Section 114.152 of the Estates Code
- Optional Form of Revocation.
Due to concerns about the form provided by Section 114.151, both that section and this section were repealed in 2019. Prior to that time, no concerns were raised regarding the form provided by this section.
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."
Commentators agree that the form formerly provided by this section remains, in every practical sense, valid and useful. Therefore, a fill-in-the-blank copy of that form is available for download in PDF format.
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."
Section 17 of the Uniform Real Property Transfer on Death Act provides a "revocation" form. This section of the Texas Real Property Transfer on Death Act formerly provided a similar "cancellation" form.
The differences between the two forms are more stylistic than substantive. Nonetheless, to ensure the validity of the instrument of revocation, it has always been safer to adhere to the TRPTODA version.
The form formerly provided by this section was not mandatory. Other Texas revocation 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 revocation forms. See, e.g., Section 114.057(e) (providing a special rule for transfer on death deeds made by joint tenants with the right of survivorship).
The form formerly provided by this section covers the most common situation: a transferor desires to revoke a transfer on death deed in its entirety. But it can be modified to revoke only part of a transfer on death deed.
For example, 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 it as to a specific interest in the subject real property.
However, caution is suggested. With two operative legal documents (the existing transfer on death deed and the instrument of revocation), the intent of the transferor can easily become ambiguous or otherwise unclear.
An instrument of revocation cannot be used to add a designated beneficiary or an interest in real property to a transfer on death deed. A "subsequent" transfer on death deed is required to make those types of changes.
Finally, the form formerly provided by this section states that it must be executed in the presence of a notary public. However, nothing in Section 114.057(a) requires that an instrument of revocation be signed and dated before a notary public. 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 an officer and must state that he executed the instrument . . . .").
No appellate court decision has interpreted any section of the TRPTODA.
- Language of repealed Transfer on Death Deed may live on at 1 ("The revocation form you printed will still be valid, mainly because it is a very simple form. The Texas legislature has tasked the Supreme Court of Texas with the job of developing a new Transfer on Death Deed form as well as a new Revocation form. Hopefully, we'll have new forms sooner than later.")
- Texas Transfer on Death Revocation at 1 ("While the first two options are effective, it makes sense to file an instrument of revocation, because it provides a start and end point to a recorded TODD, which should reduce confusion in future title searches. . . . Before revoking a transfer on death deed, consider the effect it will have on the comprehensive estate.")
- Transfer on Death Deed Cancellation Instructions 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.")
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.