Also known as: transfer on death deed · TOD deed · TOD deeds · transfer-on-death deed
Written by attorneys · grounded in primary & secondary sources — see below
A deed that transfers real property to one or more beneficiaries effective at the transferor's death without probate. The instrument requires the same mental capacity as a will and remains revocable until death.
Tyler Taylor, an elderly man in assisted living with early dementia, executed a transfer on death deed conveying his office condominium to Tiana Tan instead of his son. After Tyler's death the son challenged the deed, claiming a higher capacity standard applied. The court rejected the challenge because the deed required only the mental capacity needed to make a will.
Theo Thomas recorded a transfer on death deed naming Theresa Tucker as beneficiary of his lakefront home. Upon Theo's death the property passed immediately to Theresa outside probate. The deed's effectiveness turned solely on its proper execution and recording before death.
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The capacity required equals the capacity to make a will. A transferor must generally understand the nature of the act, the property involved, the natural objects of bounty, and the disposition being made.
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No. Courts assess capacity at the moment of execution. Evidence of lucidity and understanding on the signing date can establish sufficient testamentary capacity even when the transferor has early-stage dementia.
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No. The statute expressly equates the two standards. A challenge claiming a heightened requirement for the deed fails as a matter of law.
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Yes. Revocation occurs only by a later acknowledged and recorded instrument that expressly or inconsistently revokes the deed, and revocation by one joint owner does not affect the interests of other living joint owners.
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