Transfer on Death Deeds as a Vehicle to Avoid Probate

Bradford C. Weber, Esq.

Avoiding Probate and the related costs and time are often an important, if not the most important, goal of an estate plan.  With careful planning, major assets can be transferred directly to designated beneficiaries.  Common examples include life insurance, payable on death or joint bank accounts, and beneficiary designees on investment accounts. 

For many people, their home is the largest non-liquid asset.  Absent planning otherwise, upon the death of the last surviving owner, an estate would need to be opened to transfer the property.  However, it is possible in Ohio and Indiana to transfer real property via a deed/affidavit, which designates a beneficiary upon the death of the owner.  The relevant statutes are Indiana Code Section 32-17-14-11 (Transfer on Death Deeds) and Ohio Revised Code Section 5302.22 (Transfer on Death Designation Affidavits).

Keep in mind, even if you have a transfer on death designated beneficiary, there are still other potential obstacles to a clean transfer, including mortgages and liens (e.g. tax liens and judgment liens).  Also, some attempted transfers may be inapplicable or avoided under the law (e.g. transfers that attempt to circumvent Medicaid recovery rights).  As always, care must be taken in the drafting of the transfer on death documents, so that they conform to the relevant legal requirements.  

You may contact Brad Weber or Lisa Bitter at BYH if you have any questions regarding transfer on death deeds/affidavits as an estate planning option, and to discuss your estate planning needs in general. 

Bradford C. Weber, Esq., Benjamin, Yocum & Heather, LLC, 300 Pike Street, Suite 500, Cincinnati, Ohio 45202 (513)-721-5672.