Texas Transfer-on-Death Deed

At a glance

How the deed works

Texas authorizes the transfer-on-death deed under the Texas Real Property Transfer on Death Act, Tex. Est. Code ch. 114 (§§ 114.001–114.152), effective September 1, 2015. An individual may transfer real property to one or more beneficiaries effective at death, outside probate, while retaining full control during life; the deed transfers the property without any covenant or warranty of title even if it says otherwise.

To be valid the TOD deed must contain the essential elements of a recordable deed, state that the transfer occurs at the transferor's death, be signed and acknowledged before a notary, and — critically — be recorded before the transferor's death in the county where the property is located (Tex. Est. Code § 114.055). The deed need not be delivered to or accepted by the beneficiary and need not be supported by consideration during the owner's life.

At death, the interest passes to a designated beneficiary who survives the transferor by at least 120 hours (Tex. Est. Code § 114.103). A TOD deed cannot be made irrevocable; any language purporting to waive the power to revoke is ineffective.

Recording & execution requirements

A transfer-on-death deed only works if it is executed and recorded correctly. In Texas:

• Recording before death: Must be recorded before the owner's death.
• Governing statute: Tex. Est. Code ch. 114 (§§ 114.001–114.152) Texas Real Property Transfer on Death Act (Tex. Est. Code ch. 114) · effective September 1, 2015 (S.B. 462, 84th Leg.).

Changing or revoking the deed

Under Tex. Est. Code § 114.057, an owner with capacity may revoke a recorded TOD deed at any time by recording, before death, either a new TOD deed that expressly revokes the prior one (or names a different beneficiary), or a separate instrument of revocation. The revoking instrument must itself be recorded during the owner's life in the county where the original was recorded.

A TOD deed cannot be revoked by a will, and — unlike some states — it generally cannot be revoked by a divorce decree alone unless the decree or a recorded instrument addresses the property, so beneficiaries and revocation should be revisited after a divorce.

Mortgages, Medicaid & community property

Existing mortgages and liens

A TOD deed passes the property subject to existing encumbrances. Under Tex. Est. Code ch. 114, the beneficiary takes the interest subject to all conveyances, encumbrances, assignments, liens, and other interests in effect at the transferor's death — mortgages, home-equity liens, judgment liens, and tax liens survive the transfer and remain the beneficiary's burden.

Medicaid estate recovery

A Texas TOD deed avoids probate but does not automatically defeat Medicaid estate recovery; Texas's Medicaid Estate Recovery Program (MERP), administered by Texas Health and Human Services, historically applies to the probate estate, so a nonprobate TOD transfer may fall outside a MERP claim — but this is administrative policy that can change and depends on the facts. Note that the enhanced life estate (Lady Bird) deed is the tool Texas HHSC's MEPD policy specifically addresses for the homestead; anyone doing Medicaid planning should confirm current MERP treatment with Texas HHSC and an attorney licensed in Texas.

Community property

Texas is a community-property state. Texas is a community-property state. Real property acquired during marriage is presumptively community property, and one spouse generally cannot use a TOD deed to transfer more than that spouse's own interest — a TOD deed signed by only one spouse over community property passes only that spouse's community half. Spouses who both want their interests to pass by TOD deed typically both sign (or each execute a deed), and community-property survivorship agreements are a separate, well-established Texas alternative.

Texas is one of the states that genuinely recognizes the enhanced life estate ('Lady Bird') deed, and it is a distinct tool from the ch. 114 TOD deed. Recognition rests on common-law/practice (preserved by ch. 114's nonexclusivity provision, which states the act does not affect other permitted methods of transfer) and on Texas HHSC's Medicaid (MEPD) policy, which treats a properly drafted enhanced-life-estate homestead transfer to certain relatives as not triggering a transfer penalty. It has no dedicated Texas statute of its own.

State-specific quirks

Where to read next

• Texas estate & inheritance tax — whether Texas taxes what you leave behind, and the small-estate probate ceiling, each figure cited to the statute.
• The Executor & Heir’s Guide — the probate deadlines for Texas, cited to the controlling statute.
• Funding a revocable trust — a common way to keep many kinds of property out of probate.
• ← Back to the transfer-on-death deed comparison

Sources & methodology