Oklahoma Transfer on Death Deed Form

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

A transfer-on-death deed—also called beneficiary deed or TOD deed—is a legal instrument a property owner executes and records to automatically transfer real estate to a named beneficiary upon the owner’s death.

Oklahoma’s transfer-on-death laws are part of the Oklahoma Probate Code.¹ The Nontestamentary Transfer of Property Act² includes the provisions specific to TOD deeds. An Oklahoma TOD deed must be in substantially the same form as the model TOD deed published by the Oklahoma Legislature within Okla. Stat. §58-1253.

What is the purpose of an Oklahoma TOD deed?

Oklahoma TOD deeds provide property owners a mechanism for transferring real estate upon the owner’s death without going through probate. The probate process is often costly and time-consuming. A TOD deed allows an estate to save on administrative costs and a beneficiary to receive title to property sooner after the owner’s death.

Oklahoma law states that a real estate transfer under a TOD deed “shall not be considered a testamentary provision.”³ Oklahoma TOD deeds need only comply with the Nontestamentary Transfer of Property Act and are not governed by the Oklahoma Probate Code provisions relating to wills and succession.

An Oklahoma TOD deed’s beneficiary formally accepts title to the property by executing and recording a notarized affidavit upon the property owner’s death.⁴ The beneficiary’s affidavit accepting title must:

• Verify that the property owner has died;
• Attach as an exhibit a copy of the owner’s death certificate;
• State whether the beneficiary and property owner were married at the time of the beneficiary’s death; and
• Include a legal description of the real estate.⁵

The beneficiary must record the affidavit with the office of the county clerk of the county where the property is located within nine months after the property owner’s death.⁶ The real estate reverts to the owner’s estate if the beneficiary fails to record the affidavit as required.

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

The owner of a full or partial interest in Oklahoma real estate can transfer “an interest in real estate” using an Oklahoma TOD deed.⁷ Oklahoma’s TOD deed statute broadly defines “interest in real estate” to include “any estate or interest in, over or under land, including surface, minerals, structures, and fixtures.”⁸ An Oklahoma property owner can therefore transfer full or partial ownership interests in land, structures, and mineral rights using a TOD deed.

TOD deeds authorized by Oklahoma’s Nontestamentary Transfer of Property Act can only transfer interests in Oklahoma real estate. Oklahoma law includes other provisions allowing for transfer-on-death of different types of assets. Vehicle owners, for example, can register vehicle titles with a transfer-on-death designation in Oklahoma.⁹

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

An Oklahoma TOD deed does not have any current practical effect until the property owner’s death.¹⁰ The owner retains full title to the property interest and is considered the “absolute owner.”¹¹ A TOD beneficiary does not receive a vested interest during the owner’s life. Liens against the TOD beneficiary do not attach to the property until the owner dies and the beneficiary records an affidavit of acceptance.¹²

A property owner who records a TOD deed retains the right to sell the property—or revoke, amend, or withdraw the TOD deed—until the owner’s death.¹³ The owner’s right to revoke an Oklahoma TOD deed is absolute regardless of whether the named beneficiary paid consideration for the TOD deed.¹⁴ A property owner cannot, though, revoke a TOD deed by will.¹⁵

An owner revokes or amends an Oklahoma TOD deed in one of two ways:

1. Executing and recording in the county land records a notarized instrument expressly revoking the prior TOD designation;¹⁶ or
2. Executing and recording a later TOD deed that transfers the same property interest as the prior TOD deed.¹⁷

In either case, revocation or amendment of an existing Oklahoma TOD deed does not require notice to—or the consent of—the named beneficiary.¹⁸

A property owner with a life estate in real estate—for comparison—also owns the property for the rest of the owner’s life.¹⁹ A life estate holder must protect the future interest of the remainderman—i.e., the person who receives title when the life estate holder dies. The future interest limits the life estate holder’s right to sell an interest beyond the life estate without the remainderman’s consent.

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

When the owner of real estate subject to a TOD deed dies, title automatically transfers to the named beneficiary, with no need for probate.²⁰

The TOD beneficiary takes title subject to any existing encumbrances—such as liens or mortgages—against the property.²¹ Oklahoma’s TOD statute specifically includes recorded purchase contracts, purchase options, and leases among the encumbrances that survive a TOD transfer.²² The beneficiary takes title free of any spousal claims of a spouse who married the property owner after the owner recorded the TOD deed.²³

Can an Oklahoma TOD deed leave property to multiple beneficiaries?

Yes, Oklahoma’s TOD statute specifically contemplates TOD deeds with one or multiple beneficiaries.²⁴ An Oklahoma TOD deed naming multiple beneficiaries can specify that the beneficiaries receive the property as either tenants in common or as joint tenants with right of survivorship.²⁵  Tenants in common each hold separate, fractional interests that they can transfer individually.²⁶ Joint tenants jointly own the entire property.²⁷ Complete title to the property vests with a surviving joint tenant upon the other joint tenant’s death due to the right of survivorship.²⁸

Oklahoma law assumes that a TOD deed naming more than one beneficiary creates a tenancy in common—unless the TOD deed expressly states that beneficiaries take title as joint tenants with right of survivorship.²⁹

Can joint owners sign an Oklahoma TOD deed?

Yes, Oklahoma’s TOD statute allows joint owners and owners of partial interests in real estate to transfer their interests using a TOD deed.³⁰ A tenant in common can record a TOD deed to transfer his or her fractional interest.³¹ The fractional interest automatically transfers to the designated TOD beneficiary when the tenant in common dies.³²

A joint tenant’s recording of an Oklahoma TOD deed does not sever a joint tenancy.³³ That means that—if two joint tenants execute a TOD deed—full title to the property still vests in the surviving owner upon the other owner’s death.³⁴ The TOD beneficiary only receives title to the property after the death of the last remaining joint tenant.³⁵

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

If an Oklahoma TOD deed’s beneficiary dies before the property owner, the TOD designation in favor of the deceased beneficiary lapses.³⁶ A lapsed TOD designation is ineffective, and the property interest reverts to the property owner’s estate unless the owner made other arrangements.

Many states’ TOD statutes allow for contingent or alternate beneficiaries within TOD deeds. A contingent beneficiary receives the property if the primary TOD beneficiary dies before the property owner. Oklahoma’s TOD statute does not authorize contingent beneficiaries.  In most cases, a property owner needs to execute and record a new TOD deed if a beneficiary predeceases the owner. Otherwise, the property becomes part of the owner’s estate.

An exception is that—if an Oklahoma TOD deed names multiple beneficiaries as joint tenants with right of survivorship—one beneficiary’s death does not cause the TOD deed to lapse.³⁷ The surviving joint-tenant beneficiary instead receives the interest the deceased beneficiary would have received. If multiple beneficiaries are tenants in common—and one of the beneficiaries dies—surviving beneficiaries receive their fractional shares through the TOD deed.³⁸ The deceased beneficiary’s interest reverts to the owner’s probate estate.

Example 1:  Property Owner executes a TOD deed naming one beneficiary. The beneficiary predeceases Property Owner. Upon Property Owner’s death, the real estate becomes part of Property Owner’s probate estate.

Example 2:  Property Owner executes a TOD deed in favor of Beneficiary A and Beneficiary B as tenants in common. Beneficiary A predeceases Property Owner. Upon Property Owner’s death, Beneficiary B receives a fractional interest in the property. The TOD designation in favor of Beneficiary A lapses, and Beneficiary A’s fractional interest reverts to Property Owner’s probate estate.

Example 3:  Property Owner executes a TOD deed naming Beneficiary A and Beneficiary B as joint tenants with right of survivorship. Beneficiary A predeceases Property Owner. Upon Property Owner’s death, Beneficiary B receives undivided title to the real estate.

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

No, an Oklahoma TOD deed does not require a named beneficiary’s agreement, consent, or signature.³⁹ Notice to the beneficiary is not required “for any purpose” during the property owner’s life.⁴⁰

In practice, it is advisable to notify named beneficiaries when recording a TOD deed because beneficiaries must execute and record an affidavit of acceptance within nine months after the property owner’s death.⁴¹ The property interest reverts to the owner’s estate if a beneficiary fails to record the affidavit within nine months.⁴²

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

Yes, an existing mortgage does not prevent a property owner from recording a TOD deed in most cases.  Under a federal law called the Garn-St. Germain Depository Institutions Act,⁴³ mortgage companies cannot enforce due-on-sale clauses in certain circumstances.  Due-on-sale clauses—which most mortgage agreements include—allow the mortgage holder to declare the secured debt immediately payable if the property is transferred. Transactions exempted under Garn-St. Germain include “a transfer to a relative resulting from the death of a borrower.”⁴⁴ A transfer to a relative through an Oklahoma TOD deed therefore will not trigger a due-on-sale provision.

A beneficiary who receives an interest in a mortgaged property through an Oklahoma TOD deed receives the interest subject to the mortgage.⁴⁵ The owner may direct that the mortgage debt be satisfied from other assets in the owner’s estate—but only if the owner’s will or other testamentary instrument clearly evidence the owner’s intent.⁴⁶

Must an Oklahoma TOD deed be recorded?

Yes, an Oklahoma TOD deed must be recorded in the office of the county clerk for the county where the real estate is located.⁴⁷ An Oklahoma TOD deed must be recorded before the property owner’s death.⁴⁸ An Oklahoma TOD deed not properly recorded before the owner dies is ineffective, and the property will likely be included in the owner’s probate estate.

The beneficiary must execute and record an affidavit of acceptance within nine months of the owner’s death for an Oklahoma TOD to successfully transfer real estate outside of probate.⁴⁹

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

Oklahoma’s TOD deed statute states that a TOD deed must be “signed by the record owner of the [real-estate] interest.”⁵⁰ The law has no provision allowing execution of a TOD deed by an owner’s agent acting under power of attorney.

An Oklahoma property owner must be “of competent mind” and have sufficient “legal capacity” to execute a valid TOD deed.⁵¹ A property owner not “of competent mind” or who lacks adequate capacity cannot execute a valid TOD deed through an agent.

What are the requirements for an Oklahoma TOD deed?

An Oklahoma TOD deed must substantially comply with the statutory format to effectively transfer title to the beneficiary upon the owner’s death.⁵² The TOD deed must be signed by the property owner of record, notarized, and recorded in the county land records.⁵³ An Oklahoma TOD deed must also bear the signatures of at least two witnesses.⁵⁴

An Oklahoma TOD deed must also include each of the following:

• A description of the real estate to be transferred by the TOD deed;⁵⁵
• A designation of one or more intended beneficiaries to take title upon the owner’s death;⁵⁶
• A declaration that the real-estate interest shall transfer to the beneficiary upon the owner’s death;⁵⁷ and,
• A statement that the TOD deed (i) is revocable, (ii) does not transfer any interest until the owner’s death, (iii) revokes any prior designations, and (iv) can be withdrawn regardless of whether consideration was paid for the intended transfer.⁵⁸

An Oklahoma TOD deed need not identify or be supported by consideration.⁵⁹ That is—the beneficiary need not provide something of value in exchange for the transfer.

The beneficiary must execute and record a statutorily compliant affidavit accepting title within nine months after the property owner’s death.⁶⁰ The transfer will not occur—and the property interest reverts to the owner’s probate estate—if the affidavit is not recorded within the required timeframe.⁶¹

1. Okla. Statutes, Tit. 58.
2. Oklahoma Statutes, Tit. 58, Chapter 21 (Okla. Stat. §§1251 – 1258).
3. Okla. Stat. §58-1258.
4. Okla. Stat. §58-1252(B) and (D).
5. Okla. Stat. §58-1252(C) and (D).
6. Okla. Stat. §58-1252(D).
7. Okla. Stat. §1252(A).
8. Okla. Stat. §1252(A).
9. Okla. Stat. §74-1107.5.
10. Okla. Stat. §58-1253.
11. Okla. Stat. §58-1257.
12. Okla. Stat. §58-1255(A).
13. Okla. Stat. §58-1253; Okla. Stat §58-1254(A).
14. Okla. Stat. §58-1253.
15. Okla. Stat. §58-1254(C).
16. Okla. Stat. §58-1254(A).
17. Okla. Stat. §58-1254(B).
18. Okla. Stat. §58-1254(A) and (B).
19. Okla. Stat. §16-22(2).
20. Okla. Stat. §58-1252A.
21. Okla. Stat. §58-1255(A).
22. Okla. Stat. §58-1255(A).
23. Okla. Stat. §58-1255(A).
24. See Okla. Stat. §58-1251(A), 58-1255(B).
25. Okla. Stat. §58-1255(B).
26. Matthews v. Matthews, 961 P.2d 831 (Okla. 1998).
27. Okla. Stat. §60-74.
28. Okla. Stat. §60-74.
29. Okla. Stat. §58-1255(B).
30. Okla. Stat. §§1252(A); Okla. Stat §58-1256.
31. Okla. Stat. §§1252(A).
32. Okla. Stat. §58-1255(A).
33. Okla. Stat. §58-1256(A).
34. Okla. Stat. §60-74.
35. Okla. Stat. §58-1256(A).
36. Okla. Stat. §58-1255(B).
37. Okla. Stat. §58-1255(B).
38. Okla. Stat. §58-1255(B).
39. Okla. Stat. §58-1252(B).
40. Okla. Stat. §58-1252(B).
41. Okla. Stat. §58-1252(C).
42. Okla. Stat. §58-1252(D).
43. 12 USC 1701j-3(d).
44. 12 USC 1701j-3(d)(5).
45. Okla. Stat. §58-1255(A).
46. See In the Matter of the Estate of Carlson, 2016 OK 6, 367 P.3d 486 (2016).
47. Okla. Stat. §58-1253.
48. Okla. Stat. §58-1253.
49. Okla. Stat. §58-1252(D).
50. Okla. Stat. §58-1252(A).
51. Okla. Stat. §58-1253.
52. Okla. Stat. §58-1253.
53. Okla. Stat. §58-1252(A).
54. Okla. Stat. §1253.
55. Okla. Stat. §58-1253.
56. Okla. Stat. §58-1252(A).
57. Okla. Stat. §58-1252(A).
58. Okla. Stat. §58-1253.
59. Okla. Stat. §1252(A).
60. Okla. Stat. §1252(D).
61. Okla. Stat. §1253.