Section 114.001 of the Estates Code

From Texas Legal Guide
Jump to navigation Jump to search
Short Title.
This chapter may be cited as the Texas Real Property Transfer on Death Act.
Added 84th Leg., R.S., Ch. 841 (S.B. 462)

Editor Comments

The Texas Real Property Transfer on Death Act, codified as Chapter 114 of the Estates Code, was enacted in 2015. Senate Bill 462 and some of its limited legislative history are available at the state's Texas Legislature Online website. Cf. The Transfer on Death Deed at 1 ("If the [traditional] deed contained language that attempted to make it revocable, it was said to be an invalid attempt to make a will.").

The transfer on death deed authorized by the TRPTODA, often referred to as a TOD deed or TODD, is a revocable will substitute. Cf. What Happened to Grandma’s House: The Real Property Implications of Dying Intestate at 2637 ("These deeds allow a landowner to simply designate a taker who will receive the property at death, retaining for the grantor all power and control to alienate, mortgage, and manage during life.").

The TRPTODA is based on the Uniform Real Property Transfer on Death Act, an act drafted by the Uniform Law Commission. The Uniform Act has been enacted by seventeen states, the District of Columbia, and the U.S. Virgin Islands. Cf. The Uniform Real Property Transfer on Death Act: A Summary at 1 ("A TOD deed does not operate until the transferor's death and remains revocable until then.").

The substitution of "Texas" for "Uniform" reflects that the TRPTODA's text is substantially different from the text of the Uniform Act. In fact, only one section of the TRPTODA is identical to its corresponding section in the Uniform Act. However, a majority of the modifications are nonsubstantive.

This section, like Section 1 of the Uniform Act, provides a short title. The utility for citation purposes of a short title for an act that is incorporated into a code is limited. Therefore, the section's main purpose is to provide a common name for the act to be used by both lawyers and laypersons.

Steve Smith

Court Decisions

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

Legal Commentaries

  • Johanson's Texas Estates Code Annotated at 116 ("For older persons who own only one piece of real estate that they are unlikely to sell—the family home—this affords an effective means of transferring title without the attendant costs of (e.g.,) a muniment of title probate.")
  • Transfer on Death Deed: Information and Answers at 1 ("Not having to go through probate allows you to avoid incurring court costs and administrative costs to deed the property to your beneficiary. Under current law, it also excludes the real property from Medicaid estate recovery.")
  • Transfer on Death Deed, Survivorship Agreements, Lady Bird Deeds at 2 ("The new TODD statute continues a trend of state legislatures drafting self-help legislation for basic legal matters such as pro se non-contested divorces and simple estate probate.")
  • Transfer on Death Deeds: A Texas Primer at 8 ("First, TODDs are designed for lay use and thus are fraught with the typical problems that arise when a non-lawyer attempts to practice law. In addition, even if used carefully as part of an attorney-prepared estate plan, problems may nonetheless arise.")
  • Transfer on death deeds in Texas: A disaster for many at 1 ("The goal behind them is laudable: Provide a simple mechanism for transferring ownership of land to a beneficiary when the owner dies, no probate required. Four years later, how's that working for us? Not so good.")

Uniform Act Text

Section 1. Short Title.
This [act] may be cited as the Uniform Real Property Transfer on Death Act.
Approved by ULC in 2009 (Uniform Act)

Uniform Act Comment

Most sections of the Uniform Act have an official comment. Section 1 does not.

However, the act's Prefatory Note provides a useful introduction to this area of the law. It provides in part:

A small but growing number of jurisdictions have implemented the principle of UPC Section 6-101 by enacting statutes providing an asset-specific mechanism for the nonprobate transfer of land. . . . The time is ripe for a Uniform Act to facilitate this emerging form of nonprobate transfer and to bring uniformity and clarity to its use and operation.

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