If you want to use a transfer-on-death deed (TOD deed) to leave real estate to someone when you die, you should start by checking whether your state allows transfer-on-death deeds. (Most states now do.) If TOD deeds are available in your state, you must prepare one that meets the requirements of the state where your property is located. If your deed doesn't contain the right language, isn't formatted in the correct way, or isn't notarized properly, it won't be valid. Fortunately, transfer-on-death deeds tend to be simple, short documents, and there are services and sometimes forms available to help.
- Using Deed Forms or WillMaker to Make Your Own TOD Deed
- 1. Name the Beneficiary of Your Real Estate
- 2. Describe the Property Using the Exact Legal Description
- 3. Sign the TOD Deed
- 4. Have the TOD Deed Notarized (and Possibly Witnessed)
- 5. Record the Transfer-on-Death Deed
Using Deed Forms or WillMaker to Make Your Own TOD Deed
Sometimes you can create a valid TOD deed yourself. Some states have laws that provide the exact language you'll need to include in your transfer-on-death deed. In this case, you can look up your state's transfer-on-death deed law to find the wording to use, and then fill in the blanks with specific information about yourself and your property. However, if you use this option to make your own TOD deed completely from scratch, you'll have to be prepared to:
- Find out the formatting requirements for the deed, and
- Research whether a co-owner or spouse needs to sign the deed as well.
To find out the formatting requirements, you'll need to call the land records office in the county where you own real estate. For example, most counties require that you leave a certain amount of space at the top of the page for a recording stamp. A helpful clerk at the county land records office can point you to formatting requirements; don't be afraid to call and ask.
However, not all states offer this exact form language (called a "statutory form"). And even when they do, it can still be difficult to determine exactly what to write in a blank, and many people will want additional guidance. You can use a lawyer to draft your TOD deed. But if your situation is not complex, you can use a reputable (and less expensive) service like WillMaker. WillMaker offers guided interviews that help you create estate planning documents (like TOD deeds) that are tailored to your situation and comply with your state's laws.
Regardless of how you make your TOD deed, you'll need to take the following steps.
1. Name the Beneficiary of Your Real Estate
You can name anyone you please to inherit your property—one person, more than one person, or an organization such as a favorite charity. Your choice is called the "beneficiary" or "grantee" in most states. You can also name an alternate beneficiary to receive the property in the event that your primary beneficiary is deceased or not available.
When you designate a beneficiary, do so by name; don't use categories such as "my nieces and nephews." For example, if you want to leave your house to your two children, put their names on the deed—for example, "Robert P. Wyman and Rosamund M. Wyman," not "my children." In some states, a deed left to a category of beneficiaries simply isn't valid; in others, it will be confusing at best.
2. Describe the Property Using the Exact Legal Description
Your TOD deed will need to identify the property that you own and intend to transfer at your death. This means that you'll need to include the legal description for your property. A legal description is not the street address of a property (though some states may require your street address in addition to the legal description). Legal descriptions vary widely; they might be very wordy and contain legalese, or they might identify your property by section and block numbers.
If your legal description is very short, you can copy the exact words—carefully—from your current deed. Then check it over at least once. If it's longer than a sentence or two, it's best to photocopy it and attach the entire legal description to your TOD deed as a separate document. This is usually done by writing or typing "See Exhibit A" (or similar language) in the section of your TOD deed where the legal description should go, and titling your attached legal description "Exhibit A." If you include an attachment, be sure to file the attachment along with the deed.
3. Sign the TOD Deed
If you own the property alone, you're probably the only person who needs to sign the deed. But if you co-own the property or if you're married, you might have to take on additional research or seek legal guidance. For example, in some situations, it might be necessary for you to make a TOD deed with your co-owner; in that case, both of you would sign the deed. In other situations, it might be necessary (or beneficial) to make a TOD deed for only the portion of the property that you own. (And in a few states, if you're married, your spouse might have to sign the deed, even if they're not listed as the owner of the property.)
Because of these extra considerations, if you co-own your property or are married, consider using a reputable service (like WillMaker) and/or consult an attorney when creating your TOD deed.
Note: If you have any reason to think that if you died first, your spouse would claim ownership of the property and revoke the transfer-on-death deed you made, see a lawyer before you prepare a TOD deed.
4. Have the TOD Deed Notarized (and Possibly Witnessed)
You must have your TOD deed notarized. That means you need a notarization statement (commonly called an "acknowledgment") at the bottom of the deed, which the notary public will fill in and sign. In a few states (like California, Illinois, and a couple others), you must also have witnesses watch you sign and then sign the deed themselves.
5. Record the Transfer-on-Death Deed
Your deed won't be effective unless you record (file) it in the county land records before your death. To get that done, take the signed deed to the land records office for the county in which the real estate is located. This office is commonly called the county recorder, land registry, or register of deeds, or sometimes it's part of the county clerk's office. If you aren't sure which office this is, you can try searching online by your county name and the term "land records office."
You'll have to pay a fee for recording the document. In most states, this is a small fee, on the order of $25 to $45. But in a few states, like California and Washington, the recording fee is substantially higher. To check the fee in your county, you can call your county's land records office.
Your transfer-on-death deed won't be valid until it's recorded in the land records office. In most states, there are no deadlines for filing the deed (though of course it's still a good idea not to procrastinate on the task). But a few states do require you to file the deed within a certain amount of time. For example, in California, you need to file your TOD deed within 60 days of having it notarized.
At the land records office, the clerk will stamp recording information on the deed, make a copy for the public records, and return the original to you, often by mail.
