Houston Estate Planning and Elder Law Attorney Blog
A transfer on death deed lets a Texas property owner name who will inherit their real estate, with the transfer taking effect automatically at death and skipping probate entirely. The owner keeps full control of the property while alive, can sell it or change their mind at any time, and the named beneficiary receives nothing until the owner dies. For many Texans whose main asset is their home, it is one of the simplest ways to pass that home to a child or other loved one without a court ever getting involved.
McCulloch & Miller, PLLC helps families in Austin and across Texas decide whether a transfer on death deed fits their situation or whether a will or trust would serve them better. The firm’s estate planning attorneys handle these tools statewide, with flat fee pricing available on many of them.
What is a transfer on death deed in Texas?
A transfer on death deed, sometimes called a TODD, is a deed that names a beneficiary to receive real property when the owner dies, without that property passing through probate. Texas authorized these deeds in 2015, and they are governed by Texas Estates Code Chapter 114. The law treats a transfer on death deed as nontestamentary, which means it operates outside the will and is not part of the probate estate.
The appeal is straightforward. Real estate is often the asset that forces a family into probate in the first place, because title cannot move without some legal mechanism. A transfer on death deed supplies that mechanism in advance, so the home passes to the beneficiary on the owner’s death by operation of the recorded deed. McCulloch & Miller, PLLC prepares these deeds for property owners in Austin and throughout Texas, and the firm confirms that a transfer on death deed is the right fit before recommending it.
How do you set up a transfer on death deed in Texas?
Setting up a transfer on death deed in Texas is less about a special form and more about meeting a short list of strict requirements. Miss one, and the deed may not work when it is needed most.
Under Texas Estates Code § 114.055 and the surrounding provisions, a valid transfer on death deed must:
- Be in writing, signed by the owner, and notarized, with the same formalities as any recordable deed.
- Describe the property by its legal description, not just a street address.
- State clearly that the transfer happens at the owner’s death.
- Name the beneficiary, and ideally an alternate in case the first beneficiary dies first.
- Be recorded in the deed records of the county where the property sits before the owner dies.
That last requirement undoes the most deeds. A transfer on death deed that is signed but never recorded, or recorded only after the owner has died, is void. For a property in Austin, the deed has to be recorded with the Travis County Clerk while the owner is still living. The owner also has to sign it personally: under § 114.054, a transfer on death deed cannot be created through a power of attorney, and the owner needs the same capacity required to sign a contract.
What a transfer on death deed does while you are alive
During the owner’s lifetime, a transfer on death deed does almost nothing, and that is by design. The owner keeps complete ownership and control. Under Texas Estates Code § 114.101, the beneficiary has no legal interest in the property until the owner dies, so the owner can sell it, mortgage it, lease it, or give it away, and none of that requires the beneficiary’s permission.
The deed is also fully revocable. The owner can revoke it or name a different beneficiary at any time by recording a new deed or a revocation, and a later sale of the property cancels the deed automatically. One point catches people off guard: a will cannot override a recorded transfer on death deed. If the deed says the house goes to one child but the will leaves it to another, the deed controls. Keeping the two documents consistent is part of what makes this tool work, and it is a good reason to set up a transfer on death deed as part of a broader plan rather than in isolation.
What happens to the property when the owner dies?
When the owner dies, the property passes to the beneficiary named in the recorded deed, subject to a few rules worth understanding before you rely on one. The beneficiary takes the property in the condition it was in at the owner’s death.
Under Texas Estates Code § 114.104, the beneficiary receives the property subject to any mortgage, lien, or other encumbrance on it, so an inherited home may come with an inherited loan. The beneficiary also has to survive the owner by at least 120 hours, and if the named beneficiary has already died and no alternate was named, the property falls back into the estate and may go through probate after all. The property can also be reached by the owner’s creditors if the rest of the estate cannot cover the debts. A trust can address some of the wrinkles that a transfer on death deed leaves open, which is one reason the two are often weighed against each other.
When a transfer on death deed is the right tool, and when it isn’t
A transfer on death deed works best for a simple goal: passing a single property to a clear beneficiary without the cost of probate or the expense of a trust. For a homeowner who wants their house to go to one adult child, it is hard to beat on cost and simplicity.
| Tool | Avoids probate? | Best for |
|---|---|---|
| Transfer on death deed | Yes, for the property it covers | Passing one or more specific properties to named beneficiaries |
| Will | No; the will is probated | Directing the whole estate and naming an executor and guardians |
| Revocable living trust | Yes, for assets placed in it | Managing multiple assets, planning for incapacity, and keeping affairs private |
Where a transfer on death deed falls short is complexity. If you own several properties, have minor children or a beneficiary with special needs, want to plan for your own incapacity, or have Medicaid concerns, a deed alone usually is not enough. McCulloch & Miller, PLLC and partner David Miller, whose background includes corporate trust and financial work, help Austin-area families weigh a transfer on death deed against a trust-based plan. When no such tool is in place, a home typically has to pass through Texas probate instead.
Frequently asked questions about transfer on death deeds
Does a transfer on death deed avoid probate in Texas? Yes, for the property it covers. A transfer on death deed is nontestamentary, so the property passes directly to the beneficiary at the owner’s death and is not part of the probate estate, as long as the deed was properly recorded before the owner died.
Can you change or cancel a transfer on death deed? Yes. A transfer on death deed is revocable at any time while the owner is alive. The owner can record a new deed naming a different beneficiary, record a revocation, or simply sell the property, which cancels the deed.
Does a transfer on death deed protect property from creditors or Medicaid? Not necessarily. The beneficiary takes the property subject to existing mortgages and liens, and the owner’s creditors may reach it if the rest of the estate cannot cover the debts. Whether it affects Medicaid estate recovery depends on current law and is worth reviewing with an attorney.
Talk to a Texas estate planning attorney about a transfer on death deed
A transfer on death deed can be a clean, low-cost way to keep a home out of probate, but only when it fits the rest of your plan and is drafted and recorded correctly. The attorneys at McCulloch & Miller, PLLC prepare transfer on death deeds and full estate plans for families in Austin and across Texas, and they will tell you honestly when a deed is enough and when it is not. With over 35 years of experience and flat fee pricing on many matters, the firm helps property owners pass on what they have built without leaving their families a probate problem to solve.
Call (713) 333-8900 or schedule a consultation to talk through your options. Flat fees are available on many matters.