For many Ohio families, the house is the single most valuable thing they own, and it is often the main reason an estate ends up in probate court. Ohio offers a simple tool that lets a homeowner name who will receive real estate at death without a probate proceeding for that property: the transfer on death designation affidavit. It is inexpensive, flexible and easy to change, but it has rules that matter. Here is a plain-English overview.
What is a transfer on death designation affidavit?
A transfer on death (TOD) designation affidavit is a sworn document, recorded with the county recorder, that names one or more beneficiaries to receive your interest in Ohio real estate when you die. Ohio authorizes it in R.C. 5302.22 through 5302.24. People sometimes still call it a “TOD deed,” but since late 2009 Ohio has used an affidavit rather than a deed for this purpose.
Ohio law states that a transfer under a TOD affidavit is not testamentary, and that it supersedes any attempted transfer of the same property by will or by intestate succession (R.C. 5302.23(B)(9)). In other words, if your will leaves the house to one person and your recorded TOD affidavit names someone else, the affidavit controls.
How it works during your lifetime
Naming a TOD beneficiary does not change who owns the property today. Under R.C. 5302.23(B)(4), the designation has no effect on present ownership, and the beneficiary has no interest in the property until the owner dies. That means you can generally still live in, rent, sell or refinance the property without the beneficiary’s signature.
You can also revoke or change the designation at any time without the beneficiary’s consent by signing and recording a new TOD affidavit before your death. A later recorded affidavit automatically supersedes earlier ones for the same property (R.C. 5302.23(B)(5)). The beneficiary does not even need to be told about the affidavit for it to be effective (R.C. 5302.22(F)).
What the affidavit must include
R.C. 5302.22(D) requires that the affidavit be sworn before a notary or other person authorized to administer oaths and include:
- A description of the real property and a reference to a recorded instrument containing that description.
- If less than your entire interest is being transferred, a statement of the specific interest that will pass.
- A statement that you are the owner of record and your marital status.
- If you are married, a statement by your spouse that the spouse’s dower rights are subordinate to the beneficiary’s title.
- The name of each beneficiary.
Recording is not optional
An unrecorded TOD affidavit does nothing. To be effective, it must be recorded with the county recorder in the county where the property is located before the owner dies (R.C. 5302.22(F)). The recorder charges the same fee as for recording a deed. A signed affidavit sitting in a desk drawer at the time of death will not transfer the property.
Choosing beneficiaries
- Multiple beneficiaries. If you name more than one, they take equal shares as tenants in common unless you specify different shares or state that they take as survivorship tenants (R.C. 5302.23(B)(1)).
- Contingent beneficiaries. You may name backup beneficiaries by name who take if a primary beneficiary does not survive you (R.C. 5302.23(B)(2)).
- Trusts and organizations. A beneficiary can be a legal entity, including a trustee of a trust. If a named trustee has been replaced by a successor trustee by the time of death, the successor trustee is treated as the beneficiary (R.C. 5302.22(G); 5302.23(B)(3)).
- If no beneficiary survives. If none of the named beneficiaries or contingent beneficiaries survives you, the property falls back into your probate estate (R.C. 5302.23(B)(1)).
One automatic rule is worth knowing: if you name your spouse and the marriage later ends in divorce, dissolution or annulment, the former spouse’s designation terminates and the former spouse is treated as having died before you (R.C. 5302.23(B)(12)). Many people update their affidavit after a divorce anyway so the record is clear.
What happens at death
After the owner dies, the beneficiary completes the transfer by signing a sworn affidavit of confirmation under R.C. 5302.222, attaching a certified copy of the owner’s death certificate (and death certificates for any named beneficiary who did not survive), presenting it to the county auditor and filing it with the county recorder. The recorder then records it, and the property is in the beneficiary’s name without opening a probate case for that property. County offices may require additional forms at that stage, so check with the auditor and recorder in the county where the property sits.
Limits to keep in mind
- Debts and liens stay with the property. The beneficiary takes only the interest the owner held at death, subject to all encumbrances (R.C. 5302.23(B)(7)(a)), and a TOD designation does not affect the rights of any mortgagee, judgment creditor or mechanic’s lien holder (R.C. 5302.23(B)(8)). If there is a mortgage, it does not disappear.
- Joint ownership changes the timing. If the property is held with survivorship rights, title goes first to the surviving co-owner, and the TOD beneficiary takes only after the last survivor dies. A designation made by one survivorship owner alone, without the other joining, can be wiped out if that owner dies first (R.C. 5302.22(C)(2); 5302.23(B)(7)(b)).
- It only covers real estate. Bank accounts, vehicles, investments and personal belongings need their own beneficiary designations, a trust or a will.
- It is not a full plan. A TOD affidavit does not name a guardian for children, handle incapacity, manage property for a young or vulnerable beneficiary, or coordinate how your other assets are divided.
TOD affidavit or trust?
For a single home going to one or two adult children, a TOD affidavit is often a clean, low-cost solution. A revocable living trust may be a better fit if you own property in several states, want to control when and how beneficiaries receive property, have a beneficiary who receives public benefits or is a minor, or want one document to coordinate many assets. The right answer depends on your family, your property and your goals.
Getting started
Pull a copy of your current deed so you know exactly how title is held and have the correct legal description. Decide who your primary and backup beneficiaries are and in what shares. If you are married, plan for your spouse to sign. Then sign the affidavit before a notary and record it with the county recorder promptly, and keep a copy with your other estate planning documents. Revisit it after a marriage, divorce, death in the family or sale of the property.
Vincent Esquire helps Ohio families put together estate plans that fit, from transfer on death designations and wills to trusts and powers of attorney. Learn more about our estate planning services or reach out to talk through your plans.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every situation is different, so consult an attorney about your specific circumstances. Attorney advertising.
