Section 114.055 of the Estates Code

Requirements.

To be effective, a transfer on death deed must:

(1) except as otherwise provided in Subdivision (2), contain the essential elements and formalities of a recordable deed;

(2) state that the transfer of an interest in real property to the designated beneficiary is to occur at the transferor's death; and

(3) be recorded before the transferor's death in the deed records in the county clerk's office of the county where the real property is located.

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 9 of the Uniform Real Property Transfer on Death Act. Cf. Hill v. Taylor, 14 S.W. 366, 367 (Tex. 1890) ("We believe it to be settled that the benefits accruing from the registration of [an inter vivos] deed are invariably dependent upon its proper registration. Without proper acknowledgment, and proper certificate of such acknowledgment, of the execution of [an inter vivos] deed, its registration would not constitute [constructive] notice, nor would any lapse of time make admissible as an ancient instrument a certified copy from the record of such deed.").

The section is arguably the TRPTODA's most important. A transfer on death deed that fails to meet its stated requirements is by definition not effective. Cf. Davis v. Davis, 45 S.W.2d 240, 241 (Tex.Civ.App.–Beaumont 1931) ("A will must be executed in accordance with the statutory requirements, or otherwise it is entirely void. All these requirements stand as of equal importance, and must be observed, and courts cannot supply the defective execution of a will."); Deeds and The Texas Recording Statutes at 1267 ("[R]ecordation gives public notice of deed contents but does not validate an otherwise invalid deed. Texas statutes and case law dictate five requirements for a valid deed.").

In Texas, the "essential elements and formalities of a recordable deed" include that it be: written in English; subscribed by the grantor; signed, acknowledged or sworn to by the grantor in the presence of two or more witnesses or acknowledged or sworn to by the grantor before and certified by an officer authorized to take acknowledgements or oaths. See, generally, Chapters 5, 11 & 12 of the Property Code. Cf. Bell v. Thomsen, 273 S.W. 1109, 1110 (Tex. 1925) ("And, as applicable to deeds in Texas, a writing has always been considered as authenticated and entitled to registration when 'acknowledged or proven for record' before a proper officer then certifying to such fact."); Clapp v. Engledow, 18 S.W. 146, 148 (Tex. 1891) ("Acknowledgment of a deed by the grantor, or the proof thereof by one of two witnesses, is necessary only for the purpose of registration. As between the parties, no acknowledgment is necessary.").

Both the person conveying the property and the person receiving it must be adequately identified. Cf. Vineyard v. O'Connor, 36 S.W. 424, 425 (Tex. 1896) ("A deed to the heirs of a person who is dead is good, for the reason that the heirs may be definitely ascertained."); Auerbach v. Wylie, 19 S.W. 856, 857 (Tex. 1892) ("For the purposes of identification, recitals in deeds are admissible as original evidence, when including facts of birth, marriage, and death.").

A sufficient property description is also required. Cf. AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008) ("A property description is sufficient if the writing furnishes within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty."); Gates v. Asher, 280 S.W.2d 247, 249 (Tex. 1955) ("Conviction beyond all peradventure of doubt is unnecessary.").

For a subdivision lot, the physical address by itself would normally be sufficient. However, that is not always the case. Appropriately, the transfer on death deed form that was formerly provided by Section 114.151 instructed the transferor to use the "formal legal description" contained in the deed under which he or she obtained title. Cf. A Basic Conveyancing Guide For Texans at 1 ("Texas deeds must contain several essential elements to be legally operative: . . . .").

A transfer on death deed should be acknowledged before a notary public or other individual authorized by Texas law to take acknowledgements. While not expressly required, several provisions of the TRPTODA indicate that this is the correct procedure. See, e.g., Section 114.057(a) ("acknowledged by the transferor after the acknowledgment of the deed being revoked"). Therefore, neither an oath nor witnesses should be used. Cf. Punchard v. Masterson, 101 S.W. 204, 205 (Tex. 1907) ("[W]hen an acknowledgment is prescribed, without declaring of what the acknowledgment shall consist, it is meant that the grantor in a deed must appear before a duly authorized officer and state that he executed the same.").

A transfer on death deed must state that the transfer to the designated beneficiary is to occur at the transferor's death. However, nothing in the TRPTODA requires that the instrument be denominated a "Transfer on Death Deed" or "Revocable Transfer on Death Deed." Cf. Hinson v. Hinson, 280 S.W.2d 731, 733 (Tex. 1955) ("An instrument is not a will unless it is executed with testamentary intent. The animus testandi does not depend upon the maker's realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect after his death.").

A transfer on death deed that is not properly recorded before the transferor's death is void (i.e., of no legal effect). That rule differs greatly from the general rule governing real property instruments in Texas. Cf. Section 13.001(b), Property Code ("The unrecorded instrument is binding on a party to the instrument, on the party's heirs, and on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument."); Portis v. Hill, 30 Tex. 529, 562 (1868) ("But [inter vivos] deeds are as valid, to all intents and purposes, in passing the title out of the grantor into the grantee, when unrecorded, as when recorded by the register.").

A transfer on death deed is filed for record with the county clerk's office in the same manner as an inter vivos deed. However, it is not clear whether a transfer on death deed that conveys a contiguous tract of land located in more than one county must be recorded in each county to be fully effective. Therefore, if the subject real property is located in more than one county, the transfer on death deed should be recorded in each of those counties. Cf. Hancock v. Tram Lumber Co., 65 Tex. 225, 232 (1885) ("If, however, such deed or instrument affects the title to land in one tract, but partly in two or more counties, then registration in either county would be notice . . . .").

Note that neither the TRPTODA nor the Uniform Act limit or otherwise address who may record a transfer on death deed. Cf. Section 192.001, Local Government Code ("The county clerk shall record each deed, mortgage, or other instrument that is required or permitted by law to be recorded."); Turrentine v. Lasane, 389 S.W.2d 336, 337 (Tex.Civ.App.–Waco 1965) ("Neither relator's motive in seeking to have the instruments recorded, whether her purpose may in fact be effectuated, nor whether it is good practice for title examiners to rely on them, are elements which determine whether they are subject to recordation.").

It appears that, whether authorized by the transferor or not, any person in possession of an acknowledged transfer on death deed may record it. If that is true, an acknowledged transfer on death deed could be recorded and made effective without the consent of the transferor. In addition, such a deed could be recorded and made effective even though the transferor lacked contractual capacity at the time of recordation. Cf. Steffian v. Milmo Nat'l Bank, 6 S.W. 823, 824 (Tex. 1888) ("The courts say that [an inter vivos] deed delivered without the consent of the grantor is of no more effect to pass title than if it were a forgery.").

However, if this section is construed to require that a transfer on death deed be recorded by the transferor to be effective, then transfer of the subject real property becomes more complicated. Cf. Section 114.054(b) ("A transfer on death deed may not be created through use of a power of attorney."). Neither the deed records nor any other public record will establish who submitted the transfer on death deed to the county clerk's office for recordation. Therefore, to clear title to the subject real property, the beneficiary may have to independently prove that the transferor (or transferors) personally recorded the transfer on death deed.

—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 9. Requirements.

A transfer on death deed:

(1) except as otherwise provided in paragraph (2), must contain the essential elements and formalities of a properly recordable inter vivos deed;

(2) must state that the transfer to the designated beneficiary is to occur at the transferor's death; and

(3) must be recorded before the transferor's death in the public records in [the office of the county recorder of deeds] of the [county] where the property is located.

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 9 states in part:

The requirement of recordation before death helps to prevent fraud by ensuring that all steps necessary to the effective transfer on death deed are completed during the transferor's lifetime. The requirement of recordation before death also enables all parties to rely on the recording system.

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