Ohio’s Transfer on Death Statute became effective at the beginning of 2002. Prior to the law being passed, there was much buzz in the real estate and trusts and estates legal community about why Ohio did not have a vehicle permitting owners of real estate to transfer real property on death to a named beneficiary, thereby avoiding probate of the property. After all, bank accounts could be transferred by naming a transfer on death beneficiary. Why could the same not be done for real estate? Ohio’s transfer on death statute had several problems, most notably the ambiguity with respect to whether or not joint tenants could be transfer on death grantors and, if so, what was the effect of the death of one, but not all, joint tenants? The debate and discussion became so heated that a multiple choice question was circulated on the Ohio State Bar Association’s Real Property Listserv suggesting five different vesting possibilities with the sixth multiple choice answer being “I don’t give a rat’s @$$. I have heard entirely too much on this topic and I want to be left alone.” Choice 6 knocked all others out of the ballpark.
A new Senate bill was introduced on April 30 which throws out the old transfer on death statute, getting rid of transfer on death deeds entirely, and replacing them with a transfer on death affidavit. In fact, the bill actually answers many of the questions that those of us in the real estate business have been debating since the law’s inception. For example, it makes very clear that joint tenants may name a transfer on death beneficiary. It also clarifies that upon the death of one joint tenant, the property is owned by the remaining joint tenants. In the event that there is a transfer on death affidavit in effect upon the death of the last joint tenant, the property transfers to the beneficiary. The bill cleans up the confusion of transferring on death to the trustee of a trust when the trustee of the trust may change. It also addresses ambiguities left open in the original statute with respect to a spouse’s dower interest.
In fact, the new bill is so well drafted that I thought it was the perfect fix. That is, until I described the changes to my trusts and estates colleagues. They expressed the concern that they will now have to do a full title search on every individually owned piece of real property in every estate to confirm that there is no transfer on death affidavit of record. Previously, they only obtained the last deed of record which would contain the transfer on death beneficiary, if any. As a real estate attorney who regularly orders title commitments, I believe that this is a small price to pay for the clarity that the statute brings to the dreaded transfer on death deeds. Hopefully it will put a stop to multiple choice questions on the Real Property Listserv.