Section 114.052 of the Estates Code
- Transfer on Death Deed Revocable.
- A transfer on death deed is revocable regardless of whether the deed or another instrument contains a contrary provision.
- Added 84th Leg., R.S., Ch. 841 (S.B. 462)
This section of the Texas Real Property Transfer on Death Act fully adopts the substance of Section 6 of the Uniform Real Property Transfer on Death Act.
An inter vivos deed evidences an intention to transfer, at the time of the conveyance, an interest in real property, either a present interest or a future interest. In contrast, a transfer on death deed evidences an intention that the transfer occur at the transferor's death. See Section 114.055 (to be effective, a transfer on death deed must "state that the transfer of an interest in real property to the designated beneficiary is to occur at the transferor's death").
Without exception, an instrument determined to be a transfer on death deed is revocable during the transferor's life. Cf. Carlton v. Cameron, 54 Tex. 72, 77 (1880) ("Although the instrument of July 16, 1836, had the form of [an inter vivos] deed, and was placed upon record, it was nevertheless testamentary in its character, and inoperative as [an inter vivos] deed, if the intention of the maker appears to have been that it should take effect only on his death."); Ferguson v. Ferguson, 27 Tex. 339, 342 (1864) ("The only question in this case depends upon the construction that should be given to the instrument of writing . . . . Shall this instrument be held to be [an inter vivos] deed or a will?").
However, if the transferor promises not to revoke a transfer on death deed and breaks that promise, the promisee may have a remedy. Cf. Weidner v. Crowther, 301 S.W.2d 621, 625 (Tex. 1957) ("We recognize that a will is ambulatory in character and that the surviving party to a mutual will may revoke it, but effective revocation will be prevented by a court of equity."); Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921) ("The question presented by this feature of the case is whether the performance of the contract by the plaintiff relieves it from the operation of the statute of frauds, or, as more accurately stated, renders the contract enforcible in equity notwithstanding the statute.").
No appellate court decision has interpreted any section of the TRPTODA.
No published legal commentary addresses this section of the TRPTODA.
Uniform Act Text
- Section 6. Transfer on Death Deed Revocable.
- A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.
- 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 6 states in part:
- A fundamental feature of a transfer on death deed under this Act is that the transferor retains the power to revoke the deed. Section 6 is framed as a mandatory rule, for two reasons.
The full comment is available on the Uniform Law Commission website.