Kansas Transfer on Death Deed
What is a transfer on death deed.
A transfer-on-death (TOD) deed, also called a beneficiary deed, looks like a regular deed used to transfer real estate. But there's a crucial divide: It doesn't take effect until your death. You are free to change your mind and revoke the deed at any time during your life.
For Land, Home, Certain Types of Oil Gas and Mineral Rights, and Royalties Thereof:
A TOD is a document that can be prepared and signed at any time.
It directs the transfer of your interest in property to another person at the moment of your death.
It doesn’t avoid creditors or SRS Estate Recovery. It doesn’t avoid taxes (although only very large estates are taxed in Kansas now).
It doesn’t transfer ownership until your death, so you don’t cause possible Medicaid Transfer of Asset penalties.
You still own your property, so you can sell it at any time.
Property owned in joint tenancy with right of survivorship is fully transferred to the surviving owner, upon the death of one owner.
Note: You must give an exact legal description of the property, so obtaining a copy of your deed is best.
For Car, Recreational or Other Vehicle:
Transfer on Death Form – this is a label you can have added to your car title.
It is best to do with when pay your annual vehicle registration.
Work with the County Treasurer or Tag office to complete the paperwork.
The vehicle will be transferred to them upon the proof of death of all owners.
This must be done for each vehicle owned.
Making it Official:
A TOD for Land, home, or mineral and oil rights should be filed with the Recorder of Deeds in the county where the real estate is located.
A small fee is included for recording the deed.
You will need a full description of your real estate.
A TOD for Vehicles can be recorded by taking the title to the County Treasurer in the owner’s county of residence and paying a fee.
The grantor need not inform the recipient or get their approval to be able to record a TOD.
Benefits of a Transfer on Death Deed
- A TOD allows you to transfer ownership of property after death by naming a recipient and bypassing the probate process.
Even if you choose a beneficiary of a piece of property in your will, it will still need to be probated.
A TOD however will not go through the probate system and transfers the property without the need for court and clerical fees.
- TOD do not replace wills.
It is still a good idea to have a valid will in place to properly give out your estate.
A TOD has a place within an estate plan along with a will, but should not replace a will totally.
Make sure to check out our KLS resource: Do I Need A Will?
- A benefit of the TOD is that, because the recipient has no interest in the property until the owner dies, the recipient’s creditors cannot reach the property.
- In contrast with the transfer of property under a revocable trust or a will, the transfer of property through a TOD deed is much less costly.
In some states the cost of probate is great, and in any state a probate proceeding will cost more than the fees related to a TOD deed.
Possible Drawbacks of Transfer on Death Deeds
A downside of TOD deeds is that people may use them without consulting a lawyer and may make legal mistakes. For example, an owner might name one beneficiary but neglect to arrange for the possibility that the recipient predeceases the owner.
Revoking a TOD?
To revoke a TOD, it must be done formally and in writing.
Simply denying a TOD in a will is not enough to undo the TOD.
Want help? For help with Estate Planning, Wills and TOD deeds, contact Kansas Legal Services at 1-800- 723-6953 or complete an online application. Click here to complete an online application.
Additional reading:
This article from an ABA Journal , explains the options provided by a Transfer on Death Deed. Kansas is one of only nine states that allows this option.
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DeedClaim > Kansas > Kansas Transfer on Death Deed Form
Kansas Transfer on Death Deed Form
By Christopher Moore Attorney
What Is a Kansas Transfer-on-Death (TOD) Deed?
A Kansas transfer-on-death deed—also called a TOD deed or beneficiary deed —names a person to take title to real estate when the current owner dies. 1 A property owner records a TOD deed in the county land records before his or her death. The TOD deed does not affect the property’s ownership until the owner dies. 2 When the owner dies, the property passes to the person named in the TOD deed—called the grantee beneficiary or just the beneficiary . 3 The property does not become part of the owner’s probate estate. 4
What Is the Purpose of a Kansas TOD Deed?
TOD deeds are an estate-planning tool that allows Kansas real estate to bypass the owner’s probate estate . Real estate described in a TOD deed does not pass through probate (the legal process of carrying out a will) because title automatically belongs to the beneficiary when the property owner dies. 5 The beneficiary records the owner’s death certificate or an affidavit in the land records to show that the title was transferred. 6 A separate deed from the owner’s estate is unnecessary.
What Is the Benefit of Avoiding Probate?
Avoiding probate is a common estate-planning goal. The probate process can be both costly and time-consuming. Real estate that goes through formal probate may not officially transfer to the new owner until months or even years after the owner’s death. By avoiding probate, a TOD deed allows title to pass to the beneficiary with less delay and administrative costs.
Probate court is also a public process. Keeping assets out of the owner’s probate estate helps keep family financial matters private.
What Types of Property Can Be Transferred Using a Kansas TOD Deed?
A property owner can use a Kansas TOD deed to transfer their rights to Kansas real estate. 7 The transferred rights can be complete, sole ownership or partial rights to a co-owned property . 8
A Kansas TOD deed cannot transfer property other than Kansas real estate. Kansas law allows TOD designations for other types of property—including, for example, motor vehicles and stocks or bonds. 9 Those designations are made by other types of documents, not Kansas TOD deeds.
What Is the Effect of a Kansas TOD Deed while the Owner Is Alive?
A property owner who records a Kansas TOD deed remains the absolute owner of the real estate for the rest of the owner’s life. 10 The beneficiary does not receive any vested rights to the property until the owner dies. 11 A beneficiary’s creditors have no power to attach the property while the owner is alive.
Can the Owner Sell the Property after Recording a TOD Deed?
A Kansas TOD deed does not limit the property owner’s right to sell, transfer, or mortgage the real estate during the owner’s life. 12 This makes TOD deeds a better choice than life estate deeds, which limit the life tenant’s power to transfer the property because the holder of a remainder interest following a life estate has a vested right to future possession of the real estate. 13
Can a Kansas TOD Deed Be Revoked?
A Kansas TOD deed can be undone as long as the property owner lives. 14 The owner can revoke a TOD deed by recording a signed document, confirmed by a notary, that names the real estate and revokes the prior TOD deed. 15 Recording a later TOD deed that transfers the same real estate interest also revokes an earlier TOD deed.
A TOD deed’s beneficiary does not need to consent to—or receive notice of—a TOD deed’s revocation. 16 A property owner’s will cannot revoke a TOD deed because if a valid TOD deed is still in place when the owner dies, the property does not become part of the owner’s probate estate. 17
What Is the Effect of a Kansas TOD Deed on the Death of an Owner?
Title to real estate named in a recorded Kansas TOD deed belongs to the named beneficiary upon the property owner’s death. 18 The property transfers subject to any existing encumbrances affecting the title—including, for example, liens or mortgages, leases, sale contracts, purchase options, easements, or transfers of partial interests in the property. 19 A lien or mortgage in place when the owner dies remains attached to the property after the beneficiary takes title.
The beneficiary memorializes the formal transfer of ownership after the owner’s death by recording a copy of the owner’s death certificate or an affidavit attesting to the death with the county’s register of deeds. 20
Can a Kansas TOD Deed Leave Property to Multiple Beneficiaries?
A Kansas TOD deed can name one or multiple beneficiaries to take title after the owner’s death. 21 Kansas law assumes that when multiple persons co-own real estate, the owners are tenants in common with equal interests. 22 Tenants in common own separate, partial shares in the real estate that they can transfer separately.
A TOD deed with multiple beneficiaries can create a joint tenancy with right of survivorship between the new owners through language that clearly shows intent to create a joint tenancy. Kansas deeds creating joint tenancies typically transfer real estate to co-owners “as joint tenants with right of survivorship and not as tenants in common.”
Kansas law does not recognize tenancy by the entirety—a joint ownership form that creates a right of survivorship between married spouses. A TOD deed naming two spouses as beneficiaries creates a tenancy in common unless the deed clearly states that the beneficiaries will take title as joint tenants with right of survivorship. 23
Can Joint Owners Sign a Kansas TOD Deed?
Co-owners of Kansas real estate may record a TOD deed transferring the property upon their deaths. 24 The TOD deed’s effect depends on the form of co-ownership. If co-owners are tenants in common, then a co-owner’s partial interest transfers to a beneficiary named in a TOD deed upon the co-owner’s death.
A TOD deed recorded by a joint tenant is only effective if the joint tenant who signs the TOD deed is the last surviving joint tenant. 25 If another joint tenant outlives a joint tenant who signs a TOD deed, full ownership belongs to the surviving joint tenant upon the other joint tenant’s death. The TOD deed is effectively void in that scenario. A TOD deed signed by both joint tenants transfers the real estate to the named beneficiary upon the death of the last surviving joint tenant.
What Happens if the Beneficiary Named in a Kansas TOD Deed Dies before the Owner?
The general rule is that if a TOD beneficiary dies before the property owner, the TOD designation lapses, or loses effect. 26 If a TOD designation lapses, the real estate becomes part of the deceased owner’s probate estate instead of passing to the beneficiary. Real estate in an owner’s probate estate passes under the owner’s will or under Kansas rules for property not named in a will, whichever applies.
How Can a Real Estate Owner Avoid a Lapsed TOD Deed?
Kansas law allows for two main ways to avoid a lapsed TOD deed. Because avoiding probate is one of the major reasons to record a TOD deed, a property owner who records a TOD deed should consider using one or both methods.
- Alternate beneficiary. An owner can avoid a lapsed TOD designation by naming another TOD beneficiary in the TOD deed. 27 The alternate beneficiary takes title if—and only if—the primary beneficiary dies before the property owner.
- Multiple beneficiaries. A property owner can also avoid a lapsed TOD designation by naming more than one beneficiary. 28 A designation in favor of one beneficiary may lapse if the beneficiary dies before the owner, but a second beneficiary can still take title under the TOD deed if that beneficiary survives the property owner.
Must the Owner Notify the Beneficiaries of the Kansas TOD Deed?
No. Notice to a TOD beneficiary is not required under Kansas’s TOD deed law. 29 The beneficiary’s signature, acceptance of, or consent to a TOD deed is likewise unnecessary. A property owner may also revoke or change an existing TOD deed without telling the beneficiary or getting the beneficiary’s consent. 30
Although notifying a beneficiary is not necessary legally, a property owner recording a TOD deed should make the beneficiary aware of the TOD deed or leave instructions for informing the beneficiary of the TOD deed upon the owner’s death. The beneficiary is responsible for recording evidence of the property owner’s death so that the county land records are updated to reflect the title transfer under the TOD deed. 31
Can a Kansas TOD Deed Be Used When the Property is Mortgaged?
Yes, an existing mortgage on real estate does not prevent the property owner from recording a Kansas TOD deed. A mortgage agreement typically includes a due-on-sale clause allowing the lender to demand faster payment of the loan balance if the property owner transfers the real estate without the lender’s consent. A federal law called the Garn-St. Germain Depository Institutions Act of 1982, though, says lenders cannot use due-on-sale clauses or demands for faster payment in response to “a transfer to a relative resulting from the death of a borrower.” 32 An unpaid mortgage balance does not make a TOD deed less effective.
A Kansas TOD deed transfers real estate along with all debts owed on the property—including mortgages—in effect during the property owner’s lifetime. 33 That means a mortgage still applies after a TOD transfer. The beneficiary takes title with the mortgage still in force unless the mortgage debt is paid by other funds when the property owner’s estate is dealt with.
Must a Kansas TOD Deed Be Recorded?
Yes, a Kansas TOD deed must be recorded before the owner’s death. 34 The property owner must record the TOD deed in the land records maintained by the office of the register of deeds for the county where the property is located. 35 A Kansas TOD deed that is signed and confirmed by a notary but not recorded before the owner dies has no effect. The real estate becomes part of the owner’s probate estate and is handled with the owner’s other assets.
Can a Kansas TOD Deed Be Signed by an Agent Who Has Power of Attorney?
A Kansas TOD deed must be “signed by the record owner” of the real estate. 36 Kansas’s general deed laws allow a property owner’s authorized agent—including an agent acting under power of attorney—to sign a deed on a property owner’s behalf. 37 An agent acting under a validly signed general power of attorney document also has authority to sign a deed for the owner under Kansas’s power-of-attorney law. 38
A power-of-attorney document must clearly give the agent signing a Kansas TOD deed the power to do so. The property owner must specifically name the agent as able to create or change survivorship rights and TOD designations in the owner’s property. 39 An agent given general powers to act for a property owner—but not the specific power to create a TOD designation—cannot sign a valid TOD deed on the property owner’s behalf. 40
Can an Agent Who Has Power of Attorney Sign a TOD Deed If the Owner Is Incapacitated?
Kansas law is not entirely clear about whether an agent under a durable power of attorney can sign a TOD deed on behalf of a property owner who cannot sign on their own. 41 A Kansas property owner must have the same mental capacity to create a TOD deed as is necessary to create a will or choose a beneficiary. 42 Kansas’s power-of-attorney law clearly forbids an agent from creating a will on an owner’s behalf. 43 A TOD deed signed by an agent on behalf of a property owner who lacks mental capacity is most likely invalid.
What Are the Requirements for a Kansas TOD Deed?
A Kansas TOD deed must meet each of the following requirements to make a valid real-estate transfer when the property owner dies: 44
- Property owner’s name. It must name the current owner of the real estate.
- Property description. It must include a legal description of the real estate to be transferred upon the owner’s death.
- Beneficiary’s name. It must name a specific beneficiary to take title when the current owner dies.
- Transfer on death. It must state that the owner wants to transfer title to the beneficiary upon the owner’s death. The abbreviation TOD is acceptable.
- Revocability. It must contain a statement showing that the TOD deed can be revoked, is not effective until death, and overrides any prior TOD deeds affecting the property after the description of the real estate.
- Owner’s signature. The current property owner must sign it.
- Notarization. The owner’s signature must be confirmed by a notary.
- Recording. It must be recorded— before the property owner’s death—with the register of deeds’ office for the county where the property is located.
A statement of consideration —or a payment amount in exchange for the TOD transfer—is not needed in a Kansas TOD deed. 45
The Kansas TOD deed law includes a basic form for creating TOD deeds. 46 A Kansas TOD deed should have a similar form to the legal template. TOD deeds must also meet Kansas’ general requirements for recorded documents affecting real estate. 47
Legal References
- Kan. Stat. § 59-3501 .
- Kan. Stat. § 59-3506 .
- Kan. Stat. § 59-3504(a) .
- Kan. Stat. § 58-501 .
- See Kan. Stat. § 58-501 .
- Kan. Stat. § 59-3501(a) .
- Kan. Stat. § 59-3505(a) . A life estate holder cannot transfer life estate rights using a TOD deed because their rights end when the estate holder dies. See Kan. Stat. § 58-503 .
- Kan. Stat. § 59-3508 ; Kan. Stat. § 17-49a02 .
- Kan. Stat. § 59-3506 ; Kan. Stat. § 58-2414 .
- Kan. Stat. § 59-3503 .
- Kan. Stat. § 59-3502 .
- See Kan. Stat. § 58-503 .
- Kan. Stat. § 59-3503(a) .
- Kan. Stat. § 59-3501(b) .
- Kan. Stat. § 59-3503(c) .
- Kan. Stat. § 59-3504(b) .
- See Kirkpatrick v. Ault , 280 P.2d. 637 (Kan. 1955) ; Kan. Stat. §58-501 .
- See Kan. Stat. § 59-3501(a) ; Kan. Stat. § 59-3505(a) .
- Kan. Stat. § 59-3505(a) .
- Kan. Stat. § 59-3504(c) .
- See Kan. Stat. § 59-3501(a) .
- 12 USC § 1701j-3(d)(5) .
- Kan. Stat. § 19-1204 ; Kan. Stat. § 58-2221 .
- Kan. Stat. § 58-2209 .
- Kan. Stat. § 58-654(d) .
- Kan. Stat. § 58-654(f) .
- Kan. Stat. § 58-654(b) .
- See Kan. Stat. § 58-652 .
- Moore v. Miles (In re Estate of Moore ), 390 P.3d 551 (Kan. Ct. App. 2017) .
- See Kan. Stat. § 58-654(g) .
- See Kan. Stat. § 59-3501(a) ; Kan. Stat. § 59-3502 .
- See, e.g., Kan. Stat. § 28-115 ; Kan. Stat § 58-2209 .
About the Author
Chris Moore
Christopher Moore, Esq., is an attorney and legal writer.
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Understanding the transfer on death deed by Edward A. Haman, Esq.
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?
by Edward A. Haman, Esq. updated February 10, 2023 · 4 min read
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).
How a TOD deed works
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.
Advantages of a TOD deed
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.
Creating a transfer on death deed
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.
About the Author
Edward A. Haman, Esq.
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What is a Transfer on Death Deed & How Do I Use One?
Learn what a transfer on death deed is, how it works, and whether your state allows TOD deeds in this transfer on death deed guide by Trust & Will.
Patrick Hicks , @PatrickHicks
Head of Legal , Trust & Will
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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. It’s also known as a “Beneficiary Deed” because in essence, you’re naming a Beneficiary who will receive the deed to your property after you pass away.
Transfer on Death Deeds can be beneficial for a number of reasons, but a main benefit is that you can achieve the goal of avoiding probate without needing to create an entire Trust, which can sometimes be a bit more complicated depending on the route you take to create it. In this article, you will learn about:
The different types of Transfer on Death Deeds
Which states allow Transfer on Death Deeds
How to use Transfer on Death Deeds to avoid probate
The tax implications of Transfer on Death Deeds
What is a Transfer on Death Dead?
A Transfer on Death Deed, also called a TOD Deed, is a great way to ensure your property or real estate goes to the Beneficiary you choose while avoiding the costly, timely and often-stressful process known as probate. You can create a TOD Deed simply by moving real estate from your name only into your Beneficiary’s name as a TOD. The property remains yours and you continue to control it until you pass away, at which point the deed automatically transfers to the name of your Beneficiary.
As long as you’re living, you can still refinance, sell, rent out or do anything else you choose to your property. It belongs to you until your death. Only then does your Beneficiary benefit. And don’t worry, TOD Deeds are revocable, which means you can amend or revoke them at any time.
Types of TOD Deeds
There are different names for a Transfer on Death Deed, and sometimes those names may depend on what state you live in. TOD Deeds may also be called:
Transfer-on-Death Instrument
Deed Upon Death
Beneficiary Deed
Additionally, a few states allow what’s known as a Lady Bird Deed, also called an Enhanced Life Estate Deed. Lady Bird Deeds allow you to keep control over a property while you’re alive, but then transfer it without going through probate after you pass away.
Whatever it’s called in your state, TOD Deeds serve one main purpose: to allow you to transfer the deed of a property to a named-Beneficiary after you pass away while avoiding the probate process.
Which States Allow Transfer on Death Deeds?
The first state to recognize a TOD Deed was Missouri in 1989. Since that time, other states have followed suit, recognizing them as well. Note that you don’t actually have to live in the state to title property with a TOD Deed - the property just needs to be in one of the following states:
**District of Columbia
**New Mexico
**North Dakota
**South Dakota
**Washington
**West Virginia
**States that adopted the Uniform Real Property Transfer on Death Act (URPTODA).
URPTODA was introduced by the Uniform Law Commission and was designed to be a model for states to use when and if they decided to create their own TOD Deed laws.
How to Use a Transfer on Death Deed to Avoid Probate
Perhaps the biggest benefit to a Transfer on Death Deed is the fact that it allows real estate to bypass probate and instead just go directly to a Beneficiary. Setting up a TOD Deed is simple. And while the process may vary slightly from state to state, there are some general, basic steps to follow.
1. Get Your State-Specific Deed Form.
Look up the requirements for the state the property is in. Many states have state-specific forms or language that must be used in order to be valid.
2. Decide on Your Beneficiary.
You can choose one person, multiple people, an organization or a charity to be your Beneficiary. Be specific when you’re listing Beneficiaries. For example, don’t say “my children.” Instead, use their full names: “John J. Smith and Jane J. Smith.” If you do select more than one Beneficiary, be sure to include how the property will be titled in their names. If you use “Joint Tenants,” that means when one dies, the surviving Beneficiary will become the owner. Be sure to check what language your state recognizes - some states won’t accept “Joint Tenants.”
You may also want to consider naming an alternate Beneficiary in case your chosen one doesn’t survive you.
3. Include a Description of the Property.
Using the existing deed, copy a description of the property exactly as it currently is. Compare it against the original at least once for accuracy.
4. Sign the New Deed.
If you’re the only owner, your signature is likely sufficient. That said, you should check to see if you’re in a community property state. If that’s the case, you should have your spouse sign as well.
5. Record the Deed.
Until you file a TOD Deed, it won’t be valid. To record it, you need to find your Land Records office in the county the property is in. This entity can be several names, including: County Recorder, Registrar of Deeds or Land Registry, to name a few. If you’re unsure where to go to record a deed, simply call your local courthouse and ask where you should go to record real estate deeds.
Tax Implications of Transfer on Death Deeds
Keep in mind that as long as you’re alive, TOD Deeds have no impact on (or benefit for) your Beneficiary. He or she has no legal rights to the property until after you pass away. That means you pay the property taxes on it until you die. One downside to a TOD Deed is it’s not an effective tax beneficial tool. However, the threshold is quite high, and the majority of Beneficiaries do not pay taxes on TOD Deeds. They will, however, take over any financial obligations on the property once they are owner, such as mortgage payments and property taxes.
A Transfer on Death Deed can be a great way to ensure your loved ones or Beneficiaries get the inheritance you intend. It streamlines the process, allowing for a simple transfer of property ownership without the headache, cost and time that probate requires. If you’ve been thinking about starting or revising your Estate Plan to ensure all your affairs are in order, now may be a great time to learn more about TOD Deeds and to see if they’re a smart move.
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Transfer-on-Death Deeds for Real Estate
Want to keep your house, or other valuable real estate, out of probate? A transfer-on-death (TOD) deed—called a "beneficiary deed" in some states—lets you name someone to receive your property when you die. A TOD deed is similar to a regular deed, but there's a crucial difference: It doesn't take effect until your death.
In recent years, many states have adopted laws allowing transfer-on-death deeds. Now this probate-avoidance tool is available in most states. (To make a TOD deed that's valid in your particular state, you can use a reputable service like WillMaker .) In the articles below, find out more about whether a TOD deed makes sense for your circumstance, and how to make one.
Is a Transfer-on-Death Deed Right for You?
Transfer-on-Death Deeds: An Overview
Most states now offer an easy way to leave real estate without going through probate: a transfer-on-death deed.
States That Allow Transfer-On-Death Deeds for Real Estate
Some states have an easy and inexpensive way to bypass probate court when you leave behind real estate.
Transfer on Death Deeds vs. Living Trusts
Both a transfer on death deed and a living trust can keep your real estate out of probate, so which should you use?
View More Articles
Using a TOD Deed
How to Prepare a Transfer-on-Death Deed
If you want to leave behind real estate using a TOD deed, make sure it meets your state and county's requirements.
How to Revoke a Transfer-on-Death Deed
If you change your mind after you record a TOD deed, leaving real estate to someone at your death, you can revoke the deed. The beneficiary has absolutely no rights over the property until after your death. But first, a caution: Don't use your will to try to revoke a transfer-on-death deed. It won't
How the New Owner Claims Transfer-on-Death Real Estate
For those who inherit real estate through a TOD deed, getting title to the property is faster, simpler, and less expensive than going through probate.
More Legal Topics
- Avoiding Probate in Your State
- Avoiding Probate With Joint Ownership
- POD Bank Accounts
- Retirement Accounts and Estate Planning
- Sample Probate Avoidance Plans
- TOD Beneficiaries for Securities and Vehicles
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What is a transfer on death deed & where is it allowed?
Use a transfer on death deed (TOD) to pass your house to someone without the hassle of probate
Updated January 13, 2023 | 8 min read
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Table of contents
How does a transfer on death deed work?
Transfer on death deeds with joint ownership, states that allow transfer on death deeds, how to get a transfer on death deed, should i use a transfer on death deed.
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 .
The beneficiary you name on the transfer on death deed doesn’t come into ownership of the property until after you die, so they won’t be responsible for paying for or maintaining the home while you’re alive. While you can use a last will and testament to transfer your property to someone when you die, it must be proven during probate, which takes time. Using a transfer on death deed avoids the probate process , so your chosen beneficiary can ultimately receive the house or property much faster than with a will. (You still need a will to pass on other assets and belongings.)
A transfer on death deed can be a useful addition to your estate plan, but it may not address other concerns, like minimizing estate tax or creditor protection, for which you need a trust .
In addition to a will or trust, you can also transfer property by making someone else a joint owner, or using a life estate deed.
Key takeaways
Transfer on death deeds are allowed in more than half of the states.
A TOD deed shouldn’t take the place of writing a will and it cannot be altered by one.
TODs let the property avoid probate but it may not provide additional protections.
You can create a transfer on death deed for free to create and you can revoke it at any time.
A transfer on death deed is a document that transfers your ownership in a piece of real estate to someone else after you die. The person transferring property is called the transferor or grantor , and the person named to receive the property is the beneficiary , grantee , or grantee beneficiary .
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The beneficiary of a TOD deed is similar to a beneficiary of a will — they can be a family member, friend, business, charity, or a living trust . You can even name multiple beneficiaries to own the property in equal shares. It’s also a good idea to choose a contingent beneficiary (alternate beneficiary) as a back-up in case the primary beneficiary is dead.
There is no obligation to notify your named beneficiary about the deed, but you still might want to let them know so there isn’t any confusion when you die.
A transfer on death deed is revocable , which means you can change the deed or revoke its terms before you die. You must revoke the deed in the same manner that you created it (we’ll discuss how to do both later). Writing a will does won’t change the transfer on death deed . If you create a deed and then state different instructions in your will, the TOD deed will take precedence.
If you plan to use a TOD deed, you should still consider writing a will to provide instructions on who should get your other assets.
Duties of the named beneficiary
The beneficiary is not responsible for the home in any way and does not have legal ownership of it during the grantor’s lifetime. The grantor or property owner must continue to pay the mortgage and related housing expenses, like property taxes. An outstanding mortgage or any liens will pass to the beneficiary.
If you’re the beneficiary of a transfer on death deed, you can claim the property by going to the county recorder office. You should bring a copy of the transferor’s death certificate and complete an affidavit (a sworn written statement) declaring the grantor’s death, which will be filed with the clerk.
Giving away assets can be tricky if there are multiple owners. Depending on how the property is owned, you may not be allowed to give away your share of the property.
If you and the co-owner are tenants in common , you can both do whatever you want with your interest (share) in the property. For example, let’s say you and your roommate own an apartment as tenants in common. If you use a transfer on death deed and name your sister as beneficiary, when you die your sister and roommate will co-own the property together.
If you and the co-owner are joint tenants , you get to keep their share once they die and vice versa. The surviving person becomes the sole owner of the property. That is why joint tenancy is formally known as joint tenancy with rights of survivorship . Dividing community property with rights of survivorship would also follow these rules. For example, if a married couple owns a home as joint tenants, when one spouse dies the surviving spouse becomes the sole owner.
Since the joint owner automatically receives the asset, it can be difficult to try and give it away to someone else (especially in a community property state; you may need to talk with an estate attorney .) Joint tenancy supersedes the terms of a transfer on death deed . For example, let’s say you and your spouse own a house as joint tenants and you execute a transfer on death deed by yourself and name your daughter as beneficiary. When you die, your daughter won’t get the house — your spouse does. However, if your spouse dies first then the deed is still valid; the house goes to your daughter after you die.
Using a transfer on death deed when you and someone else jointly own property works best if you both have the same beneficiary in mind. You can each use a transfer on death deed or complete one together if permitted in your state.
As of January 2023, these 31 states allow transfer-on-death deeds:
District of Columbia
Michigan (a Ladybird Deed, formerly called an enhanced life estate, achieves similar)
Mississippi
North Dakota
South Dakota
West Virginia
If your state isn't listed above, you may want to consider putting your house in a trust .
States that allow a transfer on death deed will often provide a free deed template for homeowners to use. You can check your state or county website to see if they offer a downloadable form.
These are the steps you need to take to complete a transfer on death deed.
Complete the deed
Sign the deed
Find a notary if notarization is required by your state
File it with county recorder’s office
Fill out the deed
To complete the deed you need some basic information like your name and personal information, a legal description of the property (single family home, for example), the beneficiary’s full name, address, and relation to you.
Just as with other legal papers, like real estate deeds and estate planning documents , the TOD deed must be signed by the person who creates it (the transferor in this case). The beneficiary does not need to sign it. Some states may require you to notarize the deed as well.
→ Learn how much notary fees cost in your state
File it with county clerk
In order for the transfer on death deed to become valid, you must file it and record it with the proper local authority, like the county clerk or recorder’s office. Your state may use other names for this department, like county office of land records and you may have to pay a small filing fee. The deed is only valid if you record it . If someone finds an unrecorded transfer on death deed with your belongings after you’ve died, it will not be valid.
Revoking a TOD deed
If you want to change or revoke a transfer on death deed, you can do so by filling a revocation. This is simply a written document that states you want to revoke the terms of the beneficiary deed you’ve already made. States may similarly include a revocation form for people to use, or include a sample in their statutes that you can copy. You must also file the revocation wherever you filed the original transfer on death deed.
A TOD deed simplifies the transfer of property after your death and is fairly easy to create. Even if you have other assets that will need to go through probate, using the deed for your house can help ease the probate process for your beneficiaries and loved ones. A TOD deed is especially useful if you have property in other states and want to avoid ancillary probate .
There are a few disadvantages to a transfer on death deed. For one, it does not offer a title warranty. That means there is no guarantee that the transferor actually owns the property and has the right to give it to you. If there are ownership issues, like someone else has a claim to the property, the beneficiary may not be able to receive it. Additionally, a transfer on death deed does not protect against estate creditors — the property can be sold to satisfy estate debt once the grantor dies. (For credit protection, you may want an irrevocable trust .)
Here are a few more estate planning issues that a transfer on death deed may not solve.
Transfer on death deeds & taxes
Even if the property you pass using a transfer on death deed isn’t counted toward probate, it may still be included in the valuation of your estate and thus count towards any applicable estate tax .
Since the transfer on death deed doesn’t give away your property while you’re alive, it may not be subjected to gift tax, but this depends on your state.
→ Worried about taxes? This is one instance when you should hire an estate attorney
Transfer on death deeds & Medicaid
To qualify for Medicaid or other government benefits, your income and assets usually need to fall below certain limits. If you own real estate, you may be over the asset limit. (Every state has different requirements; you can check this state-by-state Medicaid guide here .) Using a transfer on death deed to give away your house to try and lower the value of your assets doesn't count as a Medicaid spend down so it will not help you qualify for the program.
If you give someone your house via transfer on death deed, it may or may not be protected from Medicaid estate recovery (MERP) after you die depending on the state.
To qualify for Medicaid and protect your house from recovery, then you might want to consider opening an irrevocable Medicaid trust.
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What is a Transfer on Death Deed?
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While most of us know about a last will and testament , the assets that are included in your will can sometimes get tied up in probate. This can be a long and costly process and often prevents your loved ones from getting a hold of the things you left them for quite some time.
If you'd like to avoid having your property going through the probate process, it's a good idea to look into a transfer on death deed .
A transfer on death deed allows you to select a beneficiary who will receive your property, but only when you've passed away. The beneficiary will have no right to your property while you're alive and, if you own your home jointly, the transfer on death deed does not apply until all the owners have died. You can name alternate beneficiaries as well, in the event your beneficiary refuses your property or isn't around to receive it.
To make a transfer on death deed legal, you'll need to take it to the local county records office where the property is located. Of course, different localities will have different rules, so make sure you follow the instructions of your county recorder.
Here are a few other important notes about transfer on death deeds:
- They can be revoked : You can either go to your county recorded and request a revocation form or create a new transfer on death deed that replaces the original.
- The deed will include mortgages, liens, etc. : If you still owe money or your home or if a contractor has a lien on it, your beneficiary will inheret these responsibilities along with your property.
Lastly, note that a transfer on death deed cannot be used in every state. Below, find a list of states that do allow a transfer on death deed:
- District of Columbia
- Michigan (called a Ladybird Deed)
- North Dakota
- South Dakota
- West Virginia
A transfer on death deed is one of the easiest ways to transfer property. If you live in one of the states listed above, it's a smart idea to consider including it in your estate plan. If you're not sure this is the right tool for you, you can always speak with an attorney who can help you sort this out.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer .
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On January 1, 2016 (yes, that’s almost two and a half years ago) while we were recovering from the previous night’s shenanigans by nursing bottomless Bloody Marys (hey, hair of the dog – it works!), popping pain relievers, and watching college football extravaganzas, California’s transfer-on-death deed law came into effect.
You may have missed this event since you were probably busy making a list of New Year’s resolutions that you had no intention of keeping.
The transfer-on-death deed allows a homeowner to transfer title to their property upon their death without a will or without having to endure the probate process. Sounds pretty great, right? Not really. There are some serious dangers in using a transfer-on-death deed.
Danger #1 – Joint Title Overrides A Transfer-On-Death Deed
If you jointly own a property with someone, when you die, the other joint title owner will become sole owner of the property, even if there is a transfer-on-death deed that has been properly recorded. Most married couples hold property in joint title or as community property, both of which will supersede any transfer-on-death deed that either spouse may record.
Danger #2 – There Are Complications If The Beneficiary Is A Minor
If you leave your home to a minor, a court-appointed custodian will need to be appointed to manage the property until the child turns 18. At the age of 18, your child will become the owner of the home. Let’s be honest – there aren’t many 18 year olds who are ready for the responsibilities of home ownership. (We’re just happy if they don’t text and drive and can do their own laundry.)
A living trust allows you to leave your home to your child and pick someone to manage your assets on behalf of your child until they are able to handle the responsibilities that come with inheriting your assets. Your child’s inheritance can also be protected from creditors through the living trust. None of these options are available with a transfer-on-death deed.
Danger #3 – The Property May Not Be Able To Be Sold For Three Years
Ok, so you completed and recorded a transfer-on-death deed. You pass away. (Deepest condolences!) Your Cousin Jan now inherits your house per the transfer-on-death deed. Cousin Jan doesn’t have the same fond memories as you do of your shared summer vacations in the log cabin in Yosemite and so she can’t wait to sell this house. Unfortunately, when title is transferred through a transfer-on-death deed, title companies are often hesitant to insure clear title until three years after the transfer date. So your home is unable to be sold or mortgaged for three years. Cousin Jan is not going to be happy.
There are many issues you need to consider before using a transfer-on-death deed. Talk to an attorney. And then go back to nursing your hangover.
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Transfer on Death Beneficiary for Property
By FindLaw Staff | Legally reviewed by Aisha Success, Esq. | Last updated June 17, 2022
Most people want to avoid probate when it comes to estate planning because the probate process can be expensive and time-consuming.
Fortunately, there are several ways to transfer property without going through the probate process : living trusts, joint tenancies, life estate deeds, and a transfer-on-death deed (TODD). This estate planning tool is very efficient and 31 states allow such a transfer to a beneficiary.
A transfer-on-death deed is also called a beneficiary deed. A Ladybird deed in Michigan accomplishes the same thing. Read on to discover whether a transfer-on-death deed is an option for you.
What Is a Transfer-on-Death Deed for Property?
A small estate consisting of just a house or real estate are common assets to transfer to an heir using a transfer-on-death (TOD) deed rather than a will. To create a transfer-on-death deed (also called a beneficiary deed), the deed should state the following details:
- The name of the owner of the property (the grantor)
- The legal description of the property as found in tax records
- The named beneficiary who will receive ownership of the property
- That the deed does not become effective until the owner's death
To ensure the transfer-on-death deed is valid, it must be signed in front of a notary public and notarized. Then, the owner must record the deed with a county clerk at the local county recorder's office, where land records are kept. If the owner fails to sign, notarize, or record the deed, the deed is invalid.
The owner may wish to specify an alternate beneficiary in case the named beneficiary has preceded them in death.
After the deed is filed, the grantor retains full power over the property during their lifetime. They can revoke the deed at any time by filing a revocation document. Some states have a revocation form for owners to use, or they have a sample of an acceptable form in their statute. The revocation form must be filed in the office where the original deed was filed.
Transfer on Death Deeds and Joint Ownership
Community property states.
A transfer-on-death deed is subservient to shared ownership rights. If you live in a community property state, like California, a surviving spouse inherits the shared property.
Joint Tenancy
The same for properties owned by family members or friends as joint tenants with rights of survivorship. The decedent's property interest transfers automatically to the joint tenant. A TOD deed may still make sense in this situation if both parties are willing to list the same person on the deed as their beneficiary.
Tenants in Common
In this form of joint ownership, each party has an interest in the property but the other party's interest is inherited by their heirs or beneficiaries, not by the co-owner. These owners can use a TOD deed to transfer their share of interest in the property to a beneficiary. The beneficiary becomes a co-owner.
Advantages of Transfer-on-Death Deeds
There are several benefits to transfer-on-death deeds for the transferor:
- You can change the beneficiary at any time during your lifetime. In essence, it is a revocable transfer-on-death deed.
- The beneficiary does not have any legal interest in the property until you pass away, so the beneficiary's creditors won't be able to place a lien on the property until the deed becomes effective.
- Expenses related to the transfer-on-death deed are less than other methods of transferring property, such as drafting a trust or probating a will .
- Probate is not required to transfer the property. Avoiding probate can be a big benefit as the probate process can be time-consuming and costly.
- If you hold property in another state, it's easier to transfer property using a TODD than to have to open an ancillary probate proceeding.
Disadvantages of Transfer-on-Death Deeds
Nineteen states do not allow a transfer-on-death deed. Be sure yours does.
If there are title problems with the property, the new owner won't know until they try to transfer the property and find they can't receive it.
If the deceased person's estate has unsatisfied debt, debtors can force the sale of the property to pay the debt. It is part of the estate of the original owner and does not automatically transfer to the new owner.
TOD properties don't count toward probate, but they may still be part of the valuation of an estate for estate tax purposes.
TOD properties don't count toward Medicaid spend-down because the property hasn't actually left your control. Furthermore, it may or may not protect your property from Medicaid estate recovery after you die.
As with almost any kind of inheritance, a transfer-on-death deed can be challenged in probate court. A loved one who thought they were going to inherit a family property in a will may be surprised to discover this joint ownership in a TODD. They could challenge the validity of the deed or argue that you lacked full mental capacity when you drafted it.
As opposed to joint tenancy with the right of survivorship , transfer-on-death beneficiary for property does not automatically transfer the title to the beneficiary. If there is another co-owner, most states give that joint tenant time to challenge the title on the property for a certain amount of time.
State Laws on TOD Deeds
When you name a beneficiary who will obtain title to the property upon your death, you must do so according to your state's laws . Be especially aware of the rights afforded to married couples, which can supersede other instructions.
Transfer-on-death deeds are allowed in these states:
- District of Columbia
- Michigan (a Ladybird Deed)
- Mississippi
- North Dakota
- South Dakota
- West Virginia
Need Legal Advice? Ask an Estate Planning Attorney About a TOD Deed
There are several requirements to create a valid transfer-on-death deed for real property transfer. If you fail to comply with your state law, your transfer-on-death deed can be invalid. Depending on your situation, a living trust may be a better way to transfer real property.
If you have questions, take the time to get accurate legal advice. Call an estate planning attorney in your area.
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A transfer-on-death (TOD) deed, also called a beneficiary deed, looks like a regular deed used to transfer real estate. But there's a crucial divide: It doesn't
What Is a Kansas Transfer-on-Death (TOD) Deed? ... A Kansas transfer-on-death deed—also called a TOD deed or beneficiary deed—names a person to take title to real
In a TOD deed, the current owner designates one or more persons as beneficiary. The beneficiary automatically becomes the owner of the property
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. It's also
Using a transfer-on-death deed is a lot like using a payable-on-death (POD) designation for a bank account. You name one or more beneficiaries now, and they
A transfer-on-death (TOD) deed—called a "beneficiary deed" in some states—lets you name someone to receive your property when you die. A TOD deed is similar
A transfer on death deed (TOD) is an estate planning tool that allows a designated beneficiary to receive real estate property outside of
A transfer on death deed allows you to select a beneficiary who will receive your property, but only when you've passed away. The beneficiary will have no right
The transfer-on-death deed allows a homeowner to transfer title to their property upon their death without a will or without having to
To ensure the transfer-on-death deed is valid, it must be signed in front of a notary public and notarized. Then, the owner must record the deed