The four ways a house can pass

These are not alternatives a family chooses between at the death. They are consequences of how the deed was written, sometimes decades earlier, and the first three all happen before the will is read.

  1. By survivorship. Where the deed creates a joint tenancy with a right of survivorship, or a tenancy by the entireties between spouses, the survivor takes automatically on the death. Nothing in the will reaches it.
  2. By the trust. Where the deed has been transferred into a revocable living trust and re-recorded, the trust owns the house and the successor trustee deals with it. An unfunded trust that names the house but was never used to re-record the deed does nothing.
  3. By a recorded transfer-on-death instrument, where the state provides for one. The owner keeps full control during life, the beneficiary gets nothing until the death, and the transfer happens outside probate.
  4. Through the will, and probate. This is what happens when none of the first three applies, and it is the slowest and most public of the four.

The order matters. A deed held in survivorship beats a will, a trust that actually holds the deed beats a will, and a recorded transfer-on-death instrument beats a will. In every case the land records decide and the will is read afterwards.

Sahvelo has read the transfer-on-death statutes of three states so far. Where your state is not one of them, that is a statement about Sahvelo's reading and not about your state — the question to ask locally is whether the state has such an instrument, what it is called, and what it requires.

What a transfer-on-death instrument does not do

It is the cheapest way to keep a house out of probate and it is sold, sometimes, as though it were a plan. It is one instrument doing one job.

What it doesWhat it does not do

Both halves are worth knowing before relying on one.

Passes the property outside probateDoes not clear the mortgage or any lien

In the states read here the beneficiary takes subject to every encumbrance of record at the death.

Leaves the owner in full control while aliveDoes not manage the property if the owner loses capacity

That is a power of attorney or a trust, and it is a different document.

Costs a recording feeDoes not give the beneficiary any warranty of title

Illinois says so expressly, even where the instrument claims otherwise.

Names who takes the houseDoes not decide who pays the taxes, insurance and upkeep between the death and the transfer

That gap is where families argue, and the plan should say.

One requirement recurs wherever Sahvelo has read this: the instrument must be recorded before the owner dies. Signed correctly and left in a drawer, it transfers nothing, and in one of the three the statute says the failure makes it void rather than late.

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The mistakes that undo a plan quietly

None of these produces an error at the time. Each of them produces a surprise years later, usually when somebody tries to sell.

Worth checking today

  • A trust that names the house but never took title. Look at the deed, not at the trust document.
  • A transfer-on-death instrument that was signed and never recorded.
  • A later will that leaves the house to somebody else. In at least one state read here a will cannot revoke a recorded transfer-on-death instrument at all — the land records win and the will's plan for equal shares does not happen.
  • A beneficiary who witnessed the instrument. Where a state borrows the law of wills, an interested witness can lose their own gift.
  • A child added to the deed to keep things simple. That is a gift of an interest during life, with the child's creditors, divorces and capital gains position attached to it.
  • A property in more than one county, recorded in only one of them.
  • An old form. Execution requirements change — one state read here added a witness requirement in 2021, and a deed on the older form does not satisfy the current section.

The check that catches most of these takes an afternoon: get a copy of the current recorded deed from the county recorder, and read the names on it against the plan. What is recorded is what happens.

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What the deed says, and what people believe it says

The four mechanisms above are decided by wording on a recorded document, and the wording is frequently not what the family believes it to be. These are the beliefs that turn out to be wrong, and each of them is held in good faith by somebody who did something generous.

What people sayWhat decides it

In every pair below, the second column is a document somebody can go and read this week.

My daughter helped me buy the house, so it will be hersWhose names are on the deed, and in what form

Contributing money to a purchase does not by itself put somebody on the title. If she is not named on the deed, she inherits it only through a will, a trust, a transfer-on-death instrument or the intestacy statute, like anybody else.

My son is on the mortgage, so he owns itThe deed, which is a different document from the loan

A mortgage is a promise to repay money and a security interest in the property. It is possible to be liable on the loan and not be an owner, and possible to be an owner and not be liable on the loan.

My will leaves the house to my daughter, so the deed does not matterThe land records, which operate before the will is read

Survivorship, a trust that holds title and a recorded transfer-on-death instrument all take effect ahead of the will. The will disposes of what is left.

We are both on it, so it goes to whichever of us is leftWhether the deed states a right of survivorship

Being named together is not the same as holding together with survivorship. Where survivorship is not created, each owner has a separate share that goes into their own estate.

We are married, so it is automatically both of oursThe state's marital property regime, and still the deed

In Texas, for example, everything either spouse possesses during the marriage is presumed community property and proving otherwise takes clear and convincing evidence. That presumption is about ownership between the spouses; it does not tell you what the deed says or how title is held.

The forms of co-ownership, and the one that is usually the default

  • Joint tenancy with right of survivorship. The survivor takes the whole thing automatically. The words creating it have to be there; in most states they are not implied.
  • Tenancy by the entirety. A form available only to married couples, in the states that have it, carrying survivorship and some protection from one spouse's creditors.
  • Tenancy in common. Separate, undivided shares with no survivorship. Each owner's share passes into their own estate, and this is the form a deed usually creates when it says nothing else.
  • Community property, in the states that have it, sometimes with a survivorship option that has to be elected. Whether the community half passes automatically is a state question and the answer is not the same everywhere.
  • Held in trust. The trust owns it and the trust document says what happens, which is why an unfunded trust that never took title does nothing at all.

Tenancy in common is where an unresolved title starts. Because each share passes into its own owner's estate rather than to the other owners, every death without a plan divides the ownership again. Two owners become five, five become fifteen, and each round makes the property harder to sell, borrow against, insure or fix. Resolving how a property is held is much cheaper before the next death than after it.

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Not sure which of these is yours?

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What changes where you live

Three states read, and the differences are of kind rather than of detail. Read yours as your state.

What instrument does the state use, and what does it require?

The answer in 4 states

  • California

    A revocable transfer on death deed, with the strictest execution of the three. It is not effective unless it is signed by the transferor and dated, signed by two witnesses who were present at the same time and who witnessed either the signing or the transferor's acknowledgment that they had signed, and acknowledged before a notary public — all three, not any of them. The witness requirement was added in 2021, so an older form without witnesses does not satisfy the current section. On death the deed transfers all of the transferor's interest; the beneficiary must survive, and a beneficiary who does not survive simply lapses with the ordinary anti-lapse rule displaced. Where there are several beneficiaries they take as tenants in common in equal shares, and a share that lapses goes to the others rather than back to the estate. The property passes subject to any lien, encumbrance, easement or lease of record at the death or recorded within a hundred and twenty days of the post-death affidavit, and the holder may enforce against the property regardless of the transfer. One planning fact is on the face of the statute: the part creating this deed is repealed as of 1 January 2032.23

  • Illinois

    A transfer on death instrument, executed with the formalities of a will. It must carry the essential elements of a recordable deed, be attested in writing by two or more credible witnesses whose signatures and the owner's are acknowledged before a notary, state that the transfer occurs at the owner's death, and be recorded before the owner's death in every county where any part of the property sits. Failure on any of those renders it void and ineffective — not late. If a beneficiary or a beneficiary's spouse acts as a witness, that beneficiary's interest is void as to them unless there are enough other witnesses, and they may be compelled to testify as if nothing had been given to them. Revocation is equally formal: only a later transfer on death instrument or an express instrument of revocation, executed the same way and recorded before death, will do it — and the Act says in terms that it may not be revoked by a revocatory act on the instrument, by an unrecorded instrument, or by a provision in a will. The beneficiary takes subject to every mortgage, lien and encumbrance at the owner's death and without any covenant or warranty of title. Where a beneficiary dies first, their descendants living at the owner's death take per stirpes; where the order of deaths cannot be established, the beneficiary is deemed to have died first.4567

  • Ohio

    Not a deed at all — a transfer on death designation affidavit, which is why asking for a transfer-on-death deed in Ohio produces confusion. An owner holding as a sole owner, a tenant in common, a survivorship tenant, or with a spouse as tenants by the entireties may designate all or a specified part of the interest as transferable on death, executing the affidavit together with their spouse if any; where the spouse joins, the spouse's dower rights are subordinated to the beneficiary's title. It is recorded with the county recorder where the property is, in the same manner and for the same fee as a deed, and indexed in the owner's name. It needs no consideration and need not be delivered to the beneficiary — but to be effective it must be recorded before the owner dies. On death the property transfers only to beneficiaries identified by name who survive the owner or are in existence at the death, with a saving rule where a named trustee has been replaced by a successor. Knowingly making a false statement in the affidavit is the criminal offense of falsification.1

  • Texas

    A transfer on death deed, and three things decide whether one actually works. Timing: it must be RECORDED before the transferor dies, in the deed records of the county where the property sits — a deed found signed in a drawer after the death does nothing at all. Who may sign: a transfer on death deed may not be created through use of a power of attorney, in one sentence, which closes the route precisely when a family reaches for it, after capacity has gone. The capacity the owner needs is the capacity to make a contract. And what it does NOT require: no notice to, delivery to or acceptance by the beneficiary during the owner's life, and no consideration, so a beneficiary may know nothing about it. It stays revocable throughout, whatever the deed says to the contrary, and it is a nontestamentary instrument.•

Sahvelo has read all four of these states at their own sources. Another state's rule may differ, and we would rather say that than generalize.

Questions people ask about this

  • We added our son to the deed to keep it simple. Is that a problem?

    It may be, and the problems are all during life rather than after death. Adding somebody to a deed generally gives them an ownership interest now, which means their creditors, a divorce, a bankruptcy and their own tax position all attach to a share of your house. It can also change the capital gains treatment for them compared with inheriting. Sahvelo does not advise on which structure to use; what it can say is that this is a gift of an interest today rather than a plan for tomorrow, and that a transfer-on-death instrument, where the state has one, does the same job without giving anything away now.

  • My will leaves the house to my daughter. Is that not enough?

    Only if nothing else already decides it. A deed held in survivorship, a house owned by a trust, and a recorded transfer-on-death instrument all operate before the will is read. Illinois goes furthest and says so expressly: a recorded transfer on death instrument may not be revoked by a provision in a will. Check what is recorded before relying on what is written.6

  • Does a transfer-on-death deed avoid estate tax?

    No. It changes how the property passes, not whether it is part of the estate for tax purposes. Its value is avoiding probate on that asset, and — where a second state is involved — avoiding an ancillary proceeding there. Tax is a separate question with a separate answer.

  • What happens to the mortgage?

    It stays with the house. In the states read here the beneficiary takes subject to every mortgage, lien, encumbrance, lease and easement of record at the death, and the holder of those rights may enforce them against the property notwithstanding the transfer. Illinois adds that the instrument transfers without covenant or warranty of title even if it says otherwise. A transfer-on-death instrument is a way of avoiding probate, not a way of clearing debt.37

  • Can I change my mind later?

    Yes, and the way to do it is more formal than changing your mind implies. In Illinois only a later transfer on death instrument or an express instrument of revocation, executed with the same formalities and recorded before death, will revoke one — not tearing it up, not an unrecorded document, and not a will. Wherever you are, the safe assumption is that changing the plan means changing what is recorded at the county.6

  • My state is not one of the three. What do I do?

    Ask three questions locally: does this state have a transfer-on-death instrument for real property, what is it called, and what does it require. The names differ — a beneficiary deed, a transfer on death deed, a transfer on death instrument, a transfer on death designation affidavit — and so do the formalities. What appears to hold everywhere Sahvelo has read is that it must be recorded before death. Sahvelo does not assert that a state without one exists or does not; where a state is not listed here, it has not been read.

  • My daughter paid for half the house. Does she own half of it?

    Not because she paid for it. Ownership of real property comes from the recorded title, so the question is whether she is named on the deed and in what form, not who provided the money. Families in this position sometimes discover it at the worst moment, when the parent has died and the daughter finds that she is one of several people inheriting a house she thought was already half hers. If the intention is that she owns part of it now, that is a change to the deed and it has consequences during life, including her creditors and her tax position. If the intention is that she receives it when you die, the mechanisms above are how, and the will alone may not be enough.

  • I am on the mortgage but not on the deed. What am I?

    Liable, and not an owner. Those are two different documents doing two different jobs: the deed records who owns the property, and the mortgage or deed of trust records a debt and the lender's security for it. It is possible to be responsible for the payments on a house you do not own, and it is possible to own a house whose loan is in somebody else's name. If you have been paying a mortgage on a property you are not on the title to, that is worth raising while the owner is alive, because it is much easier to fix then.

Where this sits in the process

Related

Sources

Three states, and seven sections between them.

  1. Ohio Rev. Code 5302.22 (Transfer on death designation affidavit)

    Ohio: the designation affidavit, the spouse's signature, and recording before death.

    codes.ohio.gov Checked 2026-08-20

  2. Cal. Prob. Code § 5624 (Revocable transfer on death deed: execution)

    California: signature, two witnesses present at the same time, notary — and the 2032 repeal.

    leginfo.legislature.ca.gov Checked 2026-08-20

  3. Cal. Prob. Code § 5652 (Revocable transfer on death deed: effect)

    California: survival, lapse between beneficiaries, and liens of record.

    leginfo.legislature.ca.gov Checked 2026-08-20

  4. 755 ILCS 27/40 (Transfer on death instrument: requirements)

    Illinois: the four requirements, and that failing any of them makes it void.

    ilga.gov Checked 2026-08-20

  5. 755 ILCS 27/45 (Transfer on death instrument: signing, attestation, and acknowledgment)

    Illinois: witnesses like a will, and the interested-witness purge.

    ilga.gov Checked 2026-08-20

  6. 755 ILCS 27/55 (Transfer on death instrument: revocation)

    Illinois: revocation, and that a will cannot do it.

    ilga.gov Checked 2026-08-20

  7. 755 ILCS 27/65 (Transfer on death instrument: effect of transfer)

    Illinois: encumbrances, no warranty, and the simultaneous-death rule.

    ilga.gov Checked 2026-08-20

Sources last reviewed 2026-08-20. Where a source is marked pending re-verification, the page says so wherever the claim appears.