A transfer on death deed is one of the probate-avoidance tools covered in Texas estate planning: wills, trusts, and probate basics. This article explains what a Texas transfer on death deed does, what it must contain to be valid, how to record it, how to revoke it, and what happens to the property when the owner dies.
What a transfer on death deed does in Texas
A transfer on death deed names a beneficiary who receives an owner’s real property at the owner’s death. Texas created this instrument in 2015, when the Legislature passed Senate Bill 462 and adopted the Texas Real Property Transfer on Death Act, effective September 1, 2015. The act is codified at Tex. Est. Code ch. 114.
Under Tex. Est. Code § 114.051, an individual may transfer an interest in real property to one or more beneficiaries effective at the transferor’s death. The deed is nontestamentary, meaning it passes the property outside the will and outside probate. Because title moves by operation of the recorded deed rather than through a probate court, the beneficiary generally avoids the cost and delay of opening an estate for that parcel.
The instrument only reaches real property located in Texas, such as a house, land, or a mineral interest. It does not cover bank accounts, vehicles, or personal property, which pass through other mechanisms.
Requirements for a valid Texas transfer on death deed
To be effective, a Texas transfer on death deed must meet three statutory requirements set out in Tex. Est. Code § 114.055: it must contain the essential elements and formalities of a recordable deed, it must state that the transfer of the property to the beneficiary occurs at the transferor’s death, and it must be recorded before the transferor dies in the deed records of the county where the property sits.
The capacity to make a transfer on death deed is the same as the capacity to make a contract, and the deed cannot be created through a power of attorney, under Tex. Est. Code § 114.054. An agent acting under a durable power of attorney therefore cannot sign one of these deeds for the principal.
One feature makes the transfer on death deed simpler than many estate documents: it takes effect without notice to, delivery to, acceptance by, or payment from the beneficiary during the owner’s life, per Tex. Est. Code § 114.056. The owner does not need the beneficiary’s signature or even the beneficiary’s knowledge to create a valid deed.
Filing and recording the deed
Recording is the step that makes the deed work. An unrecorded transfer on death deed, or one recorded only after the owner has died, has no effect.
Identify the property and the beneficiary
Describe the real property using the legal description from the current deed, not just the street address. Name each beneficiary clearly. An owner can name more than one beneficiary and can name an alternate to take the property if the first beneficiary does not survive.
Prepare a deed that meets the statutory formalities
The document must include the elements of a recordable deed and must state that the transfer to the beneficiary happens at the owner’s death, as required by
Tex. Est. Code § 114.055. The Texas Real Property Transfer on Death Act does not prescribe a single mandatory form, so the deed must be drafted to satisfy those requirements.Sign and acknowledge before a notary
The owner signs the deed and acknowledges it before a notary public, the same way any deed intended for the real property records is acknowledged.
Record it with the county clerk before death
File the signed, notarized deed in the deed records of the county clerk’s office in the county where the property is located. Recording must happen during the owner’s lifetime for the deed to be valid.
County clerks charge a recording fee that varies by county and by the number of pages. The clerk’s office where the property is located can confirm the current fee before filing.
What the deed does not change while you are alive
A transfer on death deed creates no present interest for the beneficiary. During the owner’s life, Tex. Est. Code § 114.101 confirms that the deed does not affect the owner’s rights in the property. The owner keeps the right to sell, lease, mortgage, or give the property away, and the beneficiary has no say in those decisions.
The deed also leaves the owner’s tax treatment untouched. It does not disturb a residence homestead exemption or the additional property tax exemptions for owners who are age 65 or older, disabled, or disabled veterans, and it does not trigger a due-on-sale clause on an existing mortgage. It also does not, by itself, affect the owner’s eligibility for public assistance.
Because the beneficiary receives nothing until death, a later sale controls. If the owner records a deed conveying the property to someone else before death, that conveyance voids the transfer on death deed as to the new grantee under Tex. Est. Code § 114.102. The last recorded transaction during life governs.
Revoking or replacing the deed
A transfer on death deed is revocable no matter what the deed itself says. Tex. Est. Code § 114.057 recognizes two main ways to undo one during the owner’s life: record a later transfer on death deed that changes or cancels the earlier one, or record a separate instrument of revocation. Either document must be acknowledged after the deed being revoked and recorded in the same county’s deed records before the owner dies.
A will cannot revoke a transfer on death deed. Language in a will leaving the same property to a different person does not override a validly recorded deed, so an owner who changes an estate plan through a new will still needs to record a revocation or a replacement deed to redirect the property.
What happens to the property at death
When the owner dies, the beneficiary named in the recorded deed takes the property, but a survival rule applies. Under Tex. Est. Code § 114.103, a beneficiary must survive the owner by at least 120 hours to inherit. A beneficiary who dies within that five-day window is treated as having predeceased the owner, and that share lapses as if the deed were a gift made in a will.
The property does not arrive free of debt. The beneficiary takes it subject to all liens and encumbrances in place at death, including any mortgage or deed of trust. Creditors of the estate also retain a path to the property. If the estate’s other assets are not enough to cover valid claims, expenses, taxes, or statutory family allowances, Tex. Est. Code § 114.106 lets the estate’s personal representative enforce that liability against the transferred property to the same extent as if it had passed through probate. A proceeding to enforce this liability must begin no later than the second anniversary of the owner’s death, and if the personal representative does not act within 90 days after a demand for payment, a creditor or other interested person may bring the claim.
A beneficiary who does not want the property can decline it. Tex. Est. Code § 114.105 allows a beneficiary to disclaim all or part of the interest under the disclaimer rules in Chapter 122 of the Estates Code.
Frequently asked questions
Does a transfer on death deed avoid probate in Texas?
For the real property it covers, yes. Title passes to the beneficiary at death under the recorded deed rather than through a probate proceeding. Other assets that are not covered by the deed, such as accounts or vehicles without their own beneficiary designations, may still require probate or a separate procedure.
Can the owner still sell the house after signing the deed?
Yes. Tex. Est. Code § 114.101 confirms the owner keeps full ownership during life, including the right to sell, mortgage, or give the property away. A sale recorded before death voids the transfer on death deed as to the buyer.
What is the difference between a transfer on death deed and a will?
A transfer on death deed is nontestamentary and moves a specific parcel of real property outside probate when it is recorded before death. A will directs the whole estate and takes effect only through probate. A will cannot revoke a transfer on death deed, so the two documents are read together, with the recorded deed controlling the property it names.
Can more than one person be named as beneficiary?
Yes. An owner can name multiple beneficiaries, who take the property in equal, undivided shares with no right of survivorship unless the deed provides otherwise. An owner can also name an alternate beneficiary in case the first beneficiary does not survive the required 120 hours.
Does the beneficiary owe the mortgage?
The property passes subject to any mortgage or lien on it at the owner’s death, so the loan stays attached to the property. The beneficiary who keeps the property is responsible for satisfying the debt secured by it, and estate creditors may reach the property if the estate’s other assets fall short.