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Julie Garber

Can You Use a TOD Deed or Beneficiary Deed to Avoid Probate?

By October 15, 2010

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When someone dies and leaves even just one asset titled in the deceased individual's sole name, probate will usually be required to transfer ownership of the asset out of the deceased individual's name and into the names of the deceased individual's heirs. But there are certain types of assets that even though they are titled in an individual's sole name, they won't require probate. These types of non probate assets include bank accounts with valid a payable on death (or POD) designation; investment accounts with a valid transfer on death (or TOD) designation; life insurance with a valid beneficiary designation; and retirement accounts, including IRAs and 401(k)s, with a valid beneficiary designation - in other words, property for which through a legal contract with your bank, insurance company or IRA custodian you can name a direct beneficiary to inherit the property after your death.

Historically a beneficiary designation could not be used to transfer real estate after death, but now there are a handful of states that have passed laws allowing for beneficiary designations for real estate through the use of transfer on death deeds (TOD deeds for short), also called beneficiary deeds. The current states that recognize this type of deed are Arizona, Arkansas, Colorado, Indiana, Kansas, Minnesota, Missouri, Montana, Nevada, New Mexico, Ohio, Oklahoma and Wisconsin. In these states you can sign a new deed or an affidavit which names who will inherit your real estate after you die and record it among the appropriate land records. Then, after you die, a death certificate will need to be recorded to show that title to the property has been transferred into the names of your beneficiaries as designated in your TOD deed.

If you live in one of the states listed above that recognizes TOD deeds or own real estate located in one of these states, then speak with an attorney who is licensed to practice in the state where your real property is located to determine if this type of deed is right for you. In addition, state laws change frequently - for instance, activists in California have been pushing for several years for TOD deeds to be recognized there (see At 82, she fights for aging homeowners)- so keep your eyes and ears open for news about TOD deeds becoming available in your state.

Comments
October 15, 2010 at 11:18 am
(1) donna says:

If POD on an investment account was signed and notarized before death, but not delivered to broker until after death, can the broker refuse to honor it ?

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