Ohio is one of just a few states that allows the transfer of real property upon death of the owner without the need to go through probate. This is done by using a Transfer on Death (TOD) designation. A TOD deed was used to transfer property until December 2009.
Today, Ohioans who want to transfer property to beneficiaries after their death use a Transfer on Death Beneficiary Designation Affidavit instead of a deed. A TOD designation does not affect the property's owner while they are alive – designated beneficiaries have no rights or interest in the property until the owner's death.
What Is a Transfer on Death Deed?
In 2009, Ohio eliminated TOD deeds in favor of a document known as a Transfer on Death Designation Affidavit to make a TOD designation for a property. The state still honors deeds filed before December 28, 2009, and those that were executed before that date, but not yet filed.
A transfer on death (TOD) deed transfers a property owner's real estate to the beneficiaries they select or name before they die. During their lifetime, they can sell, lease, refinance, gift or do whatever they want with the property they own and control while paying property taxes and mortgages, and maintaining it.
When the individual dies, the TOD deed automatically transfers the property to the named beneficiaries without the need for probate. While the property owner is still alive, they can change the named beneficiaries and amend or revoke the TOD at any time.
Why Have a TOD Designation?
The main reason for having a TOD designation for real property is to limit or avoid probate. Ohio law states that the transfer of real property under a TOD is "not testamentary," which means that the property is an asset that transfers automatically to the beneficiaries when the owner dies.
Probate is known to be time-consuming, expensive and often challenging. A TOD designation keeps the asset out of probate and streamlines the process. Beneficiaries also receive title to the real property much sooner than they would through a probate court proceeding.
Transfer on Death Designation Affidavit
A Transfer on Death Designation Affidavit must have certain elements to be valid. The affidavit must:
- Include the property description and instrument number.
- Describe the portion of the property being transferred.
- State if the individual is married. If so, spouse must sign affidavit.
- Name the beneficiaries.
The person creating the affidavit can name an individual or legal entities such as trusts, LLCs or corporations as the beneficiaries. Ownership does not have to be in equal parts among them.
The owner can also name contingent beneficiaries who would receive the property if a TOD beneficiary dies before they do. If there is no named TOD beneficiary living when the owner passes, the property becomes part of the probate estate.
Submitting the TOD Designation Affidavit
After filling out the affidavit, the property owner signs it in front of a notary public who will stamp it. The owner should make several copies of the form before submitting it to their local county recorder's office.
After they die, the beneficiaries sign and notarize an "affidavit of confirmation" document and file it at the same recorder's office along with a certified copy of the individual's death certificate and the certificates of any deceased beneficiaries who died before the owner.
Joint and Survivorship Property and TODs
People who own "joint and survivorship" real property can execute a TOD affidavit, but upon an owner's death, the property will first pass to the surviving owners.
Only upon the death of the last surviving person to jointly own the property will it pass to the beneficiaries named in the affidavit. The last joint and survivorship owner must join in the TOD designation for it to be valid.
Spousal Rights and TODs
If a property owner is married, the state requires their spouse to sign the affidavit, even if they are not listed on the property's title. When they do this, they are stating that their "dower rights" will not interfere with the property passing to a named beneficiary. This means that they are giving up their marital rights to claim the property in the future.
Before 1985, the state allowed married couples to own property in tenancy by the entirety. It is still possible that an individual owns property with their spouse in tenancy by the entirety if the property was transferred to them between 1972 and 1985. In this instance, when the owner dies, the property goes to the surviving spouse.
If the couple creates the TOD affidavit together, the property passes to beneficiaries only after the death of both parties.
Trust Property and a TOD Designation
If an owner has real property in a trust, they probably won't need a TOD designation. A property in trust typically doesn't go through probate. But, if for some reason, the property owner wants a TOD designation, they'll likely transfer the property out of the trust before using a TOD designation.
Revoking a TOD in Ohio
In Ohio, a property owner can revoke a TOD or change a beneficiary designation at any time before their death without the beneficiary's consent. To do this, they execute and record a new affidavit with all the information from the prior form, but state on the document what the revocation or changes are.
These changes become valid upon the recording of the new completed form, which will be recorded in the same county as were the previous affidavits. The most recent document supersedes and revokes all others before it.
- Ohio Bar: Transfer-On-Death Designation Affidavit Avoids Probate of Real Estate
- Law Offices of DuPont and Blumenstiel: How to File a Transfer-on-Death Deed in Ohio
- Merchant Logo Solomon, Steiner & Peck Ltd: Ohio Eliminates Transfer on Death Deeds
- Deed Claim: Ohio TOD Deed Form - Transfer on Death Designation Affidavit
- Ohio Law and Administrative Rules: Section 5302.23 Designating Transfer on Death Beneficiary
- Ohio Legal Help: Transfer on Death for homes
- Cuyahoga County Probate Court: Estates
- Persaud Law Office: How to Revoke a Transfer on Death Deed
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.