A deed upon death (also called a "transfer on death (TOD) deed" or "beneficiary deed") is like a regular deed you might use to transfer your Nevada 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. (Nev. Rev. Stat. §§ 111.655 to 111.699.)
You must sign the deed and get your signature notarized, and then record (file) the deed with the county recorder's office before your death. Otherwise, it won't be valid.
You can make a Nevada deed upon death with WillMaker.
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 joint tenants" or "with a right of survivorship" 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, he or she might not know about it, even after your death.
Earlier wills or deeds upon death. If you have made a will or previous deed upon death that leaves the property to someone, your new deed upon death 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 deed upon death 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 deed upon death 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.
Other creditor claims. Even though your deed upon death transfers your property outside of probate, if your probate property isn't enough to satisfy certain creditor claims and statutory allowances (certain amounts your spouse and children are entitled to at your death, set out by law), your beneficiary might be liable for these claims. However, the amount of liability will not exceed the value of the property.
Revoking the deed. If you later change your mind about who you want to inherit the property, you are not locked in. You have two options: (1) sign and record a revocation or (2) record another deed upon death, leaving the property to someone else. You cannot use your will to revoke or override a deed upon death.
How ownership is transferred. To get title to the property after your death, the beneficiary must take a few administrative steps. It's best for your beneficiary to call the county recorder's office for details, which can vary by county. The beneficiary will need to record a Death of Grantor Affidavit and a certified copy of the death certificate in the county recorder's office, and will also need to give notice of the death to certain parties, including the Department of Health and Human Services and any known or readily ascertainable creditors. No probate is necessary.
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 husband and wife" or "to Jonathan G. Costa and Sandra L. White, as tenants in common."
There are several common ways to co-own property in Nevada:
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 deed upon death 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 deed upon death 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 deed upon death 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 deed upon death.
If you make a deed upon death 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 deed upon death won't have any effect.
Tenancy in common. If 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 deed upon death on your own (without the other tenants in common). That deed upon death will transfer only your share of the property to the beneficiary when you die.
Example: Raymond and Jack, who are brothers, own a house together as tenants in common. Raymond signs a deed upon death that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.
Community property. Nevada real estate acquired by a married person is generally the couple's community property. Community property can be owned with or without a "right of survivorship." Again, look at your deed to find out how you co-own the property. If it says "community property with right of survivorship," then your deed upon death will work the same way as for a joint tenancy with right of survivorship (see above).
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 deed upon death 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:
If you co-own the property as tenants in common, we do not suggest making a deed upon death with your co-owner in the first place (see above). But if you did, here is how revocation would work:
Note on trust property. If you hold real estate in a trust, you probably won't need to use a deed upon death, because trust property doesn't need to go through probate anyway. If for some reason you want to use a deed upon death instead, you'll probably need to transfer the property out of the trust first. Talk to a lawyer about your estate plan.
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 deed upon death, make sure you consider how the co-beneficiaries will hold title to the property after you die, and how the beneficiaries will feel about co-owning the property.
When you make WillMaker's deed upon death for Nevada, your property will transfer to your beneficiaries in equal shares with right of survivorship. In other words, your beneficiaries will own the property as joint tenants.
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.
Additionally, 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 deed upon death with WillMaker, you can name an adult "custodian" under the Nevada Uniform Transfers to Minors Act (UTMA) to manage the property. Under Nevada's UTMA, the beneficiary becomes the outright owner of the property at an age between 18 and 25.
You may have other options for naming an adult property manager, including:
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.
Several kinds of legal descriptions are used in Nevada. Just copy what's on the previous deed that transferred the property to you. Here are some examples:
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 deed upon death as "Exhibit A."
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 Nevada.