Maryland Transfer on Death Deeds

A transfer on death (TOD) deed is like a regular deed you might use to transfer your Maryland real estate, but with a crucial difference: It doesn't take effect until your death. At your death, the real estate goes automatically to the person you named to inherit it (your "beneficiary"), without the need for probate court proceedings. (Md. Code, Real Prop. §§ 14-1001 to 14-1014.)

You must sign the deed and get your signature notarized, and then record (file) the deed at the Department of Land Records in the circuit court clerk’s office in the county in which the real estate is situated. Otherwise, if you don’t do this before you die, your deed won't be valid.

The person who notarizes your deed cannot be a relative of any owner or beneficiary named in the deed. 

How the TOD Deed Works

The beneficiary's rights. The person you name in the deed to inherit the property doesn't have any legal right to it until your death—or, if you own the property as a "joint tenant" with someone else, until the last surviving owner dies. (More on this below.) The beneficiary doesn't sign the deed, but it's a good idea to let the beneficiary know you've recorded it. Otherwise, they might not know about it, even after your death.

Earlier wills or TOD deeds. If you have made a will or previous TOD deed that leaves the property to someone, your new TOD deed will override it.

Your rights. You keep complete ownership of, and control over, the real estate while you're alive. You pay the taxes on it, and it's not protected from your creditors. You can sell it, give it away, or mortgage it. Because you're not making a gift of the property, there's no federal gift tax.

Medicaid. Creating a TOD deed won't affect whether or not you are eligible for Medicaid. Because you own the property and are not actually giving it away during your lifetime, a TOD deed won't help you "spend down" your assets to help you qualify for Medicaid. Beware, though, that if you do end up receiving Medicaid benefits—for example, to pay for nursing home care—your home might be liable for reimbursement of Medicaid expenditures. If you have questions, consult a local attorney.

Mortgages and liens. Your TOD beneficiary takes the property subject to all mortgages and liens that applied to the property at the time of your death.

The spouse’s and children’s rights. Maryland law protects spouses and future-born children from being completely disinherited, giving them rights to a set amount of your property if you don’t provide for them in your estate plan. (Md. Code, Real Prop. § 14-1009(a)(1)(i)–(ii).) So the property you’re transferring by TOD deed could be “reached” by your spouse if you don’t leave them enough of your property or by any children who are born after you make the deed.

If either of these situations could apply to you, get help from an attorney.

Revocation. Your deed can be revoked in several ways.

• Revocation by recordation. If you later change your mind about who you want to inherit the property, you are not locked in. You can (1) sign, notarize, and record a revocation or (2) record another TOD deed, leaving the property to someone else. You cannot use your will to revoke or override a TOD deed.
• Revocation by divorce. If you named your spouse as a beneficiary on your TOD deed and later get divorced, that beneficiary designation becomes ineffective, and your ex-spouse will not get the property, but the rest of the deed still stands. 
• Revocation by subsequent marriage and child. If you make your TOD deed and then later marry and have a child, your TOD will be considered revoked. (Md. Code, Real Prop. § 14-1009(a)(1)(iii) and Est. & Trusts § 4-105(b)(3).)

How ownership is transferred. The property legally transfers when you die. To document this, the beneficiary should sign and record Transfer-on-Death Deed Notification of Death with the county clerk’s office. You might be able to find this form on the website of the county clerk, or you’ll find it in the statute at Md. Code, Real Prop. §§ 14-1013. Because this process can vary by county, it’s best for your beneficiary to call the clerk’s office in the county where the real estate is located to get the specific details. No probate is necessary.

Special Rules for Co-Owned Property

If you own the property with someone else, how to proceed depends on how you and the other co-owners hold title to the property. If you don't know how you hold title, start by looking at the deed that transferred the property to you. It might say, for example, "to Ellen Bauman and Edward M. Bauman, as joint tenants," "to Jonathan G. Costa and Sandra L. White, as tenants in common," or "to Daniel Smyth and Cynthia Smyth, husband and wife, as tenants by the entirety."

There are three common ways to co-own property in Maryland:

Tenancy by the entirety. This type of ownership is the default for married couples in Maryland. If the deed doesn’t say otherwise, married couples own the property together and when one spouse dies, the other owns it in the entirety.

When a property is owned by tenancy by the entirety, a TOD deed executed by one spouse without the other will not transfer the property unless the deed-maker is the second spouse to die. Said another way, if you and your spouse own property in tenancy by the entirety and you make a TOD deed for that property on your own,  if your spouse survives you, your deed will have no effect and your spouse will own the property. 

When you and your spouse make a TOD deed together for property that you own in tenancy by the entirety, the beneficiaries you named in the TOD deed will not receive any of the property until you and your spouse have both died. If you and your spouse want to revoke the deed, you’ll need to do it together.

Joint tenancy (also called "joint tenancy with right of survivorship"). If you co-own real estate as joint tenants with right of survivorship, when one co-owner dies, that co-owner's share of the property will automatically go to the surviving co-owner(s). You can make a TOD deed together with the other joint tenant(s) or you can make one on your own, but it's important to understand the difference.

When you make a TOD deed together with the other joint tenant(s), you are naming someone to receive the property after all of the joint tenants have died.

Example:

Claire and Kendra co-own their home as joint tenants. They make a TOD deed together and name Oscar as the beneficiary. When Claire dies, Claire's half of the home goes to Kendra, who becomes the sole owner of the entire home. When Kendra dies, the home goes to Oscar under the TOD deed.

If you make a TOD deed on your own, without the other joint tenants, the deed will be effective only if you are the last surviving owner of the property. If you die first, the surviving co-owner(s) will own the property, and the TOD deed won't have any effect.

Tenancy in common. If you and your co-owners are not married and your deed doesn't state how you own the property, you and your co-owners are presumed to own it as tenants in common, unless you've agreed otherwise in writing. If you own your property as a tenant in common, it's best to create a TOD deed on your own (without the other tenants in common). That TOD deed will transfer only your share of the property to the TOD beneficiary when you die.

Example:

Raymond and Jack, who are brothers, own a house together as tenants in common. Raymond signs a TOD deed that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.

If you're not sure how you co-own the property or whether or not your spouse has any rights to it, consult a lawyer. While the guidance here fits most situations, if you have a complicated situation or more complex aims, you should turn to a lawyer for a more tailored solution.

Revoking a jointly made deed. If you sign a TOD deed with a co-owner, the effect of revocation depends on how you co-own the property and who does the revoking.

If you co-own the property as joint tenants and/or with "right of survivorship," your co-owner will automatically own the entire property upon your death (and vice versa). So:

• Revoking the deed by yourself has no effect unless you are the last surviving co-owner.
• While you are both alive, you and your co-owner can revoke the deed together at any time.

If you co-own the property as tenants in common, we do not suggest making a TOD deed with your co-owner in the first place (see above). But if you did, here is how revocation would work:

• Revoking the deed by yourself will affect only your interest in the property. The deed would no longer pass your share of the property, but it would still pass the co-owner's share of the property to the TOD beneficiary.
• If you both revoke the deed, it will be entirely revoked.

Note on trust property: If you hold real estate in a trust, you probably won't need to use a TOD deed, because trust property doesn't need to go through probate anyway. If for some reason you want to use a TOD deed instead, you'll probably need to transfer the property out of the trust first. Talk to a lawyer about your estate plan.

Naming Beneficiaries

You can name anyone you please to inherit your real estate—a person, more than one person, or an organization such as a favorite charity. But if you want to name more than one person, or a minor, there are some issues you should consider.

More than one beneficiary. Before you name multiple beneficiaries on your transfer on death deed, make sure you consider 1) how the co-beneficiaries will hold title to the property after you die, 2) what will happen if one of the co-beneficiaries dies before you do, and 3) how the beneficiaries will feel about co-owning the property.

As to the first issue, when you make WillMaker's transfer on death deed for Maryland, your property will transfer to your beneficiaries in equal shares with right of survivorship. This is the default under Maryland law. In other words, your beneficiaries will own your property as joint tenants. If one co-owner dies, that person’s interest in the property will transfer to the other joint tenant(s)—they won’t be able to name a different beneficiary.

Example:

You name Mina and Connor as your beneficiaries. After you die, they will own the property as joint tenants with right of survivorship. Later, if Mina dies before Connor, Connor will own the entire property, and vice versa.

As to the second issue, using WillMaker’s TOD deed, if one or more beneficiaries die before you do, their share or shares of the property will transfer to the surviving beneficiaries. Alternate beneficiaries will not receive any share of the property unless all primary beneficiaries die before you.

Example:

You name Tim, Stephanie, and Rebekah as your TOD beneficiaries, with Jeremy as an alternate. Tim dies before you do. Stephanie and Rebekah would each inherit half the property as joint tenants.

If you want this to work differently, say naming individual alternate beneficiaries for each primary beneficiary, you should not use WillMaker’s TOD deed.

Finally, think carefully about how your beneficiaries will feel about owning the property together. Co-ownership is cumbersome and often causes tension. For example, one co-owner could force a sale of the property even if the other co-owners didn't want to sell.

Children under 18. Think twice about naming a child under age 18 as a beneficiary. A child can take title to the property, but an adult will need to manage it.

When making a TOD deed with WillMaker, you can name an adult "custodian" under the Maryland Uniform Transfers to Minors Act (UTMA) to manage the property. Under Maryland's UTMA, the beneficiary becomes the outright owner of the property at age 21.

You may have other options for naming an adult property manager, including:

• using your will to name a property guardian who will take care of any property you leave to your own young children, including property transferred by this deed, and
• setting up a trust for a child and naming the trust as the TOD beneficiary.

For more information, see Naming a Minor Beneficiary for a Transfer on Death Deed. For help setting up a property management method, consult a qualified estate planning lawyer.

Legal Descriptions

Your transfer on death deed must identify your property using the full legal description of your property. You can find the full legal description of your property on the previous deed that transferred the property to you—look for it in the body of the deed or in an "attachment" or "exhibit" to the deed.

Legal descriptions in Maryland can be quite long. If the legal description is too long to safely type out (they can even run several pages long), simply photocopy or scan and print it, and attach it to the transfer on death deed as "Exhibit A."

Recording the Deed

As highlighted above, you must record your signed and notarized deed at the Department of Land Records in the circuit court clerk’s office in the county in which the real estate is located. (If the property is in the city of Baltimore, record it at the clerk’s office of the Circuit Court for Baltimore City.) You’ll pay a per page fee for recording.

Intake sheet. When you record your deed, you’ll also need to provide a Land Instrument Intake Sheet. You can usually get this form from the county clerk, either from its website or in person. You can also find the form and instructions for completing it on the Maryland Court’s website at https://www.mdcourts.gov/legalhelp/landrecords.

Preparation statement. In Maryland, to record a deed, you must provide a statement about who prepared it. The statement must come from a lawyer who prepared or reviewed the deed or from a person named in the deed who prepared it.  When you make a Maryland TOD deed with WillMaker, the program will ask you who prepared it, and your deed will print with a certification statement that the preparer must sign.  (The preparer's signature does not need to be notarized.)

Recordation tax exemption. A deed is exempt from recordation tax (Md. Code Ann., Tax-Prop. § 12-108(ii)), state transfer tax (§ 13-207(a)(27)), and county transfer tax (§ 13-414) as long as the property is a primary or secondary residence of the owner making the deed (not a rental, investment property, or vacant land). To claim this exemption, note Md. Code Ann., Tax-Prop. § 12-108(ii) on the Land Instrument Intake Sheet. If the property is not a primary or secondary residence of the owner making the deed, the exemption does not apply, and recordation tax may be owed.  If you do owe this recording tax, the amount you pay will depend on the value of the property, and it could be thousands of dollars. Call the clerk's office to find out how much you will owe or talk to an attorney to discuss your options. 

Common Questions About Maryland Transfer on Death Deeds

The following questions and answers were written by the Maryland legislature. They are reproduced here word for word, exactly as they appear in the statute and in the informational sheet that prints with your deed.

Because they're written as a brief general summary, a few of the answers are less specific than the explanations provided above. 

Should I consult an attorney prior to completing this form?

It is always recommended that you speak with an attorney before signing a deed, and this form may not be appropriate for all circumstances. This form may not be appropriate if your name is not on the current deed to the property, your current legal name is different than your name on the current deed, you own the property with other individuals, or you want to name multiple people to inherit your property together.

What does the transfer-on-death deed do?

When you die, this deed transfers the described property, subject to certain security agreements on the property, subject to any liens, mortgages, or other encumbrances on the property at your death. Probate is not required. The transfer-on-death deed has no effect until you die. You can revoke it at any time. You are also free to transfer the property to someone else during your lifetime. If you do not own any interest in the property when you die, this deed will have no effect.

How do I make a transfer-on-death deed?

Complete this form. Have it acknowledged before a notary public or other individual authorized under law to take acknowledgments. Record the form in each county where any part of the property is located. The form has no effect unless it is acknowledged and recorded before your death.

Is the “legal description” of the property necessary?

Yes.

How do I find the “legal description” of the property?

This information may be on the deed you received when you became an owner of the property and may be found in a paragraph that starts with the words “beginning” or “being”. This information may also be available in the office of the clerk of the circuit court for the county where the property is located. If you are not absolutely sure, consult a lawyer.

What happens if I select multiple beneficiaries?

If this form names multiple primary and/or alternate beneficiaries and you do not indicate a different form of ownership, the property will be transferred to them as joint tenants with right of survivorship. If you are not sure whether this is the appropriate ownership structure for your beneficiaries, consult with an attorney.

Can I change my mind before I record the transfer-on-death deed?

Yes. If you have not yet recorded the deed and want to change your mind, simply tear up or otherwise destroy the deed.

Which controls at my death, my will or the transfer-on-death deed?

The transfer-on-death deed controls over a contrary instruction in a will.

How do I “record” the transfer-on-death deed?

Take the completed and acknowledged form to the clerk of the circuit court for the county where the property is located. Follow the instructions given by the clerk’s office to make the form part of the official property records. If the property is in more than one county, you should record the deed in each county.

Does a transfer-on-death deed help avoid inheritance taxes?

No. Your beneficiary may need to pay inheritance taxes as a result of the transfer-on-death deed. If you have questions related to inheritance taxes, consult a lawyer.

Can I later revoke the transfer-on-death deed if I change my mind?

Yes. You can revoke the transfer-on-death deed. No one, including the beneficiaries, can prevent you from revoking the deed.

How do I revoke the transfer-on-death deed after it is recorded?

There are three ways to revoke a recorded transfer-on-death deed: (1) Complete and acknowledge a revocation form, and record it in each county where the property is located. (2) Complete and acknowledge a new transfer-on-death deed that disposes of the same property, and record it in each county where the property is located. (3) Transfer the property to someone else during your lifetime by a recorded deed that expressly revokes the transfer-on-death deed. You may not revoke the transfer-on-death deed by will.

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.

Do I need to tell the beneficiaries about the transfer-on-death deed?

No, but it is strongly recommended. Non-disclosure can cause later complications and might make it easier for others to commit fraud.

Could a transfer-on-death deed I record today be affected if I divorce later or get married and have children?

Yes. If you create a transfer-on-death deed that names your spouse as the beneficiary while you are married and you later divorce or your marriage is annulled, the transfer-on-death deed will be considered to be automatically revoked. Additionally, if you record a transfer-on-death deed naming any beneficiary and later marry and have children with your future spouse by birth, adoption, or legitimation, your transfer-on-death deed will be considered to be automatically revoked.

As a beneficiary, what do I do once the owner has died?

You will automatically receive the property when the owner dies, unless you follow Maryland’s procedure to disclaim your interest. You may wish to execute and record a transfer-on-death notification of death form to show that you are now the rightful owner of the property.

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, you are encouraged to consult a lawyer.

If You Need Legal Advice

Accurate, plain-English legal information can help many people create useful legal documents. But general information is never a substitute for personalized advice from a knowledgeable lawyer. If you want professional advice about the best way to craft or use legal documents in your particular circumstances, consult an attorney licensed to practice in Maryland.