, “the TOD titling process has been well received by recording officers, real estate attorneys, and the title insurance industry. TOD deeds are no longer novel and the citizens of the remaining states should also benefit from the opportunity to transfer real property outside of probate simply and effectively.”

Transfer-on-death deeds have several other characteristics that also contribute to their popularity.

  • A TOD deed is not a taxable gift while the owner is still alive. Because the owner retains control over the property, a transfer by TOD deed is an incomplete gift for tax purposes. No gift taxes are owed and no gift tax return need be filed.
  • A TOD deed can save taxes after the owner’s death. Federal law treats person named as a beneficiary in a TOD deed as having acquired property from a deceased person. This allows the income tax basis in the property to be adjusted to fair market value at the owner’s death. This basis step-up permanently avoids tax on any appreciation that accrued while the deceased owner owned the property.
  • A TOD deed can help property qualify for state tax and asset protection benefits. Many states provide special tax and asset protection benefits to a person’s principal residence (homestead). These benefits can include reduced property tax rates, a cap on increases in value for property tax purposes, and enhanced asset protection benefits. Depending on state law, a TOD deed can preserve these benefits. Because the transfer does not occur until the owner’s death, the owner can continue to qualify for these benefits during life.
  • A TOD deed is not a disqualifying transfer for Medicaid purposes. When a person applies for Medicaid, the state Medicaid office will look at any uncompensated transfers (gifts) within a lookback period (usually five years). If the Medicaid applicant made gifts, the Medicaid office may use the value of those gifts to calculate a penalty period that will prevent the applicant from qualifying for Medicaid for a period of time. Many states do not treat a TOD deed as a gift for purposes of calculating the penalty period.
  • A TOD deed can keep the property from going to the government after an owner’s death. States have Medicaid recovery rules that allow the state Medicaid office to file claims against a deceased Medicaid recipient’s assets. Some states limit Medicaid recovery to assets that are part of the deceased recipient’s probate estate. In those states, TOD deeds can keep the property from going to the government to repay Medicaid benefits. Because the property is transferred without probate, it is outside of the probate estate and not available to satisfy Medicaid recovery claims.

Requirements for Transfer-on-Death Deeds

Transfer-on-death deeds are designed by state law to be user-friendly. While the exact requirement for transfer-on-death deeds can vary by state, a few general principles apply.

  • A TOD deed must include the elements of a regular deed. These elements include a valid legal description , page formatting and font size requirements, and state-specific signature and notary acknowledgment requirements. Depending on state law, these elements may also include a statement of consideration , the warranty of title , and the manner in which multiple owners will hold title to the property .
  • The TOD deed must state that the transfer will occur at the transferor’s death. This language makes it clear that the deed is a TOD deed and not a lifetime transfer.
  • The TOD deed must be recorded before the transferor’s death in the public records in the county where the property is located. This requirement helps ensure that the deed is a valid nonprobate transfer made while the transferor was still alive.

Transfer-on-death deeds may have limitations that do not apply to other deeds. For example, some states—including Texas—provide that a transfer-on-death deed cannot be created by an agent under a power of attorney . This limitation does not apply to other forms of deed, which can usually be signed by an agent under a valid power of attorney.

Particular care should also be taken when the property is owned jointly with right of survivorship. As a general rule, the right of survivorship will trump the transfer-on-death deed. On the death of the first owner, the property will pass to the surviving owner as provided by the right of survivorship. Because the transfer-on-death deed does not become effective until the death of the surviving joint owner, the surviving owner can revoke the deed before his or her death.

How to Create a Transfer-on-Death Deed

Transfer-on-death deeds are created by state laws that describe the requirements. These requirements can be very specific and often involve the use of a particular form. Deviation from the particular form can cause problems with the transfer-on-death deed. These problems could invalidate the deed or create title problems that require litigation to resolve.

Need to create a TOD deed?

Each transfer-on-death deed prepared by our online deed preparation service was designed by attorneys to comply with the required state-specific format. Our deed can be used in all counties in the states where the property is located. We also include step-by-step instructions for completing the transfer with the local authority.

  • Transfer-on-death deed form customized to your situation
  • Attorney-designed to meet state recording requirements
  • Easy step-by-step instructions for signing and filing

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This fact sheet explains what a TODD is, how they can help, and pros and cons. 

Can I transfer my home to my children and avoid probate?

Yes, Minnesota has a law that lets you transfer the title to real estate when you die to avoid probate. It is an estate planning tool called a Transfer on Death Deed (TODD) . It is like the "payable on death" (POD) designation on a bank account. The beneficiary (new owner) takes ownership of the property when the current owner dies. They have no rights or control of the property until the owner dies.

DO NOT use a TODD to give property to someone under 18 years of age.

DO NOT use a TODD to give property to an adult who gets government benefits because of a disability and their low income. Their benefits could stop if the estate is not handled the right way. Talk to an elder law lawyer if you are in this situation. 

How does a TODD work?

A TODD can be used instead of a will to transfer real estate at your death. It can allow you to avoid probate. A TODD can be an easy way to transfer your property to your children at your death. You can also use a TODD to transfer property to your life partner or to anyone else you want to, or a charity.  

There is a form attached to this fact sheet. You can also get a fillable form online from https://mn.gov/commerce/consumers/tips-tools/uniform-conveyancing-forms/ .  

The TODD is signed while you are alive, but the transfer of ownership doesn’t happen until your death.

You can cancel (revoke) the TODD at any time before your death. You don’t need the permission of the future owner to revoke it if you change your mind.

Will a TODD avoid a mortgage, lien or estate claim against my property?

No, the new owner steps into your shoes at the time of your death. They take the property along with all mortgages, liens, judgments or other claims against the property. The TODD does not avoid a claim or lien the state has against your property if you had Medical Assistance (MA) or General Assistance (GA) in your lifetime.

On the other hand, a TODD won’t keep you from getting MA for nursing home care. You are not giving any interest away during your lifetime and the new owner takes the property along with any MA liens.

How do I know my TODD is valid and legally binding?

A TODD has to be signed, notarized and recorded with the County Recorder before the death of the homeowner for it to be valid.

A TODD that was signed before August 1, 2008 is valid as long as it is recorded on or after August 1, 2008.

You don’t have to give the TODD to the beneficiary during your lifetime and you don’t need their permission to cancel it.

How is a TODD different than other property ownership methods?

The TODD doesn’t give anyone ownership in the property while you are living.

A joint tenancy gives part ownership to the joint tenant (joint owner) while you are still alive.

A life estate gives someone a future interest in the property. That person is called the remainderman. They own the property after your death but have rights even when you are alive. 

A quit claim deed gives your property away once it is recorded. Talk to a lawyer before giving your home to your children or someone else in a quit claim deed. You may use a quit claim deed to avoid probate court but you also put yourself at risk for many legal problems.

You can’t cancel (revoke) a joint tenancy, life estate or quit claim deed unless all parties, and their spouses, agree and sign off.

A TODD can be cancelled (revoked) or changed any time before your death. You don’t need permission from anyone to change your mind.

How do I cancel a TODD?

You can cancel (revoke) a TODD in several ways.

  • You can file a revocation in the county where the property is located. There is a fillable form online . Go to the web page mentioned in second section “How does a TODD work?” Look for forms. The form number is 10.8.10.  
  • You can file a new TODD, giving the same or a greater interest in the property to someone else. The filed TODD with the latest date is the one that is valid.
  • You can give all or part of your interest in the property to someone else through a standard deed. If you sell or give your house to someone while you are living, you no longer have an interest to pass to your children through the TODD at your death.

Unless the TODD says something else, a divorce or annulment will automatically revoke a TODD interest given to your former spouse.

It is important to know that the TODD can’t be revoked by your will.

You can’t use a TODD to keep your spouse from getting their interest in real estate at your death . If you are legally married to someone then they have inheritance rights to the house.

What are the benefits to the TODD?

A TODD can be helpful for estates that don’t need estate tax planning and where the only asset that might need probate is the home. 

An estate needs probate if:

  • There is a house in the name of the person who has died and there is no valid TODD on file with the county for that house
  • the total of property (without a valid TODD) and money (without a Payable on Death designation) is worth more than $75,000 

In the past, the only way to avoid probate if you owned real estate was to add someone's name to the title of the property. But, adding someone's name to the title during your lifetime creates several problems. It could:

  • limit your ability to sell or mortgage your home
  • sometimes keep you from getting MA for nursing home care
  • cause tax problems for your children if they want to sell the home after your death
  • make your children's problems your problems if their name is on your title during your lifetime and they go through divorce, file bankruptcy or get sued.
  • Make the other person ineligible for some government benefits if they don’t live in the home.

With a TODD, you are not giving up your home or any part of your home during your lifetime so these problems are avoided.

Is there anything I should worry about with a TODD?

As with any estate planning decision talk to a lawyer about your options. A TODD may not be the best choice for everyone. There may be more problems if you are not the only owner of the property. A TODD can’t stop a surviving spouse or joint tenant from trying to make claims against the property. A TODD can’t avoid MA liens or estate claims.

You also need to plan for what will happen if the beneficiary dies before you. But you can have more than one beneficiary on the TODD and lay out how they will hold title to the property.

You can also name one or more successors. Successors are people who get the property if the beneficiaries die before you.  

TODDs can work best when they name only 1 or 2 people who get along well with each other. For example, if a TODD leaves a house to 4 children and the children are all married, then you need all 8 people (the children and their spouses) to agree. Like to sell the house or do a change of title on the house. This can get complicated. 

Get legal advice before deciding if a TODD is the best option for you.

For information on other estate planning tools see our fact sheets: Questions About Probate and Common Questions About Wills

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Everything You Need to Know About the Transfer on Death Deed in California

In california, certain assets can by-pass probate by using a transfer on death deed, here’s everything you need to know about the todd..

what is a transfer of deed upon death

  • Written by Alex Gauthier
  • Posted on October 1, 2022

Fact Checked

The content on this page has been reviewed by qualified CFP's, TEP's, Tax accountants & Practicing and past lawyers to ensure it is factually accurate, meets current industry standards and helps readers achieve a better understanding of probate, estate planning, and estate taxes for your loved one.

California transfer on death deed

Article Contents

What is California’s Transfer on Death (TODD) Deed?

How do i prepare the transfer on death deed, new changes to the california transfer on death deed as of 2022., can a transfer on death deed be revoked, potential risks and uncertainties of the transfer on death deed.

Since January of 2016, California residents have been able to transfer real property without having it pass through probate .

Officially named the ‘Revocable Transfer on Death Deed’, and quickly nicknamed the ‘TOD Deed’, and ‘TODD’, the deed directs that a specific beneficiary specified by the transferor will become the new owner of the property upon the transferor’s death.

Much like a Will or Trust, a transfer on death deed is revocable, meaning that the grantor (current owner of the property) can change their mind, deciding that a different person will be granted ownership of the property under his or her death.

As we’ve previously stated, filing, and recording a Transfer on Death Deed is far from difficult. The one-page document can be accessed for free on your local county’s website. Here’s the link for Los Angeles County , but bear in mind that your county’s form may be somewhat different.

1) Fill in the required general information about you including your address. The “Assessor’s Parcel Number” and “Property Description” must match your current property’s deed.

2) Using full legal names only, not descriptors such as “my children” or “my sister”, name your beneficiary or beneficiaries.

If there will be more than one beneficiary of your property upon your death, advise how the title to the property will be assigned. Will they be “joint tenants” with equal shares of the property’s value, or is one child getting a 60% share and another 40%?

3) The TOD Deed will be signed and dated in the presence of a Notary Public and 2 witnesses.

It's important to note:

The deed must be recorded within 60 days of notarization with the county clerk's office. You have a choice of doing this in person or by registered mail.

Protect your assets and loved ones.

Our California estate planning experts can help you create a plan that honors your wishes, and secures your families future.

Book a free consultation today.

New TOD form

Firstly, if you are filing a new TOD Deed, be certain that you are using the updated California form, effective from January 1, 2022. While the adjusted regulations tighten up the existing rules, the process remains straightforward and inexpensive. A TOD Deed continues to be a plausible consideration for a property owner who wants to maintain control of their real estate for as long as they can, often until death.

You can find the new revised TOD form from the clerk recorder here.

New sunset date

Signed into law by California’s Governor Gavin Newsom in September of 2021, according to Cal. Prob. Code §5600(c) Transfer on Death Deeds issued before January 1, 2021, now have a sunset date of January 1, 2032. This was designed to allow ample time for any new amendments or rewritten language to be processed by the State Legislature without the pressures of the law expiring.

New witness requirements

As stated by Cal. Prob. Code §5624 the TOD Deed must be witnessed by two people, both of whom must be present when the property owner signs the deed.

While an interested person in the property being transferred may be one of the witnesses, it is preferred that this is not the case. It is best to have witnesses who will not be receiving the home from the grantor to remove any accusations of undue influence on the decision to grant them the property.

Notarizations

Finally, the revised law also has an impact on revoked TOD deeds. In such cases, a new document needs to be signed with a notary observing. The form ‘Revocation of a Revocable Transfer on Death (TOD) Deed’ should be used for revocation without selling the property.

Other notable updates : include new legal language in the California Probate Code that allows a court to adjust an existing TOD Deed that may be debatable, in its opinion. The court is now permitted to modify what it views as an arguable TOD so that it will hold up legally in the future. The court, at the same time, will only make modifications where the property owner’s intentions are clear.

To enhance the security of a TOD Deed, the California law added a requirement that the beneficiary/recipient of the specified property mail notification of the decedent’s passing to the owner’s heirs, along with a copy of the death certificate and the TOD Deed.

This new notification requirement allows traditional heirs an opportunity to contest the TOD Deed, should they so choose. If the property’s recipient does not notify the heirs in this exact way, he or she may have to pay damages to the heirs. An affidavit must be recorded by the property recipient stating that the heirs have been properly notified of the decedent’s death, and about the TOD Deed.

The effect of Prop 19 on the TODD

If you filed a Transfer on Death (TOD) Deed before January 1, 2022, your document remains valid as issued. Proposition 19 changes that were enacted by the California State Legislature in 2022 are for new TOD deeds only.

New parent-child requirements started taking effect on February 16, 2021, including the stipulation that your child/children, to avoid reassessment of a property to be transferred upon the death of the parent who owns the home, must make the property his or her primary place of residence. Additionally, the property must be valued at less than $1 million.

Proposition 19 requirements for rightful transfer:

Principal residents of parents.

The property transferred will be the intended principal residence of your children.

Yes, a Transfer on Death Deed is completely revocable by the property’s owner before death.

There are three ways to accomplish this revocation, all of which are quite simple:

  • Submit a ‘Revocation of Revocable Transfer on Death Deed’ in the property owner’s county of residence;
  • File and record a new TOD Deed with a newly named beneficiary. By filing this new TOD, any previous TOD Deed will automatically be revoked;
  • Selling or transferring the property to someone else before the owner’s death also revokes an existing Transfer on Death Deed.

As with many laws, there are often concerns about its possible misuse. Opponents of TOD Deeds have expressed concerns about the risk of scammers or senior predators attempting to persuade an elderly or incompetent person to file a deed on their behalf. California legislators built in a safeguard that prohibits a beneficiary from selling a TOD property within 120 days of the transferor’s death.

Should the suspicion of a situation such as the above have occurred, family members or close friends may, unfortunately, choose to litigate the TOD Deed in court.

Beneficiary debt liability

A mortgage or other debt, including a line of credit that was left unpaid by the deceased, will transfer to the TOD beneficiary. This could potentially create financial difficulties for the person receiving the property after the death of the owner.

After the property owner passes away, any liens on the home from possible creditors will also be transferred to the beneficiary.

Also, to be considered by the homeowner is the age of the beneficiary; He/she must be an adult (18), or the court will need to appoint a legal representative for the transfer to take place.

There may be better alternatives for your loved ones...

Additionally, though it would be a rare occurrence, if the property owner becomes incapacitated for a period prior to death, a TOD Deed does not assist with managing the real estate in question. However, a Revocable Living Trust would allow a homeowner to be represented by a designated trustee.

Because transferring a house via a TOD Deed is such a simple process, title insurers are cautious with them. Refinancing the transferred property has sometimes been a challenge for beneficiaries during the first three years of ownership.

To wrap things up

With so much information to digest in this article, we wouldn’t be surprised if you are somewhat overwhelmed or confused about California’s Transfer on Death Deed. Let’s try to make this as plain and simple as possible, as that is truly what the Transfer on Death Deed is all about.

Estate planning , depending on your personal financial situation, can be easy, complex, or somewhere in-between. But it is something that should be tackled by everyone, at least to some degree. And the earlier, the better.

The Transfer on Death Deed was written and passed into law by proponents and legislators whose clear intention was to help as many people as possible bypass probate after the death of a loved one. By singling out real estate valued at less than $1 million, thousands of Californians have been able to settle an estate without the lengthy time, and probable cost, that comes with the probate process.

While no legislation is perfect, there are clearly plusses and minuses with the TOD Deed for all to consider. Still, this valuable option has been embraced and utilized by many satisfied California residents. If you need help planning your estate, we’re a team of estate professionals that specialise in estate planning in California - we can guide you through the entire process of creating a will, a trust, or TODD. Contact us today .

Alex started off studying electrical engineering, but soon found that running businesses and launching new and exciting products is where his expertise truly lay. He ended up getting a degree in entrepreneurship and started working as a product manager at various startups, including taking on the role of lead Product Manager at the VC-backed digital marketing platform Acquisio. After the passing of his parents, Alex took over the responsibility of settling their estate, thereby becoming intimately acquainted with the challenges and needs facing an estate executor.

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what is a transfer of deed upon death

Understanding the Virginia Transfer on Death Deed and Its Advantages

Understanding the Virginia Transfer on Death Deed and Its Advantages

Virginia law allows a person to transfer their ownership rights to real property located in Virginia to a named beneficiary or beneficiaries without it having to be probated. This is done by using a document called a Virginia transfer on death deed (TODD).

A TODD can only be used for real property and not personal property, such as cars or jewelry. That said, a TODD can be a simple and very cost-effective way to give real property, such as your house or land, to someone when you die.

What Is A Transfer On Death Deed in Virginia?

A transfer on death deed is a type of deed that identifies one or more beneficiaries who should inherit real estate at the owner’s death. For many homeowners, this can be an inexpensive estate planning tool.

A TODD functions like a beneficiary designation for real estate. And like beneficiary designations for other types of assets, a TODD avoids probate by automatically establishing who should inherit the property when the current owner dies.

There are other ways real estate in Virginia can avoid probate proceedings, including joint tenancy, tenancy by the entirety, or having the property owned by a living trust, or in the right circumstances, simply having a Last Will and Testament suffices in Virginia. But a TODD can be a great option for both individuals and joint property owners for whom a trust or other means of probate avoidance may not make sense.

Advantages of a Transfer on Death Deed in Virginia

Probate avoidance.

In Virginia, a TODD allows ownership of your real estate to be transferred to a named beneficiary upon your death, while avoiding probate . Probate can significantly delay the transfer of your property to your loved ones after your death, and can be very expensive for your estate.

Revocability

Like other types of beneficiary designations, a TODD is also revocable. So, if you create a TODD, then change your mind about it, you can easily make a change by filing a new TODD, or by revoking the TODD you filed and recording a subsequent deed to take effect.

A TODD does not take effect until you die. So, if you create a TODD today, you retain total control over your property while you are alive. For example, you can still sell your house or get a loan with your house as collateral. Furthermore, you can still use a TODD if you have a mortgage or lien on the property, but your beneficiary will be given the property along with those debts when you die.

Multiple Beneficiaries

Passing ownership of your real estate to multiple beneficiaries after you die may be better served by using a trust to convey your property. But, a transfer on death deed can name multiple beneficiaries as well, and is a lot less complicated and expensive to set up than a trust.

Creating a Transfer on Death Deed

To be valid, a transfer on death deed must follow the form prescribed by Virginia law. This means, among other things, that it must be dated, signed by the property owner, and notarized.

In addition, a TODD must be recorded in the land records of the clerk’s office of the circuit court where the real estate is located. A transfer on death deed can only be filed before your death, and it only becomes effective after it is recorded with the county clerk’s office where the property is located.

Transfer on Death Deed FAQs

Can i still use a todd if i have a will.

Yes. But, if you also have a Will, a TODD will supersede the provision of your will related to the specific real property. This means whoever you name in the TODD will receive your property after you die, not the person named in your Will.

Who can I name as a beneficiary on my Virginia transfer on death deed?

A person filing a TODD in Virginia can name whomever they want as a beneficiary. They can also name multiple beneficiaries and alternates. The beneficiary does not have to sign the deed, nor does he or she even have to be notified.

Can I revoke or cancel my Virginia transfer on death deed?

Yes. To cancel a Virginia transfer on death deed, a revocation of transfer on death deed needs to be filed prior to your death. Cancellation will only affect your share of the property if there are other owners.

How does my TODD beneficiary get ownership of my property after my death?

After you die, the beneficiary named on your TODD should file an affidavit with the county clerk’s office where the deed is filed. Later, if the beneficiary would like to sell the property or take out a loan, he or she may need to provide proof of your death, such as a death certificate, to the title company.

Consult with an Experienced Virginia Estate Planning and Probate Attorney

Keep in mind that everyone’s estate is different. So, an estate planning strategy or tool that works well for one person’s estate may not be the best option for another.

For more information, or to find out if a Virginia transfer on death deed might be a good fit for your estate plan, call our law firm at (703) 553-2577 or use the contact form to arrange a consultation with a knowledgeable and experienced Virginia probate and estate planning attorney .

The information on this site is for general informational purposes only. The information presented in this site is not legal advice or a legal opinion. You should seek the advice of legal counsel of your choice before acting upon any of the information in this site.

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Transfer on Death Deeds (TODDs)

  • Transfer on Death Deeds

Here, learn about Transfer on Death Deed (TODDs). A TODD is a way Texans can pass on land or a house without a will. TODDs are a simple way to transfer real estate to someone else after death without probate court. The article explains how TODDs work, including requirements and limitations.

What is a Transfer on Death Deed?

A Transfer on Death  Deed, or TODD,  is a simple way to transfer real  estate  to someone else after you die. With a properly recorded Transfer on Death Deed, no probate is needed to transfer the real property. 

If you don’t have a will or a Transfer on Death  Deed , your real estate must go through the probate  court  and your property will pass to your heirs according to Texas law. Probate can be lengthy and expensive, with attorney fees and  court costs  paid from your estate. With a Transfer on Death  Deed , you can avoid probate and decide in advance who should inherit your real property interest. 

How does a Transfer on Death Deed work?

A Transfer on Death Deed lets you keep all ownership rights to the property during your lifetime, so you can sell it or use is as  collateral  on a loan. The Transfer on Death Deed takes effect upon your death, so the property never becomes part of your estate. When you die, your property interest passes to the person you named in the Transfer on Death Deed (the “ beneficiary ”) without any  probate  action.

You can name more than one beneficiary, and you can change the beneficiary at any time by cancelling the Transfer on Death Deed or making a new one. You do not need to tell the beneficiary of the Transfer on Death Deed about any changes that you make to it.

If you are a joint owner, you can transfer your interest to another joint owner (your  spouse , for example), or to non-owners (for example, your grandchildren) by naming them as Transfer on Death Deed beneficiaries. After you die, the beneficiary should file an  Affidavit  of Death in the  deed  records to ensure  clear title .

What is considered real property?

Real property that can be transferred with a Transfer on Death Deed includes land, homes, buildings, uncut timber, and mineral rights. A TODD cannot transfer personal property such as furniture, jewelry, china, clothing, etc.

Can I use a Transfer on Death Deed for real property in other states?

No, you cannot use it to transfer real property in other states. While currently about 1/2 of the states in the U.S. have some form of Transfer on Death Deed, the Texas Transfer on Death Deed law and its related forms can only be used for real property located in Texas. You will have to check the laws in the other states to determine if they have a similar deed.

I already have a will. Why would I want a Transfer On Death Deed?

Whether you have a will or not, your property will still have to go through the probate court system. A Transfer on Death Deed conveys property outside of probate. Not having to go through probate allows you to avoid incurring court costs and administrative costs to deed the property to your beneficiary. Under current law, it also excludes the real property from Medicaid estate recovery.

Does a Transfer on Death Deed replace a will?

The Transfer on Death Deed does not completely replace a will. A will can still be an important part of your estate plan. Your will may provide how real or personal property without beneficiary designations passes, and may provide what happens if all beneficiaries predecease you. Your will may allow you to provide in detail who gets items of personal property, including your motor vehicles, heirlooms, and furniture. You should consult your attorney about how a Transfer on Death Deed fits into your estate plan.

What are the requirements of a Transfer on Death Deed?

The Transfer on Death Deed must:

  • Be in writing, signed by the owner, and notarized,
  • Have a legal description of the property (The description is found on the  deed  to the property or in the  deed  records. Do not use tax roll information, which is often incorrect.),
  • Have the name and address of one or more  beneficiaries,
  • State that the transfer will happen at the owner’s death,
  • Be properly recorded during the owner’s lifetime   in the  deed  records in the county where the property is located.

Where is a Transfer on Death Deed filed (recorded)?

It must be signed, notarized, and recorded in the county where the property is located before the property owner dies. There is usually a per page fee for filing the deed.

I don't have my deed, but I have a copy of the tax record. Is this ok?

No. It is highly recommended that a copy of the actual deed is obtained from the county where the property is located. The legal description of the property in tax records might be incomplete or inaccurate.

When is a Transfer on Death Deed effective?

A properly executed Transfer on Death Deed is effective if it is recorded with the county clerk in the county in which the real property is located before the death of the grantor. If the deed is not recorded before the death of the grantor, it is ineffective. 

Can I name more than one beneficiary?

Yes, the Transfer on Death Deed law lets you name more than one beneficiary. Also, the law allows you to name an alternate beneficiary. This is recommended in case the first beneficiary dies before you do.

What if the beneficiary I choose dies?

A beneficiary must survive the grantor by 120 hours (five days) for the transfer to be effective. A person executing a Transfer on Death Deed should always identify an alternate beneficiary. If there is no beneficiary upon death, the Transfer on Death Deed is not valid and the property must be placed into probate. 

Must the beneficiary be a person?

No, a beneficiary may be a person, organization, institution, charity, trust, etc.

Can the beneficiary be a general group of people?

No, be specific. The Transfer on Death Deed does not let you name classes of relatives, such as "all of my children." The beneficiaries' individual names and addresses must appear on the face of the deed.

Does a beneficiary need to sign a Transfer on Death Deed?

No, the beneficiary does not have to sign or agree to a Transfer on Death Deed. Further, the Transfer on Death Deed does not need to be delivered to the beneficiary to be effective.  While it is up to you whether you tell the beneficiary that you have named them in a Transfer on Death Deed, it is recommended that you inform affected persons of your plans.

Does a Transfer on Death Deed affect my rights while I'm alive?

No, the Transfer on Death Deed is not effective until you die. That means the beneficiary you name in the Transfer on Death Deed cannot control your property. You do not need the beneficiary’s permission to sell or mortgage the land. Your property is not subject to the beneficiary’s debts. Your interest in the real property goes to the beneficiary only after you die.

I named my son as beneficiary in my will. What if I name someone else in the Transfer on Death Deed?

If your will and Transfer on Death Deed are inconsistent, the Transfer on Death Deed controls who owns your real property after your death. This applies to wills executed before or after the Transfer on Death Deed.

What if I own the property with someone else?

You can only give someone the portion of the property that you own. For example, if you and your  spouse  own the property in equal shares and you file a transfer on death  deed  giving the property to someone, like a child or a friend, that person only gets your share of the property. Your spouse still has their share.

I own the property with my wife. As Texas is a community property state, I do not need a Transfer on Death Deed, correct?

If a spouses own community property in Texas, it is true that the surviving spouse can claim the deceased's share of the property in certain circumstances. If a spouse dies without a will, though, the surviving spouse will have to file an "affidavit of heirship." Challenges to this can be made and the affidavit alone does not confer title. Further evidence of family members may be needed. A Transfer on Death Deed transfers title and eliminates the need for additional affidavit proof.

I own the property with my spouse and hold power of attorney for their financial affairs. Can I execute a Transfer on Death Deed for both of us?

No, a power of attorney can NOT be used to execute a Transfer on Death Deed. The person executing the deed must be competent and sign it.

Can I file a Transfer on Death Deed even if I have not paid off the mortgage?

Yes, you may file a Transfer on Death Deed even though you have not finished paying off a mortgage. You still must make payments while you are alive. If you have not finished paying the loan by the time you have passed away, the beneficiary will still have to pay the mortgage.

Does a Transfer on Death Deed shield the property from creditors?

No, property owners cannot escape the claims of creditors with a Transfer on Death Deed. All valid liens, mortgages, and judgments, as well as claims of other creditors, may be applied against the real property. Mortgages, liens, and notes follow the property and will now be the responsibility of the new owner.

Note: Creditors are not notified of a change in ownership when a transferor dies. The beneficiary can do so.

Will the property be subject to Medicaid Estate Recovery if I receive or plan to apply for long-term care?

No, under current law it is not subject to Medicaid Estate Recovery as long as the property does not go through the probate system. 

What are the tax consequences of a Transfer on Death Deed?

For tax purposes, property transferred with the new deed should be treated in the same way as real property passing through probate. For most estates, there should be no federal or state estate tax (check with your accountant about current estate taxes). Additionally, the heirs should get the "stepped up basis" (value on the date of death) in the real property and may owe no tax on their inheritance. 

Doesn’t a Joint Tenancy with Right of Survivorship do the same thing?

No. Your interest in property owned under a Joint Tenancy with Right of Survivorship passes to the surviving joint owner(s). Under a Transfer on Death Deed, your interest passes to the beneficiary of your choosing. 

Can I cancel or change a Transfer on Death Deed?

Yes, you can cancel or change the beneficiary for a Transfer on Death Deed several ways:

  • Record a new Transfer on Death Deed with a different beneficiary
  • Record a Cancellation of Transfer on Death Deed (The Cancellation must be filed before the death of the grantor in the county where the property is located.) 
  • Divorce -- If the Transfer on Death Deed says that the property will go to your spouse, a divorce decree will invalidate your spouse as a beneficiary. 

These instruments must be filed before the death of the grantor in the county where the property is located. 

Cancellation Form:  You can use this PDF form to cancel a Transfer on Death Deed. Or use the guided  online form

Can I sell my propety even though I have filed a Transfer on Death Deed?

Yes, the filing of a Transfer on Death Deed does not change your ownership rights. It does not take effect until you die so you can sell the property, get loans on it, and maintain your tax exemptions.

Do I need a Transfer on Death Deed if I have a will?

A TODD is a completely different legal document than a will. 

Even if you have a will, you can still use a Transfer on Death Deed to transfer real property outside of  probate . If you don’t have a will and don’t own much aside from real property, a Transfer on Death Deed might be all that you need to make sure that your property interest passes to the person you want to inherit it after you die. 

What happens when the property owner dies?

The person who is named as a beneficiary should file an "Affidavit of Death" in the county records. The person named will then own the property without having to go to probate court.

Do I need proof of death to finalize the transfer?

The County Clerk only requires an Affidavit of Death to make the transfer effective. You do not need additional proof of death to take ownership. However, you must give the title company a death certificate, obituary, or other acceptable document if you want to sell the property or use it as collateral.

What recent changes have been made to the Transfer on Death Deed?

In September 2017, the Texas legislature added more boxes to more specifically designate beneficiaries. For instance, if you have named two or more primary beneficiaries, the Transfer on Death Deed form now allows you to choose whether the share of a beneficiary who dies before the property owner goes to the beneficiary's children or to the other named beneficiaries. 

Are there any pitfalls to a Transfer on Death Deed?

 Things you should know:

  • A Transfer on Death Deed must be filed/recorded in the county where the property is located during the owner's lifetime. Drafting and signing the Transfer on Death Deed is not enough.
  • You can’t transfer more than you own. If you own property jointly with anyone (your  spouse , for example) get legal advice.
  • A Transfer on Death Deed will not protect the property from  creditor  claims. The Transfer on Death Deed  beneficiary  takes subject to all mortgages, liens, and claims. If you die with outstanding debts, the property could be tied up in  probate  for up to two years, until the period for creditors to make claims against the  estate  expires.
  • A Transfer on Death Deed trumps a will. A will has no effect on a Transfer on Death Deed. For example, suppose that you make a Transfer on Death Deed naming your child as  beneficiary  and file it in the  deed  records. Later, you make a will leaving the same property to your  spouse . When you die the property will pass to your child under the Transfer on Death Deed. If you want your  spouse  to inherit the property instead, you must change or cancel the Transfer on Death Deed.
  • If the Transfer on Death Deed  beneficiary  doesn’t survive you by at least 120 hours, the property is treated as if there were no Transfer on Dead Deed. 

What other forms do I need?

Affidavit of Death: When the property owner who created a Transfer on Death Deed dies, this form is used by a named beneficiary to get legal ownership of the property. Title to the property does not pass to the beneficiary(ies) until the Affidavit of Death is filed. Without legal title, you cannot sell the property, get property tax exemptions, or use the property as collateral on a loan.

You can use the PDF form or the online  guided form .

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HA-TODD-KIT

Transfer on Death Deed - Guided Form

HA-TODD-101-GUIDED

Affidavit of Death- Guided Form

HA-TODD-201-Guided

Affidavit of Death

HA-TODD-201

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Transfer on Death Deed (or Beneficiary Deed)

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Information

What is a Transfer-On-Death Deed?

On November 1, 2008, Oklahoma's "Nontestamentary Transfer of Property Act" (Title 58 O.S. §§ 1251-1258) went into effect. This law allows a " record owner " to use a " Transfer-On-Death Deed " to name another person to receive his real estate without going through probate. This transfer does not take effect until the landowner's death. The person receiving the property (called the beneficiary) must take certain steps to make the transfer legal.

Who can use a Transfer on Death (or Beneficiary) Deed?

Any one who owns a home, land or oil, gas or mineral interests can use a Transfer-On-Death Deed.  This type of deed is used to transfer property to another person after someone dies, but without having to file an expensive or time-consuming probate case in the court.

Terms to know

“ Record owner ” is the person whose interest in real estate is recorded in County Clerk’s office where the real estate is located. “ Grantor ” is the person who owns the land or home and who has a properly recorded deed or title to the land or home.  A grantor is sometimes also called homeowner, landowner or oil, gas and mineral interest owner. “ Beneficiary ” is the person to get the land, home or mineral interest when the record owner dies.  This person is named on the new deed the record owner must file.  This person is sometimes called a “grantee.” “ Alternative beneficiary ” is a second person named by the record owner to receive the property, only if the first person cannot.  For example, if the beneficiary named to receive the property dies before the landowner dies, the property cannot be transferred as the owner wanted it to because of probate and real estate laws.  There would have to be a probate to transfer the property to someone else.  “ Real Estate ” that can be transferred using the Transfer-On-Death Deed under this law is a home, land or an oil, gas or mineral interest. “ Revoke ” means to change your mind.  If you sign a Transfer-On-Death Deed and then later decide to leave the property to someone else, you have to sign and file a certain kind of form and then make a new Transfer-On-Death Deed. “ Joint Tenancy With Right Of Survivorship ” is co-ownership of property.  Two or more people own the property together with exactly the same rights.  This is usually how married people own property.  You still have to change the deed when one person dies, but usually do not have to go through probate to do this. TODD must state if the joint owners are married and that they own the property in joint tenancy.

What Types of Property (Real Estate) Can the Owner Transfer Using A Transfer-On-Death Deed?

Certain types of oil, gas and mineral rights. (Please consult an oil and gas attorney for further advice regarding oil, gas and mineral interests.)

The exclusive rights to drill for, produce, or otherwise gain possession of such substances.

The owner's right to a royalty, which is a percentage of profit from what is drilled or taken out of the land.

How Does An Owner Use a Transfer-On-Death Deed To Avoid Probate?

A record owner may use this type of deed to transfer property to a beneficiary to be effective after the record owner dies. Specific forms are required. You must follow the law for the transfer to be done correctly. Please ask a lawyer for advice! The record owner must:

TITLE: Title the property "Transfer-on-death" by making a new deed.

NAME: Name the person to get the land, home or mineral interest when the record owner dies on the new deed. This person is called the "beneficiary."

SIGN: Sign the deed before two witnesses and a notary.

RECORD: Record the deed in the office of the County Clerk in the county where the real estate is located, before his or her death.

You need to know:

The beneficiary does not have to pay the owner any money for the transfer-on-death deed to be legal.

The owner is not required to tell or get approval from the person named to receive the property.

The owner may change his mind and " revoke " the deed any time before he dies.

The owner has to file a form to "revoke" and then file a new transfer-on-death deed.

Writing something in a will does NOT revoke the transfer-on-death deed .

The record owner should name a second person on the deed as an "alternative beneficiary," in case the person named dies before the record owner .

If no alternative is named and the first beneficiary dies before the owner, the transfer will not be effective under law. A probate will have to be filed to transfer title.

If you file a second transfer-on-death deed, that second deed makes any deed you filed before that invalid. You should file a form to "revoke" first and then sign a new deed.

Property owned by more than one person by "Joint Tenancy With Right Of Survivorship" can be transferred by this kind of deed but will only be effective if the person who signed the transfer-on-death deed is the last of the joint owners to die.

The beneficiary will obtain the real estate subject to all conveyances, assignments, contracts, mortgages, liens and security pledges the record owner made during his lifetime. This may also include any conveyances of interest that are less than all of the record owner's interest in the property. To be sure what other interests the record owner had recorded on the property, you should search the title records on the property at the County Clerk's office.

How Does A Beneficiary Claim The Transfer-On-Death Property?

The Beneficiary must sign a form. The form must be filed with the County Clerk in the county where the real estate is located and the deed is recorded. The form is called an Affidavit. An Affidavit is a form that has certain information and a sworn statement by you that are the beneficiary . It must be signed in front of a notary.

The Affidavit must contain:

1. The fact of the death of the record owner.

2. Whether or not the record owner and the beneficiary were husband and wife, even if they were parent in child.

3. The legal description of the real estate.

4. If the beneficiary was not the record owner's spouse, the beneficiary , must attach a copy of the death certificate of the record owner with the Affidavit .

      If you do not have one, learn more here http://oklaw.org/resource/getting-a-death-certificate?ref=9znJi       You can apply for a death certificate with this form at the OK Department of Vital Statistics (OKC)

https://www.ok.gov/health2/documents/VR_DRRequest_interactive.pdf

5. A beneficiary must file a written Beneficiary’s Affidavit to accept a Transfer-on-Death Deed within 9 months of the landowner’s death or the property will revert to the deceased owner’s estate.

REMEMBER: A beneficiary will get title to the real estate subject to all conveyances, assignments, contracts, mortgages, liens and security pledges the record owner made during his lifetime. This may also include any conveyances of interest that are less than all of the record owner's interest in the property. You should search the title records on the property at the County Clerk's office so you know what other interests the owner recorded on the property.

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Bankrate

What is transfer on death (TOD) for estate planning?

P lanning for the inevitable is never easy, but a smooth transition of your belongings can ease the burden on your loved ones after you pass away. One of the strategies that can help you achieve this is setting up a transfer on death (TOD) order for your financial accounts. 

The transfer-on-death designation allows your assets to bypass the probate process and pass directly to your named beneficiaries upon your death. A TOD account can allow beneficiaries to focus on healing rather than on the complex task of managing your estate. 

Here’s what you need to know about transfer-on-death accounts and how they work. 

What is a transfer-on-death account?

A transfer-on-death account is an arrangement that allows the assets held within a brokerage account or bank account to pass directly to a named beneficiary upon the account holder’s death, thus bypassing probate. Probate is a legal process that can be time-consuming and costly, involving the settlement of your estate and distribution of your assets under court supervision. 

By avoiding probate, a TOD account ensures a quicker and more efficient transfer of assets to your loved ones, meaning your money can go to those heirs you want to have it.

How does a TOD account work?

A TOD account works allows the account owner to designate one or more beneficiaries who will receive cash or investments upon the owner’s death. During the owner’s lifetime, the beneficiaries have no access to or control over the account. 

Once the owner dies, the assets in the account are transferred to the beneficiaries, when they provide proof of death, such as a death certificate, to the financial institution where the account is held. The institution then typically opens a new account in the beneficiary’s name and transfers the assets into it. 

It’s important to note that the rules and regulations for TOD accounts may vary by state, so check with the financial institution to see how the process is handled in your area. 

What types of assets can have a TOD designation?

TOD designations are found primarily on investment accounts, but other assets can also have a TOD designation. For example, real estate can have the designation via a transfer-on-death deed, and vehicles can have a TOD designation through a transfer-on-death title. 

In contrast, banks usually offer a payable on death (POD) form to transfer money from a bank account, but the process is similar to a TOD designation. 

How does a TOD account benefit estate planning?

TOD accounts offer several benefits for estate planning , particularly in their flexibility. 

  • Simplicity: TOD accounts provide simplicity by enabling the automatic transfer of assets to beneficiaries upon the account holder’s death, bypassing the potentially long and costly probate process. 
  • Full control of assets: TOD accounts give you full control over your assets while you’re alive, with the flexibility to change beneficiaries at any time. You can also name multiple beneficiaries and specify the division of assets according to your wishes. 
  • Avoidance of probate costs: A TOD account can help heirs avoid some probate-related expenses. However, it’s important to note that it doesn’t protect against an estate’s debts. Beneficiaries may still be subject to inheritance taxes and capital gains taxes .

What is the difference between a TOD account and a will?

A TOD account and a will serve different purposes in estate planning. A TOD account allows for the direct transfer of assets to beneficiaries upon the account holder’s death. On the other hand, a will is a legal document that outlines your wishes regarding the distribution of assets and the care of any minor children after your death. 

Unlike a TOD account, a will goes through probate and its instructions are carried out by an executor. It’s important to note that if there’s a discrepancy between your will and your TOD account, the TOD account typically takes precedence. 

So, if you name your brother as the beneficiary of your brokerage account in your will but your sister is listed as the beneficiary on the account’s TOD form with the brokerage company, your sister will inherit the account, not your brother. Experts recommend that TOD accounts should not conflict with your will, so that your assets go to the person you really want to have them. 

How to set up a TOD account for estate planning

Setting up a TOD account is relatively easy, and it’s usually as simple as filling out a TOD designation form provided by your broker or financial institution. This form will ask you to name the beneficiaries and specify the proportions of assets each will receive upon your death. 

If you’re naming a minor as a beneficiary, be aware that a court-appointed custodian may be needed to manage the assets until the child reaches adulthood. It’s essential to periodically review and update your beneficiaries as necessary, and to make sure your TOD account is part of your comprehensive estate plan. If you don’t verify your beneficiaries periodically, your assets may not go to whom you now intend, and heirs may have little recourse.

After you’ve passed away, your beneficiary should contact the firm and inform them of your death. The brokerage firm will then request documents to verify your death, such as a death certificate or a current court letter of appointment. Once the necessary paperwork is submitted and verified, the firm usually establishes a new account for the beneficiary, transferring your securities and funds into it.

What are the tax implications of a TOD account?

Despite the convenience of avoiding probate, a TOD account does not inherently provide tax benefits or protections against estate or inheritance taxes.

Upon your death, estate taxes may apply if the total value of your estate exceeds the federal exemption threshold, which is $13.61 million in 2024. Most people won’t come anywhere close to this level. However, a handful of states do impose inheritance taxes , which are paid by beneficiaries, though these exemption amounts are also generously high. 

For capital gains, beneficiaries get a step-up in basis to the fair market value of the assets at the date of your death, which can provide significant tax benefits if the assets have appreciated in value. 

What are the potential downsides of a TOD account?

A TOD account can help avoid the costs of probate but it doesn’t eliminate all potential issues. Some of the key downsides of a TOD account include:

  • Does not eliminate the need to pay off debts: While TOD accounts offer convenience and simplicity, one risk is that your estate might not have sufficient funds to pay off debts, potentially requiring your estate’s executor to liquidate property to satisfy the debt. 
  • May interfere with an inheritor’s government benefits: If a beneficiary receives government benefits, a sudden and hefty inheritance could jeopardize those benefits.
  • May conflict with a will: TOD accounts can conflict with your will, but TOD designation supersedes a will. Confusion over your wishes may create strife among your heirs.
  • Does not offer help if incapacitated: A TOD provision offers no assistance in the event of your incapacity to act, unlike a power of attorney or trust, as beneficiaries can only access the funds after your death. This setup can prove problematic if you have expenses but loved ones cannot access your assets to pay for those expenses.  

Bottom line

A TOD account can be a useful tool in estate planning, offering a straightforward way to pass assets directly to beneficiaries upon your death. However, it’s important to consult with an estate planning attorney or financial advisor to ensure that a TOD account aligns with your overall strategy and goals. Remember, while TOD accounts can help avoid probate, they aren’t a substitute for a comprehensive estate plan.

What is transfer on death (TOD) for estate planning?

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VIDEO

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COMMENTS

  1. How a Transfer on Death Deed Works

    A transfer on death deed is quite simple: you just name the person (or persons) who you want to inherit your property after you pass away. Once this document is signed and filed with your local land records office, it is considered valid until replaced or revoked.

  2. Transfer on death deed: What is it & when can you use it?

    A transfer on death deed (TOD) lets a property owner pass land or real estate to a designated beneficiary outside of the probate process. A transfer on death deed can be a helpful estate planning tool but it is not permitted in every state. A TOD deed is also known as a beneficiary deed or revocable transfer on death deed.

  3. Transfer on Death (TOD) Deed: What It Is, Uses

    A transfer on death deed is a property deed that automatically transfers ownership of an asset to a specified beneficiary when the owner dies. It can simplify estate planning and avoid probate, but it has some drawbacks and limitations. Learn how to set up a TOD deed, which states recognize it, and the advantages and disadvantages of this type of deed.

  4. Understanding the transfer on death deed

    A transfer on death deed (TOD deed) is a document that lets you designate a beneficiary who will automatically own your real property when you die. Learn about the advantages of a TOD deed, the states that allow it, and the steps to create one.

  5. Transfer on Death Deed

    A Transfer on Death Deed is a way to title real estate so it transfers, as the name would imply, upon your passing. Transfer on Death Deeds are used in Estate Planning to avoid probate and simplify the passing of real estate to your loved ones or Beneficiaries.

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  7. Transfer-On-Death Deeds: What Are They & How Do They Work?

    A TOD deed (also known as a beneficiary deed) does what it sounds like it does—it transfers your real property to your selected beneficiaries upon your death, similar to a payable-on-death designation for a bank account or a transfer-on-death registration for an investment account.

  8. Transfer on Death (TOD) Deed: Naming Beneficiaries and Revoking TOD

    The "Revocable Transfer on Death Deed," also called "TOD Deed" or "beneficiary deed," is a simple way to leave a residence to your beneficiaries without the need for probate. ... the other owner receives your share of the property upon your death. The TOD deed has no effect unless you outlive your co-owner. If co-owners want to use ...

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  12. How to Make a Transfer-on-Death Deed (TOD Deed)

    1. Name the Beneficiary of Your Real Estate You can name anyone you please to inherit your property—one person, more than one person, or an organization such as a favorite charity. Your choice is called the "beneficiary" or "grantee" in most states.

  13. Transfer of Real Estate After Death

    the deceased person completed and filed a transfer-on-death deed that designates someone to receive the property after death, or the deceased person co-owned the real estate in one of a few ways. To find out if the deceased person co-owned the real estate, first find the deed that shows the deceased person owned the property.

  14. Transfer-on-Death Deed Form

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  17. Free Transfer on Death Deed Form

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  18. Transfer on Death Deeds

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    A Transfer on Death Deed, or TODD, is a simple way to transfer real estate to someone else after you die. With a properly recorded Transfer on Death Deed, no probate is needed to transfer the real property.

  23. Transfer on Death Deed (or Beneficiary Deed)

    What is a Transfer-On-Death Deed? On November 1, 2008, Oklahoma's "Nontestamentary Transfer of Property Act" (Title 58 O.S. §§ 1251-1258) went into effect. This law allows a "record owner" to use a "Transfer-On-Death Deed" to name another person to receive his real estate without going through probate.

  24. What is transfer on death (TOD) for estate planning?

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  25. Tax Implications of Transfers on Death

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