Transfer on Death Deed: TOD Deeds for Real Estate

A transfer on death deed — sometimes called a TOD deed, beneficiary deed, or (in a few states) a transfer-on-death instrument — lets a homeowner name who will inherit a piece of real estate the moment they die, without that property going through probate. During the owner's life, nothing changes. The owner keeps title, keeps the mortgage in their name, keeps the homestead exemption, can sell, refinance, or rewrite the deed at any time. At death, the named beneficiary records a short affidavit with a certified copy of the death certificate, and the house is theirs. For a large slice of American estates — where the home is the single most valuable asset and everything else is already in a bank, brokerage, or retirement account with beneficiaries — the TOD deed can be the difference between a nine-month probate and a two-week paperwork transfer.

It is also, however, a state-by-state patchwork. Roughly two-thirds of U.S. states plus the District of Columbia authorize some form of TOD deed for real property. The other third do not, and in several of the non-adopting states the workaround (a Florida "ladybird" enhanced life estate, or a New York living trust) is materially different in cost, revocability, and tax treatment. This guide walks through how the deed works mechanically, which states allow it, the paperwork and recording requirements, how it interacts with creditors and Medicaid estate recovery, and how it stacks up against the three most common alternatives: a life estate, joint tenancy with right of survivorship, and a revocable living trust.

Legal Notice: This is general educational information, not legal advice. Real estate transfer laws vary significantly by state, and the rules on recording, revocation, Medicaid estate recovery, and creditor rights change frequently. Consult a licensed estate attorney in your jurisdiction — or your state bar's lawyer referral service — for your specific situation before signing or recording any deed.

How a transfer on death deed works

The mechanics of a TOD deed are unusually simple for an estate-planning tool. The owner signs a deed that identifies the property, names one or more beneficiaries, states that the transfer is effective at the owner's death, and gets it notarized. The signed, notarized deed is then recorded with the county recorder, register of deeds, or land records office where the property sits — before the owner dies. Nothing is delivered to the beneficiary; in most states, the beneficiary does not need to know the deed exists, and the owner does not need the beneficiary's consent.

During the owner's lifetime, the beneficiary has no legal or equitable interest in the property. That is the design feature that distinguishes the TOD deed from every other non-probate transfer of real estate. The beneficiary cannot sell, encumber, or move into the property. Their creditors cannot attach it. Their divorce court cannot touch it. The owner can sell the house tomorrow, mortgage it, deed it to a trust, or record a new TOD deed naming a different beneficiary, and the original beneficiary has no legal standing to complain. Because there is no completed gift, there is no gift-tax event on execution or recording, and the property remains in the owner's taxable estate for federal estate-tax purposes — which is what preserves the step-up in basis that beneficiaries usually want.

When the owner dies, the beneficiary typically records two documents in the same county land records: a certified copy of the death certificate and a short affidavit (sometimes called an affidavit of survivorship, affidavit of confirmation, or affidavit of acceptance, depending on the state). Once those instruments are indexed, the county's land records show the beneficiary as the new owner of record. In most URPTODA states the process takes days, not months, and requires no court order, no letters testamentary, and no probate filing.

What "outside probate" actually means

Passing property outside probate is not the same as passing it tax-free or debt-free. The TOD deed avoids the probate court process for that one asset. It does not avoid federal estate tax (which almost no one owes, given the 2026 exemption levels), state estate or inheritance tax (which a handful of states impose), income tax on later sale by the beneficiary, or the mortgage. A beneficiary who receives a house with a mortgage inherits the debt along with the deed. And in most states, creditors of the deceased owner can still reach the property for a limited period after death — more on that below. For a broader look at how probate normally proceeds when there is no non-probate transfer in place, see the probate process timeline.

Which states recognize TOD deeds

The Uniform Real Property Transfer on Death Act (URPTODA) was approved by the Uniform Law Commission in 2009, drawing on earlier statutes from Missouri (1989), Kansas (1997), Ohio (2000), and a handful of other early adopters. URPTODA gave states a common template with clear rules on execution, revocation, effect of divorce, predeceased beneficiaries, and creditor rights. Most states that authorize TOD deeds today have enacted URPTODA or a close variant of it; a smaller group of early adopters kept their pre-URPTODA statutes but reach substantially similar results.

The list below reflects widely reported adoptions as of 2024–2025. Because state legislatures amend these statutes regularly — and because a few states use different names for what is functionally the same instrument (Ohio's "transfer on death designation affidavit," Illinois's "transfer on death instrument," Arizona and Colorado's "beneficiary deed") — always confirm the current version with the state's Revised Statutes or a local attorney before relying on it.

State-by-state TOD deed availability

Two things about that table are worth calling out. First, "no TOD deed" does not mean "no way to avoid probate on your house" — every state permits a revocable living trust, and most permit joint tenancy with right of survivorship, both of which achieve similar results with different tradeoffs (covered below). Second, the states listed as "yes" vary considerably in whether they require witnesses in addition to notarization, whether they accept a homemade deed or require a specific statutory form, and whether the beneficiary must sign an acceptance. Do not assume a template from one state is valid in another.

The four notable non-adopters

Florida is the most-asked-about non-adopter. Florida law does not authorize a TOD deed for real estate. What Florida uses instead is the "enhanced life estate" or "ladybird" deed — a deed under which the owner conveys a life estate to themselves but expressly retains the power to sell, mortgage, or reconvey without the remainder beneficiary's consent. If the owner still owns the property at death, the remainder beneficiary takes automatically. Florida practitioners rely on this instrument heavily because Florida's homestead protections and Medicaid rules interact with it favorably, but it is a creature of common law and title-insurance practice rather than a comprehensive statute.

Louisiana is a civil-law jurisdiction with forced heirship rules that do not map onto TOD deed concepts at all. Louisiana practitioners typically use donations, usufruct arrangements, or trusts to accomplish similar goals.

Michigan, like Florida, does not authorize a statutory TOD deed but has long recognized the ladybird deed through Land Title Standard 9.3 and administrative practice at the Michigan Department of Health and Human Services (important because Michigan's Medicaid agency treats the ladybird deed as not creating a transfer for divestment penalty purposes). The Michigan Bar Journal has published extensively on how to draft one correctly.

New York has no TOD deed statute and no ladybird-deed practice. New Yorkers who want to avoid Surrogate's Court on a home typically use a revocable living trust, joint ownership, or a traditional (irrevocable) life estate deed.

The paperwork and recording

Every TOD deed statute imposes three universal requirements: the instrument must be in writing, signed by the owner, and recorded with the appropriate county land-records office before the owner's death. From there, states diverge.

• Notarization is required in every URPTODA state. In most states a single notary acknowledgment is enough.
• Witnesses are required in some states in addition to notarization. Ohio's affidavit does not require witnesses; California requires that a TOD deed be signed either before a notary or in front of two witnesses and a notary, depending on the amendment version; Illinois's TOD Instrument requires two disinterested witnesses.
• Statutory form. Several states publish a mandatory or optional statutory form in the code itself (California, Texas, Nevada, Wisconsin). Deeds that materially depart from the statutory form have been rejected by some county recorders and by some title insurers.
• Recording deadline. Every state requires recording before the owner dies. A TOD deed signed but not recorded until after the owner's death is void. A few states (California among them) impose a 60-day recording deadline from the date of signing.
• Legal description. The deed must contain the full legal description of the property (metes and bounds, subdivision lot, or condominium unit designation) — the street address alone is not sufficient. Most title errors on TOD deeds trace back to a missing or incorrect legal description.

Recording fees are typically $10 to $50 depending on the county. A few states charge a real estate transfer tax on recording; most exempt TOD deeds because they are not present transfers.

Naming beneficiaries

Most statutes permit one, multiple, joint, and contingent beneficiaries. A deed can name "A and B, in equal shares as tenants in common" or "A, and if A does not survive me, then B and C in equal shares." A few states allow (and a few forbid) naming a class such as "my children then living." Some states specify what happens when a named beneficiary predeceases the owner: URPTODA provides an anti-lapse rule under which a predeceased beneficiary's descendants may take by representation, but only if the beneficiary is a relative within a defined degree. Non-URPTODA states may simply void the beneficiary's share, causing the property to fall back into the probate estate — the exact outcome the deed was designed to avoid.

Revoking or changing a TOD deed

The whole point of a TOD deed is that it is revocable. Every URPTODA state provides three ways to revoke:

1. Record a new TOD deed. A later-recorded TOD deed automatically supersedes any prior one for the same property. This is the cleanest way to change beneficiaries.
2. Record an instrument of revocation. Every state provides a short revocation form. It must be signed, notarized, and recorded in the same county — with the same formalities as the original deed.
3. Convey the property. If the owner deeds the property to someone else (including to their own revocable trust) during life, the TOD deed becomes ineffective because the owner no longer holds title at death.

What almost never works: revoking a TOD deed in a will. URPTODA and most non-URPTODA state statutes explicitly provide that a will cannot revoke a recorded TOD deed. The rationale is that the county land records need to reflect the current state of title, and a will is not recorded and typically not discovered until after death. A person who signs a TOD deed in 2018 leaving their home to their son, then writes a will in 2024 leaving the home to their daughter, will — in most states — have inadvertently disinherited the daughter as to that property. The son takes under the deed. This is one of the most common and painful drafting mistakes in the entire area, and it argues strongly for revisiting a TOD deed whenever a will is updated. For more on will drafting mechanics generally, see how to write a will.

Divorce and marriage

URPTODA provides that a TOD deed naming a spouse as beneficiary is automatically revoked as to that spouse upon divorce (unless the deed says otherwise). Not every state has adopted this rule. A recently divorced person should treat a TOD deed the same way they treat a life-insurance beneficiary designation and a retirement-account beneficiary form: pull it, review it, and re-record if needed.

Creditors and Medicaid estate recovery

The single biggest misconception about TOD deeds is that they insulate the property from the deceased owner's creditors. They do not.

URPTODA Section 15 provides that if the deceased owner's probate estate is insufficient to pay creditors, allowed claims, and administration expenses, the personal representative may enforce liability against property that passed by TOD deed. The beneficiary takes the property subject to those claims for a statutory period — often two years, sometimes longer, depending on the state's non-claim statute. In practice this means that for at least the first year or two after the owner's death, the beneficiary's title is not fully quiet. If the estate has debts that exceed its probate assets, the creditors can reach the house.

Medicaid estate recovery is a separate and larger concern. Under federal law (42 U.S.C. 1396p(b)), state Medicaid agencies must seek recovery from the estates of deceased beneficiaries aged 55 or older for the cost of long-term care services. Every state defines "estate" for recovery purposes, and states are divided into two groups:

• Probate-only recovery states pursue only assets that pass through probate. In these states, a TOD deed can effectively shield the house from Medicaid recovery because the property never enters the probate estate.
• Expanded-estate recovery states pursue non-probate transfers as well, including TOD deeds, joint tenancy interests, life estates, and living-trust assets. In these states, a TOD deed offers no protection from Medicaid recovery at all. The state files a claim against the beneficiary, and the beneficiary must satisfy it — often by selling the house.

As of the mid-2020s, roughly half of states use expanded estate recovery. California briefly moved to expanded recovery, then rolled back to probate-only in 2017 for deaths on or after January 1, 2017. Michigan's ladybird deed is treated as not creating a transfer at all for Medicaid divestment purposes, which is one reason it remains popular there. Florida's homestead constitutional protection interacts uniquely with Medicaid recovery for a decedent's primary residence. Do not assume a TOD deed will protect a home from Medicaid recovery until you have confirmed the current rule with an elder-law attorney in the specific state.

TOD deed vs. life estate

A traditional (non-enhanced) life estate is created when the owner deeds the property to a remainderman while reserving a life estate for themselves. The transfer of the remainder interest is a present, completed, irrevocable gift. The owner (life tenant) keeps the right to live in and use the property for life, but cannot sell, mortgage, or reconvey the fee simple without the remainderman's cooperation.

• Revocability. A TOD deed is fully revocable. A traditional life estate is not — once signed and delivered, the remainderman has a vested interest.
• Gift tax. A life estate is a completed gift of the remainder interest, potentially triggering a federal gift tax return (Form 709). A TOD deed is not a gift and does not require a return.
• Step-up in basis. Both instruments generally preserve step-up in basis, because both leave the property in the deceased's taxable estate under IRC 2036. See step-up in basis at death for how this valuation adjustment works.
• Control. A TOD deed leaves the owner in full control. A traditional life estate leaves the owner unable to sell without the remainderman's signature — a common source of family conflict when the elderly parent wants to sell the house to move into assisted living.
• Medicaid. A traditional life estate deed is a transfer for Medicaid purposes and triggers a 60-month lookback penalty on the value of the remainder interest. A TOD deed does not — because no present transfer occurs.

The enhanced life estate (ladybird) deed used in Florida and Michigan combines the revocability of a TOD deed with the doctrinal form of a life estate, retaining the owner's power to sell, mortgage, or reconvey without the remainderman's consent. Functionally it is very close to a TOD deed, but the doctrinal basis matters for Medicaid, homestead, and title-insurance treatment.

TOD deed vs. joint tenancy with right of survivorship

Joint tenancy with right of survivorship (JTWROS) is the oldest non-probate transfer of real estate. The owners hold title jointly during life, and at the death of one, that owner's interest passes automatically to the surviving joint tenant.

• Lifetime interest. A joint tenant is a present co-owner with equal rights to possess and use the property. A TOD deed beneficiary has no interest until death.
• Creditor exposure. A joint tenant's creditors can reach the joint tenant's fractional interest during life, potentially forcing partition. A TOD deed beneficiary's creditors cannot reach anything.
• Gift tax. Adding a non-spouse joint tenant to a deed can be a completed gift of a fractional interest, triggering a Form 709. A TOD deed is not a gift.
• Basis. Property held in JTWROS between non-spouses generally receives only a partial step-up in basis (the deceased's fractional interest), which can significantly increase the survivor's capital gains on later sale. TOD-deed property receives a full step-up because the entire property remains in the deceased's estate. This basis issue alone is often the deciding factor for adult-child transfers.
• Control. A joint tenant cannot be removed without their consent. A TOD deed beneficiary can be replaced anytime.
• Divorce/lawsuit exposure of the beneficiary. A joint tenancy interest is a marital asset in most states and is reachable in lawsuits against the joint tenant. A TOD deed beneficiary's future interest is neither.

Between spouses (or, in community-property states, between community-property spouses), JTWROS is often still the right choice because of the full double step-up in community-property states and the automatic survivorship. Between a parent and adult child, the TOD deed almost always beats JTWROS.

TOD deed vs. living trust

A revocable living trust is the Cadillac of non-probate transfer for real estate. The owner transfers the house into the trust during life, retains full control as trustee, and names successor beneficiaries who take at death.

• Multiple assets. A trust can hold the house, the bank accounts, the brokerage accounts, and the business interests all in one instrument. A TOD deed covers only one parcel of real estate (though the owner can record separate TOD deeds for multiple parcels).
• Incapacity planning. A trust provides a mechanism for a successor trustee to manage the property if the owner becomes incapacitated. A TOD deed provides no incapacity coverage — the owner remains the sole legal owner until death, and their agent under a power of attorney must handle any incapacity.
• Multi-state property. A trust avoids ancillary probate in states where the owner holds real estate outside their state of domicile. TOD deeds only work in states that authorize them.
• Complex distributions. A trust can hold property in continuing trust for a minor beneficiary, provide for staggered distributions, or protect a beneficiary with special needs. A TOD deed can only convey outright title.
• Cost. A funded revocable trust package typically runs $1,500 to $5,000 in attorney fees. A TOD deed typically runs $150 to $500 (or less if the owner uses the state's statutory form and records it themselves).
• Ongoing administration. A trust requires funding — deeding property in, retitling accounts. A TOD deed requires only one signing and one recording.

For a single-parcel homeowner with a simple estate and adult, capable beneficiaries, the TOD deed is often adequate. For anyone with multiple properties, minor children, blended families, special-needs beneficiaries, or out-of-state real estate, the trust is usually worth the higher cost. For a more detailed comparison including the will layer, see living trust vs. will.

Common pitfalls

The recurring failure modes on TOD deeds are boringly consistent, and almost all of them are avoidable.

• Ambiguous beneficiary names. "My son" is not a beneficiary designation. Use full legal names, and if there is any risk of confusion (juniors, seniors, adopted children, stepchildren), add dates of birth or relationships in the deed.
• No contingent beneficiary. If the sole named beneficiary predeceases the owner and there is no contingent designation, the property may fall back into the probate estate under state anti-lapse rules — defeating the deed's purpose.
• Missing or wrong legal description. The street address is not a legal description. Pull it from the current recorded deed or the title insurance policy.
• Recording in the wrong county. If the property spans two counties, the deed must be recorded in both.
• Homestead conflicts. In states with strong homestead protections (Florida, Texas, others), a TOD deed to a non-spouse may conflict with the surviving spouse's homestead rights or the homestead-devise restrictions on a decedent with a minor child.
• Community-property states. In Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, community property held by a married couple typically requires both spouses to sign a TOD deed to convey a full interest — otherwise the deed conveys only the signing spouse's community share at death.
• Later mortgage or refinance. Some lenders — usually in error — object to closing a refinance on a property with a recorded TOD deed. A quick revocation before closing and a re-recording after will normally solve the problem. Do not let a title officer talk you out of the TOD deed permanently to close a loan.
• Beneficiary is a minor. A TOD deed to a minor forces the beneficiary's parent or a court-appointed guardian to manage the property until age of majority. In most cases, if the intended beneficiary is a minor, a trust is a better vehicle.
• Beneficiary receives means-tested benefits. A TOD deed to a beneficiary who receives SSI, Medicaid, or other means-tested benefits can disqualify them. A special needs trust is the alternative.
• Failing to update after divorce or death of a beneficiary. Every TOD deed should be reviewed on the same schedule as life-insurance and retirement-account beneficiary designations — at least every three to five years and after every major life event.

How to execute a TOD deed — step by step

1. Confirm your state allows it. Check the table above and verify with a current state-bar or state-code source. Rules change.
2. Locate your current deed and legal description. Pull your last recorded deed or title insurance policy. Copy the legal description exactly — do not paraphrase.
3. Use your state's statutory form if one exists. California, Texas, Nevada, Wisconsin, Ohio, and others publish a form in the statute itself. Use it. If your state does not publish a mandatory form, use one drafted by a licensed attorney or a reputable legal-publisher template.
4. Identify beneficiaries with full legal names. Include a contingent beneficiary. Consider whether beneficiaries should take as joint tenants (with survivorship) or tenants in common (each share passes to that person's estate if they die later).
5. Sign in front of a notary. Add witnesses if your state requires them.
6. Record with the county. The deed must be recorded in the land-records office of the county where the property sits, before the owner's death. Pay the recording fee (usually $10–$50).
7. Keep a copy — and tell someone. The beneficiary does not need to know the deed exists for it to be valid, but they will need to know it exists after your death in order to record the affidavit. Store the recorded copy with your other estate-planning documents and tell your executor where to find it. The executor's duties checklist covers what happens next.
8. Review periodically. Every three to five years, or after any life event (marriage, divorce, birth, death, sale, refinance), pull the deed and confirm it still reflects your intent.

Related non-probate transfers

Real estate is only one asset. Most people also have bank accounts, brokerage accounts, retirement accounts, and vehicles that can be titled to pass outside probate. See transfer on death accounts for how the same concept works for financial assets — a simpler and more universally available tool that pairs well with a real estate TOD deed to keep the entire estate out of probate.

Who is a good candidate for a TOD deed?

The TOD deed is generally a good fit for homeowners who:

• Own one home (or a small number of properties, all in TOD-deed states) and want it to pass to one or two clearly identified adult beneficiaries
• Have already used beneficiary designations to keep their financial accounts out of probate
• Want to keep full control of the property during life, including the ability to sell, mortgage, or change their mind
• Do not need incapacity planning beyond a durable power of attorney
• Have a small enough estate that a full revocable trust is not cost-justified
• Live in a state where the TOD deed is well-established and Medicaid estate recovery is limited to probate assets

The TOD deed is generally not the right tool for:

• Owners with minor, disabled, or spendthrift beneficiaries who need continuing trust management
• Owners with property in multiple states, some of which are non-adopters
• Blended families with competing claims among children of prior marriages
• Estates likely to face substantial creditor claims or expanded Medicaid recovery
• Owners who want the incapacity-planning benefits of a funded revocable trust
• Owners in states that do not authorize TOD deeds (see the alternatives table above)

For most people the honest answer is: a TOD deed is a good complement to a will and a durable power of attorney, not a substitute for either. It handles the one asset most likely to force a probate. It costs almost nothing to execute. It can be revoked at any time. And in the states that authorize it, it works — quietly and reliably, in most cases within weeks of the owner's death rather than the months or years that probate can consume.

Legal Notice: This is general educational information, not legal advice. Real estate transfer laws — including which states authorize TOD deeds, the formalities required for execution, creditor rights, Medicaid estate recovery rules, and interactions with homestead and community-property doctrines — vary significantly by state and change frequently. Do not rely on this article, or any template found online, without consulting a licensed estate-planning or elder-law attorney in your jurisdiction. Your state bar's lawyer referral service is a good place to start.

Sources:
Uniform Law Commission, Real Property Transfer on Death Act (URPTODA, 2009) — https://www.uniformlaws.org/committees/community-home?CommunityKey=b1975254-6венно-4a5f-b6f6-c5f5f65fb0b0
Uniform Law Commission, URPTODA Enactment Status Map — https://www.uniformlaws.org/committees/community-home?CommunityKey=b1975254-4a5f-b6f6-c5f5f65fb0b0
Missouri Revised Statutes § 461.025 (beneficiary deeds, enacted 1989) — https://revisor.mo.gov/main/OneSection.aspx?section=461.025
California Probate Code §§ 5600-5698 (Revocable TOD Deed) — https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=5.&chapter=&part=4.&lawCode=PROB
Ohio Revised Code § 5302.22 (Transfer on Death Designation Affidavit) — https://codes.ohio.gov/ohio-revised-code/section-5302.22
Texas Estates Code Chapter 114 (Transfer on Death Deed) — https://statutes.capitol.texas.gov/Docs/ES/htm/ES.114.htm
Illinois 755 ILCS 27 (Illinois Residential Real Property Transfer on Death Instrument Act) — https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3168
Medicaid.gov, Estate Recovery — https://www.medicaid.gov/medicaid/eligibility-policy/estate-recovery/index.html
42 U.S.C. § 1396p(b) (Medicaid estate recovery statute) — https://www.law.cornell.edu/uscode/text/42/1396p
American Bar Association, Section of Real Property, Trust and Estate Law — https://www.americanbar.org/groups/real_property_trust_estate/
Nolo, Transfer on Death Deeds: An Overview — https://www.nolo.com/legal-encyclopedia/transfer-on-death-deed-real-estate.html
Michigan Bar Journal, "The Ladybird Deed" — https://www.michbar.org/journal/
Florida Bar, "Enhanced Life Estate Deeds" practice materials — https://www.floridabar.org/the-florida-bar-journal/
IRS Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return — https://www.irs.gov/forms-pubs/about-form-709
Internal Revenue Code § 2036 (retained life estate; basis inclusion) — https://www.law.cornell.edu/uscode/text/26/2036