Transfer on Death Designation Affidavits for Real Property

Some people are familiar with the titling of a bank account or other financial instrument as ‘transfer on death’ to allow the account or instrument to automatically transfer to another party or parties upon the holder’s death and therefore be kept out of the holder’s probate estate. However, many do not realize that this option is also available for real property.

Ohio Revised Code 5302.22 allows an individual that owns real property or any interest in real property to designate the entire interest, or any specified part that is less than the entire interest, in that real property as transferable on death to a designated beneficiary or beneficiaries by executing, together with the individual’s spouse, if any, a transfer on death designation affidavit. If the individual’s spouse also executes the designation affidavit, then the spouse’s dower rights are subordinate to the vesting of title to the real property interest in the designated transfer on death beneficiary(ies).

The transfer on death designation affidavit must be recorded in the office of the county recorder in the county where the real property is located. If this is done correctly, then upon the holder’s death, title to the real property, or other interest as specified in the affidavit, vests in the transfer on death beneficiary(ies).

The affidavit must be verified before any person authorized to administer oaths (e.g., a notary) and must include the following information:

1.  A description of the real property affected by the affidavit and a prior instrument reference;

2.  If less than the entire interest is to be transferred on death under the affidavit, then a statement must be included identifying the specific interest or part of the interest in the real property to be transferred;

3. A statement by the individual executing the affidavit that the individual is the person appearing in the real property records as the owner of the real property (or interest in real property);

4. If the owner is married, a statement by the owner’s spouse that the spouse’s dower rights are subordinate to the vesting of title in the transfer on death beneficiary(ies); and

5. A statement designating or more persons (identified by name) as the transfer on death beneficiary(ies).

Subject to payment of the appropriate recording fee, the county recorder will record the affidavit the same way it records deeds, indexed in the name of the record owner of the real property or interest in real property.

So long as the affidavit is property completed and recorded prior to the death of the owner, the owner does not need to receive any payment or other consideration in support for providing the affidavit and the affidavit does not need to be delivered the beneficiary(ies).

Upon the owner’s death, title will vest in the beneficiary(ies) that are expressly named in the affidavit and who survive the decease owner or that are in existence on the date of death of the deceased owner.

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