When creating an estate plan, avoiding probate is one primary objective. The probate process can be complicated and take months to resolve. A Transfer on Death (TOD) affidavit is one means by which an estate can avoid probate.
Ohio Revised Code Section 5302.23 allows an individual to designate a beneficiary for their property, or properties. When the property owner dies, the property will automatically pass to the named beneficiary without going through probate.
Is a Transfer on Death affidavit right for you? We’ve provided some valuable information for you below.
What do Transfer on Death affidavits require?
Transfer on Death affidavits have been in effect in the state of Ohio since December 2009. (Transfer on Death deeds, filed prior to December 2009, are still legally valid, however they can no longer be created. Transfer on death affidavits have effectively replaced them.)
To take advantage of this opportunity, you must file an affidavit which:
- Describes the property and instrument number;
- Describes the portion (whether whole or in part) of the property to be transferred;
- States whether or not the owner is married (if so, the spouse must sign the affidavit as well);
- Names the beneficiary or beneficiaries; and
- Is notarized and filed before the property owner’s death.
A Dworken & Bernstein attorney can help you create an affidavit that meets all of the legal requirements.
Factors to consider
You may transfer your property to an individual, a trust or a legal entity, such as a limited liability company. In fact, you may name multiple beneficiaries. For example, upon your death, you can transfer your share of a property to one or all of your adult children. Doing so will avoid the property from going to probate. Furthermore, the beneficiaries’ shares do not have to be equal.
While Transfer on Death affidavits are quite useful, they’re not a one-size-fits-all solution. For instance, a trust may offer more attractive legal advantages, such as protection from creditor and divorce claims. On the other hand, couples who are planning for Medicaid may wish to eschew probate avoidance deeds and use another estate planning solution entirely. Depending on your specific estate planning goals, our attorneys will be able to recommend the best way to achieve them.
No matter the size of your estate, both you and your beneficiaries will benefit from an attorney’s guidance. Let the lawyers at Dworken & Bernstein help you: call us today for a consultation.