Ohio Transfer on Death Designation Affidavits

A transfer on death (TOD) designation affidavit (previously called a "transfer on death deed" in Ohio) works similarly to a deed you might use to transfer your Ohio 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. (Ohio Rev. Code §§ 5302.22 and following.)

You must sign the TOD designation affidavit and get your signature notarized, and then record (file) the affidavit with the county recorder's office before your death. Otherwise, it won't be valid.

You can make an Ohio transfer on death designation affidavit with WillMaker.

How the TOD Designation Affidavit Works

The beneficiary's rights. The person you name in the TOD designation affidavit to inherit the property doesn't have any legal right to it until your death—or, if you own the property as a "survivorship tenant" with someone else, until the last surviving owner dies. (More on this below.) The beneficiary doesn't sign the affidavit, 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.

The spouse's rights. If an owner is married, Ohio requires the owner's spouse to sign the TOD designation affidavit as well—even if the spouse is not listed on the title of the property. However, beware that when non-owner spouses sign the affidavit, they are also stating that their "dower rights" (any marital rights to the property that they might have) will not interfere with the TOD beneficiary taking the property. In other words, the non-owner spouse gives up rights to claim the property later.

Earlier wills or TOD deeds. If you have made a will or previous TOD deed or TOD designation affidavit that leaves the property to someone, your new TOD designation affidavit 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 during your lifetime, there's no federal gift tax.

Medicaid. Creating a TOD designation affidavit 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 designation affidavit 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.

Revoking the designation affidavit. If you later change your mind about whom 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 TOD designation affidavit, leaving the property to someone else. You cannot use your will to revoke or override a TOD designation affidavit.

Revocation by divorce. If you named your spouse as a beneficiary on your TOD designation affidavit and later get divorced, the designation of your spouse as beneficiary is automatically revoked. In other words, the designation affidavit remains valid, but is read as though your ex-spouse failed to survive you.

How ownership is transferred. To get title to the property after your death, the beneficiary must sign and notarize a simple document called an "affidavit of confirmation." The beneficiary will record the affidavit of confirmation in the recorder's office, alongside a certified copy of your death certificate and the death certificate of any of your beneficiaries who died before you did. No probate is necessary. If you or your spouse were ever a Medicaid recipient, or if the beneficiary isn't sure whether you or your spouse were, the beneficiary will also need to fill out and submit a Medicaid estate recovery form.

Use Nolo's Quicken WillMaker to make a transfer on death deed in any state that allows it. You can also use WillMaker to create other estate planning documents, such as a will, health care directive, power of attorney, and more.

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 tenants in survivorship," or "to Jonathan G. Costa and Sandra L. White, as tenants in common."

There are three ways to co-own property in Ohio:

Survivorship tenancy (also called "tenancy in survivorship" and, in most other states, "joint tenancy"). If you co-own real estate as survivorship tenants or tenants in survivorship, when one co-owner dies, that co-owner's share of the property will automatically go to the surviving co-owner(s).

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

Example: Claire and Kendra co-own their home as survivorship tenants. They make a TOD designation affidavit 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 designation affidavit.

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, you must create a TOD designation affidavit on your own (without the other tenants in common). That TOD designation affidavit 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 designation affidavit that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.

Your co-owners are free to make their own TOD designation affidavits to transfer their individual shares of the property, and they may name the same beneficiary as you, or they may choose different beneficiaries.

Tenancy by the entireties. Prior to 1985, Ohio allowed married couples to take property as tenants by the entireties. Although you can no longer take ownership in this way, it's possible that you currently own your property with your spouse as tenants by the entireties if the deed that transferred the property to you was recorded between 1972 and 1985. For purposes of the TOD designation affidavit, a tenancy by the entireties works like a survivorship tenancy: When one spouse dies, the surviving spouse automatically owns the entire property. If you both make a TOD designation affidavit together, it will take effect only after both spouses have died.

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 advice here fits most situations, if you have a complicated situation or more complex aims, you should also turn to a lawyer for a more tailored solution.

Note on trust property. If you hold real estate in a trust, you probably won't need to use a TOD designation affidavit, because trust property doesn't need to go through probate anyway. If for some reason you want to use a TOD designation affidavit 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 designation affidavit, 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 designation affidavit for Ohio, your property will transfer to your beneficiaries in equal shares with no right of survivorship. This is the default under Ohio law. In other words, your beneficiaries will own your property as tenants in common and each beneficiary will be free to leave his or her share to someone else or to sell that share of the property.

Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. After you die, they will own the property as tenants in common. Tim leaves his one-third share of the property to his son Cameron in his will. Stephanie sells her one-third share of the property to Anya. After Tim dies, Cameron, Anya, and Rebekah own the property.

As to the second issue, if one or more of the beneficiaries dies before you do, their share or shares of the property will be transferred to the surviving beneficiaries.

Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. Tim dies before you do. Stephanie and Rebekah would each inherit half the property. They would own it as tenants in common, and are each free to sell or leave their half of the property to someone else.

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 designation affidavit with WillMaker, you can name an adult "custodian" under the Ohio Uniform Transfers to Minors Act (UTMA) to manage the property. Under Ohio's UTMA, the beneficiary becomes the outright owner of the property at a specified age ranging from 21 to 25.

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 TOD designation affidavit, 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.

Sample Legal Descriptions

Your transfer on death designation affidavit must identify your property using the legal description of your property. You can find this legal description 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. Here are two examples:

• "The following real property situated in the County of Franklin, State of Ohio and in the City of Columbus, and being more particularly bounded and described as follows: Being Lot No. Three Hundred Forty (340) of The Woods at Jefferson Section 2, as the same is numbered and delineated upon the recorded plat thereof, of record in Plat Book 91, Page 2 and 3, Recorder's Office, Franklin County, Ohio."
• "Situated in the City of Parma, County of Cuyahoga and State of Ohio: and known as being Sublot No. 217 in Marvin J. Gross Subdivision No. 8, of part of Original Parma Township Lot No. 37, Ely Tract, as shown by the recorded plat in Volume 191 of Maps, Page 3 of Cuyahoga County Records, being 80 feet front on the Easterly side of Zona Lane, and extending back between parallel lines 212 feet deep, as appears by said plat, be the same more or less, but subject to all legal highways."

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 designation affidavit as "Exhibit A."

lf 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 Ohio.