Transfer-on-Death Deeds

A lot of states now offer an easier way to leave behind real estate while avoiding probate – transfer-on-death deeds.

When you are owner of your home, you are going to probably want to take the necessary steps to keep it—possibly one of your more valuable assets— by avoiding probate following your passing. A living trust works okay, but you may not want to go through the hassle and cost of devising one. There is good news: A lot of states now provide transfer-on-death deeds (TOD deeds), an easier and practical option for transferring real estate following your passing.

What Is a Transfer-on-Death Deed or Beneficiary Deed?

A TOD deed is like a typical deed used for transferring real estate, with one crucial difference: Rather than coming into effect straightaway, a TOD deed is not going to come into effect until you pass away. In many states, these deeds are referred to as a “beneficiary deed” since it’s a deed that designates the beneficiary of the property after you pass away. A couple of states use language distinct to that state, like “deed upon death” in Nevada or “transfer on death designation affidavit” in the state of Ohio, but regardless of the language, the document has basically the same purpose.

Verify if your state is one that allows transfer-on-death deeds. If your state doesn’t presently allow TOD deeds, it might soon. Several more states are enthusiastically considering using them.

The Benefits of TOD Deeds

Below are some of the benefits of TOD deeds:

• Transfer-on-Death deeds safeguard your property from going to probate.
• Transfer-on-Death deeds are somewhat easy to devise.
• You can have second thoughts at any time and rescind your Transfer-on-Death deed.
• Following your passing, it’s typically a straightforward procedure for beneficiaries to transference the property title to themselves—there’s no requirement of going through probate, saving your beneficiaries time and money.

If you’re considering ways to avoid probate of your home, and TOD deeds are an available choice in your state, they are well worth thinking about. Unless you have a convoluted situation or have specific issues, you probably are not going to need a lawyer to create your TOD deed. But you will need to make sure that the TOD deed you create is valid in your state, because each rules vary by state.

The Way TOD Deeds Work

Utilizing a transfer-on-death deed is likewise to using a payable-on-death (POD) designation for a financial institution account. You appoint one or more beneficiaries and they inherit the property after your passing without the requirement for probate court proceedings. You retain total ownership of, and management over, the property while you are still living. Meaning you pay the taxes on it, and it’s not safeguarded from creditors. You can also choose to sell it, gift it to someone, or mortgage it throughout your lifetime.

What is Contained in a TOD Deed?

A TOD deed looks like other real estate deeds; it designates the present owner, provides the exact legal details of the property, and names an individual to receive the property (referred to as the “grantee” or “beneficiary”). But this type of deed also includes an additional declaration, making it clear that the deed will not take effect until the present owner’s passing.

The beneficiary you designate to inherit the property does not have any legal rights to it until your passing—or, when you are owner of the property with your spouse or another person, until the last surviving owner passes away. The beneficiary does not have to sign, acknowledge, or even be told about the deed, though it’s usually wise to give the beneficiary notice.

In the deed, you can usually also designate a replacement beneficiary that is going to inherit the real estate if your first choice isn’t living at your passing. If you don’t designate a replacement, and your first choice doesn’t outlive you, the property is going to go through probate.

Finalizing the Deed

A lot of states have a requirement that you sign it, have it notarized, and then file the deed with the land records office in the county in which your property is located. This office goes by various names subject to your county, but it’s usually known as a recorder of deeds or is a division of the county clerk’s office. Don’t put off on filing your TOD deed, as your deed is not going to be legitimate if it is not filed with the county land recorder’s office, even when you have signed it in the presence of a notary public. A couple of states have added rules, like the requirement of having witnesses also sign it, or fulfilling closing dates for filing your deed.

The Transfer of Ownership at Your Passing

Following your passing away, ownership passes instantly—and automatically—to the beneficiary and/or beneficiaries you designated in the deed. When a mortgage or other debts are attached to the property, those debts go along with the property.

How to Rescind a TOD Deed

Afterwards, if you have second thoughts about who you want to inherit your property, you’re not trapped. You can rescind the TOD deed or merely file another TOD deed leaving your property to somebody else.

How the Transfer-on-Death Beneficiary Claims the Property

Even though ownership of the property transfers to the beneficiary when you pass away, there’s still some paperwork to put the property into the name of its new owner. The new owner is going to probably going to need to file an affidavit and a copy of your death certificate in the land recorder’s office.

Source:

1. Jennie Lin, A. (2022, March 7). Transfer-on-death deeds: An overview. www.nolo.com. Retrieved April 6, 2022, from https://www.nolo.com/legal-encyclopedia/free-books/avoid-probate-book/chapter5-3.html

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