A Texas Transfer on Death Deed allows a property owner to name one or more beneficiaries to receive Texas real estate at the owner’s death without requiring the property itself to pass through probate.
One of the important advantages of a Transfer on Death Deed, often called a TODD, is that it is revocable during the property owner’s lifetime.
But changing your mind is not enough. Texas law establishes specific rules for revoking or changing a Transfer on Death Deed, and failing to follow those rules can result in the property passing to someone you no longer intended to inherit it.
This becomes particularly important when:
- You want to name a different beneficiary;
- You have changed your Will;
- You divorce the spouse named in the deed;
- Your beneficiary dies before you;
- You become incapacitated; or
- An agent acting under a power of attorney attempts to make changes for you.
Here is how Texas law addresses each of those situations.
Can You Revoke a Texas Transfer on Death Deed?
Yes.
That means recording a TODD does not permanently commit you to leaving your property to the beneficiary named in the deed.
Texas law expressly provides that a Transfer on Death Deed is revocable.
While you are alive and have the legal capacity required to act, you can generally revoke the deed or replace it with a new TODD. For a broader explanation of how these deeds work, see our Texas Transfer on Death Deed guide.
How Do You Revoke a Texas Transfer on Death Deed?
Texas Estates Code Section 114.057 provides two principal methods for revoking a recorded Transfer on Death Deed.
You can generally revoke it by:
- Executing a subsequent Transfer on Death Deed that expressly revokes the earlier deed or is inconsistent with it; or
- Executing a separate instrument of revocation that expressly revokes all or part of the prior Transfer on Death Deed.
The new instrument must also satisfy important formalities.
It must generally:
- Be acknowledged by the property owner after the acknowledgment of the TODD being revoked; and
- Be recorded before the property owner’s death in the deed records of the county where the original TODD was recorded.
The recording requirement is critical.
Is Signing a Revocation Enough?
No.
A revocation that is properly signed and acknowledged but never recorded before the property owner’s death generally will not revoke the existing Transfer on Death Deed.
For example, suppose Maria records a TODD leaving her home to her son. Several years later, she signs and notarizes a revocation but puts it in a filing cabinet instead of recording it. If Maria dies before that revocation is recorded, the earlier TODD may remain effective.
When changing a Transfer on Death Deed, execution and recording should therefore be treated as parts of the same estate planning task.
Can I Change the Beneficiary Instead of Revoking the TODD?
Yes.
You do not necessarily need to revoke the deed and leave the property without a beneficiary. You can generally execute and record a new Transfer on Death Deed naming a different beneficiary.
If the later TODD expressly revokes the earlier deed or is inconsistent with it, the later properly recorded deed can revoke the prior designation to the extent provided by Texas law.
For example, if your existing TODD leaves your home to Child A and you later decide that Child B should receive the property, a properly drafted and recorded subsequent TODD can be used to make that change.
Can a Will Revoke a Texas Transfer on Death Deed?
No.
This is one of the most important rules involving Texas Transfer on Death Deeds. Texas law specifically provides that a Will may not revoke or supersede a Transfer on Death Deed.
A TODD is a nonprobate transfer. Your Texas Will generally controls probate property, while an effective Transfer on Death Deed controls the particular real estate interest described in the deed.
If the two documents conflict, changing the Will alone does not cancel the TODD.
Example: Your Will and Transfer on Death Deed Name Different Beneficiaries
Suppose you sign and record a Transfer on Death Deed naming your girlfriend as beneficiary of your home. Several years later, the relationship ends.
You then sign a new Will stating that your daughter should inherit the house.
If you do nothing else, the new Will does not revoke the recorded Transfer on Death Deed.
If the TODD remains valid and effective at your death, the beneficiary named in that deed may receive the property despite the contrary provision in your Will.
To change the TODD, you must use one of the legally authorized methods of revocation.
Can a Holographic Will Revoke a Transfer on Death Deed?
No.
The same rule applies regardless of whether the Will is an attested Will or a handwritten, or holographic, Will.
For example, writing by hand, “I revoke my Transfer on Death Deed and leave my house to my daughter,” does not by itself revoke an otherwise valid recorded TODD.
For more information about handwritten Wills, see What Is a Holographic Will?
Why Doesn’t a Will Revoke a TODD?
A Transfer on Death Deed is specifically classified under Texas law as a nontestamentary instrument.
In practical terms, the property transfer is governed by the deed rather than by the Will.
This is similar to other nonprobate arrangements, such as:
- Life insurance beneficiary designations;
- Retirement account beneficiaries;
- Payable-on-death accounts;
- Transfer-on-death financial accounts; and
- Certain survivorship arrangements.
Changing your Will does not necessarily change those transfers either.
Your Will, deeds, trusts, account beneficiaries, and other transfer arrangements should therefore be reviewed together as part of a coordinated Texas estate plan.
Can an Agent Under a Power of Attorney Revoke a Transfer on Death Deed?
This issue requires particular care.
Texas law expressly provides that a Transfer on Death Deed may not be created through the use of a power of attorney. The statute also requires an instrument revoking a TODD to be acknowledged by the transferor.
Because of those requirements, you should not assume that an agent acting under even a broad durable power of attorney can revoke or replace a Transfer on Death Deed for the property owner.
The existing article on this issue concludes that an agent cannot do so based on the statutory requirement that the revocation be acknowledged by the transferor.
This makes advance planning especially important.
Learn more about the role and limitations of agents under a Texas durable power of attorney.
What Capacity Is Required to Revoke a Texas Transfer on Death Deed?
Texas law provides that the capacity required to make or revoke a Transfer on Death Deed is the same capacity required to make a contract.
This is another reason not to postpone changes after deciding that an existing TODD no longer reflects your wishes.
If capacity becomes disputed or is lost before an effective revocation is completed, changing the deed may become substantially more difficult.
What Happens if I Divorce the Spouse Named as My TODD Beneficiary?
Texas law contains a specific rule for this situation.
If a marriage between the transferor and a designated beneficiary is dissolved after the Transfer on Death Deed was recorded, the final divorce judgment can operate to revoke the TODD as to the former spouse.
But there is an important condition:
Notice of the judgment dissolving the marriage must be recorded before the transferor’s death in the deed records of the county where the TODD is recorded.
Simply obtaining a divorce decree and assuming the deed has taken care of itself can therefore create risk.
How Should I Handle a TODD After Divorce?
If a former spouse is named as beneficiary, the safest approach is generally to address the deed affirmatively rather than relying on assumptions.
Depending on your circumstances, that may involve recording notice of the final divorce judgment as porovided by Texas law, and:
- Executing and recording a new TODD that changes the beneficiary; or
- Executing and recording a separate revocation.
Divorce should also trigger a broader estate planning review.
Consider reviewing your:
- Will;
- Trust;
- Powers of attorney;
- Life insurance beneficiaries;
- Retirement account beneficiaries;
- Payable-on-death accounts;
- Transfer-on-death accounts; and
- Real estate ownership and survivorship arrangements.
An outdated deed is only one of many ways a former spouse can remain connected to an old estate plan.
What Happens if the Beneficiary of My Transfer on Death Deed Dies Before Me?
A beneficiary generally must survive the property owner by at least 120 hours—five days—to take the property under a Texas Transfer on Death Deed.
If the beneficiary does not survive the transferor by 120 hours, Texas law treats that beneficiary’s share as having lapsed, subject to the applicable statutory rules.
This makes beneficiary contingency planning important.
Can I Name an Alternate Beneficiary?
Yes.
A Transfer on Death Deed can be drafted to include alternate or contingent beneficiaries.
For example, you might provide that:
- Your daughter receives the property if she survives you; and
- Your son receives the property if your daughter does not survive you.
This can reduce the risk of the transfer failing simply because the primary beneficiary dies first.
What if Both the Primary and Alternate Beneficiaries Die Before Me?
The answer depends on the language of the TODD and the applicable Texas statutes.
Texas law provides that when a designated beneficiary fails to survive the transferor by 120 hours, that beneficiary’s share lapses and is subject to the anti-lapse and Will-construction rules incorporated by Chapter 114.
That is more nuanced than simply assuming the property will always fall back into the probate estate.
The result can depend on:
- Who the beneficiary was;
- Whether the beneficiary had qualifying descendants;
- Whether another beneficiary was named;
- The language of the TODD; and
- Other provisions of Texas law.
Because of those variables, beneficiary deaths should prompt a review of the deed rather than reliance on a default assumption.
Does My Will Matter if the TODD Beneficiary Dies First?
Potentially, yes.
A Will cannot revoke an effective Transfer on Death Deed, but a properly drafted Will remains an important part of the overall estate plan.
If the TODD ultimately fails to dispose of the property, or if you later revoke it without naming another beneficiary, the property may become part of your probate estate and pass under your Will.
If you die without a valid Will, Texas intestacy law may instead determine who inherits probate property.
That is why a Transfer on Death Deed should not ordinarily be treated as a substitute for a comprehensive estate plan.
What if There Are Multiple TODD Beneficiaries and One Dies First?
Texas law generally provides that concurrent TODD beneficiaries receive equal, undivided shares with no right of survivorship, subject to the rules governing a beneficiary who does not survive the transferor.
If one beneficiary dies before the transferor, do not simply assume that the surviving named beneficiaries automatically divide the deceased beneficiary’s share.
The outcome may depend on the deed language and the statutory lapse and anti-lapse rules.
This is another reason that naming several beneficiaries without considering contingencies can create unintended results.
What if More Than One Owner Signed the Transfer on Death Deed?
Revocation rules become more complicated when multiple owners are involved.
If a TODD was made by more than one transferor, a revocation by one transferor generally does not affect another transferor’s interest if that other transferor does not join in the revocation.
Texas law also has a special rule for joint owners with rights of survivorship: a TODD made by joint owners with survivorship rights generally may be revoked only by all living joint owners.
The ownership structure should therefore be reviewed before attempting a revocation.
Does Selling the Property Affect a Transfer on Death Deed?
Yes.
A TODD does not prevent the owner from selling or otherwise transferring the property during life.
Texas law provides rules under which a subsequent lifetime conveyance can make the TODD ineffective as to the interest conveyed when the later conveyance is properly recorded before death.
In other words, a Transfer on Death Deed does not freeze title or give the beneficiary a present ownership interest.
The owner retains substantial control during life.
Does the TODD Beneficiary Need to Agree to the Revocation?
No.
The beneficiary does not acquire a present vested ownership interest merely because the TODD has been recorded. Texas law does not require the beneficiary’s permission for the property owner to revoke or replace the deed.
This is one of the key distinctions between a Transfer on Death Deed and making an outright lifetime gift of real estate.
Common Mistakes When Revoking or Changing a Texas TODD
Trying to Revoke the Deed in a Will
A Will cannot revoke or supersede a TODD.
Signing a Revocation but Not Recording It
The instrument must be recorded before the transferor dies.
Assuming Divorce Automatically Solves the Problem
The divorce provision requires notice of the final judgment to be recorded before death for the statutory revocation rule to apply to the former spouse.
Waiting Until the Owner Loses Capacity
A TODD has specific capacity and execution requirements, and an agent under a power of attorney should not be assumed to have authority to make the change later.
Ignoring a Beneficiary’s Death
A beneficiary dying first can change how the property passes. The deed should be reviewed when this happens.
Changing the Will but Forgetting the Deed
Estate planning documents should be coordinated. A new Will does not automatically update a TODD.
Using an Incorrect Property Description
A revocation or replacement deed should clearly identify the affected real property and the prior TODD.
When Should You Review a Texas Transfer on Death Deed?
You should review your TODD whenever there is a significant change in your family, property, or estate planning goals.
Examples include:
- Marriage;
- Divorce;
- Death of a beneficiary;
- Birth of children or grandchildren;
- A falling-out with a beneficiary;
- A beneficiary’s disability or creditor problems;
- Sale or refinancing of the property;
- A change in joint ownership;
- Creation of a living trust;
- A significant change to your Will; or
- A diagnosis that could affect future capacity.
A comprehensive Texas estate planning review can help ensure that your deed, Will, trust, beneficiary designations, and incapacity documents continue to work together.
Should You Use a TODD, Will, or Living Trust?
Each serves a different purpose.
A Transfer on Death Deed can transfer qualifying Texas real estate directly at death.
A Texas Will governs probate property and can also appoint an Executor, nominate guardians, and create testamentary trusts.
A revocable living trust may offer broader management during incapacity and after death when properly funded.
The right solution depends on your property, family circumstances, beneficiary needs, and estate planning objectives.
Frequently Asked Questions About Revoking a Texas Transfer on Death Deed
Can I revoke a Texas Transfer on Death Deed?
Yes. A Texas TODD is revocable during the transferor’s lifetime, provided the statutory requirements for an effective revocation are satisfied.
How do I revoke a Transfer on Death Deed in Texas?
You can generally execute a later TODD that revokes or conflicts with the earlier one, or execute a separate instrument expressly revoking the TODD. The revoking instrument must generally be acknowledged and recorded before your death.
Can my Will revoke my Transfer on Death Deed?
No. Texas law expressly provides that a Will may not revoke or supersede a Transfer on Death Deed.
Can I write in my Will that someone else gets the house?
You can include that language, but it does not by itself override an effective TODD covering the same property.
Can a holographic Will revoke a TODD?
No. The prohibition applies to Wills generally, including qualifying handwritten Wills.
Can my power of attorney revoke my TODD?
You should not assume so. Texas law prohibits creating a TODD through a power of attorney and requires a revoking instrument to be acknowledged by the transferor. This issue should be reviewed with an attorney based on the specific document and circumstances.
What happens to a TODD after divorce?
If the transferor and designated beneficiary divorce after the TODD is recorded, the final divorce judgment can revoke the deed as to the former spouse if notice of that judgment is recorded before the transferor’s death in the county deed records where the TODD was recorded.
What happens if my TODD beneficiary dies before me?
A beneficiary generally must survive the transferor by 120 hours. If the beneficiary fails to do so, the beneficiary’s share lapses and passes according to the applicable TODD and Texas statutory rules.
Can I name a backup beneficiary?
Yes. Including alternate beneficiaries can help address the possibility that a primary beneficiary dies before you.
Does my beneficiary have to consent to a revocation?
No. The beneficiary generally does not receive a present ownership interest while you are alive and does not need to consent to your revocation or replacement of the deed.
Do I still need a Will if I have a TODD?
Yes. A TODD controls only the real property interest described in the deed. Your other probate property and many other estate planning decisions still require separate planning.
Changing or Revoking a Texas Transfer on Death Deed
A Transfer on Death Deed can be a flexible way to transfer Texas real estate at death, but its flexibility depends on following the statutory rules.
A Will cannot cancel it. A signed revocation that is never recorded may fail. Divorce requires attention to the deed records. The death of a beneficiary can alter the transfer. And waiting until incapacity can limit your available options.
If your circumstances have changed since you recorded a TODD, review the deed rather than assuming another estate planning document has automatically updated it.
An experienced Texas estate planning attorney can help you determine whether the existing deed should be revoked, replaced, or coordinated with a Will or living trust.
