Question

1. Fatimah wants to make sure her niece, Miriam, receives all her property at her death. What document does Fatimah need to make and why? What happens if Fatimah fails to execute this document and she has two children, Freddy and Frank?

Answer 1

A transfer on death deed, sometimes called a “beneficiary deed”, is an instrument that states who should receive a piece of real estate upon the death of the current owner(s). It’s typically a 1- or 2-page document that is recorded in the county where the real estate is located.

Probate avoidance

Transfer on death deeds are mainly used in estate planning to keep real estate out of the probate process. Probate is a long, expensive legal process through which the property of a deceased person is managed and distributed, under court supervision. With proper estate planning, probate can and should be avoided altogether.

Real estate that is not owned or held in any kind of special way is considered “probate property” and will have to pass through the probate process. For example, a house in the sole name of the owner, with no special form of ownership — no special arrangement. When the owner dies, the house must pass through the probate process before it can pass to the proper beneficiaries.

To keep property out of probate, it must be turned into a “non-probate property”. Real estate can start out as non-probate property depending on how the title is held (that, is the way the deed is written). Real estate can also be turned into non probate property by using a transfer on death deed or a trust.

Title

When a deed to a home specifies that the owners are “joint tenants”, it means they are equal owners of the whole (they are not each 50% owners — together they are 100% owners). When one joint tenant dies, the other joint tenant is “automatically” the full owner. So, property held in joint tenancy is non-probate property. Note that when the second of two joint tenants dies, there is no longer another joint tenant to automatically become the owner, so the home would be probate property.

In addition to joint tenancy, some states have other forms of holding title to real estate that create a non probate arrangement — usually for married couples.

Transfer on death deed

The simplest and easiest way to make real estate into non probate property is with a transfer on death deed.

As mentioned above, a transfer on death deed is a simple and short document. It can be revoked (cancelled) or replaced anytime, and has no effect until the death of the owner. Once the owner dies, the beneficiaries just need to record the owner’s death certificate with the county where the property is located, and they become the new owners.

Unfortunately, only some states have transfer on death deeds (see the list below), so individuals may need to use other tools to keep real estate out of probate — most popularly, trusts.

Trusts

A trust is an arrangement where someone (the “trustee”) has title to property (that is, legal ownership of the property), but must manage it for the benefit of someone else (the “beneficiary”). A revocable living trust is one that can be revoked and that is made while the grantor is living. It is a popular tool for probate avoidance that works as follows.

Imagine someone owns a home, some jewelry, and some antiques, and he wants to leave it all to his three children, but he doesn’t want them to have to go through probate. Also, he doesn’t want to give up these things today — he thinks he may be around for a while yet. He can create a revocable living trust to hold this property. When he dies, the trust’s estate planning purpose takes effect. Another trustee, designated by the grantor before his death, steps in (privately — no probate) and distributes the property to the grantor’s children, who are the new beneficiaries.

A trust is usually created with a legal document called a “declaration of trust”. In addition to the declaration of trust document, which creates the trust, property must be transferred into the trust. In the case of real estate, the transfer is done by a deed. So when using a trust to avoid probate, an individual also needs to ensure that they create a transfer deed to place the home in the trust.

Beneficiaries

For a transfer on death deed to fulfill its purpose, beneficiaries must be designated within the document itself. In some states, beneficiaries in a transfer on death deed can be any person, but cannot be an entity or organization. You can also name just one or multiple beneficiaries. However, if selecting multiple beneficiaries, it’s important to note that some states do not allow for the property to be split unevenly among them.

A good transfer on death deed will also name backups in case your primary beneficiaries pass away before you.

Legal requirements

The legal requirements for a transfer on death deed vary by state. In general, most states require that the transfer on death deed include the same information as a regular deed. This includes a valid legal description of the property to be transferred and named beneficiaries. Additionally, a transfer on death deed must explicitly state that the transfer will occur at the owner’s death.

Signing and recording a transfer on death deed

Once it is created, a transfer on death deed needs to be signed and recorded to be legally valid. The exact signing requirements vary from state to state, however, most states require the property owner making the transfer deed to sign the document as well as have it notarized. Beneficiaries, generally, do not have to sign.

To be legally valid, the transfer on death deed also needs to be recorded before the death of the property owner. The document should be recorded in the public records in the county where the property is located. Upon recording, the transfer on death deed is considered a valid non-probate transfer of the property.

Once the owner dies, the beneficiaries simply need to record the owner’s death certificate with the county where the property is located, and they become the new owners. Note that the transfer of the property to the new owners includes any associated mortgages, liens, etc. So your beneficiary will inherit financial obligations that come with the home, such as an outstanding mortgage.

Revoking a transfer on death deed

As mentioned above, a transfer on death deed can be revoked (canceled) at any time during the creator’s lifetime. To revoke a transfer on death deed, you can either create a revocation document or create an entirely new transfer on death deed replacing your old one.

To create a revocation document, you can go to the county recording office where the document was recorded and request a revocation form. This revocation form should be filled out, signed, and recorded just as the deed was.

A better option when modifying or revoking an existing transfer on death deed is to simply create a new one altogether. The new transfer on death deed you create should follow all the same formalities as the original and should explicitly revoke any previously recorded transfers on death related to the same property. As with all deeds, the new transfer on death deed will need to be recorded to be valid.

Is an attorney required to create a transfer on death deed?

No, you do not need an attorney to create a transfer on death deed. While some states provide basic forms that can be used to create a transfer on death deed, these forms are not always up to date and are often too rigid to meet everyone’s unique needs. A better option is to use online software to create a custom transfer on death deed, tailored to your specific needs and the laws of your state. The best online estate planning software will allow you to create your transfer on death deed in a matter of minutes and have it fully customized to your wishes.