In my years of practice, I have yet to meet anyone who wants to go through probate, whether as a beneficiary or personal representative. While it may be necessary at times, it is much like the line at the DMV; if it can be avoided, it should.
Some ways to avoid probate include naming death beneficiaries on bank accounts, life insurance, retirement accounts, and investment accounts. However, probate may still be necessary if real estate is involved. This happens most often when a surviving spouse dies owning property that was held in joint tenancy with their previously deceased spouse. So what options are available for real estate? While I will always prefer a living trust as the best route for avoiding probate (and so much more), a Transfer on Death Deed is another option.
WHAT IS IT?
Minnesota enacted the statute for transfer on death deeds in 2008. Frequently referred to as a TODD, the deed transfers the title to your home or other real property to your chosen beneficiaries when you die. The Transfer on Death Deed must be signed by you, and must be notarized and recorded with the county before you die, or it will not be a valid transfer. Until you die, no interest is created in the property for your beneficiary. You retain total control over the property, just like before the TODD was signed and recorded. You can change your mind and revoke the TODD, or name new beneficiaries by recording a revocation and new TODD. As the beneficiary of a transfer on death deed has no interest in the property during your lifetime, your beneficiary’s consent is not required for any financial transactions involving the property.
When you die, your beneficiary records an affidavit with a death certificate, and the title to the property passes to them. Your beneficiary does not have to go to court. He or she immediately owns the property by operation of law.
WHEN TO USE IT?
Transfer on death deeds can avoid probate and keep things simple. In the right set of circumstances, it can be an effective estate planning tool. The best use of a TODD would be a person owning real property, and wanting that property to transfer to just one adult. Outside of that ideal scenario, there are pitfalls of which to be aware.
WHEN NOT TO.
A TODD may not be the best choice for all scenarios, and could create more issues than it solves if family members are unhappy with the result. It would be wiser to not use a TODD when more than two family members will receive the property. Compare the cost of a court fight over real estate with the expense of a living trust or even probate, the court battle will cost more and leave emotional wreckage in its wake.
Other instances when a TODD should not be the first choice include a transfer to children under the age of 18 or to adult children who do not get along (it happens). Financial factors can change whether a TODD is advisable as well. For example, a large mortgage without other inheritance assets can create a burden for the intended beneficiary.
HOW TO REVOKE IT.
1) File a revocation; 2) File a new TODD, giving the property to someone else (the latest date will control which TODD is valid); or 3)Transfer the property through a standard deed. Unless the TODD is drafted to the contrary, a divorce will automatically revoke a TODD interest given to your ex-spouse.
Final note: In some cases, a TODD can be a simple and effective method to avoid probate. Contact an estate planning attorney to help you decide if it’s right for you.
Attorney: Amy L. Marble
Amy was raised in North Dakota. After graduating from Saint Louis University School of Law in 1996, she moved with her husband to his home state of Minnesota. Initially practicing in the field of Personal Injury law, Amy branched out to start her own practice in Estate Planning in 2003. In 2009, she stepped away from the practice of law to spend more time raising their family. Amy joined Stier Law in our Eagan office in 2015 and continues to focus her practice in the areas of Estate Planning, and Trust and Estate Administration.