Section 114.053 of the Estates Code

Transfer on Death Deed Nontestamentary.

A transfer on death deed is a nontestamentary instrument.

Added 84th Leg., R.S., Ch. 841 (S.B. 462)

Editor Comments

This section of the Texas Real Property Transfer on Death Act fully adopts the substance of Section 7 of the Uniform Real Property Transfer on Death Act. Cf. Tearing Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the Inter Vivos/Testamentary Divide, 78 Md. L. Rev. 511, 540 (2019) ("Thus, like any TOD designation, the TOD real-estate deed takes effect at death but is treated as non-testamentary (that is, as an inter vivos transfer) . . . .").

To be effective, a testamentary instrument must be executed with certain formalities and proven valid in probate court. Cf. Ochoa v. Miller, 59 Tex. 460, 461 (1883) ("[A] will cannot be used in evidence in this state as constituting a title, or a link in the chain of title, to property, without it has been probated in the manner and form required by our law."); Steele v. Renn, 50 Tex. 467, 481 (1878) ("An application for the probate of a will is a proceeding in rem., and . . . .").

This section in substance exempts a transfer on death deed from those requirements. Cf. Lowe v. Ragland, 297 S.W.2d 668, 671 (Tex. 1957) ("Our action likewise assumes that the [inter vivos] deeds were correctly held void as testamentary."); Hawes v. Nicholas, 10 S.W. 558, 558 (Tex. 1889) ("This paper was styled a 'deed,' and shortly after its execution was acknowledged by the maker, and recorded as [an inter vivos] deed by the county clerk of Calhoun county.").

Another consequence of this key section: the property passes to the beneficiary outside the regular probate process and is not included in the transferor's probate estate. Cf. Texas Legislature Creates New Way To Transfer Real Property Upon Death at 1 ("It works similarly to a life insurance policy or a payable on death bank account because the asset passes directly to the beneficiary named in the transfer on death deed outside the probate system when the owner dies.").

—Steve Smith

Court Decisions

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

Legal Commentaries

No published legal commentary addresses this section of the TRPTODA.

Uniform Act Text

Section 7. Transfer on Death Deed Nontestamentary.

A transfer on death deed is nontestamentary.

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 7 states in part:

[B]ecause the mode of transfer is declared to be nontestamentary, the instrument of transfer is not a will and does not have to be executed in compliance with the formalities for wills, nor does the instrument need to be probated.

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