Accepting a TOD Deed

As we discussed in our article here, Georgia recently added a transfer-on-death deed (called a “TODD”) as an estate planning option.

As also discussed in that article, there are some potential issues with the current TODD statutes. One of the largest problems is that, unlike many other states, the transfer of the property after the death of the owner is not immediate or automatic. The person receiving the property has a limited amount of time to record an affidavit that meets very specific requirements. If the affidavit is not recorded, they lose the property.

This article discusses the steps to take if you believe you might be named as the recipient (called the “Beneficiary”) of property in a TODD.

Was the TODD Revoked?

The first thing to do after the death of the original owner (called the “Grantor”) is to see whether the TODD was revoked.

Revoking a TODD requires the Grantor to record either (a) a subsequent TODD that names another person as the Beneficiary of the property, or (b) an express revocation of the TODD, which must meet specific requirements that are discussed in our previous article linked above.

Both the TODD and express Revocation must be recorded to be effective. If nothing has been recorded, then the original TODD probably is still valid.

Acceptance Affidavit

After the death of the Grantor, if the TODD has not been revoked, the Beneficiary must claim the property by executing and recording a sworn affidavit which must:

1.       Be recorded within nine months of the Grantor’s death;

2.      Cross-reference the TODD by Deed Book and Page number;

3.      State that the Grantor has died;

4.      State whether the Grantor and the Beneficiary were married at the time of the Grantor’s death;[1]

5.      Include a legal description of the property (which can usually be found on the TODD, unless the boundaries of the property have changed);

6.      Be signed by the Beneficiary (or their agent under a power of attorney);

7.      Be notarized;[2] and

8.     Attach a copy of the Grantor’s death certificate.[3] [4]

If the Beneficiary fails to record this affidavit by the nine-month deadline, the property reverts back to the Grantor’s estate, and probate will probably be required to deal with the property.

What about Wills and Joint Tenancy

The effects of Wills and jointly owned property on TODDs (and vice versa) are discussed in our previous article. The short version is that TODDs override Wills, and ownership as joint tenants with right of survivorship sometimes affects TODDs and sometimes does not.

What if the Grantor sells the property before their death?

The TODD only has the potential to give the property to the Beneficiary if the Grantor owns it at the time of their death. If the Grantor sells or conveys the property to another person or entity (such as a business or trust) before their death, then the TODD has no effect.

Are there forms?

As of the date of this article, the TODD statutes include a form for the TODD itself, but not for the express Revocation or Acceptance Affidavit. For those two documents, there are currently only lists of requirements.

Consult an attorney

TODDs have very specific and strict requirements for accepting property after the Grantor’s death. If a Beneficiary fails to meet these requirements, they can lose the property.

If you believe that you are named as a Beneficiary in a TODD and the Grantor has died, we strongly recommend that you consult an attorney (a) to find out whether you actually are a Beneficiary, and, if you are, (b) to navigate the process of accepting the property.

[1] Whether the Grantor and Beneficiary were married has no impact on anything under Georgia law. We believe this language was accidentally kept in the statutes when they were copied over from another state. Regardless, the Acceptance Affidavit must include this statement.

[2] There is not currently a requirement that the Acceptance Affidavit have a second witness in addition to the notary, but it’s probably a good idea to have one, just in case.

[3] It is currently difficult for a non-related Beneficiary to get a death certificate; the list of who can get someone’s death certificate is short. We hope that the State of Georgia is adding TODD Beneficiaries to that list.

[4] It is very important to redact the Grantor’s Social Security Number when recording their death certificate. We also recommend redacting all healthcare information, which is currently boxes 32-44 on the Georgia death certificates.