Section 114.152 of the Estates Code
- Section 114.152. Optional Form of Revocation.
This section was repealed effective September 1, 2019.
Section 114.057(a) provides: "[A]n instrument is effective to revoke a recorded transfer on death deed, or any part of it, if the instrument: (1) is . . . an instrument of revocation that expressly revokes the transfer on death deed or part of the deed; (2) is acknowledged by the transferor after the acknowledgment of the deed being revoked; and (3) is recorded before the transferor's death in the deed records in the county clerk's office of the county where the deed being revoked is recorded."
This section of the Texas Real Property Transfer on Death Act, like Section 17 of the Uniform Real Property Transfer on Death Act, provided an optional revocation form.
Note that in the TRPTODA the terms "cancel" and "revoke" are synonymous. See Section 114.002(b).
The TRPTODA form and the Uniform Act form both expressly revoke all previous transfer on death deeds concerning the subject real property. However, the forms are significantly different from each other.
The differences between the TRPTODA form and the Uniform Act form are more stylistic than substantive. Nonetheless, to ensure the validity of the instrument, adherence to the TRPTODA version is recommended.
The form provided by this section may, but need not, be used to create an instrument of revocation under the TRPTODA. For example, a semi-automated 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 an instrument of revocation. See, e.g., Section 114.057(e) (providing special rule for transfer on death deeds made by joint owners with right of survivorship).
The form provided by this section (PDF version) was drafted to cover the most common situation: the transferor desires to revoke an existing transfer on death deed in its entirety.
The form, a legislatively approved example of a valid instrument of revocation, can be modified to revoke only part of a transfer on death deed. 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.").
For example, the language in the "Cancellation" section can be revised to expressly revoke the transfer on death deed as to one of the designated beneficiaries or to expressly revoke the transfer on death deed as to a specific interest in the subject real property. However, caution is advised. With two operative documents (the existing transfer on death deed and the instrument of revocation), the transferor's intent can easily become ambiguous or otherwise unclear.
An instrument of revocation should not be used to add either a designated beneficiary or an interest in real property to an existing transfer on death deed. To make those types of changes, the transferor should execute and record an appropriately worded replacement transfer on death deed.
Finally, as stated in its instructions, the form provided by this section is intended to be executed in the presence of a notary public. However, nothing in Section 114.057 requires that an instrument of revocation be signed and dated before a notary public. It requires only that the instrument be acknowledged. Cf. Section 121.004(a), Civil Practice and Remedies Code ("To acknowledge a written instrument for recording, the grantor or person who executed the instrument must appear before [a notary public or other individual authorized by Texas law to take acknowledgements] and must state that he executed the instrument for the purposes and consideration expressed in it.").
No appellate court decision has interpreted any section of the TRPTODA.
- Cancellation of Transfer on Death Deed at 2 ("The County Clerk will charge a fee to file the Cancellation of Transfer on Death Deed and may not take a check. You may want to call the County Clerk's office and find out how much the charge will be before you go. File the original and ask them to return a copy of the original with the recording information on it to the owner.")
- The New Transfer on Death Deeds in Texas at 1 ("[T]he easiest way to revoke a TOD Deed is for the grantor to sign a separate document expressly revoking the deed and then record the revocation document. Alternatively, the grantor may properly execute and record a new TOD Deed that revokes the prior one and specifies a new beneficiary or beneficiaries.")
Uniform Act Text
- [Section 17. Optional Form of Revocation.
- The following form may be used to create an instrument of revocation under this [act]. The other sections of this [act] govern the effect of this or any other instrument used to revoke a transfer on death deed.
(front of form) REVOCATION OF TRANSFER ON DEATH DEED NOTICE TO OWNER
This revocation must be recorded before you die or it will not be effective. This revocation is effective only as to the interests in the property of owners who sign this revocation.
Owner or Owners of Property Making This Revocation:
Legal description of the property:
I revoke all my previous transfers of this property by transfer on death deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
(insert acknowledgment here)
(back of form) COMMON QUESTIONS ABOUT THE USE OF THIS FORM How do I use this form to revoke a Transfer on Death (TOD) deed? Complete this form. Have it acknowledged before a notary public or other individual authorized to take acknowledgments. Record the form in the public records in [the office of the county recorder of deeds] of each [county] where the property is located. The form must be acknowledged and recorded before your death or it has no effect.
How do I find the "legal description" of the property? This information may be on the TOD deed. It 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.
How do I "record" the form? 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 located in more than one [county], you should record the form in each of those [counties].
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.
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, 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 17 states in part:
- The form in this section is optional. . . . The aim of the form in this section is to be understandable and consumer friendly.
The full comment is available on the Uniform Law Commission website.