Transfer on Death Deeds and Avoiding Probate

For whatever reason, many clients wish to minimize or avoid probate. In the past a living revocable trust was utilized to accomplish this goal. However, this dated, and often expensive device can be replaced if the bulk of an estate is held in a home. Several years ago Wisconsin adopted the Transfer of Death Deed. And I recently came across a wonderfully concise description:

A TOD Deed allows the owner of real property to execute a deed that names a beneficiary who will succeed to ownership at the owner's death. Because the TOD Deed creates no rights in the beneficiary until the owner dies, the owner can change his or her mind during life, and the beneficiary's creditors cannot attach the beneficiary's interest in the property during the owner's life. The recordation of the TOD Deed also does not create a completed gift for gift tax purposes because no transfer of ownership takes place until the owner dies.

From, Death Without Probate: TOD Deeds--The Latest Tool in the Toolbox, Prob. & Prop., March-April 2010, at 13.

One limitation of the TOD Deed -- it cannot be used with a class of people, i.e. "I leave my property to my children". Instead, actual names must be listed. Practically, this works best when only one person stands to inherit. Which leads to a second limitation, there is no room for contingency planning. While not perfect, it is a simple, and cost-effect alternative to the living revocable trust.

As always, it is best to consult with a lawyer specializing in estate planning and probate before acting.