The Texas Transfer on Death Deed
The Texas transfer on death deed is a legal document that allows you to name beneficiaries who will inherit your real estate after you die, without a probate proceeding. This is good news for many Texans with modest estates whose only probate asset is their home.
Below are answers to a few FAQs about the Texas Transfer on Death Deed along with quick links to get you to the information you are seeking:
- What are the requirements of a Texas Transfer on Death Deed?
- Is delivery and acceptance of the deed required?
- Is it possible to name more than one beneficiary?
- Should a spouse be named as primary Beneficiary of jointly owned property?
- Can I revoke a Texas Transfer on Death Deed?
- Can a Transfer on Death Deed be created through use of a power of attorney?
- How Does a Transfer on Death Deed become effective after the owner’s death?
- Does a Texas Transfer on Death Deed prevent Medicaid estate recovery?
- Is it necessary to have a Will if you have a Transfer on Death Deed
What are the Requirements of a Texas Transfer on Death Deed?
To be effective, the deed must:
- 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
- State that the transfer of the Grantor’s interest to the designated beneficiary will not occur until the Grantor’s death; and
- 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. As long as the deed is recorded in the county clerk’s office before the Grantor’s death, it will be effective to transfer property outside of probate.
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, Section 114.103 of the Texas Estates Code provides that 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 Texas 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:
- By signing a new Transfer on Death Deed that revokes the prior one or specifies that the property should pass to someone else;
- 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 a Transfer of Death Deed Become Effective After the Owner’s Death?
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 Medicaid 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 Texas 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 November 13, 2024.
About Rania
Comments
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 […]
Kay
August 20, 2015 at 8:39pm
I assume, then, that with property, the transfer on death deed supersedes the will?
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.
Pam
September 2, 2015 at 5:50pm
Where do you get this form for Texas?
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.
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.
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.
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.
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.
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.
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.
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?
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.
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?
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.
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?
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.
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.
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.
Rania Combs
June 15, 2016 at 10:51pm
The Transfer on Death Deed statute specifies that the Transfer on Death Deed controls.
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?
Rania Combs
June 15, 2016 at 10:49pm
Property that is acquired by inheritance is characterized as separate property in Texas.
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?
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.
David
August 19, 2016 at 4:24pm
If I file a Texas TOD Deed, will it effect my homestead exemption now?
Rania Combs
August 24, 2016 at 1:33pm
Filing a Texas transfer on death deed should not affect your current homestead exemption.
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.
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?
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 […]
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.
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.
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 […]
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?
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.
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?
Rania Combs
February 17, 2017 at 1:31pm
The following article may answer your question: Does Property Passed by Transfer on Death Deed Receive a Step-Up in Basis?
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 […]
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?
Rania Combs
April 21, 2017 at 9:35am
The following article may answer your questions: What to Do When Someone Dies in Texas.
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?
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.
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 […]
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!
Rania Combs
July 24, 2017 at 12:35pm
Neither is a good option. The following article explains: Should I Designate My Children’s Guardian as Beneficiaries of My Life Insurance Policy?
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?
Rania Combs
October 17, 2017 at 11:11am
Yes.
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?
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.
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?
Rania Combs
January 31, 2018 at 4:54pm
The Texas Secretary of State’s website provides the following guidance:
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?
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.
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?
Rania Combs
June 26, 2018 at 11:32am
An asset with a POD/TOD designation will not become part of the probate estate.
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.
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.
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
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.
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?
Rania Combs
September 4, 2018 at 6:13pm
Yes.
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
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.
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?
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.
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?
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.”
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?
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.
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?
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.
Vanessa
October 3, 2019 at 10:48pm
Can the Transfer on Death Dead verbiage be added to a Will?
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.
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.
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.
Jerry
April 29, 2021 at 10:54pm
My father filed a deed on death in Texas and specified me and my three siblings as primary beneficiaries. He has since passed away. The affidavit of death only provides for one beneficiary so how do my siblings and I file the affidavit of death? Can we all list our names on the affidavit? Do we each file a separate affidavit? Is it necessary for only one of us to file an affidavit of death? Thanks very much for your guidance.
Rania Combs
April 30, 2021 at 11:50am
Please accept my condolences for your loss. An affidavit is a sworn declaration of the information contained in the affidavit. The Affidavit of Death declares that a homeowner who prepared a transfer on death deed and recorded it in the real property records has died. The affidavit of death does not reflect who the beneficiaries of the property are.
mike
July 6, 2021 at 5:17pm
So my aunt was appointed power of attorney. The day after my mom passed away she went and put her name on the property that my grandpa left her. 2 days later she changes it again by adding her daughter and I’m assuming tried to put my oldest sister’s name on it as well, but didn’t put it on there correctly. This is super illegal correct? Now her daughter has been living her best life there mortgage-free. What shall we do and where should we start?
Rania Combs
July 29, 2021 at 10:30am
You posted a comment under the Texas Transfer on Death Deed article; so I am not clear on whether your mother had transferred it to her by transfer on death deed.
If not, a power of attorney expires when the person who granted it dies. At that point, the agent does not have the authority to act.
Please engage an attorney with physical offices in the county where the property is located for assistance with this matter.
PATRICIA WATKER
June 6, 2022 at 11:28am
My son and I have joint ownership in our home. If I pass, and he is named as heir in my will, do I still need to file a transfer of deed before death for him to own the house outright in his name without probate?
Rania Combs
June 6, 2022 at 4:52pm
Yes, unless the deed specifically indicates you own it jointly with rights of survivorship.
Tim Baker
October 29, 2023 at 11:14pm
Hi
Quick question. Would you as a Texas lawyer write a Texas resident a Will without asking about assets?
Thanks
Tim
Rania Combs
October 30, 2023 at 12:57pm
No. I would not.