Transfer On Death Deed Avoids Probate

Q.: Can an individual of limited means transfer real estate, including a house, upon death without creating a trust to do so?

A.: Yes. An Ohio law allows individuals of modest means, who do not need the tax benefits of a trust, to avoid probate on their real estate by creating a Transfer-On-Death (TOD) Deed.

Q.: What is a Transfer-On Death Deed?

A.: A Transfer-On-Death Deed is simply a real estate deed with a special provision allowing the property owner to directly transfer the ownership of real estate at the owner's death to whomever the owner designates by name.

Q.: How does it work?

A.: The Transfer-On-Death Deed permits the direct transfer of the described property to the designated beneficiary upon the death of the owner after a death certificate and an affidavit are filed in the Recorder's office by a designated beneficiary. However, a Transfer-On-Death Deed does not eliminate any estate taxes that otherwise would have been payable.

Q.: Can the designated beneficiary claim an interest in the real property before the owner dies?

A.: No; the designated beneficiary has no rights during the owner's lifetime. The new law specifically provides that a TOD Deed has no effect on the present ownership of real property, and a person designated as a Transfer-On-Death beneficiary has no interest in the real property until the death of the owner of the interest.

Q.: Can more than one beneficiary be designated?

A.: Yes; the new law permits the designation of "one or more other persons identified in the deed by name." Because individuals must be named, a designation of "my children" would not be valid.

Q.: What if the transfer beneficiary dies before the owner?

A.: A contingent Transfer-On-Death beneficiary can be designated. For example, the Transfer-On-Death beneficiary could be "Mary Smith, if living; otherwise John Smith." If no named beneficiary is living, the real estate becomes part of the owner's probate estate.

Q.: How can a Transfer-On-Death Deed be created?

A.: Consult an attorney to prepare a Transfer-On-Death Deed. Simply provide the attorney with a copy of the current deed and the name of the intended beneficiaries.

The information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.


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