Transfer-on-Death Deed for Real Estate

August 21, 2021

You’ve raised a beautiful family in your home. To ensure it continues as a place of love and laughter for your family, you’ll want to efficiently transfer the property to a beneficiary. To do so, you need an estate plan. During the estate planning process, an attorney will explore ways a beneficiary can inherit the property and avoid probate court. If you own real property jointly with a spouse or partner, it’s a straightforward matter of holding the title in a manner that ensures the survivor inherits without probate. However, if you’re the sole owner of a property, you have a couple of options to consider: a living trust, or a transfer-on-death (TOD) deed, an effortless alternative for transferring real estate upon your death. With a TOD deed, you name a beneficiary who will inherit the property at your death; most importantly without the need for probate court proceedings. 

Avoid Probate with a Transfer-on-Death Deed

Probate is expensive and time-consuming, but it may be avoidable. Like you, most homeowners want to keep the transfer of their home out of probate. While a living trust works well, not everyone has the resources to create one. Also, a joint tenancy may not be an applicable path for you to pursue; whereas a TOD deed might fit your needs. A TOD deed, or a beneficiary deed, is simple to create and acts similarly to a regular deed used to transfer real property; however, it only takes effect upon your passing. 

Ownership and Control of the Property

The main objective of utilizing a TOD deed is the ability to maintain complete ownership and control of the property while you’re alive. This includes paying taxes on the property; additionally, it’s not protected from any creditors. At any time, you can sell the property or give it away. 

While you’re alive, the beneficiary named in the deed has no legal rights to the property. Additionally, the beneficiary doesn’t have to be aware of the deed, acknowledge its existence, or sign the document.  

State Laws

Like any real estate deed, a TOD deed requires the names of the grantor (current owner), the grantee beneficiary (beneficiary), the legal description of the property, and the signature of the grantor. Additionally, the document must include witness and notary provisions.

Prior to your passing the TOD deed must be signed, notarized, and filed in the county’s land records office. Once the document has been created, take the original TOD deed to your county public records office; whereupon the county records clerk will stamp and date the deed for validation. After officially entering the deed into the country records, the original document will be returned to you. We suggest you upload a copy of the TOD deed to your HereToday Vault

Not all U.S. states permit TOD deeds. Here’s a list of states that accept TOD deeds – Always consult an attorney when creating any legal document. 

Revoking a Transfer-on-Death Deed

At any time you can revoke or modify the TOD deed. You’re never locked in. Simply record another TOD deed with instructions to leave the property to a different beneficiary. 

How a Beneficiary Claims the Property

Upon your passing, the ownership of your real property will pass immediately to the beneficiary. If the property has a mortgage or debt, it too is transferred to the new owner. Prior to taking ownership, the beneficiary will need to record an affidavit or sworn statement; as well as present a copy of your death certificate in the public lands record. This act will establish a record of the property changing ownership, as well as identifying the new owner. 

Potential Affidavit Requirements

  • State the name of the new owner.
  • Description of the property.
  • List the date of the previous owner’s death.
  • Some states may require the fair market value of the real estate at time of death.

Transfer-on-Death Deed Advantages

  • Transfer-on-death deeds are simple to create.
  • You can revoke the TOD deed at any time. 
  • Property automatically transfers ownership to the beneficiaries without probate.

Overview

If you’re exploring ways to transfer real property and looking to avoid probate, please consult an attorney to consider the benefits of a TOD deed. You simply designate one or more persons as your beneficiary; upon your death, the beneficiary immediately and automatically becomes the owner of the property. Additionally, a beneficiary can be deemed an individual, or an organization, like a charity. These documents are easy to complete and will help your beneficiary avoid probate for real estate. 

 

Disclaimer. HereToday is not a legal service. This content should not be taken as legal advice. Before drafting any legal document, please consult an attorney.

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