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Does a transfer on death deed avoid probate?

Yes. A properly executed and recorded transfer on death deed keeps that property out of probate entirely. It does not keep anything else out of probate, and it does not make the property free of the debts attached to it.

Reviewed July 28, 2026
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What happens at death, step by step

  1. The transfer is automaticBy operation of law, at the moment of death. No court, no executor, no waiting period.
  2. The beneficiary records proofUsually a certified death certificate plus a state-specific affidavit, filed with the same county office that recorded the deed.
  3. Title is theirsThe chain of title now runs through the recorded TOD deed. They can sell, refinance, or occupy the property.

The whole process typically takes a few weeks and costs a recording fee. Probate on the same property would commonly take six to eighteen months and cost between three and seven percent of its value.

What still goes through probate

  • Every other asset you own that has no beneficiary designation or survivorship arrangement.
  • Any property the TOD deed does not name: a second home, a rental, land in another state.
  • Personal property: furniture, jewellery, vehicles without a TOD title.
  • Bank and investment accounts with no payable-on-death designation.

What avoiding probate does not mean

Avoiding probate is not the same as avoiding debt or tax

The mortgage, liens, and property taxes travel with the property. Federal and state estate tax, where they apply, are calculated on your whole estate including non-probate transfers. Medicaid estate recovery may still reach the property in some states.

When the deed fails to avoid probate

  1. It was never recorded, or was recorded after death.
  2. It was recorded outside a state deadline. California's 60-day rule voids the deed outright.
  3. Every named beneficiary died before you and no alternate was named.
  4. The legal description was wrong, so the deed didn't cover the property you meant.
  5. It was executed without the witnesses your state requires. Illinois requires two.
  6. The property was sold or refinanced into different ownership before death.
Create a TOD deed that works

Your state's timing rules, witness requirements, and alternate beneficiaries all handled.

Common questions

Usually two to six weeks. The time it takes to get certified death certificates and record the affidavit. Compare that to six to eighteen months for probate in most states.

No. Property passing by TOD deed is still included in your gross estate for federal estate tax purposes, and for state estate or inheritance tax where those apply. It avoids the probate *process*, not the tax.

They do not pay income tax on the inheritance itself. They receive a stepped-up basis equal to the property's fair market value at your death, which usually eliminates capital gains on the appreciation during your lifetime. That step-up is often worth more than the probate savings. Talk to a tax professional about your situation.

Keep reading

Deedly is not a law firm

We provide self-help software and state-specific statutory forms; you make your own decisions about your property. Using Deedly does not create an attorney-client relationship, and nothing here is legal advice. If your situation is complex or contested, talk to a licensed attorney in your state.