Estate Planning

The Texas Transfer on Death Deed

The Texas Transfer on Death Deed

by Rania Combs

deed

Effective September 1, 2015, Texas joined the growing number of states that allow owners of real estate to transfer property to their beneficiaries outside the probate process by creating a Texas Transfer on Death Deed.

The deed works like a beneficiary designation on a retirement plan or an insurance policy. It allows you to name a primary and contingent beneficiary who will inherit your real property after you die.

This is good news for many Texans with modest estates whose only probate asset is their home.

Below are a few things you need to know about the Texas Transfer on Death Deed.

The Requirements of an Effective Transfer on Death Deed

To be effective, the deed must:

  1. Contain the essential elements and formalities of a recordable deed in Texas;
    • It must be in writing
    • Contain the legal description of the property
    • Include the Name and Address of the designated beneficiary or beneficiaries
    • Be signed by the Grantor (the property owner) in the presence of a Notary Public
  2. State that the transfer of the Grantor’s interest to the designated beneficiary will not occur until the Grantor’s death; and
  3. Be recorded before the Grantor’s death in the deed records in the county clerk’s office of the county where the real property is located.

Is Delivery and Acceptance of the Deed Required?

Notice or delivery to or acceptance of the deed by the designated beneficiary is not required.

Is it Possible to Name More Than One Beneficiary?

Yes. It is possible to name more than one beneficiary, but you should proceed with caution.

If you name more than one beneficiary, each beneficiary will inherit the property in equal and undivided shares with no right of survivorship.

In plain English, this means that you may not leave varying percentages to several individuals. All will inherit an equal share of the property. For example, if you name two beneficiaries, each would inherit a 50% share. If you name four beneficiaries, each would inherit a 25% share. You can’t give one beneficiary a 50% share and two other beneficiaries a 25% share.

Additionally, the statute specifies that there is no right of survivorship. That means that if you name multiple beneficiaries, and one predeceases you, the deceased beneficiary’s share will not pass to the surviving beneficiaries.

Therefore, it is a still a good idea to have a Will. A Will allows you to specify who will inherit the property if your Transfer on Death Deed beneficiaries predecease you.

Should a Spouse be Named as Primary Beneficiary of Jointly Owned Property?

The answer to this question depends on whether you own your property as tenants in common or joint tenants with rights of survivorship.

Most couples who own property jointly in Texas own the property as tenants in common. If a couple owns the property as tenants in common and one of them dies, the survivor will not automatically inherit the property. Rather, it would be necessary to name each spouse as the primary beneficiary for the deceased spouse’s interest to pass to the survivor.

Can I Revoke a Transfer on Death Deed?

Yes.  A Transfer on Death Deed is completely revocable during the life of the Grantor. A grantor can revoke a Transfer on Death Deed in one of the following ways:

  1. By signing a new Transfer on Death Deed that revokes the prior one or specifies that the property should pass to someone else;
  2. By signing a separate document that expressly revokes the prior Transfer on Death Deed. Note, however, a Grantor cannot revoke a Transfer on Death Deed by making a contrary provision in a Will.

The Grantor must sign the revocation in front of a notary and record it before the Grantor’s death in the deed records of the county clerk’s office of the county where the property is located.

Additionally, if a Grantor names a spouse as the beneficiary of a Transfer on Death Deed, but the marriage ends in divorce, a final judgment of the court dissolving the marriage will operate to revoke the transfer on death deed as to the divorced spouse only if notice of the judgment is recorded before the Grantor’s death in the deed records in the county clerk’s office of the county where the deed is recorded.

Can Transfer of Death Deed be Created Though Use of Power of Attorney?

No. An agent acting under a power of attorney cannot create a Transfer on Death Deed.

How Does the Beneficiary Get Title to the Property after the Grantor Dies?

After the Grantor dies, an affidavit of death and a certified copy of the Grantor’s death certificate should be filed in the county clerk’s office of the county where the deed was recorded.  This creates a link in the chain of title to show that the beneficiary is now the owner of the property.

The beneficiary takes title subject to all mortgages, liens, judgments, and other encumbrances. The beneficiary does not take the property free and clear.

Does a Transfer on Death Deed Prevent Medical Estate Recovery?

The Medicaid Estate Recovery Program (MERP) can recoup funds Medicaid spent on an individual’s care from his or her estate.

Under current rules, Medicaid can only recover assets included in the deceased individual’s probate estate. A home that is part of a deceased person’s probate estate can be subject to MERP.

However, transfers that avoid probate are not. Therefore, the Texas Transfer on Death deed, which allows property to pass outside of probate, currently avoids MERP.

A Caveat

Texas recognizes that the use of Transfer on Death Deeds can affect the ability of a decedent’s creditors to recover what they are owed. Therefore, the statute specifies that if a Grantor’s estate is not sufficient to the pay the debts of the estate, related taxes, or allowances to the Grantor’s family, the personal representative of the estate can claw a piece of property that the homeowner transferred by transfer on death deed back into the estate.

The personal representative must initiate a proceeding to enforce a liability within 90 days after he receives a demand for payment; otherwise a creditor, an heir of the estate, a surviving spouse, a representative of a minor child or adult incapacitated child, or any taxing authority can initiate a court proceeding to enforce the liability. This means that title companies may be reluctant to insure clear title for two years, until the claims period has expired, absent a court proceeding.   In contrast, filing a probate action can significantly reduce claims period against the estate.

Is it necessary to have a Will if you have a Transfer on Death Deed?

Yes. Everyone needs a Will because you may have probate assets other than your real property. Additionally, there is always a possibility that your Transfer on Death Deed beneficiaries will predecease you or die at the same time.

For example, suppose Jill has two adult children, Jack and Annie. Jill creates a Transfer on Death Deed naming Jack as the primary beneficiary of a piece of property and Annie as the alternate beneficiary.

One holiday weekend, Jill, Jack and Annie decide to go to the beach together. On the way there, a tragic accident kills all of them. If Jill dies without a Will, and her beneficiaries die with her, the Texas Intestacy Statutes would control who inherits the property. A Will would have allowed her to choose the beneficiary.

A Transfer on Death deed can be a cost-effective way to transfer property at death without probate. However, it is not a substitute for a Will or the advice of an attorney. Talk to your attorney about whether a Transfer on Death Deed is right for you.

This article was originally posted on August 7, 2015 and updated on April 17, 2020.


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Comments

  1. Top 10 from Texas Bar Today: Blind Spots, Purple Cows, and Mumbo-Jumbo | Texas Bar Today

    August 7, 2015 at 1:21pm

    […] The Texas Transfer on Death Deed – Rania Combs @raniacombs of Rania Combs Law in […]

  2. Kay

    August 20, 2015 at 8:39pm

    I assume, then, that with property, the transfer on death deed supersedes the will?

    1. Rania Combs

      January 19, 2016 at 3:10pm

      Yes. The statutes specifies that a Will may not revoke or supersede a transfer on death deed.

  3. Pam

    September 2, 2015 at 5:50pm

    Where do you get this form for Texas?

    1. Rania Combs

      October 5, 2015 at 1:15pm

      You can access TexasLawHelp.org’s free Texas Transfer on Death Deed (pdf) by clicking on the link.

      If you try to create the deed on your own, please make sure you follow instructions very carefully. I did have a form on my website for visitors to complete for a small fee; however, the vast majority of those who attempted to complete the form did so incorrectly. This prompted me to remove the form. While the form on texaslawhelp.org gives you a general idea of what the form looks like, it is always best to get an attorney’s advice to make sure it is done correctly.

  4. Bryan Weidner

    January 18, 2016 at 1:49pm

    I inherited my real estate property and at 45 married for the first time. I am disabled and receive certain property tax benefits keeping the property in my name alone. I like the idea about the transfer on death deed but if filed before my death, will that effect my property taxes. Later, after my death, am I correct to assume that the inheritance taxes would be avoided on the same property by my wife.

    1. Rania Combs

      January 19, 2016 at 3:07pm

      Interest in a property transferred by Transfer on Death Deed does not vest until after the Grantor dies. Texas has no inheritance tax and estate taxes are levied only on the portion of an estate’s value that exceeds the exemption amount. In 2016, the exemption amount is $5.45 million.

  5. Tiffany

    January 24, 2016 at 9:45pm

    Is there a Transfer on Death Deed form for 401K’s? If so, where do I find it online or on your website? Many thanks in advance.

    1. Rania Combs

      January 25, 2016 at 2:56pm

      Designating a beneficiary of your 401k would allow that asset to pass to the designated beneficiary without the necessity of probate.

  6. Larry

    February 16, 2016 at 12:57am

    Unfortunately texaslawhelp.org does not provide the naked form you need unless I missed something. It mixes the instructions and the deed provisions and tells you not to file the instructions.

    A lawyer could glean out the deed from this by eliminating the instructions through either typing his own deed, or perhaps he could copy and paste the parts that make up the deed. You better get a lawyer.

    1. Rania Combs

      February 16, 2016 at 10:21am

      Hi Larry,

      Thanks for your comment. I did have a form on my website for visitors to complete for a small fee; however, the vast majority of those who attempted to complete the form did so incorrectly. This prompted me to remove the form.

      While the form on texaslawhelp.org gives you a general idea of what the form looks like, it is always best to get an attorney’s advice to make sure it is done correctly.

  7. Armando

    February 22, 2016 at 2:27am

    I heard that if you create a another transfer on death deed and record it, it causes the first one to basically be void, is that correct? Also, if they convey the real property out prior to the death, it as well voids out the transfer deed. True?

    1. Rania Combs

      February 26, 2016 at 5:49pm

      The statute specifies that a Texas transfer on death deed can be revoked if the homeowner files a new transfer on death deed in the county clerk’s office of the same county in which the original transfer on death deed is recorded. If the homeowner does not own the property when he dies, the transfer on death deed would be invalid.

  8. MaryAnn

    February 24, 2016 at 11:58pm

    My parents have both died and they had no Will. My sister and I are their only children. My sister lives in their house and pays the property taxes. I would like my 1/2 but my sister says Im not entitled to have since she has been living there and has paid taxes and any repairs. Im I entitled to half of this property or not?

    1. Rania Combs

      February 26, 2016 at 5:02pm

      Please accept my condolences for your loss. The following article describes how property is distributed when someone dies without a Will in Texas: Dying Without A Will: The Texas Intestacy Statutes.

  9. Rekha K NAnjegowda

    March 30, 2016 at 6:29am

    I have a question. What happens if a Transfer On Death Deed is created using a Power of Attorney on behalf of Transferor?

    1. Rania Combs

      March 30, 2016 at 1:05pm

      Thanks for your question. The statute specifically states that an agent acting under a power of attorney cannot create a transfer on death deed.

    2. Rania Combs

      June 15, 2016 at 11:11pm

      The statute provides that an agent acting under a power of attorney may not create a Transfer on Death Deed.

  10. Nicole

    May 7, 2016 at 1:40am

    Who gets the house? If Will says house is left to Mary but the house has a transfer on death deed and names John.

    1. Rania Combs

      June 15, 2016 at 10:51pm

      The Transfer on Death Deed statute specifies that the Transfer on Death Deed controls.

  11. Martha

    May 9, 2016 at 1:51pm

    If you file a TOD and specify your daughter. Will her spouse be entitled to the property as well?

    1. Rania Combs

      June 15, 2016 at 10:49pm

      Property that is acquired by inheritance is characterized as separate property in Texas.

  12. Irene Saenz

    May 19, 2016 at 5:10pm

    How does this transfer on death deed affect people on Medicaid in Texas as pertains to the policy on the Medicaid Estate Recovery Program?

    1. Rania Combs

      June 15, 2016 at 10:41pm

      Under current rules, Medicaid can only recover assets included in the deceased individual’s probate estate. Therefore, the Texas Transfer on Death deed, which allows property to pass outside of probate, currently avoids estate recovery.

  13. David

    August 19, 2016 at 4:24pm

    If I file a Texas TOD Deed, will it effect my homestead exemption now?

    1. Rania Combs

      August 24, 2016 at 1:33pm

      Filing a Texas transfer on death deed should not affect your current homestead exemption.

  14. Mary

    August 22, 2016 at 8:11pm

    Does the price basis of inherited property, provided through a TOD deed in Texas, get stepped up to the current market value of the property upon the death of the property owner? If so, what is the advantage to using a TOD deed versus allowing the property to pass through probate? Thank you for any information you can provide.

    1. Rania Combs

      August 24, 2016 at 1:30pm

      Thanks for your question, Mary. I’ve answered your question here: Does Property Passed by Transfer on Death Deed Get a Step-Up in Basis?

  15. Does Property Passed by Transfer on Death Deed Receive a Step-Up

    August 24, 2016 at 3:16pm

    […] that is transferred by transfer on death deed occurs at the donor’s death. Therefore, the beneficiary of such property should get a step-up in […]

  16. Vance

    October 25, 2016 at 3:20pm

    Although the code indicates that the beneficiaries will own the property in equal proportions, can the deed specify an unequal ownership: ie: one beneficiary will own 1/3 and the other will own 2/3?

    Also, can the owner include any personal restrictions such as giving one beneficiary the right to lease or sell the property if they cannot agree? Although a will can require property to be sold, I’m not sure if similar language could be added to a deed or if a will could force the sale of property that has been deeded under a transfer on death deed. Thanks.

    1. Rania Combs

      November 30, 2016 at 4:20pm

      No. The transfer on death deed statute specifies that concurrent interest are transferred to the beneficiaries in equal and undivided shares with no rights of survivorship.

  17. Can I Avoid Probate in Texas without a Revocable Trust?

    November 10, 2016 at 12:46pm

    […] property conveyed by a Texas transfer on death deed or lady bird deed pass to the intended beneficiary outside of […]

  18. Angela Garcia

    February 16, 2017 at 4:29pm

    Can a husband and wife execute the same deed? Or do they need to execute and file 2 separate deeds?

    1. Rania Combs

      February 17, 2017 at 1:32pm

      It is possible for a husband and wife to execute one deed. I recommend that you contact an attorney to assist you.

  19. Chris

    February 16, 2017 at 10:40pm

    Hi if my father files the TODD to his daughter and if he passes is there any taxes she will have to pay?

    1. Rania Combs

      February 17, 2017 at 1:31pm

  20. A Transfer on Death Deed for your Car --Texas Wills and Trusts Law

    February 17, 2017 at 10:39am

    […] Texas Transfer on Death Deed allows owners of real estate to transfer their property to beneficiaries outside the probate […]

  21. Roger B

    April 18, 2017 at 7:11pm

    My mother unexpectedly passed away in April of 2016. I’m the only heir left. She had two parcels of land in different counties in Texas. How can I get a deed to those properties in my name?

    1. Rania Combs

      April 21, 2017 at 9:35am

      The following article may answer your questions: What to Do When Someone Dies in Texas.

  22. Geofrey

    May 23, 2017 at 1:06pm

    If a husband or wife is disabled and cannot physically appear at the County Clerk’s Office to process the Transfer on Death Deed, is there another filing option?

    1. Rania Combs

      May 30, 2017 at 3:55pm

      It is possible to mail legal document, along with the recording fee, to the clerk’s office for recording.

  23. Can an Agent Revoke a Transfer on Death Deed

    June 28, 2017 at 4:28pm

    […] Texas Transfer on Death Deed allows homeowners to name a beneficiary who will inherit their property after they […]

  24. Meaghan Barrera

    July 24, 2017 at 9:14am

    Is it better to list my sister as the beneficiary (who is also listed as a guardian in our will) or my child who is a minor?
    Thank you!

    1. Rania Combs

      July 24, 2017 at 12:35pm

  25. Craig Harris

    October 16, 2017 at 12:07pm

    Your introductory information states “this is good news for many Texans with modest estates whose only probate asset is their home”. I’m a Widower, no children, own multiple acreage parcels with improvements, my homestead,a 2nd home, etc. As long as the TOD’s are filed correctly couldn’t I transfer those parcels to whomever I choose and avoid probate?

    1. Rania Combs

      October 17, 2017 at 11:11am

      Yes.

  26. Miranda

    January 26, 2018 at 8:03pm

    The husband bought the house in Texas before he got married. After 2 years he filed TOD to his daughter. Can the wife go after the house when the husband passes away?

    1. Rania Combs

      January 31, 2018 at 5:17pm

      Property acquired before a marriage and during the marriage by gift, devise or descent is characterized as separate property. When a married person dies without a will leaving children from another marriage, the surviving spouse is entitled to only a life estate in one-third of that property. The remainder is inherited outright by the deceased spouse’s children in equal shares.

      That being said, certain constitutional protections are available for surviving spouses in Texas. A surviving spouse is entitled to a life estate in homestead property and cannot be forced to sell her property as long as she occupies and uses it.

  27. Susan

    January 29, 2018 at 9:11pm

    My father would like to sign a Transfer on Death Deed. My sister-in-law is a Notary Public. Can you tell me if she is authorized to notarize the form for us?

    1. Rania Combs

      January 31, 2018 at 4:54pm

      The Texas Secretary of State’s website provides the following guidance:

      There is no specific prohibition against notarizing a spouse’s or relative’s signature or notarizing for a spouse’s business. However, notarizations should not be performed by a notary public who is a party to the instrument or financially or beneficially interested in the transaction. The facts in each situation will determine whether the notary’s action was proper.

  28. Debbie

    March 18, 2018 at 11:02pm

    If a Transfer on Death Deed is completed, making an adult child the beneficiary by both spouses, and then a divorce occurs, what happens to the TOD?

    1. Rania Combs

      March 23, 2018 at 9:10am

      The transfer on death deed statutes only addresses what happens in the case of a divorce between the homeowner and the beneficiary. It provides that if a marriage between a homeowner and a designated beneficiary is dissolved after the transfer on death deed is recorded, a final judgment of the court dissolving the marriage operates to revoke the transfer on death deed as to that designated beneficiary if notice of the judgment is recorded before the homeonwer’s death in the deed records in the county clerk’s office of the county where the deed is recorded.

  29. Franklin Campbell

    June 20, 2018 at 4:36pm

    Hi Rania. If there is a Revocable Trustand a Pour Over Will that takes all property not already in the trust and moves it into the Trust after death, and there is a TOD/POD on one property, does the POD/TOD directions execute without regard to the Pour Over Will and ultimately the Trust?

    1. Rania Combs

      June 26, 2018 at 11:32am

      An asset with a POD/TOD designation will not become part of the probate estate.

  30. Arlen

    August 13, 2018 at 2:05pm

    My wife and I own a house in Texas, but I can’t find anything in the deed that says whether it is tenants in common or joint tenants. How do I know which it is, and do we have to file two TODDs or can we do just one.

    1. Rania Combs

      August 14, 2018 at 6:02pm

      If the deed does not indicate that title is held with rights of survivorship, then it is held as tenants in common.

      I recommend that each spouse execute a transfer on death deed.

  31. Don

    August 24, 2018 at 8:51pm

    Can a TOD be used by an unmarried individual who only has a 1/4 undivided interest in the property

    1. Rania Combs

      August 28, 2018 at 9:50am

      A transfer on death deed can be used to transfer an individual’s interest in the property.

  32. Del Aleman

    September 3, 2018 at 4:08pm

    Counselor, if a homeowner files a T.O.D.D., can the homeowner later decide to sell?

    1. Rania Combs

      September 4, 2018 at 6:13pm

      Yes.

  33. Cindy M.

    September 13, 2018 at 7:34pm

    Hi Rania…if a property has a mortgage and it is transferred to my son using the TOD deed can they force a due on sale clause? Can the mortgage company try to get a claim against the estate for that mortgage? Thank you

    1. Rania Combs

      September 17, 2018 at 12:13pm

      The statute specifically provides that a transfer on death deed does not constitute a transfer that triggers a “due on sale” clause or similar clause. It also provides that a beneficiary of a transfer on death deed takes the property subject to any encumbrances.

  34. Albert

    January 14, 2019 at 12:36am

    Hi Rania, thank you for providing the information on your website. It is very helpful. Question: if I execute a transfer on death deed, will my spouse need to obtain a new title insurance?

    1. Rania Combs

      January 16, 2019 at 11:16am

      I’m glad you have found the information helpful. I recommend that you contact the title company for an answer to this question.

  35. Robin

    February 18, 2019 at 4:11pm

    Is Husband and Wife (ie John Doe, and wife, Jane Doe) considered the same as joint tenants with right of survivorship OR is it the same as tenants in common?

    1. Rania Combs

      February 19, 2019 at 12:51pm

      Title is typically held as tenants in common unless a deed specifically indicates that the property is held “with rights of survivorship.”

  36. KMJ

    April 8, 2019 at 3:17pm

    Say a grantor is disabled from stroke and has given power of attorney to related beneficiaries who are listed in a transfer on death deed and one of the beneficiaries dies. Does their inheritance automatically transfer to their spouse and heirs or does the grantor or agent need to create a new transfer on death deed?

    1. Rania Combs

      April 24, 2019 at 4:12pm

      The Transfer on Death Deed statute specifically states that an agent acting under a power of attorney cannot create a Transfer on Death Deed.

    2. Jacob

      July 27, 2020 at 12:27am

      If a power of attorney cannot make or sign a transfer on death deed and the grantor is physically unable to sign who can sign for her? Can a beneficiary sign it?

      1. Rania Combs

        July 27, 2020 at 12:42pm

        The transfer on death deed statute provides that an agent acting under a power of attorney cannot create a Transfer on Death Deed. A beneficiary does not own the property, and therefore cannot convey the property.

        Sometimes powers of attorney grant an agent the power to create a Lady Bird Deed, a different type of deed that transfers property at death. Please consult an attorney in your community to advise you on the best course of action under your circumstances.

  37. Vanessa

    October 3, 2019 at 10:48pm

    Can the Transfer on Death Dead verbiage be added to a Will?

    1. Rania Combs

      October 14, 2019 at 10:34am

      One of the benefits of a transfer on death deed is that the described real property transfers to the intended beneficiary outside of probate. It is certainly possible to make a specific gift of property in a Will, but the Will would need to go through probate to transfer the property to the intended beneficiary.

    2. Kris

      December 3, 2019 at 3:20pm

      Transfer on death deed upon filing with County clerk will become a public record. Is it mandatory to file it? If not, will the notary suffice? Thanks.

      1. Rania Combs

        December 3, 2019 at 3:34pm

        The Transfer on Death Deed statute specifies that the deed must be recorded before the transferor’s death in the deed records of the county clerk’s office of the county where the real property is located or it will not be effective.

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