An Ohio Transfer on Death Designation Affidavit lets you name who will inherit your real estate the moment you die, without probate, while you keep full ownership and control during your lifetime. It is authorized by Ohio Revised Code 5302.22, costs a modest recording fee, and can be revoked or changed at any time.1Ohio Legislative Service Commission. Ohio Code 5302.22 – Transfer on Death Deed Form Done correctly, it is one of the simplest estate planning tools in Ohio. Done carelessly, it can leave your beneficiary fighting a surviving spouse over dower rights or watching Medicaid claim the house.
What the Affidavit Has to Include
The affidavit has to match your existing deed exactly. That means the full legal description of the property (the boundary-by-boundary narrative on your most recently recorded deed, not the street address) and the permanent parcel number the county auditor uses for tax purposes. It must also reference the recorded instrument that contains the property description.1Ohio Legislative Service Commission. Ohio Code 5302.22 – Transfer on Death Deed Form
Beyond the property information, you name each beneficiary by full legal name. You can list multiple beneficiaries as tenants in common, as survivorship tenants, or in unequal shares. You sign in front of a notary. Any mismatch between the affidavit and the recorded deed can invalidate the transfer, so this is a document to prepare carefully rather than quickly. Most county recorder offices post blank forms on their websites.
The Spousal Signature Most People Miss
Ohio is one of the few states that still recognizes dower. A surviving spouse is entitled to a life estate in one-third of any real property the other spouse owned during the marriage.2Ohio Legislative Service Commission. Ohio Code 2103.02 – Dower That right survives the TOD affidavit unless the spouse signs it. The statute requires the spouse’s subordinating statement inside the affidavit itself, not as a separate paper.1Ohio Legislative Service Commission. Ohio Code 5302.22 – Transfer on Death Deed Form
If you name someone other than your spouse (a child from an earlier marriage, for example) and your spouse hasn’t signed, your beneficiary inherits the property burdened by your spouse’s life estate in one-third of it. This is where second-marriage plans quietly fall apart.
Recording It With the County
After notarization, file the affidavit with the county recorder in the county where the property sits. Recording fees are $34 for the first two pages and $8 for each additional page.3Ohio County Recorder. State of Ohio County Recorder Table of Fees Payment methods vary by county.
Recording must happen during your lifetime. An unrecorded affidavit is worthless, however carefully drafted. Once recorded, the document sits in the public land records; your beneficiaries don’t need to be told, and they get no current interest in the property. They are pure future takers until the day you die.
Changing or Cancelling the Designation
You can change or cancel a TOD designation at any time, without the beneficiary’s knowledge or consent. To replace it, execute and record a new affidavit; the new one automatically supersedes anything filed before.4Ohio Legislative Service Commission. Ohio Code 5302.23 – Designating Transfer on Death Beneficiary To remove the designation without naming anyone new, record an affidavit that states the revocation. Selling the property during your lifetime eliminates the designation on its own, because the affidavit only reaches property you still own at death.
If a Beneficiary Dies Before You Do
A beneficiary who predeceases you doesn’t pass their share to their own heirs. The interest lapses. If you named multiple beneficiaries, the surviving ones absorb the lapsed share. If every named beneficiary dies before you and no contingent beneficiaries were named, the property drops into your probate estate, defeating the point of the affidavit.4Ohio Legislative Service Commission. Ohio Code 5302.23 – Designating Transfer on Death Beneficiary
The fix is to name contingent beneficiaries in the original affidavit. The wording is straightforward: “Mary Smith, if living; otherwise John Smith.” Review your affidavit every few years to be sure your named people are still alive and still the ones you want to inherit.
What Beneficiaries Do After the Owner Dies
Title doesn’t update automatically. Your surviving beneficiaries have to file an Affidavit of Confirmation with the county auditor and county recorder in the county where the property is located.5Ohio Legislative Service Commission. Ohio Code 5302.222 – Transfer of Deceased’s Real Property The Affidavit of Confirmation is notarized and includes:
- The name and address of each beneficiary who survived the owner.
- The name of each beneficiary who did not survive, with a certified copy of that person’s death certificate.
- The owner’s date of death, with a certified copy of the owner’s death certificate.
- A description of the property being transferred.
Beneficiaries should also file a DTE 100EX form with the county auditor to claim the exemption from Ohio’s real estate conveyance fee; transfers on the death of a registered owner qualify.6Ohio Department of Taxation. DTE 100EX – Statement of Reason for Exemption From Real Property Conveyance Fee Recording fees for the confirmation affidavit follow the same schedule as the original: $34 for the first two pages plus $8 per additional page.3Ohio County Recorder. State of Ohio County Recorder Table of Fees Once the recorder processes the filing, the tax records update and the beneficiaries can sell, mortgage, or otherwise manage the property.
Mortgages and Liens Pass With the Property
A TOD affidavit doesn’t wipe out debts secured by the property. Beneficiaries take the property subject to every existing encumbrance: mortgages, judgment liens, mechanic’s liens.4Ohio Legislative Service Commission. Ohio Code 5302.23 – Designating Transfer on Death Beneficiary A $150,000 balance stays a $150,000 balance in the beneficiary’s hands.
Federal law does keep the lender from calling the loan due all at once. The Garn-St. Germain Act blocks enforcement of a due-on-sale clause when property transfers on the borrower’s death or passes to a relative after the borrower dies.7Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions Your beneficiary can keep making the existing payments. Whether they can afford to is a separate question, and one worth thinking about before naming a beneficiary for a heavily mortgaged property.
Medicaid Estate Recovery Can Still Reach the Property
This is the trap. Ohio’s Medicaid estate recovery program uses an expanded definition of “estate” that reaches beyond probate. Under Ohio Administrative Code 5160:1-2-07, the recoverable estate includes any real or personal property in which the deceased had a legal interest at death, including property conveyed through joint tenancy, tenancy in common, survivorship, life estates, living trusts, or “other arrangement.”8Ohio Legislative Service Commission. Ohio Administrative Code 5160:1-2-07 – Medicaid: Estate Recovery TOD-transferred property fits within that reach.
If the owner received Medicaid-funded nursing facility care or home and community-based services, Ohio can seek recovery of those costs from property that passed through a TOD affidavit. Federal law requires states to recover at minimum from probate assets and allows them to go further; Ohio has chosen to go further.9Medicaid.gov. Estate Recovery Recovery is barred when the deceased is survived by a spouse, a child under 21, or a blind or disabled child of any age. Once those protections no longer apply, the state’s claim can reach the property regardless of the TOD designation.
Taxes for the Beneficiary
Stepped-Up Basis
Property received through a TOD affidavit qualifies for a stepped-up basis under federal law. The beneficiary’s cost basis becomes the fair market value on the owner’s date of death, not what the owner originally paid.10Office of the Law Revision Counsel. 26 U.S. Code 1014 – Basis of Property Acquired From a Decedent A house bought in 1990 for $80,000 and worth $300,000 at death gives the beneficiary a $300,000 basis. Selling near that value produces little or no taxable gain. This is a meaningful advantage over receiving property as a lifetime gift, which carries over the donor’s original basis. Beneficiaries who plan to sell should get a professional appraisal to document the date-of-death value in case the IRS ever questions it.
Estate Tax
Ohio repealed its state estate tax effective January 1, 2013, so no Ohio estate tax applies.11Ohio Department of Taxation. Estate Tax Federal estate tax only affects large estates, and the TOD property is included in the deceased owner’s gross estate for that calculation even though it skips probate.12Internal Revenue Service. Estate Tax The elevated federal exemption under the Tax Cuts and Jobs Act is scheduled to sunset in 2026, reverting the basic exclusion to its pre-2018 level of $5 million adjusted for inflation.13Internal Revenue Service. Estate and Gift Tax FAQs For most Ohio homeowners, federal estate tax will not be a factor, but owners with substantial combined assets should keep the lower threshold in mind.