Revocable Transfer on Death Deeds in Virginia — the Good, the Bad, and the Uncertainty.

Elizabeth was taking her daily exercise walk with her friend, Francine, and the topic of “What will happen to my home when I die?” came up. One of Elizabeth’s friends’ parents recently passed away and the family was going through the nightmare of probate, and she didn’t want that to happen to her own family. Francine mentioned that she was doing research recently and found information about something called a transfer-on-death (TOD) deed. She mentioned how a TOD deed is now recognized in Virginia and it allows you to name a beneficiary who will obtain title to the property when you pass away, without having to go through probate. It sounded perfect to Elizabeth. However, when she conducted research on it, she realized that there may be more cons than pros.

Transfer-on-death (TOD) deeds are codified under Virginia Code § 64.2-624, which states that “an individual may transfer property to one or more beneficiaries effective at the transferor’s death by a transfer on death deed.” The statute also states that this type of deed is revocable, even if the deed or another instrument contains a contrary provision. This means that if you name a beneficiary but later change your mind, you can name a new beneficiary or cancel the deed.

Using a transfer-on-death deed is a lot like using a payable-on-death (POD) designation for a bank account. You name one or more beneficiaries now, who then inherit the property at your death, ideally without the need for probate court proceedings. It sounds good at first, but Elizabeth in our example is right to have her doubts about a TOD deed. The pros and cons below will help you see for yourself:

Pros

• A TOD deed does not create a present interest in the named beneficiary. This means, if you name a beneficiary in this type of deed, you have not completed a gift for gift tax purposes.
• If the owner changes his or her mind about the beneficiary, he or she can change the designation at any time before death;
• Because the beneficiary has no interest in the property until the owner dies, the beneficiary’s creditors cannot reach the property;
• A probate proceeding may cost more in time, money, and aggravation than the fees associated with a TOD deed.

Cons

• TOD Deeds do not always avoid probate. For example, if any of the named beneficiaries predeceases the property owner, then unintended consequences will result. Likewise, if a named beneficiary becomes disabled prior to the death of the owner, a disabled beneficiary could be knocked off of public benefits, such as SSI and Medicaid. A trust, on the other hand, can eliminate all of these possibilities and negative consequences.
• A person may try to establish a TOD deed without consulting an estate planning lawyer and may make legal mistakes. Again, what if an owner names one beneficiary but neglects to provide for the possibility that the beneficiary predeceases the owner? To avoid unintended consequences like this or other mistakes, a TOD deed should not be used as a substitute for comprehensive estate planning done with an experienced elder law attorney.
• TOD Deeds should not be used unless all children get along, because no one is person in charge under a TOD deed, unlike estate planning documents where you designate someone. For example, when four children agree to sell the real estate and the fifth child does not, the family may end up in court – with attorney fees that far exceed the costs of probate.
• If multiple owners make a TOD deed, then the last one surviving can revoke the deed or change the beneficiaries against the wishes of the other deceased owners.
• If a TOD Deed names any minor beneficiaries to receive the property upon an owner’s death, a guardianship proceeding could be required. The court would appoint a legal guardian to administer and manage the property interest of each minor beneficiary until he or she attained the age of eighteen. In order to avoid this additional burden and cost, clients often choose other alternatives to the TOD Deed, such as a Revocable Living Trust.
• TOD deeds need to be recorded immediately in the county where the real estate is located. A TOD deed is void if it is not recorded before the death of the owner.
• In a blended family, the surviving spouse would still retain the ability to revoke or execute a new TOD Deed, and may name only his or her surviving children.
• If someone challenges the effectiveness of a TOD deed based on an argument that the owner lacked capacity when he or she executed the deed, a court proceeding may be needed to resolve the issue.
• A TOD deed is not a good choice if the beneficiary needs to sell the property and receive the proceeds soon after the owner’s death, because doing so may not be possible until 12 months after the owner’s death.

As you can see, TOD deeds are no substitute for a well drafted living trust. Planning techniques, including the Revocable Living Trusts and the Living Trust Plus, afford greater protection for you and your family when titling your property. For example, if you place your property into a properly drafted Revocable Living Trust, then you could add protections that would deal with disability, divorce, creditors, and catastrophic illness protection for your beneficiaries. Before leaping into a situation, we urge you to consider all of your options and let us help you select the right strategy for your family.

Below are two options to explore:

Revocable Living Trusts

A Revocable Living Trust can function as a Will, but it also offers other benefits that you should consider. An RLT avoids probate, enables your heirs to receive your property more quickly, ensures your trusted family members (and not the court) oversee your estate distribution, maintains your privacy, and does not require an annual fee. Read more about Revocable Living Trusts here.

Understanding Living Trust Plus™ (LTP)

The Living Trust Plus™ (LTP) functions much like a Revocable Living Trust and maintains much of the flexibility of a Revocable Living Trust, but protects one’s assets from the expenses and complexities of probate PLUS lawsuits PLUS nursing home expenses while the creator of the trust is alive. The LTP protects the trust creator’s assets from lawsuits, medical expenses, and — most importantly for the 99.8% of Americans who are NOT among the ultra-wealthy — from the devastating costs of nursing home care.

For most Americans over age 65, an LTP is the preferable form of estate planning because it includes asset protection for the person planning, and not just for that person’s children or other descendants. For purposes of Medicaid eligibility, this type of trust is the only type of self-settled asset protection trust that allows a settlor to retain an interest in the trust while also protecting the assets from being counted by state Medicaid agencies.

If you’re a client or potential client who would like more information about Living Trust PlusTM, please view our informational video. In addition, please register for one of our upcoming Living Trust Plus™ informational seminars. Our seminars teach attendees how to protect their assets from the expenses of probate and long-term care, how to obtain valuable Medicaid and Veterans benefits to pay for long-term care, how to protect assets from lawsuits, divorce, and long-term care creditors, and more. Reserve your spot today or call our office at 703-691-1888 in Fairfax, 540-479-1435 in Fredericksburg, 301- 519-8041 in Rockville, MD, or 202-587-2797 in Washington, DC to make an appointment for a no-cost consultation.