Inherited a House Through an Ohio Transfer on Death Affidavit?

Ohio lets an owner record a transfer on death designation affidavit naming who should receive a house when they die. It works a lot like a beneficiary on a bank account. The beneficiary has no ownership while the owner is alive, and the owner can change or revoke the designation by recording a new affidavit (ORC 5302.23). When a sole owner dies, ORC 5302.22(C) says title vests in the named beneficiaries. That's the part people hear about. The part they miss is that the county's records still show the person who died until a beneficiary records an affidavit of confirmation, and a buyer, lender, or title company will want those records updated before anyone can sell.

JVC Equity buys houses for cash in Greater Cleveland, so a sale to us is one of the options on this page. It isn't the only one, and you don't need to sell to use this guide. This is general information drawn from the Ohio Revised Code and the Cuyahoga County Fiscal Officer. It isn't legal advice. Preparing documents that transfer real estate can be the practice of law, as the Fiscal Officer's transfer standards point out, so an Ohio attorney is the right call for anything unusual.

What the affidavit of confirmation has to say

ORC 5302.222 spells out the contents. Any one of the surviving beneficiaries can sign it. It must include the name and address of each beneficiary who survived the owner, the owner's date of death, a description of the property, and the name of any beneficiary who did not survive. It has to be sworn before a person authorized to administer oaths, and it must be accompanied by a certified copy of the owner's death certificate, plus a death certificate for each beneficiary who died first. Knowingly making a false statement in it is falsification under Ohio law.

Cuyahoga County's Fiscal Officer posts an “Affidavit of Transfer on Death” form on its real estate services forms page. It asks for the recording date and document number of the original TOD affidavit, the legal description, the property address, and the permanent parcel number, so gather those before you start. The county's transfer standards also list what it checks on any transfer, including a conveyance form (DTE 100 or DTE 100EX), the parcel number and site address, and a tax-mailing address for the new owners. If the property's taxes have been certified delinquent, the conveyance form needs the County Treasurer's stamp or proof that the delinquency is escrowed.

What still follows the house

A TOD designation skips probate for the house. It doesn't skip the house's debts. Under ORC 5302.23(B)(7)(a), the beneficiary takes only what the owner held at death, “subject to all encumbrances, reservations, and exceptions.” If there is a mortgage, a home-equity line, a judgment lien, or unpaid property taxes, they come with the property. At a sale, the title company orders payoff figures and pays them from the proceeds before anything goes to the beneficiaries.

Medicaid is the other thing to check. Before recording, the county recorder must hand you a form from Ohio's Medicaid estate recovery program (ORC 5302.221). If the owner, or the owner's spouse who died earlier, ever received Medicaid, or you don't know, the completed form goes to the program. Ohio's definition of an “estate” for recovery (ORC 5162.21) reaches property passed outside probate, so this can affect what is left after a sale. An elder-law or probate attorney can tell you whether it applies.

When there is more than one beneficiary

If the affidavit names several people and doesn't say otherwise, they take equal shares as tenants in common (ORC 5302.23(B)(1)). Each of them owns part of the house, and each of them has to sign to sell it. If one beneficiary died before the owner and the affidavit named a contingent beneficiary, the contingent beneficiary takes that share. If nobody named survived, the house goes back into the probate estate. Our guide to selling an inherited house with siblings covers how families usually work through a disagreement.