Re: Wills

You may consider removing real estate from your will (to avoid probate) and executing a Revocable Transfer on Death Deed (TOD). This type of transfer is valid if you live in Missouri, Kansas, Ohio, Arizona, New Mexico, Nevada, Colorado, Arkansas or Wisconsin.

A Revocable Transfer on Death Deed (TOD) is a real estate deed that allows you to designate a beneficiary to whom your real estate will pass when you die. Generally speaking, a valid Revocable Transfer on Death Deed has the following elements and affects:

(1) The deed must state prominently that no interest in the real estate is conveyed until after the transferor's death. The deed does not need to be delivered to the beneficiary, but must be recorded prior to death to be effective as a transfer. The property passes outside of probate. The deed can be revoked at any time prior to death. The beneficiary has no present interest in the property as the property remains within the transferor's absolute possession, custody and control;

(2) The transferor's will does not effect the transfer on death unless the beneficiary dies prior to the transferor;

(3) The property is subject to the transferor's creditor's claims but not the beneficiary's creditor's claims;

(4) The property remains taxable to the decedent's estate; and

(5) The beneficiary simply records a death certificate to effectuate a transfer.

The Transfer on Death Deed is similar to an Enhanced Life Estate Deed (or Lady Bird Deed). In addition to the states mentioned above, California is also considering a statute that would recognize the Transfer on Death Deed.

Your attorney can advise further.