For those who inherit real estate through a TOD deed, getting title to the property is faster, simpler, and less expensive than going through probate.
One of the advantages of a transfer-on-death deed (TOD deed) is that the real estate doesn't pass through probate. Instead, the beneficiary—the person who inherits the real estate—owns the property once the owner dies.
In most states, there are a few administrative steps the beneficiary must take to transfer title of the property to themselves. Most frequently, the beneficiary will need to file in the public land records:
- a short sworn statement (affidavit) and
- a certified copy of the death certificate.
But the exact rules can vary by state as well as county. Some additional documents that might be required include:
- A real estate transfer statement
- Death certificates of deceased beneficiaries that were listed on the TOD deed, and
- A clearance certificate (which has to do with whether the property is subject to Medicaid reimbursement).
To find out the specific steps required in the county where the property is located, the beneficiary of a TOD deed can try calling the land records office of that county. This office is often called a recorder's office or a register of deeds, or is sometimes part of a county clerk's office.
In a few states, the land records office might decline to answer any questions and instead direct you to a lawyer to find out the steps you need to take. If you do find that you need a lawyer to continue, this assistance should be simple and limited in scope. Generally, the entire process should be faster, easier, and less expensive than probate.
The "Notice of Death" Affidavit
The affidavit a beneficiary must file in the land records office goes by different names. For example, in Illinois and Oregon, it's called a Notice of Death Affidavit; in Nevada, a Death of Grantor Affidavit; in Minnesota, an Affidavit of Identity and Survivorship, and in Ohio an Affidavit of Confirmation. But the purpose of the sworn statement is generally the same. In most states, the affidavit must:
- state the name of the beneficiaries who are receiving the property under the TOD deed,
- include the property's legal description, and
- give the date of the previous owner's death.
In some states, the affidavit might also need to state the fair market value of the real estate at the date of death, or include a few additional details such as the addresses of the beneficiaries or a place to receive future tax bills.
A sample affidavit, from Nevada, is shown below. Affidavits for other states will be slightly different. And because laws change, the TOD beneficiary should check the state statute or consult a lawyer to find out the exact requirements that are in effect when the transfer takes place.
Death of Grantor Affidavit
Madison R. Benjamin, being duly sworn, deposes and says that Julius M. Benjamin, the decedent mentioned in the attached certified copy of the Certificate of Death, is the same person as Julius M. Benjamin, named as the grantor or as one of the grantors in the deed upon death recorded on March 13, 20xx, instrument number 9929990, records of Washoe County, Nevada, covering the property commonly known as 245 Oak Street, Reno, County of Washoe, State of Nevada, and more particularly described as:
[Legal description of the real estate]
Madison R. Benjamin is the beneficiary or at least one of the beneficiaries to whom the real property is conveyed upon the death of the grantor Julius M. Benjamin or is the authorized representative of the beneficiary or at least one of the beneficiaries. The beneficiary listed in the deed upon death is Madison R. Benjamin.
(Date): November 12, 20xx
(Signature): Madison R. Benjamin
[Notarization]
