In many states, you can create and file a simple transfer on death deed (TOD deed; also called a “beneficiary deed”) that will leave your house or other real estate property to someone after you die. In form, the TOD deed is similar to a regular real estate deed, such as the one that transferred the house to you when you purchased your home. The TOD deed names the current owner, designates the new owner at your death (the “beneficiary”), and includes the legal description of your property. However, unlike a regular deed, which takes effect when filed, the transfer on death deed does not take effect until your death. Until then, you still own your property, are free to sell it, are responsible for paying taxes on it, and otherwise maintain full control.
The greatest advantage to using a TOD deed is that if your estate will go through probate (the court process that oversees the transfer of your property after your death), the house will not be part of that costly and time-consuming process. (See Will Probate Be Necessary?) That can translate to significant cost savings, particularly if your state allows executors (the ones who handle the probate process) to be compensated based on the value of the probate estate. What’s more, if your biggest asset is the house, keeping the house out of probate might mean that your estate comes in under the threshold for “small estates,” allowing your estate to skip probate altogether. For these reasons, even if you have an existing will, you might still consider using a TOD deed to address what happens to your home.
On the other hand, if you have a simple revocable living trust and you’ve transferred your home to the trust, you will not need a separate TOD deed. Property placed in a living trust will be distributed according to the terms of the trust, and will not go through probate.
Apart from avoiding probate, the transfer on death deed also has these benefits:
More than half of the states allow TOD or beneficiary deeds, and the list is growing. So if you don’t see your state below, you might still want to keep your eye on developments in this area. For example, you can check out the states that are currently considering enacting, or have recently enacted, their own version of the Uniform Real Property Transfer on Death Act (a model law allowing transfer on death deeds that individual states are free to adopt). The relevant state will be the state where you own real estate; if you reside in one state but own property in another, you’ll want to create a TOD deed for the state where your property is located.
These are the states that currently allow TOD deeds:
District of Columbia
If you want to create a TOD deed yourself, you can look in a few places for a form to use. Some state statutes lay out a template, in which you can find the exact language to use in your deed. For example, the Kansas statute suggests the following wording:
___(Insert name of owner)___ as owner transfers on death to ___(insert name of beneficiary)___, as grantee beneficiary, the following described interest in real estate: (insert description of the interest in real estate). THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL ESTATE. (Kan. Stat. Ann. §59-3502.)
Most of the state statutory forms are slightly longer than this but are similarly simple in content. Some forms also allow further options, like designating an alternate beneficiary to receive the property if your first-choice beneficiary does not survive you.
If you’d rather not research the state statute yourself, or if you’d like a little extra help along the way, another easy and low-cost option is to purchase an online form or software program from a private company (such as Nolo’s Transfer on Death Deed forms). These forms are often more user-friendly than a bare statute, and might also spell out the steps to take when printing out, signing, and filing your deed.
Once you’ve drafted the TOD deed, you’ll have to sign it in front of a notary, and then file it with the county clerk or recorder’s office. If you don’t file the deed, it won’t be valid. And even if you’ve precisely copied the language from your state’s statutory form, be sure to check with your county’s recording office before printing your form, and ask whether your county has special formatting requirements (such as extra margin space or a blank box at the top right corner).
A lawyer can also help you draft a TOD deed and might be especially useful if you’re dealing with a more complicated situation—for example, if you own the property with another person and have questions about how a TOD deed will work with your co-ownership situation. Or, maybe you want to leave the property to beneficiaries who are under 18 years of age. (While minors can take title to property, an adult will have to manage it on their behalf.) A lawyer can help you sort through these circumstances.
If you change your mind, it’s easy to revoke a TOD deed. The process is very similar to the process for filing a TOD deed: You’ll simply sign and notarize a revocation, and then file it with the county recorder. Again, many states offer statutory revocation forms. Here’s typical sample language, excerpted from New Mexico’s statute:
Owner or owners of property making this revocation: (insert owner name and address)
Legal description of the property: (insert legal description)
I revoke all my previous transfers of this property by transfer on death deed.
(N.M. Stat. Ann. § 45-6-417.)
It’s also possible simply to file a new TOD deed that names a different beneficiary, as the most recent TOD deed on file will be the one that takes effect. But to avoid any potential confusion, it’s best to file a revocation. Also be aware that you cannot revoke a TOD deed by naming a different beneficiary in your will—it won’t have any effect. You must file either a revocation or a new TOD deed with the county recorder’s office.