HOW TO FILE A TRANSFER-ON-DEATH DEED IN OHIO
WHAT IS A TRANSFER-ON-DEATH DEED?
If you own real property, such as a house, in your name alone but haven't created a trust and transferred your property’s title to that trust, it's all but guaranteed that your beneficiaries will have to deal with probate after your death. If a living trust doesn't make sense for your situation, but you still want to avoid the probate process, a transfer-on-death (TOD) deed may be the solution. A TOD deed (also known as a beneficiary deed) transfers your real property to your selected beneficiaries upon your death. It's similar to a payable-on-death designation for a bank account or a transfer-on-death registration for an investment account. During your lifetime, you continue to own and control the real property. You can sell it, lease it, refinance it, give it away, or do anything with it you choose. You also continue to be responsible for paying the mortgage, property taxes, and maintaining the property. When you die, the TOD deed works to automatically transfer the property to your named beneficiaries without having to go through probate. If you change your mind during your lifetime about whom you have named as beneficiaries in the TOD deed, you can amend or revoke it at any time.
More than 25 states, including Ohio, now allow the use of Transfer-On-Death deeds. You don't have to actually live in a state that allows TOD deeds to be able to use one, but the property must be located in such a state.
HOW TO USE A TRANSFER-ON-DEATH DEED
The requirements for creating a TOD deed vary by state, but in essence, the process includes the following steps:
COMPLETE THE TOD DEED
With the assistance of an experienced estate planning attorney, determine the specific form or language required for the TOD deed to comply with state law. Remember to look at the requirements in the state where the property is located. A TOD deed will look much like any other property deed but will contain specific language that makes it clear that the deed does not take effect until after your death.
NAME YOUR BENEFICIARY
Your beneficiary can be one or more people or organizations, such as a business or a charity. You may want to consider naming a contingent, or backup, beneficiary in case your first choice passes away before you do. You want to be sure to use the beneficiary’s legal name rather than categories or relationships. For example, if you are naming your two daughters as your beneficiaries, you should use “Jane Doe and Julie Smith” instead of “my daughters.” If you name several beneficiaries, be sure to indicate on the deed how they will own the property (as equal joint tenants with rights of survivorship, as tenants-in-common, equal one-half shares, or some other form of co-ownership).
DESCRIBE THE PROPERTY
Be sure to use your property’s correct legal description in the TOD deed. Legal descriptions of land can be found on the current deed recorded in the official property records, your sales contract, or your mortgage papers. However, legal descriptions are not always copied accurately. It is important to consult an experienced estate planning attorney regarding the preparation of deeds and the accuracy of legal descriptions on deeds.
SIGN THE DEED
If you are the property’s sole owner, you are usually the only person who needs to sign the deed. However, if you are married and live in a community property state, or if you have declared the property your homestead, state law may require that both you and your spouse sign the deed. An experienced estate planning attorney can ensure that your intended transfer meets all legal requirements and is properly documented.
If you co-own property with someone else as tenants in common, you can use a TOD deed to designate a beneficiary for your share of the property. If you co-own the property as joint tenants, all co-owners will need to sign the deed, and it will not be effective until the last surviving owner passes away. If only one co-owner signs the TOD deed, it will not be effective unless the signer is the last owner to die. Keep in mind that even if you and your co-owner sign a TOD deed, if you die first, the surviving co-owner can revoke the TOD deed before their death.
If your state requires it, have the owners’ signatures notarized. An estate planning attorney can usually arrange for a notary to be present if necessary. The beneficiary does not need to sign the TOD deed.
RECORD THE DEED
File the deed with the proper land records authority, such as the county clerk, recorder’s office, or land registrar in the county where the property is located. This will require paying a minimal recording fee. Recording the deed is a very important step because the TOD deed won't be effective without it. A beneficiary cannot record the TOD deed after you die and have it be effective. Again, consider working with an experienced estate planning attorney to ensure that the TOD deed is accurate and effective.
BENEFITS OF A TOD DEED
There are several reasons why you might want to use a TOD deed.
A TOD deed can be used to avoid the public, costly and time-consuming probate process.
A TOD deed protects the property from your beneficiaries' creditors. Some parents will choose to put their children’s names on their existing deed. The problem with this approach is that the parents’ property becomes immediately subject to the child’s creditors, divorce settlement, etc.
A TOD deed relieves tax burden. Simply gifting real property to your intended beneficiaries can cause unintended gift tax consequences. A TOD avoids gift taxes because your beneficiary has no ownership in the property until you die.
A TOD avoids real estate transfer, conveyance, and documentary stamp tax consequences. With a TOD, there is no immediate transfer or change in beneficial ownership—a child beneficiary has no ownership in or legal right to the property until after their parents’ death.
TODs can be created cheaply and easily in comparison to trusts.
TODs can be changed or revoked at any time. Be sure to follow your state's laws for effective revocation. A TOD deed will take priority over a last will and testament, even if the will was written later, so it is important to remember that a will cannot change or revoke a TOD deed.
DISADVANTAGES OF A TOD DEED
One of the downsides of a TOD deed is that if you have multiple beneficiaries, there are legal quirks you might not know about that can significantly impact the other beneficiaries’ inheritances, or result in an outcome that does not reflect your ultimate wishes.
In sum, a TOD deed can be an inexpensive and simple way to avoid the probate process upon your death and transfer your real property to your intended beneficiaries. That being said, it is important to understand the practical and legal implications for your individual situation and wishes before jumping into a TOD deed. Contact The Law Offices of DuPont and Blumenstiel at 614-389-9711 if you have questions about whether using a TOD deed is appropriate for your situation.
A transfer-on-death deed is just one aspect of a sound estate plan. To learn more about other deed and trust options, read How to Keep Your Home in the Family: A Guide to Using Deeds and Trusts for Estate Planning Needs.