The
Transfer on Death Deed is a means of conveying real property to another person
or entity upon the death of the property's present owner. In a sense, the TODD
works much like a payable on death designation for a bank account. The owner
retains full ownership and use of the property while alive and the beneficiary takes
ownership of the property only after the death of the owner. Minnesota law provides
for Transfer on Death Deeds under Minn. Stat. § 507.071.
Here's
how it works.
An
owner of real property designates a beneficiary to receive real property
described in the deed upon the owner's death. In the parlance of the Minnesota
statute, the present owner is referred to as the grantor owner and the
beneficiary is the grantee beneficiary. The grantee beneficiary can be one or more
individuals, and can be an entity such as a business, charitable organization,
or a trust.
A
TODD may have multiple grantor owners, as in the case of real property owned by
multiple persons in joint tenancy with right of survivorship. This is typically the case where two spouses
own the property. In the case of joint tenancy, the interest conveyed to the
grantee beneficiary transfers only after the death of the last surviving grantor owner.
A TODD may have multiple grantee beneficiaries. The TODD may designate that the beneficiaries take title under a certain form of ownership, such as joint tenancy or tenants in common, and it may designate one or more successor grantee beneficiaries, stating the condition under which the interest vests.
In order for the TODD to be valid, it must be recorded in the county in which at least part of the property described in the deed is located, and the TODD must be recorded before the death of the grantor owner upon whose death the conveyance is effective. The grantor owner retains full ownership of the property while he or she is alive, can revoke the TODD at any time and for any reason, and can choose whether or not to record a new TODD. However, a TODD cannot be revoked by a will, and the TODD supersedes any contrary language in a will. No deed tax is required upon recording of a TODD, nor is a certificate of real estate value needed.
A TODD is often used by individuals with estates where the only asset that would be subject to probate is the home. A TODD can be used to keep the property out of probate, and if the sum total value of the remaining, non-real estate assets in the probate estate is under $75,000, the estate may be exempt from probate altogether and become a non-probate "small" estate.
Things to consider:
A
TODD is not for everyone, and should not be viewed simply as a
one-size-fits-all solution to avoiding probate. There may be particular tax
implications, and there may be practical issues if the property is deeded to
multiple grantee beneficiaries, which could result in conflict between them.
The property conveyed to a grantee beneficiary under a TODD is transferred
subject to all mortgages, liens, judgments, and other encumbrances. These may
include claims by the state or county for medical assistance benefits, if the assets
in the deceased grantor owner's accounts are insufficient to pay the amount of the
claim. The grantee beneficiary is responsible for satisfying any obligation associated with the property, and deeding property to a beneficiary who is unwilling or unable to manage that responsibility could be a recipe for disaster.
In addition, since a TODD operates outside of the probate estate and is not subject to language in the will, the grantee beneficiaries are under no obligation to share the property with other heirs who are not named as grantee beneficiaries. If you wish for all of your children to receive the property, it is therefore important to name them all as grantee beneficiaries, or set up a trust as the grantee beneficiary.