Ohio Transfer on Death Deed Form

What is an Ohio transfer-on-death (TOD) deed?

A transfer-on-death deed—also called TOD deed or beneficiary deed—is a legal document under which a property owner names a beneficiary to receive title to real estate outside of probate when the owner dies.  About half of U.S. states allow real estate owners to use some form of TOD designation.

Ohio’s transfer-on-death system for real estate is set forth in Chapter 5302 of the Ohio Revised Code.¹ An Ohio property owner makes a TOD designation by executing and recording an Ohio transfer-on-death designation affidavit—or TOD affidavit.² Most other states require a separate transfer-on-death deed with the TOD designation.

What is the purpose of an Ohio TOD deed?

The principal advantage of a TOD designation on Ohio real estate is avoiding or limiting probate of the owner’s probate estate. Ohio’s TOD statute states that a transfer of real estate under a TOD affidavit “is not testamentary.”³ That means real estate subject to a TOD deed is a non-probate asset that automatically transfers to the beneficiary upon the owner’s death.

Probate can be expensive, time-consuming, and occasionally confusing. Keeping an asset out of a deceased person’s probate estate makes the estate administration process simpler and more efficient. The beneficiary of an Ohio TOD affidavit typically receives formal title to real estate substantially earlier than if the property went through probate.

An Ohio TOD beneficiary formally takes title after the owner’s death by executing an affidavit of confirmation.⁴ Within the affidavit of confirmation, the beneficiary states

• The name and address of each TOD beneficiary who survived the property owner;
• The name of each TOD beneficiary who did not survive the property owner;
• The deceased owner’s date of death; and,
• A description of the transferred property or interest in the property.⁵

The beneficiary executes the affidavit of confirmation before a notary or other authorized officer and attaches a certified copy of the deceased owner’s death certificate as an exhibit.⁶ The beneficiary then presents the executed affidavit of confirmation to the county auditor and records the affidavit with the county recorder.⁷ Upon recording, the affidavit of confirmation serves as an official record of the real estate transfer.

What types of property can be transferred using an Ohio TOD deed?

An Ohio real estate owner can use a TOD affidavit to transfer a whole or partial interest in Ohio real estate.⁸ A TOD affidavit can be used by a sole owner or a part-owner who co-owns real estate with one or more co-owners.⁹

An Ohio TOD affidavit can transfer complete title or a fractional interest in real estate.¹⁰ That is, an owner with full title—or who shares title with other co-owners—can record a valid TOD affidavit.  However, Ohio law disallows the transfer of certain lesser ownership interests—such as a life estate or leasehold—using a TOD affidavit.¹¹

Ohio TOD affidavits can transfer title to real estate only. Ohio authorizes TOD designations for certain other assets—including motor vehicles—but the process and necessary forms are different.¹²

What is the effect of an Ohio TOD deed while the owner is alive?

The Ohio statute authorizing TOD affidavits declares unambiguously that a recorded TOD affidavit “has no effect on the present ownership of real property.”¹³ In practical terms, that means the owner retains the right to sell, transfer, or mortgage the property as if no TOD affidavit had been executed or recorded. A named TOD beneficiary likewise acquires no vested interest in the real estate until the owner’s death.¹⁴ By comparison, a person with a remainder interest following the current owner’s life estate has a vested future interest in the property that limits the life estate holder’s rights in the property.

A property owner who records a TOD affidavit also retains the absolute right to revoke or modify the TOD affidavit.¹⁵ To do so, the owner need only record a new TOD affidavit that either expressly revokes or amends the prior designation.¹⁶

If a property owner divorces after recording a TOD affidavit naming the former spouse as the beneficiary, the divorce effectively terminates the designation.¹⁷ Ohio law treats the TOD affidavit as if the former spouse had predeceased the property owner. The real estate becomes part of the owner’s probate estate absent a later TOD affidavit or another strategy for non-probate transfer.

What is the effect of an Ohio TOD deed on the death of an owner?

The general effect of an Ohio TOD affidavit is that—when the property owner dies—the owner’s real estate interest automatically transfers to the named TOD beneficiary or beneficiaries.¹⁸ The beneficiary receives only the interest that the deceased owner held as of the date of death, and the real estate transfers to the beneficiary subject to any liens, mortgages, or other encumbrances.¹⁹

The interest of a co-owner with a right of survivorship takes precedence over a TOD affidavit recorded by the other co-owner (as more fully explained below).²⁰ A TOD affidavit for real estate co-owned with the right of survivorship only becomes effective upon the death of the last surviving co-owner.

Can an Ohio TOD deed leave property to multiple beneficiaries?

Yes, Ohio’s statutes governing TOD affidavits contemplate TOD designations in favor of one or multiple beneficiaries.²¹

By default, an Ohio TOD affidavit that names more than one beneficiary transfers equal shares in the property to the named beneficiaries.²² Beneficiaries are assumed to take title as tenants in common, with fractional interests and no right of survivorship.²³ However, a property owner can specify within a TOD affidavit that named beneficiaries receive unequal shares. If all beneficiaries are natural persons—i.e., actual human beings rather than LLCs, corporate entities, or living trusts—the owner can specify that beneficiaries will co-own the property in a survivorship tenancy.²⁴

Can joint owners sign an Ohio TOD deed?

Yes, joint owners of Ohio real estate can execute and record an Ohio TOD affidavit.²⁵ When a jointly owned Ohio property is subject to a TOD affidavit, the precise effect of an owner’s death depends upon the form of joint ownership used by the co-owners.

Tenancy in common is the default form of joint ownership in Ohio and does not include a right of survivorship.²⁶ Tenants in common—sometimes called co-tenants—hold separate fractional interests in a co-owned property, which can be transferred independently or devised by will. When one co-tenant of a property dies, the deceased co-tenant’s interest transfers to a beneficiary designated in a TOD affidavit.²⁷

Ohio law also recognizes a form of co-ownership called a survivorship tenancy, similar to a joint tenancy with right of survivorship recognized in other jurisdictions.  If co-owners are survivorship tenants and one owner dies, the deceased owner’s interest vests with the surviving owner.²⁸ If real estate is subject to a TOD affidavit signed by all survivorship tenants, title transfers to the TOD beneficiary when the final remaining co-owner dies.²⁹

The result can differ if only one survivorship tenant executes a TOD affidavit. When title vests with a surviving co-owner due to the other owner’s death, a TOD affidavit recorded by only the deceased co-owner is effectively nullified.³⁰ Upon the last survivorship tenant’s death, the property is part of that owner’s probate estate unless that owner executed a separate TOD affidavit before dying.³¹

Ohio no longer recognizes tenancy by the entirety—a co-ownership form limited to married couples. If co-owners took title as tenants by the entireties when still allowed by Ohio law, a TOD affidavit operates as if the owners were survivorship tenants.³²

What happens if the beneficiary named in an Ohio TOD deed dies before the owner?

The rule under Ohio’s TOD statute is that a TOD affidavit is only effective as to TOD beneficiaries “who survive the deceased owner.”³³ That is—if a TOD beneficiary predeceases the property owner—the TOD designation lapses as to that beneficiary and is of no effect.  When a TOD designation lapses, the interest that otherwise would have transferred to the beneficiary becomes part of the deceased owner’s probate estate.³⁴.

Ohio’s TOD law expressly authorizes property owners to name a contingent beneficiary to avoid a lapsed TOD designation.³⁵ A contingent beneficiary receives title to real estate if a named beneficiary is no longer living when the property owner dies—keeping the real estate out of the owner’s probate estate.³⁶ A TOD affidavit must identify a contingent beneficiary by name—as with a primary beneficiary.³⁷

The risk of a lapsed TOD designation—and the resulting reversion of a property to the owner’s probate estate—can also be mitigated by naming multiple beneficiaries.³⁸

Ohio law provides one other limited exception preventing a lapsed TOD designation. If a beneficiary is named solely as trustee of a trust, the TOD transfer will not lapse due to the trustee beneficiary’s death or replacement.³⁹ Instead, the trust’s successor trustee becomes the beneficiary—even if the TOD affidavit does not identify the successor trustee by name.⁴⁰

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

No, Ohio’s TOD law does not require notice of a TOD designation to the intended beneficiary. The statute explicitly declares that delivery of a TOD affidavit to the beneficiary is not necessary for the affidavit to be effective.⁴¹ No formal notice to the beneficiary is required beyond recording the document in the relevant county’s land records.⁴²

Can an Ohio TOD deed be used when the property is mortgaged?

Yes.   Although due-on-sale clauses in mortgage documents usually inhibit an owner’s right to transfer a mortgaged property without the lienholder’s consent, TOD designations are, by law, outside the purview of due-on-sale clauses. A federal statute called the Garn-St. Germain Depository Institutions Act⁴³ prevents mortgage companies from enforcing due-on-sale provisions in response to “a transfer to a relative resulting from the death of a borrower.”⁴⁴

Consistent with the federal rule, Ohio’s TOD statute explains that a TOD affidavit does not affect a lienholder’s right to enforce a lien on the property before the owner’s death.⁴⁵ Recording of a TOD deed does not prejudice a mortgage holder’s rights because a TOD beneficiary takes title subject to any existing liens or mortgages.⁴⁶

Must an Ohio TOD deed be recorded?

Yes. A property owner must record an executed TOD affidavit with the county recorder for the county in which the real estate is located.⁴⁷ The county recorder charges a fee for filing and indexing the TOD affidavit.⁴⁸ Importantly, a TOD deed must be recorded before the property owner’s death, as an Ohio TOD affidavit recorded after the property owner’s death is ineffective.⁴⁹

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

Ohio’s statute governing transfer-on-death designations for real estate does not authorize execution of TOD affidavits by a property owner’s agent. The statute states that an “individual…who owns [real estate]” can execute a TOD affidavit…”⁵⁰ Further, the “individual executing the affidavit” must verify that the signer “is the person appearing on the record of the [real estate] as the owner…”⁵¹ A person who knowingly includes a false statement within an Ohio TOD affidavit commits the crime of falsification.⁵²

What are the requirements for an Ohio TOD deed?

For an Ohio TOD Affidavit to be valid and effective, it must be executed by the property owner before a notary or other officer authorized by law to administer oaths.⁵³ The affidavit must include:

• An adequate legal description of the relevant property;
• A reference to a deed or other instrument that includes the property description;
• A statement of the specific interest in the property to be transferred;
• An affirmation that the person executing the affidavit appears on record as the property’s owner;
• The property owner’s marital status; and
• One or more intended TOD beneficiary identified by name.⁵⁴

The spouse of a married property owner who executes a TOD deed must state in the TOD affidavit that the spouse’s dower rights are subordinated to the vesting of title with the named TOD beneficiary.⁵⁵

An Ohio TOD affidavit does not have to identify any consideration provided in exchange for the contemplated transfer to the beneficiary. An Ohio TOD affidavit does not need to be supported by any consideration at all.⁵⁶

As noted above, Ohio’s TOD statute also requires a TOD affidavit to be recorded in the applicable county’s land records before the property owner’s death.⁵⁷

The Ohio Legislature updated the requirements for TOD transfers effective at the end of 2009.⁵⁸ An Ohio TOD affidavit recorded before December 28, 2009—and that meets all requirements under the prior version of the TOD deed statute—is still valid and effective.⁵⁹

1. See Chapter 5302: Statutory Forms of Land Conveyance, O.R.C. §§ 5302.22, et. seq.
2. O.R.C. § 5302.22(A)(5).
3. O.R.C. § 5302.23(B)(9).
4. O.R.C. § 5302.222(A) and (B).
5. O.R.C. § 5302.222(A).
6. O.R.C. § 5302.222(A).
7. O.R.C. § 5302.222(A) and (B).
8. O.R.C. § 5302.22(C).
9. O.R.C. § 5302.22(C).
10. O.R.C. § 5302.23(B)(6).
11. O.R.C. § 5302.23(B)(6).
12. See, e.g., O.R.C. § 2131.13 (authorizing TOD designation on Ohio motor vehicle title).
13. O.R.C. § 5302.23(B)(4).
14. O.R.C. § 5302.23(B)(4).
15. O.R.C. § 5302.22(B)(5).
16. O.R.C. § 5302.22(B)(5).
17. O.R.C. § 5302.23(B)(12).
18. O.R.C. § 5302.22(G).
19. O.R.C. § 5302.23(B)(7)(a).
20. O.R.C. § 5302.22(C)(2).
21. See, e.g., O.R.C. § 5203.22(A)(6).
22. O.R.C. § 5203.23(B)(1).
23. O.R.C. § 5203.23(B)(1).
24. O.R.C. § 5203.23(B)(1).
25. O.R.C. § 5203.22(C).
26. O.R.C. § 5302.19.
27. O.R.C. § 5302.22(C)(1).
28. O.R.C. § 5302.20.
29. O.R.C. § 5302.22(C)(2).
30. O.R.C. § 5302.23(B)(7)(b).
31. O.R.C. § 5302.23(B)(7)(b).
32. O.R.C. § 5302.22(C)(3); O.R.C § 5302.21.
33. O.R.C. § 5302.22(G).
34. O.R.C. § 5203.23(B)(1).
35. O.R.C. § 5203.23(B)(2).
36. O.R.C. § 5203.23(B)(1).
37. O.R.C. § 5203.23(B)(2).
38. O.R.C. § 5203.23(B)(1).
39. O.R.C. § 5302.22(G).
40. O.R.C. § 5302.22(G).
41. O.R.C. § 5302.22(F).
42. O.R.C. § 5302.22(F).
43. 12 USC 1701j-3(d) (1982).
44. 12 USC 1701j-3(d)(5).
45. O.R.C. § 5302.23(B)(8).
46. O.R.C. § 5302.23(B)(7)(a).
47. O.R.C. § 5302.22(B) and (E).
48. O.R.C. § 5302.22(E).
49. O.R.C. § 5302.22(F).
50. O.R.C. § 5302.22(B).
51. O.R.C. § 5302.22(D)(3).
52. O.R.C. § 5302.22(H); O.R.C. § 2921(A)(6).
53. O.R.C. § 5302.22(D).
54. O.R.C. § 5302.22(D)(1 – 4) (emphasis added).
55. O.R.C. § 5302.22(D)(3).
56. O.R.C. § 5302.22(F).
57. O.R.C. § 5302.22(F).
58. O.R.C. § 5302.24.
59. O.R.C. § 5302.24.