Sunday, October 18, 2015

Texas Transfer on Death Deed

Effective September 1, 2015, Texas has adopted the Texas Real Property Transfer on Death Act ("TODA") (codified as Chapter 114 of the Texas Estates Code), which authorizes people to convey real property in Texas by means of a Transfer-on-Death Deed ("TODD").

TODDs are expected to be attractive to Texans with modest estates because TODDs allow people to transfer real property outside of the (sometimes expensive) probate process. By signing a TODD and filing it with the county real property records, the TODD creates a transfer of the real property which becomes effective upon the transferor's death, regardless of any contrary provisions in the transferor's will. Accordingly, TODDs are similar to bank accounts which are "Payable on Death" in their ability to avoid the probate process,

TODDs may be made or revoked by the transferor at any time prior to his or her death, but may not be created by a power of attorney. To be effective, the revocation must be signed after the TODD being revoked and filed in the county records before the transferor's death.

For a TODD to be effective, its beneficiary is not required to be notified of the TODD, to be delivered the TODD, or to accept the TODD, during the transferor's lifetime.  However, a designated beneficiary may disclaim all or part of such beneficiary's interest in the property once the designated beneficiary learns of the TODD.  The beneficiary must survive the death of the transferor by 120 hours. If the beneficiary accepts the property, the beneficiary takes the property subject to any existing liens, encumbrances, mortgages or other third party interests.

TODDs are effective only if signed on or after September 1, 2015, by a transferor who dies on or after September 1, 2015.

The complete text of the Texas Real Property Transfer on Death Act, including an optional form of TODD and an optional form of revocation of a TODD (each of which is included in Subchapter D of the TODA), is available here.

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