Thirty-three states and the District of Columbia are the states that allow transfer on death deeds for real property. These deeds, sometimes called beneficiary deeds, let an owner name who will inherit a piece of real estate automatically at death, bypassing probate. The owner keeps full control while living and can cancel or change the deed at any time.
The 33 States and D.C. That Authorize TOD Deeds
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Delaware
- District of Columbia
- Hawaii
- Illinois
- Indiana
- Kansas
- Maine
- Minnesota
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Mexico
- New York
- North Dakota
- Ohio
- Oklahoma
- Oregon
- South Dakota
- Texas
- Utah
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
Most of these states modeled their statutes on the Uniform Real Property Transfer on Death Act, drafted by the Uniform Law Commission to harmonize the rules across jurisdictions.1Uniform Law Commission. Current Acts – R Ohio uses a slightly different instrument, the transfer on death designation affidavit, under Ohio Revised Code 5302.23.2Ohio Legislative Service Commission. Ohio Revised Code Section 5302.23 New York’s TOD deed law took effect on July 19, 2024, under Section 424 of the Real Property Law.3New York State Senate. New York Real Property Law 424 – Transfer on Death Deed Delaware followed in 2025.
If Your State Isn’t Listed
If your state doesn’t appear above, a TOD deed isn’t an option for you. A few of the remaining states recognize a related tool called an enhanced life estate deed, better known as a Lady Bird deed. Florida, Michigan, and Texas are the states most commonly associated with Lady Bird deeds, and the concept has been recognized in some additional jurisdictions. The result is similar — the owner keeps full control during life and the property passes automatically at death — but the legal mechanics are different, and the deed isn’t called a TOD deed.
What a Transfer on Death Deed Actually Does
A TOD deed is a recorded document naming who receives a specific piece of real property when the current owner dies.4Legal Information Institute. Transfer-on-Death Deed It takes effect only at death. During the owner’s lifetime, the beneficiary has no ownership interest, no right to occupy the property, and no say in what the owner does with it. The owner can sell, mortgage, or revoke the deed without telling the beneficiary.
Because the property passes directly to the beneficiary by operation of the deed, it stays out of probate. No court supervision, no executor handling the transfer, no public probate filing for that asset. For an owner whose main goal is getting a single property to a chosen person without probate, a TOD deed is usually the cheapest and fastest tool available.
Signing, Notarizing, and Recording
A valid TOD deed must include the full legal description of the property, the owner’s name, the beneficiary’s name, and a clear statement that the transfer happens at the owner’s death. The owner signs it, and every state requires notarization. Some states add requirements on top. California requires two witnesses present when the owner signs.5California Legislative Information. California Probate Code 5642 – Revocable Transfer on Death Deed New York requires both notarization and two witnesses.6New York State Senate. New York Real Property Law 424 – Transfer on Death Deed – Section: 7. Requirements
After signing and notarization, the deed must be recorded with the county recorder or clerk in the county where the property is located, and recording must happen while the owner is alive. A deed that isn’t recorded by the time the owner dies is worthless, and the property will land in probate anyway. California adds a stricter clock: the deed must be recorded within 60 days of notarization or it has no effect.5California Legislative Information. California Probate Code 5642 – Revocable Transfer on Death Deed
Recording fees vary by county, generally running from around $10 to $100 or more. Some states publish free statutory forms. Even so, having an attorney review the deed before recording is cheap insurance; a small error in the legal description or a missed formality can void the whole transfer.
California’s Sunset Date
California’s statute carries an automatic expiration. The law is scheduled to be repealed on January 1, 2032, unless the legislature extends it.7California Legislative Information. California Probate Code 5600 A TOD deed signed and recorded before that date stays valid, but no new ones could be created after repeal.
Changing Your Mind: How to Revoke
The owner can revoke a TOD deed at any time, for any reason, without the beneficiary’s consent. There are three ways that work:
- Sign, notarize, and record a revocation form that specifically cancels the earlier deed.
- Record a new TOD deed naming a different beneficiary, which replaces the earlier one.
- Transfer the property during life by sale, gift, or placement into a trust, which revokes the deed by removing the owner’s interest.
One method that does not work: a will. You cannot override a TOD deed by leaving the property to someone else in your will. The recorded deed controls, because the property passes outside probate. Changing the beneficiary means recording a new document at the county recorder’s office.
When the Beneficiary Dies Before the Owner
If the named beneficiary dies before the owner and the owner never updates the deed, the TOD deed fails. The property does not pass to the deceased beneficiary’s heirs. It falls back into the owner’s estate and goes through probate, which is exactly what the deed was supposed to prevent. This is one of the quietest ways a TOD deed goes wrong, because the owner may never realize the deed has become ineffective.
The fix is simple: name a contingent beneficiary on the deed where your state’s form allows it, and review the deed every few years or after any major family change.
Mortgages, Creditors, and Medicaid
A TOD deed doesn’t erase debts attached to the property. The beneficiary inherits subject to any existing mortgage, lien, or encumbrance. If the estate lacks other assets to pay the deceased owner’s debts, some states allow creditors to reach TOD deed property as well. During the owner’s lifetime, the deed has no effect on creditor rights at all.3New York State Senate. New York Real Property Law 424 – Transfer on Death Deed
A common fear about mortgages is misplaced. The federal Garn-St. Germain Act bars lenders from calling in a residential mortgage when the property passes to a relative at the borrower’s death, including transfers to a spouse or child.8Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions The protection covers residential property with four or fewer units where the borrower was an individual. The beneficiary can keep making payments on the existing loan. What the Act doesn’t do is make the beneficiary personally liable on the note; refinancing or formally assuming the loan is a separate process with the lender.
Medicaid estate recovery is a bigger wildcard. Federal law requires states to seek reimbursement from a deceased Medicaid recipient’s estate for long-term care costs. The baseline definition covers probate assets, but states have the option to expand “estate” to include property the deceased had any legal title or interest in at the time of death, including non-probate transfers.9Office of the Law Revision Counsel. 42 USC 1396p – Liens, Adjustments and Recoveries, and Transfers of Assets Whether a TOD deed shields the home from a Medicaid claim depends entirely on your state’s definition. Anyone relying on Medicaid for long-term care should confirm their state’s rule before counting on a TOD deed for protection.
Tax Treatment When the Beneficiary Inherits
Property passing through a TOD deed gets the same stepped-up basis as property inherited through a will or trust. Under federal tax law, the beneficiary’s cost basis becomes the fair market value on the date of the owner’s death.10Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent The appreciation that built up during the owner’s lifetime is wiped out for capital gains purposes.
If the owner bought the house for $150,000 and it’s worth $400,000 at death, the beneficiary’s basis is $400,000. A sale shortly after inheriting generates little or no capital gains tax. Without the step-up, that same sale would be taxed on $250,000 of gain.