Also known as: TOD Deeds · transfer on death deed · transfer-on-death deed · Transfer on Death Deed · TODD
Written by attorneys · grounded in primary & secondary sources — see below
A deed that permits an owner of real property to designate one or more beneficiaries who will receive the property upon the owner's death. The instrument takes effect only at death and passes title outside of probate. The mental capacity required to execute or revoke the deed equals the capacity required to make a will.
Elliot, diagnosed with early-stage Alzheimer's, met with an attorney and executed a transfer on death deed for his desert home naming his friend Maria as beneficiary. The deed was recorded. After Elliot's death his grandchildren contested the deed on capacity grounds. The court rejected the challenge because Elliot understood the property, his existing will beneficiaries, and his intent to favor Maria at the time of execution.
Elaine, living in a memory care unit, executed and recorded a transfer on death deed for her suburban house naming her home health aide Marco as beneficiary. After Elaine's death her nieces challenged the deed. The court upheld the deed because Elaine possessed the required mental capacity on the day she signed and the instrument validly directed the house to Marco at her death.
Select any source to read its text and confirm it supports the definition.
The capacity required equals the capacity to make a will. A person must understand the nature of the act, the property involved, the natural objects of her bounty, and the disposition being made. Early-stage dementia or mild cognitive impairment does not automatically defeat capacity if the transferor met this standard on the day of execution.
Supporting sources
No. Courts evaluate capacity at the moment of execution rather than relying on a diagnosis. Evidence that the transferor understood the property, existing beneficiaries, and the new disposition can establish sufficient testamentary capacity even when early-stage Alzheimer's is present.
Supporting sources
Yes. The governing standard is testamentary capacity, not the higher contractual capacity standard. The deed functions as a will substitute, so the lower will-capacity threshold applies.
Supporting sources