hide my visit

Transfer on Death Deed - Guided Form

What is a Transfer on Death Deed?

A new Texas state law allows real property owners to record a “Transfer on Death Deed” naming a beneficiary to own that real property after they die. With a properly recorded Transfer on Death Deed, no probate is needed to transfer the real property.

When to Use a Transfer on Death Deed:

You may want to use a transfer on death deed when you own real property such as a house or land, and you want to give that property to someone else when you die.

I already have a Will, why would I want a Transfer on Death Deed?

Whether you have a will or not, your property will still have to go through the probate court system. A Transfer on Death Deed conveys property outside of probate. The avoidance of probate allows for you to avoid incurring court costs and administrative costs to deed the property to your beneficiary. Under current law, it also excludes the real property from Medicaid estate recovery.

Does a Transfer on Death Deed replace a Will?

The Transfer on Death Deed does not replace a will. The will remains an important part of your estate plan. Your will may provide how property without beneficiary designations passes, and may provide what happens if all beneficiaries predecease you. Your will may allow you to provide in detail who gets items of personal property, including your motor vehicles, heirlooms and furniture. You should consult your attorney about how a Transfer on Death Deed fits into your estate plan.

Does a Transfer on Death Deed affect my rights while I'm alive?

No. It only takes effect after your death. You can sell the property, use it as collateral on a loan, get property tax exemptions, and enjoy all the other property rights you currently have. 

What if I own property with someone else?

You can only give someone the portion of the property that you own. For example, if you and your spouse own the property in equal shares and you file a transfer on death deed giving the property to someone, like a child or a friend, that person only gets your share of the property. Your spouse still has her share.

Does a Transfer on Death Deed trump a will?

Yes. If you already have a will that gives the property to someone else, this transfer on death deed “trumps” the will. The beneficiary named in the transfer on death deed gets the property, not the person named in your will. If you already have a will, it is best to talk to an attorney about the pros and cons of using a transfer on death deed.

NOTE: If you make a will at some point in the future that gives the property to a different person than the beneficiary listed in this transfer on death deed, that provision does not override the deed. The beneficiary named in this transfer on death deed still gets the property. If you change your mind about who you want to get the property, you need to complete the cancellation of transfer on death deed in the will or file an updated transfer on death deed.

A transfer on death deed does not protect the property from creditor claims. You may use a transfer ondeath deed even if there is a debt or lien, such as a mortgage, against the property. However, upon your death, your beneficiary takes the property subject to all mortgages, liens and claims and will be responsible for paying those debts on the property. Also, if the property owner dies and has other unpaid debts, the property could be tied up in probate court until those debts are resolved.

How long does the beneficiary have to outlive me?

The transfer on death deed beneficiary must survive you by at least 120 hours. If not, the property is treated as if the transfer on death deed did not exist.

What Other Forms Do I Need?

Affidavit of Death: When the property owner who created a Transfer on Death Deed dies, this form is used by a named beneficiary to get legal ownership of the property. Title to the property does not pass to the beneficiary(ies) until the Affidavit of Death is filed. Without legal title, you cannot sell the property, or get property tax exemptions, or use the property as collateral on a loan.

Go here for the guided Affidavit of Death Form and instructions.

How Do I Cancel a Transfer on Death Deed?

Cancellation Form: Use this form to cancel a Transfer on Death Deed. Go here for the guided Cancellation Form and instructions.