Effective July 19, 2024, the Transfer on Death Deed (TODD) is now available in New York State. New York State Law allows for an individual transferor to make a deed transferring their interests in real property to a “Person” (as defined in the statute) at the transferor’s death, subject to all encumbrances or liens on that property. The transfer is revocable and therefore not considered a completed conveyance, and is therefore not a completed gift until the death of the transferor.

There are specific execution requirements, including two witnesses, a notary public, and the capacity of the transferor must be that of a person who is executing a will (testamentary capacity). Additionally, the TODD must be recorded prior to the transferor’s death in all counties in which the real property is located. Any revocation of the TODD must be executed properly and also be recorded appropriately. The TODD cannot be revoked by act alone.

A TODD may still be effective even if: there is no consideration (money exchanged for the transaction), no delivery or notice to the beneficiary of the TODD, or no acceptance by the beneficiary of the TODD. A beneficiary could potentially be completely unaware of the TODD.

If used appropriately it may be a valuable estate planning tool for those who do not have many assets, and who would otherwise have a small estate, as a way of avoiding probate. It may also be used for individuals who wish to simplify the gift of real property to a particular beneficiary without the need for probate.

Anyone considering a Transfer on Death Deed should consult with a trust and estate planning attorney prior to implementing.