Section 114.103 of the Estates Code

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Effect of Transfer on Death Deed at Transferor's Death.
(a) Except as otherwise provided in the transfer on death deed, this section, or any other statute or the common law of this state governing a decedent's estate, on the death of the transferor, the following rules apply to an interest in real property that is the subject of a transfer on death deed and owned by the transferor at death:
(1) if the designated beneficiary survives the transferor by 120 hours, the interest in the real property is transferred to the designated beneficiary in accordance with the deed;
(2) the share of any designated beneficiary that fails to survive the transferor by 120 hours lapses, notwithstanding Section 111.052, and is subject to and passes in accordance with Subchapter D, Chapter 255, as if the transfer on death deed were a devise made in a will; and
(3) subject to Subdivision (2), concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.
(b) If a transferor is a joint owner with right of survivorship who is survived by one or more other joint owners, the real property that is the subject of the transfer on death deed belongs to the surviving joint owner or owners. If a transferor is a joint owner with right of survivorship who is the last surviving joint owner, the transfer on death deed is effective.
(c) If a transfer on death deed is made by two or more transferors who are joint owners with right of survivorship, the last surviving joint owner may revoke the transfer on death deed subject to Section 114.057.
(d) A transfer on death deed transfers real property without covenant of warranty of title even if the deed contains a contrary provision.
Added 84th Leg., R.S., Ch. 841 (S.B. 462);  Amended 85th Leg., R.S., Ch. 971 (S.B. 2150)

Editor Comments

At the transferor's death, a transfer on death deed becomes irrevocable and is functionally equivalent to an inter vivos deed subscribed, acknowledged, delivered and recorded at that time. The transferor's interest, if any, in the subject real property is transferred automatically to the beneficiary or beneficiaries. Cf. Life Estate, Rights of Survivorship and Transfer on Death Deeds: Which is Right for You? at 1 ("If a property owner dies while still holding title to the real estate, then title will pass either to the beneficiaries of the last will and testament, if there is one, or by operation of Texas law (intestate succession).").

This section of the Texas Real Property Transfer on Death Act differs significantly from Section 13 of the Uniform Real Property Transfer on Death Act. Cf. Death Without Probate: TOD Deeds—The Latest Tool in the Toolbox at 3-4 ("Trusts and estates lawyers put a premium on making sure that the property disposition reflects the decedent's desires. Real property lawyers put a premium on certainty of title. . . . Beyond the requirement of survival, the Drafting Committee decided that the other default rules should be considered by state legislatures as part of a comprehensive approach to nonprobate transfers.").

And, without question, the section is the TRPTODA's most complex. Cf. The UPC's New Survivorship and Antilapse Provisions at 1147-48 ("As revised in 1990, the UPC's survivorship and antilapse provisions constitute comprehensive legislation that resolves a variety of interpretive questions that have long troubled courts and litigants."). Note that the following analysis, which incorporates the significant changes made to the section in 2017, is applicable only to transfer on death deeds executed on or after September 1, 2017. Cf. Transfer on Death Deeds: A Texas Primer at 6 ("The difference in these two situations is puzzling and seems to lack logical support.").

The section states: "(a) Except as otherwise provided in the transfer on death deed . . . ." Therefore, the intent of the transferor, as expressed in the transfer on death deed, trumps the default rules established by Subdivisions (1)-(3) of Subsection (a). Cf. Henderson v. Parker, 728 S.W.2d 768, 770 (Tex. 1987) ("Because a testator's intent is determined as of the time the will is executed, we read the phrase 'surviving children of this marriage' to mean children 'surviving' at the time the will was executed."); Huffman v. Huffman, 339 S.W.2d 885, 888 (Tex. 1960) ("The intent must be drawn from the will, not the will from the intent.").

For example, the default 120-hour survival rule is nullified if the transfer on death deed requires that the designated beneficiary survive for a different period (e.g., "At my death, I transfer my interest in the described property to X if she survives me by 30 days.") or states that the designated beneficiary is not required to survive by any specified period (e.g., "At my death, I transfer my interest in the described property to X if she survives me. X is not required to survive me by any specified period."). Cf. Harlowe v. Hudgins, 19 S.W. 364, 365 (Tex. 1892) ("No precise technical words are required to be used in creating a conveyance.").

It is not clear whether the default 120-hour survival rule applies if the transfer on death deed merely requires that the designated beneficiary survive the transferor (e.g., "At my death, I transfer my interest in the described property to X if she survives me."). Cf. Section 121.101, Estates Code ("A devisee who does not survive the testator by 120 hours is treated as if the devisee predeceased the testator unless the testator's will contains some language that: (1) deals explicitly with simultaneous death or deaths in a common disaster; or (2) requires the devisee to survive the testator, or to survive the testator for a stated period, to take under the will.").

The section states: "(a) Except as otherwise provided in . . . this section . . . ." Therefore, Subsections (b)-(d) override the default rules established by Subdivisions (1)-(3) of Subsection (a).

Subsections (b)-(d) provide mandatory rules of law. In contrast, Subdivisions (1)-(3) of Subsection (a) provide rules of construction that yield to a contrary intention contained in the transfer on death deed.

Subsection (b) provides that a joint owner's right of survivorship prevails over the transfer on death deed. Due to the modified definition set forth in Section 114.002(a)(3), Subsection (b) does not apply to an owner of community property with a right of survivorship. The effect is not clear. Cf. Instructions for Completing a Texas Transfer-on-Death Deed at 1 ("Texas's TOD deed is not designed to work smoothly with this form of property ownership.").

Subsection (c), which has no corresponding provision in the Uniform Act, clarifies that the last surviving joint owner with right of survivorship is entitled to revoke the transfer on death deed. Based on its subject matter, the clarification belongs in Section 114.057 rather than this section. Cf. Section 114.057(e) ("A transfer on death deed made by joint owners with right of survivorship is revoked only if it is revoked by all of the living joint owners.").

Subsection (d) provides that a transfer on death deed transfers the subject real property without warranty of title. An issue raised by this subsection is whether an owner's title insurance policy on residential real property purchased by the transferor when he or she acquired the subject real property provides coverage to the beneficiary of the transfer on death deed. Commentators generally agree that the issue is unsettled.

The section states: "(a) Except as otherwise provided in . . . any other statute or the common law of this state governing a decedent's estate . . . ." Therefore, whatever Texas law the foregoing language refers to overrides the default rules established by Subdivisions (1)-(3) of Subsection (a).

The foregoing language is not contained in Section 13 of the Uniform Act and is unique to Texas. Unfortunately, its intent and effect are both unclear. It literally incorporates Title 2 of the Estates Code and all related common law into Subsection (a). Logically, there must be some limit as to what part of the referenced body of probate law is actually incorporated into Subsection (a).

Note that the foregoing language does not state: "(a) Except as otherwise provided in . . . any other provision of state law governing nonprobate transfers . . . ." Cf. North Dakota Code, 30.1-32.1-10(1) ("Except as otherwise provided in . . . state law on antilapse, revocation by divorce or homicide, survival and simultaneous death, and elective share, if applicable to nonprobate transfers . . . .").

The foregoing language could reasonably be interpreted to refer only to Texas law governing a decedent's estate that, by its text or purpose, applies to nonprobate transfers. Cf. Masterson v. Harris, 174 S.W. 570, 573 (Tex. 1915) ("The question is rendered one of some difficulty, for the reason that the statute is an unsatisfactory one in the expression of its intent.").

In any event, the following three examples provide some context to this question of statutory interpretation. Cf. Dakan v. Dakan, 83 S.W.2d 620, 626 (Tex. 1935) ("[S]he is estopped from questioning the disposition of her property upon the doctrine of election."); Taylor v. Martin's Estate, 3 S.W.2d 408, 411 (Tex. 1928) ("At both the civil and the common law certain changes in a testator's domestic status operated to revoke his will.").

It is unlikely that the Texas pretermitted child statute, codified in Chapter 255 of the Estates Code, overrides the default rules established by Subdivisions (1)-(3) of Subsection (a). Cf. We Are Not Going To Have Any More Children at 1 ("When someone has a child after writing a will, such child is known as a 'pretermitted child.' Texas has complicated provisions for what a pretermitted child inherits where there is no provision made for them in the will.").

It is likely that the common law constructive trust doctrine overrides the default rules established by Subdivisions (1)-(3) of Subsection (a). Cf. Court Discusses Slayer Rule in Texas And Affirms Judgment For Bank That Froze Account at 1 ("Texas courts have held that a husband or wife who murders his or her spouse may not inherit under the spouse's will as a beneficiary under a constructive trust theory.").

Without question, the rights of the surviving spouse and minor children to use and occupy the probate homestead, rooted in the state constitution, override the default rules established by Subdivisions (1)-(3) of Subsection (a). Cf. Lindsley v. Lindsley, 163 S.W.2d 633, 636 (Tex. 1942) ("The deceased spouse may not by testamentary provision deprive the survivor of the use and occupancy of the homestead.").

The comment to Section 5 of the Uniform Act states: "Among many other things, this permits the transferor to reserve interests for his estate (e.g., mineral interests); to specify the nature and extent of the beneficiary's interest; and to designate one or more primary beneficiaries and one or more alternate beneficiaries to take in the event the primary beneficiaries fail to survive the transferor. . . . Notwithstanding this freedom of disposition, transferors are encouraged as a practical matter to avoid formulating dispositions that would complicate title. Dispositions containing conditions or class gifts, for example, may require a court proceeding to sort out the beneficiaries' interests."

To draft a transfer on death deed, it is necessary to fully understand the default rules established by Subdivisions (1)-(3) of Subsection (a). Cf. White v. Moore, 760 S.W.2d 242, 244 (Tex. 1988) ("We merely hold that the language in question is so ambiguous and uncertain in meaning as to require a trial on the issue of Mattie's intent in using the language she used.").

The simplest transfer on death deed involving only one designated beneficiary would state: "At my death, I transfer my interest in the described property to X." In that case, under the default rules, if X survives the transferor by 120 hours (i.e., by five days), ownership of the real property is transferred to X.

The simplest transfer on death deed involving more than one designated beneficiary would state: "At my death, I transfer my interest in the described property to X and Y." In that case, under the default rules, if X and Y survive the transferor by 120 hours, ownership of the real property is transferred to X and Y in equal and undivided shares with no right of survivorship.

In both cases, the share of a designated beneficiary that fails to survive the transferor by 120 hours lapses and passes in accordance with the Texas antilapse statute. Cf. The UPC's New Survivorship and Antilapse Provisions at 1099 ("Antilapse statutes . . . prevent unintended disinheritance of one or more lines of descent, by presumptively creating an alternative or substitute gift in favor of the descendants of certain of the decedent's predeceased relatives.").

In general, if a designated beneficiary fails to survive the transferor by 120 hours and is a descendant of the transferor (e.g., the transferor's child) or a descendant of the transferor's parents (e.g., the transferor's sibling), the designated beneficiary's descendants who survive the transferor by 120 hours take the designated beneficiary's share on a per capita with representation basis. Cf. Section 255.153, Estates Code.

The usual effect of the Texas antilapse statute is easily stated. However, its application to wills is sometimes uncertain. Cf. How The Legislature Has Changed Your Documents at 7 ("[It] applies only if the testator does not indicate a contrary intent in the will. For example, a gift to 'my son Bill, if he survives me,' or 'to my surviving children' will negate its application."). And its application to transfer on death deeds under this section raises more questions.

For example, neither the TRPTODA nor "any other statute or the common law of this state governing a decedent's estate" directly address the interaction of the Texas antilapse statute and alternative beneficiary designations. Cf. Uniform Probate Code, Section 2-706(b)(4) ("If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by paragraph (1) or (2), the substitute gift is superseded . . . .").

Therefore, if the transferor designates one or more alternate beneficiaries, the transfer on death deed should expressly declare whether application of the Texas antilapse statute is negated and clearly state the priority of the various potential substitute takers. Cf. Transfer on Death Deeds in Texas: High Time for the TODD at 79 ("Make sure clients name alternative beneficiaries, and make sure they understand how Chapter 255 will or will not apply to their TODDs.").

Finally, although not expressly stated, the TRPTODA implies that transfer on death deeds are, to the extent the rules differ, subject to the rules of interpretation applicable to wills rather than the rules of interpretation applicable to inter vivos deeds. Cf. Bell County v. Alexander, 22 Tex. 351, 358 (1858) ("It is a familiar doctrine, that in the construction of a will, the intention of the testator is the first and great object of inquiry; and the law will not suffer the intention to be defeated, merely because the testator has not clothed his ideas in technical language."); Rio Bravo Oil Co. v. Weed, 50 S.W.2d 1080, 1087 (Tex. 1932) ("The courts have established many rules to aid in the construction of deeds of conveyance.").

Steve Smith

Court Decisions

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

Legal Commentaries

  • Instructions for Completing a Texas Transfer-on-Death Deed at 1 ("If you own property as JTWROS and you want the property to go to someone who is not the other joint tenant, you can first change the joint tenancy into a tenancy in common, by preparing and recording a deed to that effect.")
  • Lady Bird Deeds and Transfer on Death Deeds at 15 ("[T]he grantor may revoke a TODD thus the grantor has not made completed gift to the beneficiary. Accordingly, the full value of the property remains in the grantor's taxable estate and, just as with a LBD, the remainder beneficiary receives a stepped-up basis in the property.")
  • New Tool in the Toolbox at 3-4 ("As with most new statutes, there are some unanswered questions and potential pitfalls to avoid. . . . TODDs executed and acknowledged prior to September 1, 2017, are governed by the law as it existed before the 2017 amendments.")
  • Texas Elder Law (Vol. 51, Texas Practice Series) at 434 ("[I]t is not clear whether the beneficiary of this new type of deed—unforeseen by the drafters of title policy forms and the statutes that govern them—is within the definition of 'insured' under the policy or is otherwise entitled to the policy's protection.")
  • The Texas Transfer on Death Deed at 1 ("After the Grantor dies, an affidavit of death and a certified copy of the Grantor’s death certificate should be filed in the county clerk’s office of the county where the deed was recorded. This creates a link in the chain of title to show that the beneficiary is now the owner of the property.")

Uniform Act Text

Section 13. Effect of Transfer on Death Deed at Transferor's Death.
(a) Except as otherwise provided in the transfer on death deed[,][ or] in this section[,][ or in [cite state statutes on antilapse, revocation by divorce or homicide, survival and simultaneous death, and elective share, if applicable to nonprobate transfers]], on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death:
(1) Subject to paragraph (2), the interest in the property is transferred to the designated beneficiary in accordance with the deed.
(2) The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.
(3) Subject to paragraph (4), concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.
(4) If the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property, the share of one which lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.
. . . .
(c) If a transferor is a joint owner and is:
(1) survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship; or
(2) the last surviving joint owner, the transfer on death deed is effective.
(d) A transfer on death deed transfers property without covenant or warranty of title even if the deed 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 13 states in part:

Subsection (d) states the mandatory rule that a transfer on death deed transfers the property without covenant or warranty of title. . . . The rule of this section is consistent with the longstanding law of wills.

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

The comment is one of the Uniform Act's most important, covering several key concepts.