Section 114.151 of the Estates Code

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Section 114.151. Optional Form for Transfer on Death Deed.
The following form may be used to create a transfer on death deed.
REVOCABLE TRANSFER ON DEATH DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.

IMPORTANT NOTICE TO OWNER: You should carefully read all the information included in the instructions to this form. You may want to consult a lawyer before using this form.

MUST RECORD DEED: Before your death, this deed must be recorded with the county clerk where the property is located, or it will not be effective.

MARRIED PERSONS: If you are married and want your spouse to own the property on your death, you must name your spouse as the primary beneficiary. If your spouse does not survive you, the property will transfer to any listed alternate beneficiary or beneficiaries on your death.

1.  Owner (Transferor) Making this Deed:

       ______________________
       Printed name
________________________
Mailing address
2.  Legal Description of the Property:

       ____________________________________________________________

3.  Address of the Property (if any) (include county):

       ____________________________________________________________

4.  Primary Beneficiary (Transferee) or Beneficiaries (Transferees)

       I designate the following beneficiary or beneficiaries, if the beneficiary survives me:

       ______________________
       Printed name
________________________
Mailing address
5.   Alternate Beneficiary or Beneficiaries (Optional)

       I designate the following alternate beneficiary or beneficiaries, if the alternate beneficiary survives me:

       ______________________
       Printed name
________________________
Mailing address
6.  Transfer on Death: (Choose an option under both A and B below, and if you have designated any alternate beneficiaries, choose an option under C.)

       At my death, I grant and convey to the primary beneficiary or beneficiaries my interest in the property, to have and hold forever.

A.  IF AT LEAST ONE PRIMARY BENEFICIARY SURVIVES ME
(Select either option (1) or (2) by placing your initials next to the option chosen. If you do not choose an option, then option (1), which is the anti-lapse election, will apply.)

       If at least one primary beneficiary survives me, I grant and convey the primary beneficiaries' share or shares of the property, to have and hold forever, as follows:

       ____ (1) Anti-Lapse Election. To the surviving primary beneficiary or beneficiaries, but if a deceased primary beneficiary, if any, was a child or other descendant of mine or of one or both of my parents, that deceased primary beneficiary's share will pass to the surviving children or other descendants of that deceased primary beneficiary.

       ____ (2) Surviving Primary Beneficiaries Election. To the surviving primary beneficiary or beneficiaries only. If a deceased primary beneficiary, if any, was a child or other descendant of mine or of one or both of my parents, I do not want that deceased primary beneficiary's share to pass to the children or other descendants of that deceased primary beneficiary.

B.  IF NO PRIMARY BENEFICIARY SURVIVES ME
(Select either option (1) or (2) by placing your initials next to the option chosen. If you do not choose an option, then option (1), which is the anti-lapse election, will apply.)

       If no primary beneficiary survives me, I grant and convey the share of the property that would have transferred to a deceased primary beneficiary, to have and hold forever, as follows:

       ____ (1) Anti-Lapse Election. To the surviving children or other descendants of the deceased primary beneficiary, if the deceased primary beneficiary was a child or other descendant of mine or of one or both of my parents.

       ____ (2) Surviving Alternate Beneficiaries Election. To the alternate beneficiary or beneficiaries designated above. If the deceased primary beneficiary was a child or other descendant of mine or of one or both of my parents, I do not want that deceased primary beneficiary's share to pass to the children or other descendants of that deceased primary beneficiary.

       If no primary beneficiary survives me and the anti-lapse election is not chosen or that election is chosen, but a deceased primary beneficiary is not a child or other descendant of mine or of one or both of my parents, I grant and convey to the alternate beneficiary or beneficiaries my share in the property that otherwise would have transferred to the deceased primary beneficiary, to have and hold forever. If I have not designated alternate beneficiaries, this transfer on death deed shall be considered cancelled by me.

C.  IF AN ALTERNATE BENEFICIARY DOES NOT SURVIVE ME
(Select either option (1) or (2) by placing your initials next to the option chosen. If you do not choose an option, then option (1), which is the anti-lapse election, will apply.)

       If an alternate beneficiary does not survive me, I grant and convey that alternate beneficiary's share of the property as follows:

       ____ (1) Anti-Lapse Election. To the surviving alternate beneficiary or beneficiaries, but if the deceased alternate beneficiary was a child or other descendant of mine or of one or both of my parents, that deceased alternate beneficiary's share will pass to the surviving children or other descendants of that deceased alternate beneficiary.

       ____ (2) Surviving Alternate Beneficiaries Election. To the surviving alternate beneficiary or beneficiaries only. If the deceased alternate beneficiary was a child or other descendant of mine or of one or both of my parents, I do not want that deceased alternate beneficiary's share to pass to the children or other descendants of that deceased alternate beneficiary.

       If no alternate beneficiary survives me and the anti-lapse election is not chosen or that election is chosen, but no deceased alternate beneficiary was a child or other descendant of mine or of one or both of my parents, this transfer on death deed shall be considered cancelled by me.

7.  Printed Name and Signature of Owner Making this Deed:

       ______________________
       Printed Name
________________________
   Date
       ______________________
       Signature
BELOW LINE FOR NOTARY ONLY

__________________________________________________________________________

Acknowledgment

STATE OF __________________

COUNTY OF ________________

This instrument was acknowledged before me on the ____ day of __________, 20______,
by _________________________________.

____________________________
Notary Public, State of __________
After recording, return to:
(insert name and mailing address)

_________________________________
_________________________________

INSTRUCTIONS FOR TRANSFER ON DEATH DEED

DO NOT RECORD THESE INSTRUCTIONS

Instructions for Completing the Form

1.  Owner (Transferor) Making this Deed: Enter your first, middle (if any), and last name here, along with your mailing address.

2.  Legal Description of the Property: Enter the formal legal description of the property. This information is different from the mailing and physical address for the property and is necessary to complete the form. To find this information, look on the deed you received when you became an owner of the property. This information may also be available in the office of the county clerk for the county where the property is located. Do NOT use your tax bill to find this information. If you are not absolutely sure, consult a lawyer.

3.  Address of the Property: Enter the physical address of the property.

4.  Primary Beneficiary or Beneficiaries: Enter the first and last name of each person you want to get the property when you die. If you are married and want your spouse to get the property when you die, enter your spouse's first and last name (even if you and your spouse own the property together).

5.  Alternate Beneficiary or Beneficiaries: Enter the first and last name of each person you want to get the property if no primary beneficiary survives you.

6.  Transfer on Death: You should carefully read the language describing the options and choose an option under both A and B of Paragraph 6, and if you have listed any alternate beneficiaries, choose an option under C of Paragraph 6.

7.  Printed Name and Signature of Owner: Do not sign your name or enter the date until you are before a notary. Include your printed name.

8.  Acknowledgment: This deed must be signed before a notary. The notary will fill out this section of the deed.

Added 84th Leg., R.S., Ch. 841 (S.B. 462);  Amended 85th Leg., R.S., Ch. 971 (S.B. 2150)

Editor Comments

This section of the Texas Real Property Transfer on Death Act differs significantly from Section 16 of the Uniform Real Property Transfer on Death Act. Moreover, the section was recently amended. Note that the following analysis, which incorporates those changes, is applicable only to transfer on death deeds executed on or after September 1, 2017.

The form provided by this section may, but need not, be used to create a transfer on death deed ("deed authorized under this chapter").

The other sections of the TRPTODA govern the effect of both the form provided by this section and any other method used to create a transfer on death deed. See, e.g., Section 114.103(b) (providing special rule for transfer on death deeds made by joint owners with right of survivorship).

The form provided by this section is obviously complex and the average lay person will undoubtedly need the assistance of a probate lawyer to use it effectively.

And, no matter who completes it, the effect of a transfer on death deed created using the form provided by this section will be unclear in several important ways.

For example, it is not clear whether the default 120-hour survivorship rule set forth in Section 114.103(a) applies because the form requires only that each designated beneficiary survive the transferor. Cf. Johanson's Texas Estates Code Annotated at 130 ("If the will bequeaths property 'to my brother Bob if he survives me,' and Bob survives the testator for even a brief period of time, the property will pass to Bob.").

A more serious problem is that the form provided by this section fails to clearly identify and state the priority of the various potential substitute takers. As a result, transferors using the form will not be certain which person or persons are entitled to receive the subject real property if a designated beneficiary fails to survive them.

To minimize the ambiguities inherent in the form provided by this section, a transferor should subscribe, acknowledge and record a new transfer on death deed if a primary beneficiary dies.

The fundamental problem is that the form provided by this section attempts to cover numerous contingencies when a focused, short-term approach is more appropriate for a self-help form of this nature.

Therefore, an alternative form is offered that aims to be simple and straight-forward. The form (PDF format), which is available for free, comes with a modified set of instructions that explain how to use it.

Finally, commentators from other states with real property transfer on death acts report that "lack of recordation" is the number one reason transfer on death deeds fail. Therefore, ensuring that the transfer on death deed is recorded should be a point of focus.

Steve Smith

Court Decisions

No appellate court decision has interpreted any section of the TRPTODA.

Legal Commentaries

  • Legislature may want to address confusing changes to 'transfer on death' deeds at 1 ("The changes were made to address the problem of what happens if a beneficiary named in the deed is not living. . . . While these changes are a good idea, the problem with the new language is that much of it is difficult to understand, even though the form was created for people to use without an attorney.")
  • Transfer on Death Deed: Information and Answers at 1 ("[T]he Texas legislature added more boxes to more specifically designate beneficiaries. For instance, if you have named 2 or more primary beneficiaries, the Transfer on Death Deed form now allows you to choose whether the share of a beneficiary who dies before the property owner goes to the beneficiary's children...or to the other named beneficiaries.")
  • Underwriting Manual: 5.02 Elder Law at 1 ("Stewart will accept a TODD as a vesting instrument so long as it substantially conforms to the statutory form as provided in Estates Code Sec. 114.151. If you receive a non-statutory form that appears to not contain the elements required above, seek Texas underwriter approval.")

Uniform Act Text

[Section 16. Optional Form of Transfer on Death Deed.
The following form may be used to create a transfer on death deed. The other sections of this [act] govern the effect of this or any other instrument used to create a transfer on death deed:
(front of form)
REVOCABLE TRANSFER ON DEATH DEED
NOTICE TO OWNER

You should carefully read all information on the other side of this form. You May Want to Consult a Lawyer Before Using This Form.

This form must be recorded before your death, or it will not be effective.

IDENTIFYING INFORMATION

Owner or Owners Making This Deed:

___________________________
Printed name
___________________________
Mailing address
___________________________
Printed name
___________________________
Mailing address
Legal description of the property:

________________________________________________________________

PRIMARY BENEFICIARY

I designate the following beneficiary if the beneficiary survives me.

___________________________
Printed name
___________________________
Mailing address, if available
ALTERNATE BENEFICIARY – Optional

If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me.

___________________________
Printed name
___________________________
Mailing address, if available
TRANSFER ON DEATH

At my death, I transfer my interest in the described property to the beneficiaries as designated above.

Before my death, I have the right to revoke this deed.

SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED

___________________________
Signature
[(SEAL)] _________________
               Date
___________________________
Signature
[(SEAL)] _________________
               Date
ACKNOWLEDGMENT

(insert acknowledgment for deed here)

(back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
What does the Transfer on Death (TOD) deed do? When you die, this deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at your death. Probate is not required. The TOD deed has no effect until you die. You can revoke it at any time. You are also free to transfer the property to someone else during your lifetime. If you do not own any interest in the property when you die, this deed will have no effect.

How do I make a TOD deed? Complete this form. Have it acknowledged before a notary public or other individual authorized by law to take acknowledgments. Record the form in each [county] where any part of the property is located. The form has no effect unless it is acknowledged and recorded before your death.

Is the "legal description" of the property necessary? Yes.

How do I find the "legal description" of the property? This information may be on the deed you received when you became an owner of the property. This information may also be available in [the office of the county recorder of deeds] for the [county] where the property is located. If you are not absolutely sure, consult a lawyer.

Can I change my mind before I record the TOD deed? Yes. If you have not yet recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed.

How do I "record" the TOD deed? Take the completed and acknowledged form to [the office of the county recorder of deeds] of the [county] where the property is located. Follow the instructions given by the [county recorder] to make the form part of the official property records. If the property is in more than one [county], you should record the deed in each [county].

Can I later revoke the TOD deed if I change my mind? Yes. You can revoke the TOD deed. No one, including the beneficiaries, can prevent you from revoking the deed.

How do I revoke the TOD deed after it is recorded? There are three ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revocation form, and record it in each [county] where the property is located. (2) Complete and acknowledge a new TOD deed that disposes of the same property, and record it in each [county] where the property is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the TOD deed by will.

I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer.

Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended. Secrecy can cause later complications and might make it easier for others to commit fraud.

I have other questions about this form. What should I do? This form is designed to fit some but not all situations. If you have other questions, you are encouraged to consult a lawyer.]

Approved by ULC in 2009 (Uniform Act)

Uniform Act Comment

The official comments to the Uniform Act provide authoritative commentary regarding the drafters' intent.

For example, the comment to Section 16 states in part:

The form in this section is optional. . . . The form in this section is designed to be understandable and consumer friendly.

The full comment is available on the Uniform Law Commission website.