A Transfer on Death Deed (TODD) is a fantastic probate-avoidance device I use every day in my law practice. It can be used for any kind of real estate, including your homestead, and allows the beneficiary listed on the Deed to automatically inherit the subject property WITHOUT having to go to probate. It’s a Deed that you sign today, and record today, but nothing really happens.

The Deed kind of sits behind the scenes in the title record until you die, at which point the beneficiary listed on the Deed will automatically be the owner of the subject property.  The TODD replaces and actually “trumps” a Last Will & Testament. If you sign and record a TODD, it won’t make any difference what your Will says, the TODD takes precedence over the Will. You see, by signing and recording a TODD, you change the nature of the subject property from a “probate asset” to a “non-probate asset” – the probate court has no jurisdiction over that property anymore. Note that because nothing really happens once the TODD is recorded, you don’t lose any property tax exemptions.  

You remain the 100% owner of the property for the remainder of your life. And, you can use it even if you are married: the section dealing with the First Beneficiary will recite that the survivor of the two Grantors will be the sole owner of the property once the first Grantor dies. Then, the Second Beneficiary section will recite that the Second Beneficiary will inherit the property upon the death of the surviving Grantor. If you have multiple beneficiaries, like multiple children, consider making a short trust the beneficiary and appointing one of your more responsible children as the trustee. This way, there aren’t so many cooks in the kitchen at the relevant time. Of course, you’ll have to create the trust as well if you choose this strategy.  Finally, remember that the TODD is completely revocable – you can change your mind and sell your property down the road!