“Simple” method to transfer real property: transfer on death affidavit

A transfer on death affidavit (sometimes called a TOD, or just “Affidavit”) allows the property’s owner to transfer ownership of the property to someone else on the owner’s death. It is typically a one- or two-page affidavit filed with your Ohio county recorder.

Why have a transfer on death affidavit prepared for your property? The main reason is to avoid probate. Another reason is to “easily” transfer the property to someone else at your death.

Probate is often needed to transfer property at the property owner’s death. Leaving your property to someone in your will does not relieve the need for probate to get the property to a beneficiary. Many people have a house as their main asset, and at their death a probate must be opened to transfer ownership of the property. For example, widowed Dad wants to leave his home to his daughter, and does not have a trust, so he has a TOD prepared that names his daughter as the beneficiary. At Dad’s death, and if Dad didn’t have other titled or deeded assets that need probated, then the house transfers to the daughter with no probate needed. Or, unmarried partners do not own their residence together, so the partner who owns the property has a TOD affidavit prepared and filed to allow for the home to transfer outside of probate to the surviving partner. There are many situations where a transfer on death affidavit can be used to seamlessly transfer ownership of real property at the owner’s death, without the need for probate.

As easy as this sounds, there are things to remember to ensure that the transfer does happen “seamlessly”:

• Be sure to actually record the affidavit. It must be filed before the owner’s death or it will be invalid
• Be sure to verify with the recorder that it has been recorded. There have been instances of transfer on death affidavits that were stuck in drawers or otherwise not recorded. It is rare, but since it did happen and did cause many headaches, it is best to verify it has been recorded
• If you are married, your spouse has rights to property at your death, necessitating a statement on the affidavit regarding dower rights

If you record a transfer on death affidavit, that document takes precedence over what you might later state in your will or other estate planning documents. If you later want the property to go to your son instead of your daughter, or someone other than you stated in the Affidavit, you will need to execute a new transfer on death affidavit that revokes the prior one or changes the beneficiary or beneficiaries.

If you would like to have a transfer on death affidavit prepared, or have questions, feel free to email me at julie@juliemillslaw.com.