The Discerning Investor by Julie Jason

Should You 'TOD' Your House?

Every now and then, the Uniform Law Commission (ULC) proposes a law that states adopt. One such law allows you to title your house in transfer-on-death (TOD) form.

Called a TOD deed, this mechanism works somewhat like an IRA account’s beneficiary designation. That is, when you open an IRA account, you are provided a beneficiary designation form to fill out naming who you want to be your beneficiary in the event of your death.

The TOD deed essentially does the same thing. Say you want your house to go to your daughter Mary. Your deed would be titled: “John Jones, transfer-on-death, Mary Jones.”

In such a case, the house transfers to Mary, subject to mortgages and liens, with a lawyer’s help, but not as part of the assets that need to be probated by the court. Keep in mind that probate courts help decedents’ assets transfer to heirs; if an asset transfers through a TOD or other will substitute, the court does not need to effect the transfer.

TOD deeds are a creature of statute. That is, only those states that have TOD deed laws permit TOD deeds. My home state, Connecticut, does not have such a law just yet, but a proposed bill is currently under consideration. I personally would like to see it passed. Why should Connecticut be in the minority? The majority of states have TOD deed laws in place.

If you would like to check your state, I’ve posted a list on my website at juliejason.com/blog/tod-deed.

Some would say the goal of a TOD deed is to avoid probate; I would say that a TOD deed would make the transfer of the property more efficient. But, beware: An expensive estate plan can easily be thwarted if a TOD re-titling occurs without the knowledge of the lawyer who drafted your estate plan.

These are some of the benefits of TOD deeds, quoting the ULC (URPTDOA is the model TOD deed law):

“URPTDOA is an alternative to expensive estate planning for simple estates. People with a high net worth or a complex estate often use trusts and gifting strategies to transfer wealth outside of probate, but those strategies are prohibitively expensive for smaller estates ... URPTDOA fills the gap by providing a way for families, with the aid of an adviser, to easily transfer title to real property outside of probate.”

“URPTDOA allows owners to retain control of their property. ... With a TOD deed, the owner retains all rights in the property, including the right to change his or her mind and revoke the deed or sell the property. The TOD beneficiary has no interest until the owner’s death.

“URPTDOA has been proven effective in other states ... Today, more than half of the states allow transfers by means of a TOD deed. Despite some initial resistance in those states to the new procedure, over time the TOD titling process has been well received by recording officers, real estate attorneys, and the title insurance industry. TOD deeds are no longer novel, and the citizens of the remaining states should also benefit from the opportunity to transfer real property outside of probate simply and effectively.”

As Ben Orzeske, chief counsel at ULC, said: “States should adopt the model TOD deed act to provide a simple, inexpensive method of transferring real property to a beneficiary when the owner dies, without going to court for probate.”

I see that as progress at a time when we could all use a little help during this coronavirus pandemic.

Julie Jason, JD, LLM, a personal money manager (Jackson, Grant Investment Advisers, Inc. of Stamford, Conn.) and award-winning author, welcomes your questions/comments (readers@juliejason.com). Please visit www.juliejason.com.

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