A transfer on death deed lets you name who will receive your home or land when you die, with no probate needed for that property. You keep complete ownership and control while you are alive: you can live there, sell, refinance or change your mind without anyone's permission. The deed works only if it is signed and recorded in the county where the property is located before your death, and it must be drafted carefully. Most of the problems we see come from deeds that were never recorded, named no backup beneficiary, or did not fit with the rest of the estate plan.
What families should know
For many Texas households the home is the single largest asset, and it is frequently the only asset that forces a probate. Bank and retirement accounts usually pass by beneficiary designation, and vehicles can often be transferred by affidavit. Real estate titled in one person's name generally cannot. A transfer on death deed, commonly called a TODD, closes that gap with a single recorded instrument.
A TODD is not a substitute for a will. It governs only the property it describes. A will still names your executor, provides for guardians of minor children and disposes of everything the TODD does not reach. The two documents should be drafted together so they do not work against each other.
A TODD tends to work well for a widowed or single homeowner whose house is the principal asset, for owners of a rent house or acreage in another Texas county, and for families who want to avoid probate without the cost and upkeep of a revocable living trust. It is usually a poor fit when a beneficiary is a minor, receives needs-based public benefits, or has creditor or divorce exposure. In those situations the property should pass into a trust rather than outright.
The legal detail
The statutory framework
Texas adopted the Texas Real Property Transfer on Death Act in 2015. It is codified at Chapter 114 of the Estates Code and applies to deeds executed and acknowledged on or after September 1, 2015 (Tex. Est. Code §§ 114.001, 114.003). A TODD is expressly nontestamentary: it is not a will, is not probated, and does not depend on an estate administration (§ 114.053).
To be effective, the deed must contain the essential elements and formalities of a recordable deed, state that the transfer occurs at the transferor's death, and be recorded before death in the deed records of the county where the property is located (§ 114.055). Notice to the beneficiary, delivery, acceptance and consideration are all unnecessary (§ 114.056). An unrecorded TODD found in a desk drawer after death is a nullity.
Two execution rules deserve emphasis. The capacity required is contractual capacity, a higher standard than testamentary capacity (§ 114.054(a)). And a TODD may not be created through a power of attorney (§ 114.054(b)). Once an owner loses capacity, the opportunity is gone, and the agent cannot step in to sign one.
Effect during the owner's lifetime
During the transferor's life, the deed has essentially no legal effect (§ 114.101). It does not:
create any legal or equitable interest in the beneficiary;
impair the owner's right to sell or encumber the property, or the owner's homestead rights;
affect residence homestead, over-65, disability or veterans' tax exemptions;
trigger a due-on-sale clause or statutory disclosure requirements;
expose the property to the beneficiary's creditors; or
affect either party's eligibility for public assistance, subject to federal law.
A later conveyance controls. If the owner sells or conveys the property and the conveyance (or a memorandum of it) is recorded in the same county before death, the TODD is void as to that grantee (§ 114.102).
Revocation, and why a later will does not change it
A TODD is revocable notwithstanding any contrary language (§ 114.052), but only by a recorded instrument: either a subsequent TODD that revokes it expressly or by inconsistency, or an instrument of revocation. Either one must be acknowledged after the deed it revokes and recorded before death in the same county (§ 114.057(a)). A will cannot revoke or supersede a TODD (§ 114.057(b)). Clients who later sign a new will leaving the house to someone else are often surprised to learn that the recorded deed still controls.
Divorce is handled specially. A final decree dissolving the marriage revokes the deed as to the former spouse, but only if notice of the judgment is recorded in the same county before the transferor's death (§ 114.057(c)). Where several owners signed one deed, a revocation by one does not affect the others' interests, and a deed made by joint owners with right of survivorship is revoked only by all living joint owners (§ 114.057(d)–(e)).
What happens at death
Unless the deed provides otherwise, a beneficiary must survive the transferor by 120 hours. The share of a beneficiary who does not lapses and passes under the anti-lapse provisions of Subchapter D, Chapter 255, as if the deed were a devise in a will. Interests passing to multiple beneficiaries vest in equal, undivided shares with no right of survivorship (§ 114.103(a)). That default can produce results the owner never intended, which is why a well-drafted deed names contingent beneficiaries and states how a predeceased beneficiary's share passes.
The property also passes without any warranty of title, even if the deed recites one (§ 114.103(d)). Beneficiaries who later sell should expect a title company to require its own proof of death and related matters before insuring the sale.
Community property requires attention. The statute's definition of "joint owner with right of survivorship" excludes community property owners (§ 114.002(a)(3)), and each spouse may transfer only his or her own interest. Married couples typically sign a single deed together or matching deeds, coordinated with their wills.
Liens, creditors and Medicaid estate recovery
The beneficiary takes subject to every mortgage, lien and encumbrance on the property at death (§ 114.104(a)). A TODD is not an asset-protection device. If the probate estate is insufficient to pay allowed claims, administration expenses, estate tax, or the family allowance and allowances in lieu of exempt property, the personal representative may enforce that liability against TODD property as if it were part of the probate estate. Liability may be apportioned among nonprobate assets, and a proceeding must be brought within two years of death (§ 114.106(a), (d), (e)).
At the same time, the statute provides that TODD property "is not considered property of the probate estate for any purpose," expressly including the Government Code section governing Medicaid estate recovery (§ 114.106(b); Tex. Gov't Code § 546.0403). For an owner who is receiving or may need long-term care Medicaid, the interaction between those two provisions should be analyzed on the facts before the deed is signed.
After recording a TODD, keep a copy of the recorded deed with your will and tell your executor where it is. Your family will need the recording information later.
Forms
The original statute included fill-in forms. In 2019 the Legislature removed them from the Estates Code and directed the Supreme Court of Texas to promulgate a TODD form and a revocation form (S.B. 874, 86th Leg., R.S.). Standard forms are adequate for the simplest cases. They do not address contingent beneficiaries in any detail, community property coordination, property in multiple counties or the interplay with a will or trust, and the errors usually come to light only after death, when they can no longer be corrected.
TODDs and mineral interests
Chapter 114 applies to any interest in Texas real property (§ 114.002(a)(5)), so mineral and royalty interests can pass by TODD. The deed must be recorded in each county where the interests are located. For families holding minerals scattered across the Permian Basin or the Eagle Ford, that may mean multiple recordings, and a revocable trust is sometimes the cleaner vehicle. Operators will still require recorded evidence of the transfer before releasing suspended royalties to the beneficiary.
Comparing the alternatives
| Tool | Avoids probate? | Best suited for |
|---|---|---|
| Transfer on death deed | Yes, for the described property | A residence or tract with straightforward dispositive wishes |
| Will with independent administration | No, but Texas probate is often efficient | The overall plan: executor, guardians, residuary estate |
| Revocable living trust | Yes, for funded assets | Out-of-state real property, minor or vulnerable beneficiaries, long-term management |
| Enhanced life estate ("lady bird") deed | Yes, for the described property | Similar goals; created by practice rather than statute, with Medicaid treatment based on agency policy |
An example
Elena, a widow in Fort Worth, wanted her home to pass to her two children in equal shares, with a deceased child's share going to that child's descendants. Her deed said exactly that, named the grandchildren expressly rather than relying on the statutory default, and was recorded with the Tarrant County Clerk the week she signed it. Her will, prepared at the same time, named an independent executor and disposed of her remaining assets. After her death, her children recorded an affidavit of death and sold the house within a few months. No probate was opened for the property.
Frequently asked questions
Can I prepare my own transfer on death deed?
You can, and the Supreme Court of Texas form is available for that purpose. The risk lies in the details: the legal description, community property, contingent beneficiaries and recording. A defect is usually discovered after death, when it can no longer be cured.
Does a TODD protect my home from creditors?
No. The beneficiary takes subject to existing liens, and the personal representative can reach the property for unpaid claims if the probate estate is insufficient (§ 114.106).
Does a new will override my transfer on death deed?
No. Only a later recorded TODD or a recorded instrument of revocation can revoke it (§ 114.057).
Can someone sign a TODD for me under a power of attorney?
No. The statute prohibits creating a TODD through a power of attorney (§ 114.054(b)).
Do my beneficiaries have to go to court?
Ordinarily not. They record an affidavit of death with a death certificate in the county records. Title companies may require additional documentation before insuring a later sale.
Ready to put your plan in place?
We help families across Texas, from San Antonio, Austin and Houston to Dallas–Fort Worth and West Texas, create wills, trusts and powers of attorney in plain English, with most meetings by phone or video. Your first consultation is free.
Schedule a Free ConsultationLaw Office of Todd Worrich · 1045 Cheever, Suite 208, San Antonio, Texas 78217
Keep reading
Official sources
About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
