Section 114.151 of the Estates Code

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Section 114.151. Optional Form for Transfer on Death Deed.
Repealed
Added 84th Leg., R.S., Ch. 841 (S.B. 462);  Amended 85th Leg., R.S., Ch. 971 (S.B. 2150);  Amended 86th Leg., R.S., Ch. --- (H.B. 2782);  Amended 86th Leg., R.S., Ch. --- (S.B. 874)

Editor Comments

This section of the Texas Real Property Transfer on Death Act, like Section 16 of the Uniform Real Property Transfer on Death Act, provided an optional transfer on death deed form.

The section was repealed effective September 1, 2019.

This section and Section 114.103 were substantially amended in 2017. Note that those 2150 amendments apply only to transfer on death deeds executed on or after September 1, 2017.

The form provided by this section may, but need not, be used to create a transfer on death deed. For example, a fill-in-the-blank alternative is available online at no cost to the public.

The other sections of the TRPTODA govern the effect of both the form provided by this section and any other method used to create a transfer on death deed. See, e.g., Section 114.103(b) (providing special rule for transfer on death deeds made by joint owners with right of survivorship).

The form provided by this section is extremely complicated and virtually all individuals will need the assistance of a knowledgeable probate or real estate lawyer to use it effectively.

And, no matter who completes it, the effect at the transferor's death of a transfer on death deed created using the form will be ambiguous or otherwise unclear in some circumstances.

For example, it is not clear whether the default 120-hour survival rule set forth in Section 114.103(a) applies because the form merely requires 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 statements made in the form and the instructions for completing the form are incorrect or misleading.

For example, the form states: "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 is true for the vast majority of transferors. However, if the transferor and his or her spouse are joint tenants with the right of survivorship, the statement is false. See Section 114.103(b).

To minimize the ambiguities inherent in the form, at least one commentator recommends that a transferor execute and record a new transfer on death deed if a designated primary beneficiary dies.

The problem is that the form provided by this section was drafted to cover multiple contingencies when a short-term, relatively simple approach is better for a self-help transfer on death deed form.

A transfer on death deed is most appropriate for an elderly person whose only substantial asset is a piece of real estate and who wants to transfer the property to another adult (e.g., their spouse).

Therefore, an alternative transfer on death deed form (PDF version) is offered that covers that situation. The aim of the form, which is available for free, 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.

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 ("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.")
  • 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.")
  • New Tool in the Toolbox at 3 ("If a beneficiary dies before the death of the transferor (or before the 120 hours have passed), that beneficiary's share lapses and passes as described in Subchapter D, Chapter 255 of the Estates Code, which includes rules for failed devises in wills. The new forms in the amended statute allow a transferor to make elections with respect to how these interests pass.")
  • 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.")
  • Underwriting Manual: 5.02 Elder Law at 1 ("Stewart will accept a TODD as a vesting instrument so long as it substantially conforms to the statutory form as provided in Estates Code Sec. 114.151. If you receive a non-statutory form that appears to not contain the elements required above, seek Texas underwriter approval.")

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.

IDENTIFYING INFORMATION

Owner or Owners Making This Deed:

___________________________
Printed name
___________________________
Mailing address
___________________________
Printed name
___________________________
Mailing address
Legal description of the property:

________________________________________________________________

PRIMARY BENEFICIARY

I designate the following beneficiary if the beneficiary survives me.

___________________________
Printed name
___________________________
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.

___________________________
Printed name
___________________________
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

___________________________
Signature
[(SEAL)] _________________
               Date
___________________________
Signature
[(SEAL)] _________________
               Date
ACKNOWLEDGMENT

(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.