Transfer-on-Death Deed vs. Will: Which One Wins? (2026)
A TOD deed always overrides a will on the property it names. Learn how each tool works, which states allow TOD deeds in 2026, and why most homeowners need both.
What is the difference between a transfer-on-death deed and a will?
A transfer-on-death (TOD) deed transfers a specific piece of real estate directly to a named beneficiary the moment the owner dies, bypassing probate entirely. A will distributes all assets — cash, personal property, real estate, and guardianship decisions — but only after a probate court approves it. When both documents exist and they conflict over the same property, the TOD deed wins. Neither document fully replaces the other.
Key takeaways
- A recorded TOD deed always overrides a conflicting will on the real estate it covers — updating your will without updating your TOD deed can legally transfer a house to the wrong person.
- TOD deeds are available in approximately 32 U.S. jurisdictions as of 2026, with New York joining in July 2024, Delaware in December 2025, and Maryland on October 1, 2026.
- A will is mandatory for naming a guardian for minor children, distributing personal property, and covering any asset not handled by a beneficiary designation.
- In "probate-only" Medicaid recovery states such as Texas, a properly recorded TOD deed can shield a home from estate recovery; in "expanded recovery" states such as California, it cannot.
- An unrecorded TOD deed is legally void in every state — recording before death is not optional.
Does a TOD deed override a will? (The most dangerous misunderstanding in estate planning)
Yes — unconditionally, on the property it names. This is the fact that most estate-planning articles bury in a footnote, but it deserves to be the headline.
Suppose you execute a TOD deed in 2022 naming your daughter as beneficiary, then update your will in 2025 leaving the same house to your son. When you die, the house goes to your daughter. Your will is irrelevant for that asset. The deed controls. Your son has no legal claim, even though the will is newer. Texas law makes this explicit under Tex. Estates Code § 114.105: a will has no effect on a transfer-on-death deed. The Delaware Transfer on Death Deed Act (effective December 2025) includes identical language. New York's statute, N.Y. Real Property Law § 424 (effective July 19, 2024), carries the same rule.
The practical consequence: every time you update your will, audit every TOD deed on file with your county recorder. These are public records — you or your attorney can search them. An outdated TOD deed is a silent landmine.
The same logic applies in the other direction: if you execute a TOD deed after a will that says something different, the deed governs the property. Deeds and wills occupy separate legal layers. The deed layer always wins on real estate.
Which states allow transfer-on-death deeds in 2026?
The number is growing fast. Missouri was the first state to authorize a TOD deed by statute, in 1989. The Uniform Law Commission finalized the Uniform Real Property Transfer on Death Act (URPTODA) in 2009, and it has since been enacted in 19 states, the District of Columbia, and the U.S. Virgin Islands, according to the American Bar Association's September 2025 update. Additional states operate under their own non-uniform statutes. Total jurisdictions with some form of TOD deed now number approximately 32.
| State | TOD Deed Status | Key Statute | Medicaid Recovery Rule |
|---|---|---|---|
| California | Yes — residential 1–4 units only; law sunsets Jan 1, 2032 | Cal. Prob. Code §§ 5600–5698 | Expanded — state DHCS can claim against TOD property |
| Texas | Yes — land, homes, mineral rights | Tex. Estates Code §§ 114.051–114.106 | Probate-only — TOD deed shields home from MERP |
| New York | Yes — effective July 19, 2024 | N.Y. Real Property Law § 424 | Expanded recovery possible |
| Arizona | Yes | Ariz. Rev. Stat. § 33-405 | Expanded recovery state |
| Delaware | Yes — effective December 2025 | Del. Transfer on Death Deed Act (2025) | Creditor window: 60-day insurance coverage post-death |
| Maryland | Yes — effective October 1, 2026 | Md. Transfer on Death Deed Act (2026) | Rules still developing |
| Florida | No TOD deed — use Lady Bird deed | Enhanced life estate deed (case law) | Lady Bird deed may help; trust is more reliable |
| North Carolina | No — 2023 bill died in committee | N.C.G.S. § 41-40 covers securities only | N/A — probate or trust required |
| Louisiana | No | N/A | N/A — civil law system; trust or testament required |
California extra note: The statute is not permanent. Cal. Prob. Code § 5600(c), as extended by SB 315, authorizes TOD deeds only through January 1, 2032. A deed properly recorded before that date remains valid even if the law is not renewed, but no new deed can be executed after the sunset without a legislative extension. If you are considering a California TOD deed, do not wait. Also note that California's TOD deed, amended by AB 288 effective January 1, 2024, is limited to residential property with one to four dwelling units — commercial property, vacant land, and agricultural parcels over 40 acres do not qualify under § 5610.
Texas extra note: Under Tex. Estates Code § 114.055, a person acting under a power of attorney cannot create or revoke a TOD deed on the owner's behalf. The owner must sign personally while legally competent. Under § 114.056, a TOD deed transfers property without warranty of title even if warranty language appears in the deed.
Decision table: which tool fits your situation?
| Your situation | Recommended tools |
|---|---|
| Home in a TOD-deed state; adult children as heirs; no outstanding liens | TOD deed + simple will (best combination) |
| Beneficiary is a minor child | Will with testamentary trust — minors cannot own real property |
| You want the property sold and proceeds split among multiple people | Will or trust — TOD deed transfers title, not cash proceeds |
| You receive Medicaid; live in a probate-only recovery state (e.g., Texas) | TOD deed to protect home from MERP; will for remaining assets |
| You receive Medicaid; live in an expanded recovery state (e.g., California, Arizona) | Elder-law attorney review required — TOD deed alone is insufficient |
| Your state has no TOD deed (Florida, North Carolina, Louisiana) | Lady Bird deed where available (FL, TX, MI) or revocable living trust |
| You own real estate in multiple states | Separate TOD deed per state or a revocable trust; each state's deed must comply with that state's law |
| You updated your will recently | Search county recorder records now for any recorded TOD deed — an older deed overrides your new will |
Worked example: Elena's $380,000 house in Texas
Elena, 72, owns a paid-off house worth $380,000, a bank account with $45,000 already designated TOD to her daughter Mia, and personal property (car, furniture, jewelry) worth about $15,000. She has two children: Mia and Carlos.
Path A — TOD deed only, no will: The house passes to Mia, bypassing probate. The bank account also reaches Mia by designation. But the car, furniture, and jewelry have no beneficiary designation, so Texas intestacy law splits them equally between Mia and Carlos — not what Elena wanted. Total cost: approximately $150–$300 for the deed. Unintended result for personal property.
Path B — Will only, no TOD deed: The will directs everything correctly. But the house must go through Texas probate — typically six to twelve months and $5,000–$9,500 in statutory executor and attorney fees, calculated on the gross appraised value of the property. Bank account still reaches Mia by designation. Total cost: $500 for will preparation + $5,000–$9,500 in probate fees = $5,500–$10,000.
Path C — TOD deed + simple will (recommended): The house transfers to Mia without probate. The bank account reaches Mia by designation. The will distributes the car, furniture, and jewelry exactly as Elena directs, and names Carlos as a secondary beneficiary if Mia predeceases her. The will also names an executor and serves as a backstop if the TOD deed ever fails (e.g., Mia dies before Elena). Total cost: approximately $150 for the deed + $300–$800 for a simple will = $450–$950. Probate costs: near zero, because only personal property passes through the will and Texas's small-estate affidavit under Tex. Estates Code § 205.001 may handle it without court proceedings.
Path C costs roughly one-tenth of Path B and is far more complete than Path A.
How to create a TOD deed and will together: step-by-step
- Confirm your state allows TOD deeds. Check your county recorder's website or the Uniform Law Commission's enactment map. If your state does not allow them, a revocable living trust or Lady Bird deed is the alternative.
- Obtain the correct statutory form for your state. Generic internet forms are the most common source of invalid deeds. California requires the mandatory form under Cal. Prob. Code § 5642; Texas provides official forms through eFileTexas. Use your state's specific language.
- Describe the property precisely. Use the legal description from your deed or county records — not the street address, not the tax-roll description. An imprecise description is the second most common reason title companies refuse to insure after a TOD transfer.
- Name a contingent (backup) beneficiary. If your primary beneficiary dies before you and you named no alternate, the deed fails and the property goes through probate anyway.
- Sign before two witnesses and a notary (California requirement; check your state). Texas requires only notarization, not witnesses. California requires two adult witnesses who are not beneficiaries, plus notarization, all at the same signing session (Cal. Prob. Code § 5624).
- Record the deed with the county recorder before you die. This is non-negotiable. California's deadline is 60 days from notarization under Cal. Prob. Code § 5660. Texas has no fixed deadline, but an unrecorded deed is void in any state.
- Draft a will to cover everything else. Use Pactlio Wills to generate a state-specific will that names your executor, distributes personal property, and appoints a guardian for any minor children. You can create your will online through a plain-English guided interview covering all 50 states.
- Review both documents after every major life event — marriage, divorce, birth of a child, sale or purchase of property, or a beneficiary's death.
Medicaid and the TOD deed: a critical state-by-state gap
The Omnibus Budget Reconciliation Act of 1993 (OBRA 1993) requires every state to operate a Medicaid Estate Recovery Program (MERP). How that program treats non-probate transfers — including TOD deeds — differs sharply by state.
In 23 states, MERP is limited to the probate estate. In those "probate-only" states, a properly recorded TOD deed shields the home from recovery because the property never enters probate. Texas is an example: TexasLawHelp.org confirms that under current Texas law, a TODD-transferred home is classified as non-probate property and excluded from MERP.
In 27 states, MERP uses "expanded recovery" and can pursue assets that bypassed probate, including TOD-transferred property. California is an example: the California Department of Health Care Services can file claims against property transferred via a TOD deed. The state gives the DHCS priority over other unsecured creditors in many situations, according to Cal. Welf. & Inst. Code § 14009.5.
If Medicaid planning is part of your reason for considering a TOD deed, verify your state's classification with an elder-law attorney before recording anything. A Lady Bird deed or an irrevocable Medicaid asset protection trust may be more effective tools depending on your state.
For more on how assets outside a will interact with your estate plan, see beneficiary designations vs. a will. If you are weighing a TOD deed against a full living trust, our will vs. living trust comparison walks through the trade-offs in detail. And if you want to understand what the probate process actually costs and takes, probate process explained and how long does probate take give the full picture.
Common mistakes to avoid
- Updating only your will after a family change. A recorded TOD deed overrides the will. If you remarry, divorce, or lose a beneficiary, update the deed too.
- Using a generic online form that does not match your state's statutory language. TOD deeds are creatures of statute; a Texas form used in Colorado is invalid.
- Naming a minor child as sole beneficiary. Most states prohibit minors from holding direct real property ownership. The transfer will either fail or require a court-appointed conservator to manage the property — triggering the exact probate cost you were trying to avoid.
- Forgetting to record the deed before death. A signed, notarized, witnessed deed that sits in a desk drawer has no legal force. Record it the same week you sign it.
- Treating the TOD deed as full estate planning. The deed handles one asset. It appoints no executor, pays no debts, and addresses no personal property. Without a will, the rest of your estate follows state intestacy law — which almost certainly does not match your wishes.
- Assuming a TOD deed protects against Medicaid in all states. It protects in probate-only states; it does not in expanded-recovery states. Confirm your state's rules before relying on this strategy.
Sources
- American Bar Association, Real Property Trust and Estate Section — Uniform Laws Update: The Uniform Real Property Transfer on Death Act (September–October 2025): https://www.americanbar.org/groups/real_property_trust_estate/resources/probate-property/2025-september-october/uniform-laws-update/
- TexasLawHelp.org — Transfer on Death Deeds (TODDs), last edited July 11, 2026: https://texaslawhelp.org/article/transfer-on-death-deeds-todds
- California Legislative Information — Probate Code § 5600 (last updated January 1, 2026): https://codes.findlaw.com/ca/probate-code/prob-sect-5600/
- California Legislative Information — Probate Code § 5642 (statutory TOD deed form): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=5642.
- Ridley Law Offices — California Transfer on Death Deed (TOD) 2026 Guide: https://ridleylawoffices.com/transfer-on-death-deed-california/
- Deeds.com — Transfer on Death Deed: Complete Guide to TOD, Beneficiary & Lady Bird Deeds (2026): https://www.deeds.com/transfer-on-death-deed/
- Deeds.com — Maryland Transfer on Death Deed Act (May 26, 2026): https://www.deeds.com/articles/can-a-transfer-on-death-deed-save-your-family-money/
- Delaware General Assembly — HB 147, Uniform Real Property Transfer on Death Act: https://legis.delaware.gov/BillDetail/142128
- Medicaid Long Term Care — Medicaid Estate Recovery Program: https://www.medicaidlongtermcare.org/protection/estate-recovery-program/
- Jessica Wilson Law — New York's New Transfer on Death Deed (N.Y. Real Property Law § 424, eff. July 19, 2024): https://jessicawilsonlaw.com/new-yorks-new-transfer-on-death-deed/
- University of North Texas — How a Transfer on Death Deed Affects Medicaid Benefits (Texas): https://www.accessiblelaw.untdallas.edu/post/how-a-transfer-on-death-deed-affects-medicaid-benefits
- Walls Law NC — Does North Carolina Have a Transfer-on-Death Deed?: https://www.wallslawnc.com/legal-articles/does-north-carolina-have-a-transfer-on-death-deed-what-homeowners-can-use-instead
- Thomas-Walters, PLLC — Problems with Transfer on Death Deeds in Texas (Tex. Estates Code §§ 114.055, 114.056): https://thomas-walters.com/problems-with-transfer-on-death-deeds/
- TaxShark Inc. — Does Transfer on Death Deed Protect from Medicaid? (Ariz. Rev. Stat. § 33-405): https://taxsharkinc.com/does-transfer-on-death-deed-protect-from-medicaid-w-examples-faqs/
- Uniform Law Commission — Real Property Transfer on Death Act: https://www.uniformlaws.org/committees/community-home?CommunityKey=a4be2b9b-5129-448a-a761-a5503b37d884
This article is general information, not legal advice. Laws vary by jurisdiction. Pactlio generates professional drafts for review — have a licensed attorney review anything important.
Frequently Asked Questions
Does a transfer-on-death deed override a will?▾
Yes. When a recorded TOD deed and a will conflict over the same property, the TOD deed controls. The will has no legal effect on property covered by a valid TOD deed, regardless of when the will was signed. Always update both documents together whenever your beneficiary wishes change — updating only one can send a house to the wrong person.
What states allow transfer-on-death deeds in 2026?▾
About 32 U.S. jurisdictions allow TOD deeds as of 2026, including California, Texas, Arizona, Illinois, Colorado, Virginia, New York (effective July 2024), Delaware (effective December 2025), and Maryland (effective October 2026). States without TOD deed laws include Florida, North Carolina, and Louisiana. Confirm current availability with your county recorder before relying on any form.
Can a transfer-on-death deed replace a will?▾
No. A TOD deed covers only the specific real estate named in it. It cannot appoint an executor, name a guardian for minor children, distribute personal property, or address outstanding debts. Anyone with assets beyond a single piece of real estate needs a will or trust to handle the rest — a TOD deed alone leaves the remainder of the estate to state intestacy law.
Does a TOD deed protect against Medicaid estate recovery?▾
It depends on your state. In 'probate-only' recovery states such as Texas, a properly recorded TOD deed can shield home equity from Medicaid estate recovery because the property bypasses probate. In 'expanded recovery' states such as California, the state's Department of Health Care Services can still make claims against TOD-transferred property. Consult an elder-law attorney before relying on a TOD deed for Medicaid planning.
How much does a transfer-on-death deed cost compared to a will?▾
A TOD deed typically costs $80–$300 total — state-specific form, notary ($10–$25), and county recording fee ($15–$50). A basic will costs $300–$1,500 depending on whether you use an attorney or an online service. Skipping both and going through probate typically costs $3,000–$15,000 or more in attorney and court fees, plus six to eighteen months of delay.
What happens if the beneficiary named in a TOD deed dies before the owner?▾
If the primary beneficiary predeceases the owner and no contingent (backup) beneficiary was named, the TOD deed fails and the property falls back into the probate estate. Exact rules vary by state law. Naming a contingent beneficiary at the time you execute the deed is the single most effective way to prevent this common and costly failure.
Can I change a transfer-on-death deed?▾
Yes. You can revoke or amend a TOD deed at any time before death by recording a new TOD deed or a statutory revocation form with the county recorder's office. You cannot revoke a TOD deed through your will. In California, revocation requires the statutory form under Probate Code § 5644; a handwritten note or verbal instruction has no legal effect.
Do I still need a will if I have a transfer-on-death deed?▾
Yes, in almost every case. A TOD deed handles one piece of real estate. Your will covers personal property, financial accounts without beneficiary designations, guardian appointments for minor children, executor authorization, and every asset the TOD deed does not name. A TOD deed without a will leaves significant portions of your estate to be distributed under state intestacy law.