OHIO'S NEW TRANSFER ON DEATH AFFIDAVIT

In 2000 the Ohio State legislature authorized the Transfer on Death Deed (TOD). On December 28, 2009 the new Transfer on Death Affidavit was signed into law.

The old TOD deed provided two main benefits:

First, the property owner could transfer real property upon his or her death to a named beneficiary or beneficiaries without having to go through the probate process.
Secondly, during the lifetime of the property owner the named beneficiary had no legal or equitable interest in the property.

Prior to the creation of the TOD deed the only ways to pass property by deed without going through probate was by using 1) an Estate by the Entireties deed which was limited to use between husband and wife, or 2) a Survivorship deed.

The problem with the Survivorship deed is that when you execute and record a survivorship deed the individual(s) named on the deed have a present legal ownership in the property. Now your co- owner's creditors have become your creditors. In working with clients they would often indicate that they wanted to add their child or children to deed to their home. Normally they would add "to make it easy for them". We always had to caution and advise that this may not truly be in the parents' best interests. If a child ran into financial difficulty or divorce the parents' home would be as an asset of the child and the child's creditors could place a lien against the property or foreclose resulting in the parents losing their home.

On December 28, 2009 a modification to the TOD statute was signed into law which provided relief to the deficiencies of the existing TOD deed. The new TOD Affidavit now permits the property owner, property owners or husband and wife to execute an affidavit which provides for the names of beneficiaries upon the passing of the owner and if the named beneficiary does not survive then contingent beneficiaries may be named.

Although this is similar to the current TOD deed, the affidavit alleviates the existing problems of the TOD by permitting beneficiaries to be named to a Survivorship deed.

Now when mom and dad ask to add the children to their deed we can structure the deed so that during the joint lives of mom and dad the property remains in their name. And, upon the death of the surviving spouse the property will simply pass immediately to the children named on the TOD Affidavit without probate court intervention.

The new TOD Affidavit works in conjunction with your existing deed. A new deed does not necessarily need to be prepared. The Affidavit is notarized, just like a deed, and filed in the County Recorder's office.

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