Which is Better: Transfer on Death (TOD) or Survivorship Deed?

If you own a home in Ohio, you've probably heard that probate can be expensive, time-consuming, and stressful for your loved ones. The good news? There are ways to avoid probate in Ohio when it comes to your real estate, and two of the most popular options are Transfer-on-Death (TOD) Affidavits and Survivorship Deeds.

But which one is right for you?

Both tools help your property pass directly to your chosen beneficiaries without going through Ohio probate court. However, they work differently, and each comes with its own set of advantages and limitations. Let's break down everything you need to know so you can make the best decision for your family.

What Is a Transfer-on-Death Affidavit in Ohio?

A Transfer-on-Death Affidavit (sometimes called a TOD deed) is a legal document that lets you name one or more beneficiaries to receive your real property when you pass away. It's one of the simplest ways to avoid probate in Ohio for your home.

Here's how it works: You sign and record the TOD Affidavit with your county recorder's office while you're still alive. You keep full ownership and control of your property during your lifetime, you can sell it, refinance it, or even change your mind and revoke the affidavit at any time. When you die, the property automatically transfers to your named beneficiaries without going through the Ohio probate process.

You can designate one beneficiary or multiple beneficiaries. It's flexible and easy to modify if your circumstances change.

What Is a Survivorship Deed in Ohio?

A Survivorship Deed is a type of deed that creates joint ownership with right of survivorship. When you hold property this way, all owners have equal rights to the property during their lifetimes. When one owner dies, their share automatically passes to the surviving owner(s), no probate required.

For example, let's say you and your spouse own your home with a survivorship deed. If you pass away first, your spouse automatically becomes the sole owner. The property never has to go through Ohio probate court. You do need to file some administrative paperwork documenting the transfer, but that is with the county recorder, and is easily done.

The key difference from a TOD Affidavit is that a survivorship deed creates immediate co-ownership. The other person on the deed owns the property right now, not just after you die.

Probate Avoidance: How Each Option Works

Both options help you avoid the Ohio probate process for your real estate, but they do it differently.

With a TOD Affidavit, your beneficiaries don't have any ownership interest until you die. When you pass, they simply need to record an affidavit of survivorship and a certified copy of your death certificate. The property transfers to them automatically, bypassing probate court entirely.

With a Survivorship Deed, the transfer happens automatically by operation of law. When one owner dies, the surviving owner(s) just need to record an affidavit of survivorship along with a death certificate. Again, no probate is needed.

Either way, your family avoids the probate costs in Ohio and the delays that come with court proceedings. For more details on what probate involves, check out our probate administration services.

Pros and Cons of Each Option

TOD Affidavit: Pros

• You keep full control. You can sell, refinance, or change your mind without anyone else's permission.
• Easy to revoke or modify. Just record a new affidavit if you want to change beneficiaries.
• Beneficiaries have no current interest. They can't interfere with your decisions about the property.
• Simple and inexpensive to set up.

TOD Affidavit: Cons

• No asset protection. Creditors can still go after the property during your lifetime.
• Beneficiaries could predecease you. If that happens and you haven't updated the affidavit, complications can arise.
• Public record. Anyone can see who you've named as beneficiaries.

Survivorship Deed: Pros

• Immediate co-ownership. The other person has rights to the property right now, which can be helpful for couples or family planning.
• Automatic transfer. No extra steps are needed at death beyond recording the death certificate and Survivorship affidavit.

Survivorship Deed: Cons

• Loss of control. You can't sell or mortgage the property without all owners agreeing.
• Hard to undo. Removing someone from a survivorship deed requires their consent.
• Potential gift tax issues. Adding someone to your deed could trigger gift tax consequences.
• Exposure to co-owner's creditors. If a co-owner has financial problems, the property will be at risk.
• Relationship risks. If you add a child to the deed and they go through a divorce, the property could become embroiled in the divorce proceedings, as the divorcing spouse may claim that the property is part of the marital estate.

Who Benefits from Each Option?

A TOD Affidavit might be best for you if:

• You're a single homeowner who wants to leave property to children or other beneficiaries
• You want to maintain complete control over your property
• You might change your mind about beneficiaries in the future
• You're not comfortable giving someone else immediate ownership rights

A Survivorship Deed might be best for you if:

• You're married and want your spouse to automatically inherit the home
• You're purchasing property with someone and want built-in survivorship rights
• You trust your co-owner completely and don't mind sharing control
• You want the other person to have ownership rights during your lifetime

Pitfalls to Watch Out For Under Ohio Law

Before you choose, here are some common mistakes people make:

1. Forgetting to update your documents. If you divorce, remarry, or a beneficiary dies, your TOD Affidavit or deed may no longer reflect your wishes.
2. Adding children to your deed without thinking it through. This can create gift tax issues, expose the property to their creditors, and cause problems if they divorce.
3. Not considering Medicaid implications. If you might need nursing home care, how you hold title to your property matters. Our Medicaid planning services can help you navigate this.
4. Overlooking privacy concerns. Both options make ownership information public. If privacy is important to you, a land trust might be worth considering.
5. Assuming these tools replace a will or estate plan. Even with a TOD Affidavit or survivorship deed, you still need a comprehensive estate plan to cover your other assets and wishes.

Making the Right Choice for Your Ohio Home

There's no one-size-fits-all answer when it comes to real estate ownership in Ohio. The right choice depends on your family situation, your goals, and your comfort level with sharing control. What matters most is that you take action. Too many Ohio families get stuck dealing with probate court simply because their loved one never got around to setting up a simple TOD Affidavit or updating their deed.

If you're not sure which option is right for you, or if you want to explore other ways to protect your home and avoid probate in Ohio, we're here to help. Contact us to schedule a consultation, and let's figure out the best path forward for your family.