Nebraska Transfer on Death Deed Form

What is a Nebraska transfer-on-death (TOD) deed?

A Nebraska transfer-on-death deed—or TOD deed—transfers real estate from the current owner to one or more named beneficiaries effective at the owner’s death.¹ A Nebraska property owner signs and records a TOD deed during life, but the deed does not affect rights in the property until the owner dies. When the owner dies, title to the real estate belongs to the beneficiary.

The Nebraska Uniform Real Property Transfer on Death Act (URPTDA) authorizes Nebraska TOD deeds.² Nebraska’s URPTDA became effective January 1, 2013.

What is the purpose of a Nebraska TOD deed?

A transfer-on-death deed lets a property owner transfer real estate outside of probate when the owner dies. Ownership passes to the beneficiary automatically at death.³ The property bypasses probate and does not become part of the owner’s estate.⁴

Instead of waiting for probate to be sorted out, a TOD beneficiary records the owner’s death certificate and cover sheet with the county register of deeds.⁵ The cover sheet includes a document title, information about the TOD deed, the owner’s and beneficiary’s names, and a legal description of the real estate.⁶

The recorded death certificate and cover sheet serve as formal notice of the title transfer due to the owner’s death. The beneficiary also submits a completed Real Estate Transfer Statement (Form 521) allowing government offices to update ownership records for property tax purposes.

What is the benefit of avoiding probate?

Probate (the legal process for transferring a deceased person’s assets) increases the time and expense it takes to transfer property after a person dies. Transferring real estate outside probate makes the probate estate smaller and less complex. A small, simple probate estate is easier to administer in general and may let the estate qualify for a more efficient legal process. Streamlined probate makes the paperwork simpler and lowers costs.

Dealing with probate can take a long time, and giving assets to heirs is one of the final steps in the process. A family member who receives real estate through a will might not legally own the property until a year or more after the owner’s death. TOD deeds formally transfer title much sooner.

Probate is also a public process. TOD deeds—by avoiding probate—help property owners keep family financial matters private.

What types of property can be transferred using a Nebraska TOD deed?

A property interest must meet four criteria to be transferable under a Nebraska TOD deed:⁷

1. The property must be real estate. A TOD deed cannot transfer personal property or any other property interest that is not real estate. Other Nebraska laws allow transfer-on-death designations for different asset types.⁸ TOD deeds are only for real estate.
2. The property must be located in Nebraska. Nebraska TOD deeds can transfer only Nebraska real estate. A person who lives in Nebraska and owns real estate in another state cannot transfer the out-of-state property with a Nebraska TOD deed. (The other state may or may not have a law authorizing TOD deeds in that state.)
3. The property must be an interest the owner can transfer at death. A TOD deed cannot transfer a property interest the owner does not have the power to transfer at death using a will or other document. A life estate, for example, is not transferable under a TOD deed.
4. The property must be owned by an individual. A “transferor” who uses a Nebraska TOD deed must be a natural person.⁹ An entity—such as a corporation or LLC—cannot transfer its real estate with a TOD deed.

Nebraska TOD deeds can transfer one other real-estate-related property interest. A TOD deed that transfers farmland may also clearly transfer the owner’s rights to crops growing on the land.¹⁰ A deceased owner’s rights to growing crops become part of the owner’s estate if the TOD deed does not say it includes them.

What is the effect of a Nebraska TOD deed while the owner is alive?

A Nebraska TOD deed has very little legal effect while the owner remains living:

• Property owner and beneficiary rights. The owner retains complete ownership of the property during life.¹¹ The beneficiary receives no property rights under a TOD deed until the owner dies.¹²
• Creditor rights. Creditors’ rights are also not affected by a TOD deed. The owner’s creditors retain whatever rights they had before the TOD deed.¹³ A beneficiary’s creditors cannot claim rights to the property while the owner remains living.¹⁴
• Public assistance. A Nebraska TOD deed does not affect whether the owner can get public assistance for the most part.¹⁵ However, the Department of Health and Human Services can require a property owner to undo a TOD deed to qualify for or keep receiving Medicaid.¹⁶

Can the owner sell the property after recording a TOD deed?

The property owner, during life, holds all rights to the property—including the right to transfer, sell, or mortgage it.¹⁷ A TOD deed is effectively revoked if the owner sells the property before death.

Is a Nebraska TOD deed revocable?

A Nebraska TOD deed is always revocable until the property owner’s death.¹⁹ The owner can undo, or revoke, a TOD deed even if the deed itself states that it is not revocable.

A property owner can revoke a Nebraska TOD deed in any of these ways:²⁰

• Later TOD deed. A TOD deed that the owner validly signs and records revokes an earlier TOD deed relating to the same property.
• Revocation instrument. An owner can revoke a TOD deed by signing and recording a document that (a) clearly revokes the TOD deed and (b) follows all the rules for signing a TOD deed.
• Deed during owner’s life. A later deed that transfers the same property can revoke a TOD deed either outright or by being inconsistent.
• Deed to bona fide purchaser. A deed that transfers the property to a bona fide purchaser revokes a TOD deed if it is recorded before the owner’s death or within 30 days of signing (whichever is later).
• Divorce. A property owner’s divorce can revoke a TOD deed if the TOD deed names the now-former spouse as the beneficiary. Divorce automatically revokes a TOD deed that gives property to the owner’s ex-spouse unless the TOD deed, a court order, or a property settlement agreement says otherwise.²¹

A “revocatory act”—such as burning or shredding the document—does not revoke a recorded TOD deed.²² A TOD deed signed by co-owners who own the property as joint tenants with right of survivorship is revoked only if all living joint tenants revoke it.²³

What is the effect of a Nebraska TOD deed when the owner dies?

A Nebraska TOD deed has several legal effects when the owner dies:

• Title transfers to the beneficiary. When the owner dies, a Nebraska TOD deed transfers title to the beneficiary named in the deed.²⁴ The beneficiary formally takes title by recording the owner’s death certificate and a cover sheet with the register of deeds.²⁵
• The TOD deed transfers the real estate with no warranty of title. The beneficiary receives the property with no warranty of title and subject to all encumbrances—such as liens or mortgages—attached to the property at the owner’s death.²⁶
• The beneficiary may have to pay some estate debts. A beneficiary receiving real estate under a TOD deed may be responsible for debts, estate administration costs, or family support allowances if assets in the owner’s probate estate do not cover them.²⁷ This responsibility is based on the property’s proportionate share of the value of all nonprobate transfers. The beneficiary’s responsibility for covering these costs cannot exceed the fair market value of his or her portion of the property.²⁸
• The beneficiary may be responsible for Medicaid claims. A beneficiary may also have to cover unpaid Medicaid claims.²⁹ Medicaid liability is limited to the value transferred through the TOD deed and only applies if other the estate assets are not enough to cover the claim.
• The beneficiary has a right to disclaim the property. Nebraska law allows a TOD deed beneficiary to disclaim, or refuse, the real estate rather than taking ownership.³⁰ A disclaimed property becomes part of the owner’s estate—unless there is another beneficiary to take title or another non-probate method to transfer the property.

Can a Nebraska TOD deed leave property to multiple beneficiaries?

Yes. A property owner can sign a Nebraska TOD deed giving real estate to “one or more beneficiaries.”³¹ The default rule is that if a TOD deed names multiple beneficiaries, they receive equal, undivided shares with no right of survivorship.³² The owner can choose a different form of co-ownership—such as joint tenancy with right of survivorship or a co-tenancy with unequal interests—in the TOD deed.

Can joint owners sign a Nebraska TOD deed?

Yes. Co-owners of real estate can sign a Nebraska TOD deed. The deed’s effect depends on the form of co-ownership. Tenants in common—who own separate fractional interests—can transfer their interests separately. Each owner’s interest transfers upon that owner’s death. A tenant in common can only revoke the TOD deed as to that owner’s interest.³³

A TOD deed signed by two joint tenants with right of survivorship takes effect only after the death of the last surviving joint tenant.³⁴ When one joint tenant dies, the surviving joint tenant takes full ownership of the property.

What happens if the beneficiary named in a Nebraska TOD deed dies before the owner?

Nebraska law requires a beneficiary under a TOD deed to survive the owner by at least 120 hours.³⁵ A TOD deed can specify a different survival period. A TOD deed lapses if the beneficiary does not survive the owner by the required period. A lapsed TOD deed fails to transfer the property. The property instead becomes part of the owner’s probate estate.

Because avoiding probate is a TOD deed’s main goal, property owners often use one or more strategies to avoid lapse. The simplest method is to name multiple beneficiaries. If a TOD deed names more than one beneficiary and one beneficiary’s interest lapses due to death, the lapsed share is allocated proportionally among the other beneficiaries.³⁶

Must the owner notify the beneficiaries of the Nebraska TOD deed?

No. Nebraska’s URPTDA states that notice or delivery of a TOD deed to the beneficiary is not required.³⁷ The beneficiary need not accept the designation during the owner’s life but can choose to disclaim the interest on the owner’s death.³⁸

Telling the beneficiary that a TOD deed exists—though not required—is usually a good practice. A beneficiary who does not know about a TOD deed may not know to record the owner’s death certificate and file a Real Estate Transfer Statement upon the owner’s death.³⁹ This can lead to confusion in the land records.

Can a Nebraska TOD deed be used when the property is mortgaged?

An existing mortgage does not prevent the use of a Nebraska TOD deed in most cases. Due-on-sale provisions in mortgage agreements allow the lender to declare the loan due in full if the property is transferred without the lender’s consent. Under federal law, however, a due-on-sale clause is not triggered if the transfer is to a relative and results from the borrower’s death.⁴⁰ A mortgage does not prevent a transfer under a TOD deed if the federal rule protects the transfer.

A Nebraska TOD deed passes title to a new owner subject to any existing liens and mortgages.⁴¹ That means that—although a mortgage does not usually prevent a TOD deed—the mortgage is still owed after the beneficiary takes title. A TOD deed beneficiary may have to pay the mortgage balance if other estate assets cannot cover it.⁴²

Must a Nebraska TOD deed be recorded?

Yes. A Nebraska TOD deed must be recorded with the register of deeds. An unrecorded TOD deed is not effective. A property owner must record a TOD deed:

• Within 30 days after signing it;
• Before the owner’s death; and
• In the land records of the county where the property is located.⁴³

A Nebraska TOD deed that fails to meet any of the above requirements will not effectively transfer the property upon the owner’s death.

Can a Nebraska TOD deed be signed by an agent under a power of attorney?

Nebraska’s TOD deed law does not expressly allow an agent under power of attorney (POA) to sign a deed for a property owner.⁴⁴ However, Nebraska’s POA statute suggests that an agent has that power in certain cases. Even so, it is best for property owners to sign TOD deeds for themselves.

A POA that gives the agent general authority over real estate allows the agent to transfer real estate or change the form of its title.⁴⁵ A property owner must give an agent specific authority to create or change rights of survivorship or beneficiary designations.⁴⁶ An agent with authority over real estate and specific authority to create rights of survivorship and choose beneficiaries could likely create a valid TOD deed for the property owner. The TOD deed would be invalid, though, if it named the agent as beneficiary—unless the agent is the owner’s spouse, parent or grandparent, or direct descendant.⁴⁷

Can an agent under a power of attorney sign a TOD deed for a property owner who is unable to sign?

Nebraska law is not clear about whether an agent acting under POA can sign a TOD deed for an owner who cannot sign on his or her own. A property owner must have enough mental ability to create a TOD deed—which means the owner must be at least 18 years old and of sound mind.⁴⁸ Nebraska allows “durable” POAs that outlast the owner’s lack of ability to sign.⁴⁹ There is no clear statutory authority allowing an agent under durable POA to sign a TOD deed for an owner who lacks mental ability do so. The best practice is for the property owner to sign the TOD deed personally.

What are the requirements for a Nebraska TOD deed?

A TOD deed must contain the essential elements and observe the formalities required for other types of deeds in Nebraska.⁵⁰ That means a TOD deed must have a document title and return address—among other things—and must meet Nebraska’s deed formatting requirements.⁵¹

In addition to the general requirements for Nebraska deeds, a TOD deed must include all of the following:

• Owner name. A TOD deed must state the name of the current owner creating the TOD deed.
• Property description. A TOD deed must include an accurate legal description for the property.
• Beneficiary name. A TOD deed must name the designated beneficiary.
• Transfer on death. The deed must state that the property transfers to the beneficiary upon the owner’s death.⁵²
• Statutory warnings. The legal warnings required under Neb. Rev. Stat. § 76-3410(b) must appear in a TOD deed. The warnings address inheritance tax, beneficiary responsibility for estate debts and Medicaid liens, and revoking the deed to receive Medicaid.
• Consideration. A statement of consideration—or a payment provided in exchange for the transfer—is not required in a Nebraska TOD deed.⁵³
• Form 521 Real Estate Transfer Statement. A TOD deed should state that—under Neb. Rev. Stat. § 76-214(2)(b)—a completed Form 521 is not required when filing the TOD deed.
• Owner’s signature. The owner must sign the TOD deed.⁵⁴
• Witness signatures. Two disinterested witnesses must sign the TOD deed.⁵⁵ A witness is “disinterested” if he or she is not a beneficiary and not a beneficiary’s spouse, child, or heir.⁵⁶
• Notarization. The owner’s and witnesses’ signatures must be notarized.⁵⁷
• Recording. The TOD deed must be recorded in the county where the real estate is located. Recording must occur within 30 days after signing and before the owner’s death.⁵⁸

Nebraska’s TOD deed law—unlike that of many other states—does not provide a legal form for TOD deeds. It does, though, recommend a format for the owner’s and witnesses’ signatures and attestation.⁵⁹ A Nebraska TOD deed should use the statutory wording in Section 76-3409 or wording that is very close to it.

1. Neb. Rev. Stat. § 76-3405.
2. Neb. Rev. Stat. §§ 76-3401, et seq.
3. Neb. Rev. Stat. § 76-3415.
4. See Neb. Rev. Stat. § 76-3407 (TOD deeds are “nontestamentary”).
5. Neb. Rev. Stat. § 76-2,126.
6. Neb. Rev. Stat. § 76-2,126.
7. Neb. Rev. Stat. § 76-3402(6).
8. See,g., Neb. Rev. Stat. § 30-2715.01; Neb. Rev. Stat. § 30-2718 (allowing TOD designations on vehicle titles and bank accounts).
9. Neb. Rev. Stat. § 76-3402(8).
10. Neb. Rev. Stat. § 76-3405.
11. Neb. Rev. Stat. § 76-3414.
12. Neb. Rev. Stat. § 76-3414(5).
13. Neb. Rev. Stat. § 76-3414(3).
14. Neb. Rev. Stat. § 76-3414(6).
15. Neb. Rev. Stat. § 76-3414(4).
16. Neb. Rev. Stat. § 76-3421.
17. Neb. Rev. Stat. § 76-3414(1).
18. See Neb. Rev. Stat. § 76-107; Neb. Rev. Stat. § 76-108.
19. Neb. Rev. Stat. § 76-3406.
20. Neb. Rev. Stat. § 76-3413(a).
21. Neb. Rev. Stat. § 76-3415(e); Neb. Rev. Stat. § 30-2333(d)(1).
22. Neb. Rev. Stat. § 76-3413(c).
23. Neb. Rev. Stat. § 76-3413(b).
24. Neb. Rev. Stat. § 76-3415.
25. Neb. Rev. Stat. § 76-2,126.
26. Neb. Rev. Stat. § 76-3415(b); Neb. Rev. Stat. § 76-3415(d).
27. Neb. Rev. Stat. § 76-3417.
28. Neb. Rev. Stat. § 76-3417(b)(1).
29. Neb. Rev. Stat. § 76-3418.
30. Neb. Rev. Stat. § 76-3416.
31. Neb. Rev. Stat. § 76-3405.
32. Neb. Rev. Stat. § 76-3415(a)(3).
33. Neb. Rev. Stat. § 76-3413(b)(1).
34. Neb. Rev. Stat. § 76-3415(c).
35. Neb. Rev. Stat. § 76-3415(a)(2).
36. Neb. Rev. Stat. § 76-3415(a)(4).
37. Neb. Rev. Stat. § 76-3411.
38. Neb. Rev. Stat. § 76-3416.
39. Neb. Rev. Stat. § 76-2,126; Neb. Rev. Stat. § 76-3412.
40. See Garn-St. Germain Depository Institutions Act of 1982; 12 USC § 1701j-3(d)(5).
41. Neb. Rev. Stat. § 76-3415(b).
42. See Neb. Rev. Stat. § 76-3417.
43. Neb. Rev. Stat. § 76-3410(a)(4).
44. See Neb. Rev. Stat. § 76-3409.
45. Neb. Rev. Stat. §§ 30-4027(2) and (8).
46. Neb. Rev. Stat. § 30-4024(1).
47. Neb. Rev. Stat. § 30-4024(2).
48. Neb. Rev. Stat. § 76-3408; Neb. Rev. Stat. § 30-2326.
49. Neb. Rev. Stat. § 30-4002(3).
50. Neb. Rev. Stat. § 76-3410(a)(1).
51. Neb. Rev. Stat. § 23-1510; Neb. Rev. Stat. § 23-1503.01(1).
52. Neb. Rev. Stat. § 76-3410(a)(2).
53. Neb. Rev. Stat. § 76-3411.
54. Neb. Rev. Stat. § 76-3409.
55. Neb. Rev. Stat. § 76-3409.
56. Neb. Rev. Stat. § 76-3402(3).
57. Neb. Rev. Stat. § 76-3409.
58. Neb. Rev. Stat. § 76-3410(a)(4).
59. Neb. Rev. Stat. § 76-3409.