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Transfer-on-Death Deed

A recorded deed that leaves a house to someone at death while changing nothing during life - available in many states, and not all.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

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What it means

A transfer-on-death deed - also called a beneficiary deed, or in some states a revocable transfer on death deed - names who is to receive real property when the owner dies. It is signed and recorded in the land records during the owner's lifetime, but it transfers nothing until death: the owner keeps full ownership and may sell, mortgage, rent or give away the property, and may revoke the deed at any time. It is the real-property counterpart of a payable-on-death bank account, and where it is available it is the simplest way to keep a house out of probate.

Two formalities decide whether it works, and both are commonly missed. It must be recorded before the owner's death - a signed but unrecorded deed found in a drawer afterwards is generally ineffective. And revocation must be done the way the statute says, usually by recording a revocation or a later inconsistent deed; a will cannot revoke it in most states, and neither can tearing up a copy. The beneficiary takes subject to whatever is on the property at death - the mortgage, liens and unpaid taxes all pass with it - and normally must survive the owner. Naming a contingent beneficiary is worth doing for the same reason it is on any other designation.

It is not available everywhere, which is the first thing to establish. A substantial number of states authorize it by statute, many through the Uniform Real Property Transfer on Death Act, and others do not recognize it at all - in which case a deed on that form does nothing and an alternative such as a trust or a properly structured joint tenancy is needed. Because it is a state-by-state creature, the requirements for form, recording, revocation and the effect on the beneficiary differ; the statute of the state where the land sits is the only reliable source.

Its limitations are real, and it is often chosen for reasons that do not survive examination. It handles one property, so an owner with land in several states needs one in each state that permits it. It provides no mechanism during incapacity, unlike a trust: if the owner can no longer manage the property, the deed does nothing and a power of attorney or conservatorship is still required. Multiple beneficiaries take as co-owners and may promptly disagree about selling. It does not shield the property from the owner's creditors, and in many states it does not protect it from Medicaid estate recovery - which is frequently the exact purpose it was chosen for, and the point on which advice is most valuable.

Where this comes from

Transfer-on-death deeds exist only where a state has authorized them by statute; roughly half the states have, many by enacting the Uniform Real Property Transfer on Death Act, and the rest have not, so no national rule exists and a form drawn for one state may be void in another. Execution, witnessing and notarization, recording, revocation, the treatment of a beneficiary who dies first, and the deed's effect on the owner's creditors are each set by that state's statute. Federal law requires states to seek recovery from the estates of certain Medicaid recipients under 42 U.S.C. § 1396p(b), and whether a state defines "estate" broadly enough to reach property passing by such a deed is decided by state law. Acceleration of a mortgage on certain transfers at death is restricted by the Garn-St Germain Depository Institutions Act, 12 U.S.C. § 1701j-3. Any period for recording, for a beneficiary to survive, or for a creditor to act is fixed by the applicable state statute and none is stated here.

When people hire a lawyer for this

The first question is simply whether your state authorizes this at all, and the second is what the property is carrying - a mortgage, a home equity line, liens or unpaid taxes all pass to the beneficiary. Advice is worth taking where the owner has received or may need Medicaid, since estate recovery reaches this deed in some states and not others and the answer usually determines whether it is the right tool; where more than one beneficiary is to be named, since they will hold the property together; where the property is jointly owned already, because the interaction with survivorship rights is easy to get wrong; and where there is a mortgage with a due-on-sale clause, though federal law protects many transfers on death from acceleration. Recording is a step to complete rather than to intend, and the deed should be reviewed after any sale, refinance, marriage, divorce or death of a named beneficiary. Where incapacity, several properties, or a beneficiary who should not receive property outright is in the picture, a trust is usually the better instrument and this deed is not a substitute for it.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

Adverse PossessionThe doctrine by which a person who occupies land they do not own, openly and continuously for the period the state sets, becomes its owner - the elements, the "color of title" and tax-payment variations, and why it decides fence and driveway disputes far more often than it transfers whole parcels.
Deed Types: Warranty, Special Warranty and QuitclaimWhat the different forms of deed promise about the title they convey - the general warranty deed's guarantee against every defect, the special warranty deed's narrower one, and the quitclaim deed's none - and what each is used for.
EasementA legal right to use someone else's land for a defined purpose, without owning it.
Eviction (Unlawful Detainer)The court process a landlord must use to make a tenant leave - and in most states, the only lawful way to do it.
Foreclosure (Judicial and Non-Judicial)The process by which a mortgage lender takes and sells a home after default - the court-supervised route some states require and the trustee's sale others permit, the federal servicing rules that must be followed first, the loss-mitigation alternatives, and what the borrower can still owe or reclaim after the sale.
HOA Covenants and Assessment LiensThe recorded restrictions that bind every owner in a planned community or condominium, the association that enforces them, and the assessment lien that lets it foreclose on a home for unpaid dues - what the documents control, how they are amended and enforced, and the limits the states have placed on association power.
Homeowners Insurance ClaimHow a property loss claim actually works - what the policy covers, the duties it imposes on you, and where claims most often fail.
Implied Warranty of HabitabilityA landlord's obligation to keep a rented home fit to live in - one the lease usually cannot sign away.
Mechanic's Lien (Construction Lien)The statutory lien a contractor, subcontractor, supplier or laborer may record against a property for unpaid work or materials - the preliminary notices and filing deadlines that make or break it, why an owner who paid the general contractor can still face a subcontractor's lien, and how the lien is enforced or released.
Purchase Contract ContingenciesThe conditions in a home-purchase agreement that let a buyer walk away with the deposit - inspection, financing, appraisal, sale of the buyer's current home, title - how each is exercised and waived, and what happens to the earnest money when the deal fails.
Quiet Title ActionThe lawsuit that asks a court to declare who owns a property and to remove a competing claim from the record - used to clear an old mortgage never released, a break in the chain of title, a tax-sale or adverse-possession claim, or a deed that should never have been recorded.
Security DepositMoney a tenant leaves with a landlord against damage or unpaid rent - held under state rules that usually require an itemized accounting within a fixed period after move-out.
Seller Disclosure DutiesWhat a seller of a home must tell a buyer about the property - known material defects, water intrusion, structural and system problems, and under federal law lead-based paint - the state disclosure forms, the "as is" sale, and what a buyer can do when a problem was concealed.
Title Search and Title InsuranceThe examination of public records that establishes who owns a property and what claims stand against it, and the insurance policy that pays if that examination missed something - who is protected by the lender's policy, who by the owner's, and what neither covers.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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