Ohio law, for title research

Ohio transfer on death deed: the designation affidavit, quoted from R.C. 5302.22 to 5302.24

Every rule below is quoted from the Ohio Revised Code, sections 5302.22 to 5302.24 or another official source, linked and checked on the date shown. General information, not legal advice.

Does Ohio have a transfer on death deed?

Ohio uses an affidavit, not a deed. Since December 28, 2009, an owner names who takes the real estate at death by recording a transfer on death designation affidavit under section 5302.22 of the Revised Code. The owner keeps full ownership while alive: section 5302.23(B)(4) says the designation has no effect on present ownership, and the beneficiary has no interest until the owner dies.

Older instruments still count. Section 5302.24 says a transfer on death deed executed and recorded before December 28, 2009, that was valid the day before that date stays valid, and the grantee need not sign a new affidavit naming the same beneficiaries, apart from the divorce rules in section 5302.23(B)(12) and (C). Under section 5302.23(B)(10), recording a new affidavit for the same property ends the designation in an earlier deed. A title search on an older chain can find either form.

Who can sign one, and does the spouse have to join?

Section 5302.22(B) lets a sole owner, a tenant in common or a survivorship tenant sign, and lets spouses who hold an indivisible interest as tenants by the entireties sign together. Section 5302.22(A)(4) limits that last group to deeds recorded between February 9, 1972, and April 3, 1985. The owner may designate the whole interest or a specified part of it.

A married owner signs with the spouse. The statute makes the spouse's dower rights subordinate to the beneficiary's title, and section 5302.22(D)(3) requires the affidavit to include the spouse's statement saying so. Ohio still recognizes dower: section 2103.02 endows a spouse with a life estate in one third of real property the other spouse was seized of as an estate of inheritance during the marriage, ending at that spouse's death except in land conveyed or encumbered without a release. The statutes read here state no consequence for a missing spousal statement, and section 5302.23(A) says an affidavit showing a clear intent to designate a beneficiary is liberally construed to do so; the effect of a gap is for an Ohio attorney. A recorded affidavit also bars dower from vesting in a later spouse unless it is revoked or changed, under section 5302.23(B)(11). For how dower works on an ordinary Ohio sale, see Ohio community property and dower rules.

What must the affidavit contain, and when must it be recorded?

Section 5302.22(D) requires it to be verified before a person authorized to administer oaths and to include a description of the property with a reference to a recorded instrument containing that description, a statement of any partial interest being transferred, the owner's statement of record ownership and marital status, and the beneficiaries identified by name.

No consideration and no delivery to the beneficiary are needed. What is needed is timing: section 5302.22(F) makes the affidavit effective only if it is recorded with the county recorder before the owner dies. An affidavit not recorded by then is not effective under that division. The recorder records it like a deed, for the deed fee, and indexes it under the name of the owner who signed it.

How is an Ohio designation changed or revoked?

By recording a new affidavit. Section 5302.23(B)(5) lets the owner revoke or change a designation at any time, without the beneficiary's consent, by executing and recording a new affidavit before death that states the revocation or change. The newer recorded affidavit automatically supersedes earlier recorded ones for the same property, as long as the earlier one was executed first.

Three events end a designation without any new filing. If a spouse is the named beneficiary and the marriage ends in divorce, dissolution or annulment, section 5302.23(B)(12) terminates that designation and treats the former spouse as having died first. And where the owners hold as survivorship tenants, a designation made by one tenant alone ends if that tenant dies before the last survivor, under section 5302.23(B)(7)(b). For tenants by the entireties, section 5302.23(B)(7)(c) ends a designation made by the first to die alone, without the other joining.

What happens when the owner dies?

It depends on how the owner held title. A sole owner's or tenant in common's interest vests in the beneficiaries named in the recorded affidavit who survive the owner or are in existence at the death. A survivorship tenant's or tenant by the entireties' interest vests first in the surviving tenant or tenants, under section 5302.22(C)(2) and (3), and in the beneficiaries at the last death. If several are named, they take equal shares as tenants in common unless the owner chose other shares or a survivorship tenancy. Section 5302.23(B)(1) and (2) gives a share that lapses to a named contingent beneficiary, if there is one. With no contingent, section 5302.22(G) transfers the property only to named beneficiaries who survive, and the text names no substitute taker for a deceased beneficiary's descendants. The interest goes into the probate estate only if none of the named beneficiaries or contingents survives. When beneficiaries take as survivorship tenants, contingents take only if none of them survives. A beneficiary may be a natural or legal person, including a bank as trustee, and a successor trustee in office at the death counts as the named one, with a recorded successor trustee affidavit under section 5302.222(A)(1).

To put the transfer on the record, a beneficiary presents an affidavit of confirmation to the county auditor and files it with the county recorder, under section 5302.222. It is sworn, comes with a copy of the death certificate as that section specifies, and states the date of death, the property description, each surviving beneficiary's name and address, and any beneficiary who did not survive, with that person's death certificate as division (B) specifies. Registered land has its own rule in division (D). Section 5302.221 also has the recorder give the beneficiary a Medicaid recovery form before recording; it goes to the program administrator if the owner or a predeceased spouse was a recipient or the beneficiary does not know.

Do mortgages, liens and Medicaid recovery follow the property?

The liens do. Section 5302.23(B)(7)(a) says a beneficiary takes only the interest the owner held at death, subject to all encumbrances, reservations and exceptions, and section 5302.23(B)(8) says no lienholder's rights are affected by the designation. A mortgagee or other lienholder that forecloses in court need not join the beneficiary as a defendant unless the beneficiary has another interest in the property.

On Medicaid, section 5162.21 defines the estate the Ohio Department of Medicaid recovers from to include property in which the individual had legal title or interest at the time of death, including assets conveyed to a survivor or heir through joint tenancy, survivorship, life estate, living trust or other arrangement. Division (A)(5) adds that time of death does not mean a time after which title passes by survivorship or other operation of law. Division (B) covers a permanently institutionalized person of any age and a person 55 or older. Division (C) limits recovery while a spouse or certain children are living, and division (E) provides for a hardship waiver. That section does not name the transfer on death affidavit, although section 5302.221 ties the affidavit of confirmation to the program, and whether a claim reaches a particular property is a question for an Ohio attorney. A title search shows any recorded Medicaid lien certificate; section 5162.211 ties those liens to permanently institutionalized recipients, and the absence of one does not rule out estate recovery.

What a title search checks after an Ohio owner dies

A probate title search reads the chain of title and how title passed: any designation affidavit in the name of the owner, with its recording date and image, any later one, the vesting at death and any affidavit of confirmation. It then lists the recorded mortgages, judgment liens and other liens to pay. Whether a designation is valid is a legal conclusion for an Ohio attorney; the report shows the record it depends on.

The Ohio transfer on death rules on this page, with their sources

Sources: Ohio Revised Code 5302.22; Ohio Revised Code 5302.23; Ohio Revised Code 5302.222; Ohio Revised Code 5302.24; Ohio Revised Code 5162.21; Ohio Revised Code section 5302.23; Ohio Revised Code section 5302.221; Ohio Revised Code section 5162.211. Each row links the section it summarizes.

Questions people ask

More on how Ohio property law shapes a title search: title research in Ohio.