Section 114.151 of the Estates Code
- Optional Form for Transfer on Death Deed.
This section of the Texas Real Property Transfer on Death Act, first enacted in 2015, was heavily amended in 2017 (effective September 1, 2017) and completely repealed in 2019 (effective September 1, 2019).
Note that the 2019 legislation expressly stated that it did not "affect the validity of a transfer on death deed or a cancellation of a transfer on death deed executed before, on, or after the effective date of this Act."
Both the 2015 version and 2017 version of the transfer on death deed form provided by this section differed greatly from the form provided by Section 16 of the Uniform Real Property Transfer on Death Act.
Neither version of the form provided by this section was mandatory. Other Texas TODD forms were and remain available. For example, an interactive step-by-step form is available online at no cost to the public.
The other sections of the TRPTODA govern the legal effect of all TODD forms. See, e.g., Section 114.103(b) (providing a special rule for transfer on death deeds made by joint tenants with the right of survivorship).
The 2017 version of the form provided by this section was extremely complicated and virtually all transferors needed the assistance of a knowledgeable probate or real estate lawyer to use it effectively.
And, no matter who completed it, the legal effect at the transferor's death of a transfer on death deed created using the 2017 version could be ambiguous or otherwise unclear in certain circumstances.
For example, it was not clear whether the default 120-hour survival rule set forth in Section 114.103(a) applied because the form merely required that each designated beneficiary survive the transferor. Cf. Johanson's Texas Estates Code Annotated at 130 ("If the will bequeaths property 'to my brother Bob if he survives me,' and Bob survives the testator for even a brief period of time, the property will pass to Bob.").
Moreover, a few of the explanatory statements made in the 2017 version and its attached instructions for completing the form were arguably incorrect or, at a minimum, misleading.
For example, the form stated: "If you are married and want your spouse to own the property on your death, you must name your spouse as the primary beneficiary." The statement was true for the vast majority of transferors. However, if the transferor and their spouse were joint tenants with the right of survivorship, the statement was false. See Section 114.103(b).
To minimize the concerns associated with the form, one commentator recommended that a transferor execute and record a new transfer on death deed if a primary beneficiary died.
The problem was that the 2017 version was drafted to cover multiple contingencies when a relatively simple short-term approach is better for a self-help transfer on death deed form.
A transfer on death deed is most appropriate for an elderly individual whose only substantial asset is a piece of real property and who wants to transfer that property to another adult (e.g., one of their children).
Therefore, a fill-in-the-blank TODD form that covers that situation is available for download in PDF format. The aim of this basic form, which is free to the public, is to be understandable and consumer friendly.
Finally, commentators report that lack of recordation is the number one reason transfer on death deeds fail. Therefore, ensuring that a transfer on death deed is recorded should be a point of focus for transferors.
No appellate court decision has interpreted any section of the TRPTODA.
- Deeds in Texas at 1 ("All in all, a good basic estate planning device. The statutory form for a TODD has been repealed, so lawyers are left to their own devices in the crafting of these conveyances, but clearly the instrument must comply with the usual legal formalities of a deed, and it must be recorded.")
- Instructions for Completing a Texas Transfer-on-Death Deed at 1 ("This form may be signed by just one owner or by two people who own property together. If you own the property with someone else, exactly how to proceed depends on how you and the other co-owners hold title to the property.")
- Lady Bird Deeds and Transfer on Death Deeds at 16 ("Despite these instructions, lay individuals may not actually understand the ramifications of the TODD or how to execute and record the deed. Thus, preparation of a TODD without legal assistance may lead to unanticipated consequences.")
- Legislature may want to address confusing changes to 'transfer on death' deeds at 1 ("The changes were made to address the problem of what happens if a beneficiary named in the deed is not living. . . . While these changes are a good idea, the problem with the new language is that much of it is difficult to understand, even though the form was created for people to use without an attorney.")
- Transfer on Death Deed: Information and Answers at 1 ("[T]he Texas legislature added more boxes to more specifically designate beneficiaries. For instance, if you have named 2 or more primary beneficiaries, the Transfer on Death Deed form now allows you to choose whether the share of a beneficiary who dies before the property owner goes to the beneficiary's children or to the other named beneficiaries.")
Uniform Act Text
- Section 16. Optional Form of Transfer on Death Deed.
- The following form may be used to create a transfer on death deed. The other sections of this [act] govern the effect of this or any other instrument used to create a transfer on death deed:
(front of form) REVOCABLE TRANSFER ON DEATH DEED NOTICE TO OWNER
You should carefully read all information on the other side of this form. You May Want to Consult a Lawyer Before Using This Form.
This form must be recorded before your death, or it will not be effective.
Owner or Owners Making This Deed:
Legal description of the property:
I designate the following beneficiary if the beneficiary survives me.
Mailing address, if available
ALTERNATE BENEFICIARY – Optional
If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me.
Mailing address, if available
TRANSFER ON DEATH
At my death, I transfer my interest in the described property to the beneficiaries as designated above.
Before my death, I have the right to revoke this deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
(insert acknowledgment for deed here)
(back of form) COMMON QUESTIONS ABOUT THE USE OF THIS FORM What does the Transfer on Death (TOD) deed do? When you die, this deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at your death. Probate is not required. The TOD deed has no effect until you die. You can revoke it at any time. You are also free to transfer the property to someone else during your lifetime. If you do not own any interest in the property when you die, this deed will have no effect.
How do I make a TOD deed? Complete this form. Have it acknowledged before a notary public or other individual authorized by law to take acknowledgments. Record the form in each [county] where any part of the property is located. The form has no effect unless it is acknowledged and recorded before your death.
Is the "legal description" of the property necessary? Yes.
How do I find the "legal description" of the property? This information may be on the deed you received when you became an owner of the property. This information may also be available in [the office of the county recorder of deeds] for the [county] where the property is located. If you are not absolutely sure, consult a lawyer.
Can I change my mind before I record the TOD deed? Yes. If you have not yet recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed.
How do I "record" the TOD deed? Take the completed and acknowledged form to [the office of the county recorder of deeds] of the [county] where the property is located. Follow the instructions given by the [county recorder] to make the form part of the official property records. If the property is in more than one [county], you should record the deed in each [county].
Can I later revoke the TOD deed if I change my mind? Yes. You can revoke the TOD deed. No one, including the beneficiaries, can prevent you from revoking the deed.
How do I revoke the TOD deed after it is recorded? There are three ways to revoke a recorded TOD deed: (1) Complete and acknowledge a revocation form, and record it in each [county] where the property is located. (2) Complete and acknowledge a new TOD deed that disposes of the same property, and record it in each [county] where the property is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that expressly revokes the TOD deed. You may not revoke the TOD deed by will.
I am being pressured to complete this form. What should I do? Do not complete this form under pressure. Seek help from a trusted family member, friend, or lawyer.
Do I need to tell the beneficiaries about the TOD deed? No, but it is recommended. Secrecy can cause later complications and might make it easier for others to commit fraud.
I have other questions about this form. What should I do? This form is designed to fit some but not all situations. If you have other questions, you are encouraged to consult a lawyer.
- 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 16 states in part:
- The form in this section is optional. . . . The form in this section is designed to be understandable and consumer friendly.
The full comment is available on the Uniform Law Commission website.