The Ritter & Randolph, LLC Blog

Avoiding Probate Administration of Your Ohio Real Estate: Survivorship Deeds & Transfer-On-Death Designation Affidavits

Erica L. Groman, Esq.

As an estate-planning attorney, one of the most common concerns that clients have is what will happen to their house upon their death. Considering that, for many Americans, the largest asset that they own is their real estate, this is a valid concern that needs to be addressed in a client’s estate plan.

The real estate of an individual who dies will likely be subject to administration by the Probate Court unless proper mechanisms are in place to avoid such administration. In Ohio, two of the most popular of these mechanisms include the Survivorship Deed and the Transfer-On-Death Designation Affidavit.

In Ohio, a Survivorship Deed is used to convey title to real estate to two or more people as joint tenants with rights of survivorship. Upon the death of an owner, the property passes to the surviving owner(s). A Survivorship Deed is commonly utilized to convey property to spouses. In this scenario, when the first spouse dies, the second spouse becomes the sole owner of the real estate. The surviving spouse must execute a simple Affidavit of Survivorship to memorialize the transfer. The affidavit, along with the deceased spouse’s death certificate, will then be recorded with the County Recorder’s Office to officially document that the transfer took place.

Although Survivorship Deeds are common between spouses, this does not necessarily mean that an instrument deeding property to spouses is, in fact, a Survivorship Deed. Survivorship Deeds contain special language that enables the property to transfer to the surviving owner(s) upon the deceased owner’s death. In the absence of this language, the deceased owner’s share of the real estate will not automatically transfer to the surviving owner, and the share will almost certainly require Probate Court administration to be transferred out of the deceased owner’s name. Thus, it is important to know and understand how your real estate is deeded.

The Transfer-On-Death Designation Affidavit is another legal instrument used to avoid the Probate Court’s administration of real estate upon the property owner’s death. A Transfer-On-Death Designation Affidavit allows the owner of Ohio real estate to designate one or more beneficiaries of the property. Upon the death of the owner, the property will transfer to the beneficiaries, and thus will avoid probate administration. The beneficiaries will simply need to execute an Affidavit of Confirmation. This affidavit and the deceased owner’s death certificate can then be recorded with the County Recorder’s Office to finalize the transfer of the property.

During the life of the owner, the designated beneficiaries do not have any legal right to the real estate, and the owner is free to transfer or sell the real estate without the beneficiaries’ consent. The owner may also amend or revoke the Transfer-On-Death Designation Affidavit if they so choose.

After understanding the fundamentals of Survivorship Deeds and Transfer-On-Death Designation Affidavits, many clients wonder if they can execute a Transfer-On-Death Designation Affidavit for property that was conveyed to them using a Survivorship Deed. The answer is yes!

Individuals who own Ohio real estate conveyed jointly with survivorship rights can execute a subsequent Transfer-On-Death Designation Affidavit. This is most commonly seen when spouses who own property that was previously conveyed to them by a Survivorship Deed execute a Transfer-On-Death Designation Affidavit naming their children as beneficiaries. In this example, the property will pass to the surviving spouse upon the death of the first deceased spouse, and upon the death of the survivor, the property will pass to the children named in the Transfer-On-Death Designation Affidavit. With properly executed instruments, both transfers will occur without court administration.

If you own real estate, it is important that you understand how your property is currently deeded and what will happen to your real estate upon your death. If either of these do not meet your intent, you should consider executing estate planning documents and real estate instruments to reflect your current wishes.

*This information is not, nor is it intended to be, legal advice. If you are seeking legal advice, you should contact an attorney. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. *

Estate Planning for Parents with Children

Erica L. Groman, Esq.Do you have children or plan to have children in the near future? If so, do you have a current estate plan to provide for your children in the event of your death?

A 2017 survey performed by Caring.com found that only 36% of parents with children under the age of eighteen (18) have an end-of-life plan in place. Although planning for death is not something most parents look forward to doing, executing such a plan allows parents to direct and maintain control over the care of a child in the event of their deaths.

The most important part of estate planning with a minor child is designating a guardian to care for the child. If both parents of a minor child die, the guardian is the person who will be responsible for the care of the child. In most cases, the guardian will effectively fill the place of the parents and will ensure that the child’s needs, including health care, education, maintenance, and general welfare, are met until the child reaches the age of eighteen (18). Parents can designate a guardian for their child by executing a Last Will and Testament.

When parents die without designating a guardian in their estate planning documents, the court will choose and appoint a guardian to care for the minor child (“guardian of the person”). Oftentimes disputes arise between family members over who the court should select as the guardian. The court will hear the testimony of the applicants, and it will ultimately decide which applicant will become the guardian. The guardian chosen by the court may not be the person who the parents themselves would have chosen as guardian. To avoid the court selecting a guardian for a minor child, parents should be sure to execute estate planning documents that include a guardianship designation for any children.

Additionally, parents should plan for the disposition of their assets to children. If the parents of a minor child die without an estate plan, the court may need to appoint a guardian to manage the inherited assets (“guardian of the estate”) during the child’s minority. In most cases, upon reaching the age of eighteen, the child will then assume the inherited assets as their own.

By executing estate planning documents, parents can maintain control over the inheritance that a child will receive at their death, even if the child is over the age of eighteen. To effectuate this, some parents may choose to create a trust. A trust can set forth conditions for the disposition of the assets, including the age or ages a child will receive their inheritance. Because of its versatility, the trust is an important tool for parents to consider for estate planning.

If you are a parent, or are thinking of becoming one, it is important for you to consider executing estate planning documents to plan for the care of your children.

*This information is not, nor is it intended to be, legal advice. If you are seeking legal advice, you should contact an attorney. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. *