Ohio Transfer on Death Deed Statute: Affidavit, Beneficiaries, Recording

An Ohio transfer on death deed lets a property owner name someone to receive real estate automatically at death, without probate, while keeping full control of the property during life. Ohio Revised Code sections 5302.22 and 5302.23 govern the tool, which the statute formally calls a transfer on death designation affidavit. The owner signs and records the affidavit now; the beneficiary gets nothing until the owner dies and then records a confirmation affidavit to complete the transfer. It is one of the simplest estate planning instruments Ohio offers, but a handful of requirements, especially around a spouse’s signature and Medicaid recovery, trip people up.

Who Can Create One

Any Ohio real estate owner who is at least 18 and mentally capable can create a TOD designation. That includes sole owners, tenants in common, survivorship tenants, and spouses holding property as tenants by the entireties. A court can void the deed later if it finds the owner lacked capacity or signed under undue influence.

The Spousal Signature Requirement

This is the requirement people miss most often. If the owner is married, the spouse must also sign the affidavit and include a statement that their dower rights are subordinate to the TOD beneficiary’s interest. Dower gives a surviving spouse a claim to a portion of real property owned by the deceased spouse, and without the signed subordination, the TOD designation may not transfer clear title. The affidavit must state the owner’s marital status either way; if the owner is unmarried, that fact is stated instead.¹

Co-Owners

A tenant in common can designate a TOD beneficiary for their own share without asking the other co-owners. Survivorship tenants can also make a designation, but the transfer only takes effect after the last surviving tenant dies. The survivorship arrangement plays out first, and the TOD beneficiary receives the property only when no co-owners remain.¹

What the Affidavit Must Contain

The TOD designation affidavit is not a traditional deed that conveys ownership now. It records the owner’s instruction that the property should pass to the named beneficiaries at death. The document must include:

A statement that the person signing is the record owner of the property.
The owner’s marital status, and if married, the spouse’s signed subordination of dower rights.
Each beneficiary’s full legal name.
The legal description of the real estate, matching what appears in prior recorded deeds or county tax records.
Clear language that the transfer takes effect only upon the owner’s death.

Until the owner dies, the beneficiary has no ownership, no right to occupy the property, and no ability to encumber it.²

Signing, Notarizing, and Recording

The owner (and spouse, if applicable) signs the affidavit in front of a notary public. No witnesses are required, which is different from executing a will. An Ohio notary may charge up to $5 for an in-person notarization or up to $30 for an online notarization.³

Then the affidavit must be recorded with the county recorder in the county where the property sits, and it must be recorded before the owner dies. An unrecorded TOD designation has no legal effect.¹

The base recording fee is $34 for the first two pages, plus $8 for each additional page. Some counties add a preservation surcharge of up to $5 per document. Because no ownership changes during the owner’s lifetime, no conveyance fee is owed at recording, but the county auditor may require a DTE 100EX form to document the exemption. Recorders reject documents that miss formatting standards for margins, legibility, or legal descriptions, so check requirements before submitting.

Choosing Beneficiaries

Ohio allows individuals, trusts, and organizations to serve as TOD beneficiaries. Getting the designation right matters, because errors here can send the property to probate, which is exactly what the deed was meant to avoid.

Multiple Beneficiaries

If the owner names more than one beneficiary, they take title as tenants in common in equal shares unless the affidavit says otherwise. The owner can specify unequal shares or direct that beneficiaries hold title as survivorship tenants. When beneficiaries hold as survivorship tenants and one dies before the owner, the survivors take the entire property.²

Contingent Beneficiaries

Always name a contingent beneficiary. If a primary beneficiary dies before the owner and no contingent is named, that share falls into the owner’s probate estate. If every named beneficiary predeceases the owner and no contingent exists, the entire property goes through probate.²

Minors as Beneficiaries

Naming a minor directly creates complications, because a minor cannot manage real estate. One option is designating a custodian under the Ohio Uniform Transfers to Minors Act, which allows an adult to manage the property until the minor reaches the age set by statute, typically 21 in Ohio.⁴ A more flexible alternative is naming a trust as the beneficiary, so the trust document controls when and how the minor receives the property.

Changing or Revoking the Designation

Because the beneficiary has no interest until the owner dies, the owner can change or revoke the designation at any time. The change has to be recorded to count. Destroying the original document, crossing out names, or writing in changes has no legal effect. To revoke without replacing the beneficiary, the owner records a revocation affidavit. To change beneficiaries, the owner records a new TOD designation affidavit that supersedes the earlier one. If the owner sells or gives the property away during life through an ordinary deed, the TOD designation becomes meaningless because the owner no longer holds title at death.¹

Mortgages, Liens, and Creditor Exposure

A TOD deed does not wipe out a mortgage, judgment lien, or any other encumbrance. The beneficiary receives only what the owner actually held at death, subject to every existing lien. A $150,000 mortgage on the property at the owner’s death travels with the property to the beneficiary.²

Ohio law explicitly protects lienholders. No mortgagee, judgment creditor, or mechanic’s lien holder loses any rights because of a TOD designation, and a foreclosing lienholder does not have to name the TOD beneficiary as a party unless that beneficiary holds some other interest.²

The other direction is more favorable. A beneficiary’s creditors cannot reach the property while the owner is alive, because the beneficiary has no legal interest yet. That is a meaningful advantage over joint tenancy, where adding someone to title can expose the property to that person’s creditors immediately.

What the Beneficiary Has to Do After the Owner Dies

The property does not appear in the beneficiary’s name automatically. To complete the transfer, the beneficiary needs to:

Complete a Transfer on Death Confirmation Affidavit under Ohio Revised Code 5302.222.
Sign the confirmation affidavit before a notary public.
Attach a certified copy of the owner’s death certificate.
Include a copy of the original TOD designation affidavit or a legal description of the property.
File with the county auditor’s transfer department, which may charge a small per-parcel fee, and complete a conveyance fee exemption form.
Record the confirmation affidavit with the county recorder after the auditor processes the transfer. Standard recording fees apply.

Do not delay this. Until the confirmation affidavit is recorded, county records still show the deceased owner as titleholder, which creates problems for selling, refinancing, or insuring the property.

Medicaid Estate Recovery

Ohio requires every TOD beneficiary to complete a Medicaid estate recovery form as part of the transfer process, under Ohio Revised Code 5302.221.⁵ The form asks whether the deceased owner received Medicaid benefits. If the owner received Medicaid long-term care benefits, the state’s Medicaid estate recovery program under Ohio Revised Code 5162.21 may assert a claim against the property to recoup those costs. Ohio’s statutory framework, by making this form a condition of recording the transfer, signals that TOD property is within the state’s recovery reach.

A TOD deed does not shield property from Medicaid recovery in Ohio. If the deceased owner received significant long-term care benefits, the beneficiary may face a lien or claim against the inherited property. Families in that situation should talk to an elder law attorney before recording the confirmation affidavit.

One distinction worth knowing: creating a TOD deed during the owner’s lifetime is generally not treated as a disqualifying transfer for Medicaid eligibility, because no ownership change occurs until death. The five-year look-back targets actual lifetime transfers.

Tax Picture

Ohio eliminated its state estate tax in 2013. Federal estate tax still exists, but for 2026 it only affects estates over $15,000,000, so it won’t reach most owners using a TOD deed.⁶

The bigger tax benefit for most families is the stepped-up basis. When property passes through a TOD deed at death, the beneficiary’s tax basis resets to the property’s fair market value on the date of death. That erases capital gains tax on all the appreciation during the owner’s lifetime.⁷ If the owner bought a house for $120,000 and it is worth $300,000 at death, the beneficiary’s basis is $300,000. A sale at $310,000 produces only $10,000 in taxable gain instead of $190,000. That is one of the strongest reasons to use a TOD deed rather than gift the property during life; a lifetime gift carries the original low basis to the recipient.

TOD Deed or Living Trust

Both tools avoid probate for real estate, but they do different work.

A TOD deed is cheap and simple. It covers one property, costs little to prepare and record, and can be revoked by filing a new affidavit. There is no ongoing maintenance. For someone whose main goal is keeping a house out of probate, it usually gets the job done without the expense of a trust.

A living trust does more. It can hold bank accounts, investments, and personal property alongside real estate. It can name a successor trustee who steps in if the owner becomes incapacitated, which a TOD deed cannot do. For property left to a minor, a trust gives the owner control over timing well past Ohio’s UTMA age cutoff.

The tradeoff is cost and upkeep. A trust typically means higher attorney fees, and property must be retitled into the trust’s name. Forgetting to retitle is one of the most common estate planning mistakes, and it sends the property straight to probate anyway. A TOD deed sidesteps that retitling problem. For a single property and simple wishes, a TOD deed is often the better fit. For multiple properties, complex family situations, or concerns about incapacity, a trust has tools a TOD deed lacks.

Keeping the TOD Consistent With a Will

A recorded TOD deed controls the property regardless of what a will says. If the will divides a house among three children but the TOD deed names one child, the TOD deed wins. The property passes outside probate, so the probate court has no authority over it. Owners who update a will without checking the TOD deed, or the reverse, create exactly the family conflict the planning was meant to prevent. When the property is a big share of the estate, that inconsistency can drive heirs into litigation.

1
Ohio Legislative Service Commission. Ohio Code 5302.22 – Transfer on Death Deed Form
2
Ohio Legislative Service Commission. Ohio Revised Code Section 5302.23 – Designating Transfer on Death Beneficiary
3
Ohio Legislative Service Commission. Ohio Revised Code Section 147.08
4
Ohio Legislative Service Commission. Ohio Code 5814.01 – Transfers to Minors Act Definitions
5
Ohio Legislative Service Commission. Ohio Revised Code Section 5302.221
6
Internal Revenue Service. IRS Releases Tax Inflation Adjustments for Tax Year 2026
7
Internal Revenue Service. Gifts and Inheritances