How the designation works while the owner is alive
A transfer on death designation affidavit names one or more beneficiaries for a parcel of Ohio real estate. Under R.C. 5302.22, it must be signed and verified before a person authorized to give oaths, such as a notary, and it must describe the property and refer to a recorded deed that contains that description. It is recorded with the county recorder.
While the owner is alive, the beneficiary has no ownership. The owner can sell, mortgage or refinance the house without the beneficiary’s signature, and can change the beneficiary by recording a new designation. Knowingly false statements in the affidavit count as falsification under Ohio law.
This is why the designation is popular for a single family home: it costs a recording fee, not a probate case, and it doesn’t lock the owner in the way a deed to a child would.
What the beneficiary files after the death
The beneficiary takes title by recording an affidavit of confirmation. R.C. 5302.222 sets out what it must contain:
- Each surviving beneficiary’s name and address.
- The owner’s date of death.
- A description of the property.
- The names of any beneficiaries who did not survive the owner or no longer exist.
- If a beneficiary was named as trustee and has been replaced, the successor trustee’s name and address, with the recorded successor trustee affidavit.
The affidavit is verified before a notary, accompanied by a certified copy of the death certificate, presented to the county auditor or fiscal office, and filed with the recorder. Registered land under Chapter 5309 follows its own procedure instead. False statements in it are also falsification.
The Medicaid form that comes with recording
Recording a TOD transfer triggers a Medicaid check. Under R.C. 5302.221, the county recorder must give the beneficiary a form before recording the transfer, and the beneficiary sends a copy to Ohio’s Medicaid estate recovery program if the answers call for it. The form asks whether the deceased owner, and any spouse who died before the owner, had ever been a Medicaid recipient, with an option to say you don’t know.
That matters because Ohio Administrative Code 5160:1-2-07 defines the estate for recovery purposes to include property passing by survivorship, life estate, living trust or similar arrangements, not just probate assets. A TOD house can avoid probate and still carry a recovery claim. The Medicaid estate recovery guide covers when the state can and can’t recover from a home.
Selling a house you received by TOD
After the affidavit of confirmation is recorded, the beneficiary is the owner and sells like anyone else. A few things a title company will check:
- Every beneficiary signs. If the designation named three children, all three own shares and all three sign the deed. One who refuses can force the others toward a partition action.
- The mortgage gets paid at closing. The house passes with any mortgage still on it. Federal law, 12 U.S.C. 1701j-3(d), bars a lender from enforcing a due-on-sale clause on a transfer to a relative resulting from the borrower’s death. The mortgage after death guide explains what heirs owe.
- Estate debts and the Medicaid form. The title examiner looks at the recovery form and any recorded claims.
On taxes, a beneficiary’s basis is generally the house’s fair market value on the date of death, the same stepped-up basis an heir gets through probate (IRS Publication 551). The capital gains guide for inherited houses runs the numbers.
A beneficiary’s checklist after the death
The steps a TOD beneficiary takes before listing or selling:
- Order certified death certificates for the owner, and for any beneficiary who died first.
- Pull the recorded designation affidavit and the deed it refers to.
- Prepare the affidavit of confirmation with every surviving beneficiary’s name and address and the legal description.
- Complete the Medicaid estate recovery form the county recorder gives you under R.C. 5302.221, and send it to the recovery program if required.
- Sign before a notary, present it to the county auditor (in Summit County, the Fiscal Office), then record it.
- Contact the mortgage servicer as a successor in interest, and update the homeowner’s insurance.
TOD compared with the other ways a house skips probate
| TOD designation affidavit | Survivorship deed | Trust | |
|---|---|---|---|
| Who owns it during life | The owner alone | All survivorship tenants together | The trustee |
| Can the owner sell without the beneficiary | Yes | No, co-owners sign | Yes, the trustee signs |
| What is recorded after death | Affidavit of confirmation, R.C. 5302.222 | Affidavit of survivorship, R.C. 5302.17 | Successor trustee affidavit, R.C. 5302.171 |
| Probate needed | No | No | No |
See the survivorship deed guide and the guide to selling a house in a trust for those paths. An Ohio real estate or estate planning attorney can review the designation before you record anything.
When a designation goes wrong
A few problems turn a simple TOD transfer into a court matter:
- The designation was never recorded, so it doesn’t control the property and the house goes through probate.
- A beneficiary died first and the affidavit named no contingent beneficiary.
- The legal description in the designation doesn’t match the deed.
Any of these can push the house back into an estate, where the probate sale guide applies. If you already hold title by TOD and want to sell without fixing up the house, our inherited house page explains how that sale works.
