Kansas Transfer on Death Deed Form

What is a Kansas transfer-on-death (TOD) deed?

A Kansas transfer-on-death deed—also called a TOD deed or beneficiary deed—names a person to take title to real estate when the current owner dies.1 A property owner records a TOD deed in the county land records before his or her death. The TOD deed does not affect the property’s ownership until the owner dies.2 When the owner dies, the property passes to the person named in the TOD deed—called the grantee beneficiary or just the beneficiary.3 The property does not become part of the owner’s probate estate.4

What is the purpose of a Kansas TOD deed?

TOD deeds are an estate-planning tool that allows Kansas real estate to bypass the owner’s probate estate. Real estate described in a TOD deed does not pass through probate (the legal process of carrying out a will) because title automatically belongs to the beneficiary when the property owner dies.5 The beneficiary records the owner’s death certificate or an affidavit in the land records to show that the title was transferred.6 A separate deed from the owner’s estate is unnecessary.

What is the benefit of avoiding probate?

Avoiding probate is a common estate-planning goal. The probate process can be both costly and time-consuming. Real estate that goes through formal probate may not officially transfer to the new owner until months or even years after the owner’s death. By avoiding probate, a TOD deed allows title to pass to the beneficiary with less delay and administrative costs.

Probate court is also a public process. Keeping assets out of the owner’s probate estate helps keep family financial matters private.

What types of property can be transferred using a Kansas TOD deed?

A property owner can use a Kansas TOD deed to transfer their rights to Kansas real estate.7 The transferred rights can be complete, sole ownership or partial rights to a co-owned property.8

A Kansas TOD deed cannot transfer property other than Kansas real estate. Kansas law allows TOD designations for other types of property—including, for example, motor vehicles and stocks or bonds.9 Those designations are made by other types of documents, not Kansas TOD deeds.

What is the effect of a Kansas TOD deed while the owner is alive?

A property owner who records a Kansas TOD deed remains the absolute owner of the real estate for the rest of the owner’s life.10 The beneficiary does not receive any vested rights to the property until the owner dies.11 A beneficiary’s creditors have no power to attach the property while the owner is alive.

Can the owner sell the property after recording a TOD deed?

A Kansas TOD deed does not limit the property owner’s right to sell, transfer, or mortgage the real estate during the owner’s life.12 This makes TOD deeds a better choice than life estate deeds, which limit the life tenant’s power to transfer the property because the holder of a remainder interest following a life estate has a vested right to future possession of the real estate.13

Can a Kansas TOD deed be revoked?

A Kansas TOD deed can be undone as long as the property owner lives.14 The owner can revoke a TOD deed by recording a signed document, confirmed by a notary, that names the real estate and revokes the prior TOD deed.15 Recording a later TOD deed that transfers the same real estate interest also revokes an earlier TOD deed.

A TOD deed’s beneficiary does not need to consent to—or receive notice of—a TOD deed’s revocation.16 A property owner’s will cannot revoke a TOD deed because if a valid TOD deed is still in place when the owner dies, the property does not become part of the owner’s probate estate.17

What is the effect of a Kansas TOD deed on the death of an owner?

Title to real estate named in a recorded Kansas TOD deed belongs to the named beneficiary upon the property owner’s death.18 The property transfers subject to any existing encumbrances affecting the title—including, for example, liens or mortgages, leases, sale contracts, purchase options, easements, or transfers of partial interests in the property.19 A lien or mortgage in place when the owner dies remains attached to the property after the beneficiary takes title.

The beneficiary memorializes the formal transfer of ownership after the owner’s death by recording a copy of the owner’s death certificate or an affidavit attesting to the death with the county’s register of deeds.20

Can a Kansas TOD deed leave property to multiple beneficiaries?

A Kansas TOD deed can name one or multiple beneficiaries to take title after the owner’s death.21 Kansas law assumes that when multiple persons co-own real estate, the owners are tenants in common with equal interests.22 Tenants in common own separate, partial shares in the real estate that they can transfer separately.

A TOD deed with multiple beneficiaries can create a joint tenancy with right of survivorship between the new owners through language that clearly shows intent to create a joint tenancy. Kansas deeds creating joint tenancies typically transfer real estate to co-owners “as joint tenants with right of survivorship and not as tenants in common.”

Kansas law does not recognize tenancy by the entirety—a joint ownership form that creates a right of survivorship between married spouses. A TOD deed naming two spouses as beneficiaries creates a tenancy in common unless the deed clearly states that the beneficiaries will take title as joint tenants with right of survivorship.23

Can joint owners sign a Kansas TOD deed?

Co-owners of Kansas real estate may record a TOD deed transferring the property upon their deaths.24 The TOD deed’s effect depends on the form of co-ownership. If co-owners are tenants in common, then a co-owner’s partial interest transfers to a beneficiary named in a TOD deed upon the co-owner’s death.

A TOD deed recorded by a joint tenant is only effective if the joint tenant who signs the TOD deed is the last surviving joint tenant.25 If another joint tenant outlives a joint tenant who signs a TOD deed, full ownership belongs to the surviving joint tenant upon the other joint tenant’s death. The TOD deed is effectively void in that scenario. A TOD deed signed by both joint tenants transfers the real estate to the named beneficiary upon the death of the last surviving joint tenant.

What happens if the beneficiary named in a Kansas TOD deed dies before the owner?

The general rule is that if a TOD beneficiary dies before the property owner, the TOD designation lapses, or loses effect.26 If a TOD designation lapses, the real estate becomes part of the deceased owner’s probate estate instead of passing to the beneficiary. Real estate in an owner’s probate estate passes under the owner’s will or under Kansas rules for property not named in a will, whichever applies.

How can a real estate owner avoid a lapsed TOD deed?

Kansas law allows for two main ways to avoid a lapsed TOD deed. Because avoiding probate is one of the major reasons to record a TOD deed, a property owner who records a TOD deed should consider using one or both methods.

  1. Alternate beneficiary. An owner can avoid a lapsed TOD designation by naming another TOD beneficiary in the TOD deed.27 The alternate beneficiary takes title if—and only if—the primary beneficiary dies before the property owner.
  2. Multiple beneficiaries. A property owner can also avoid a lapsed TOD designation by naming more than one beneficiary.28 A designation in favor of one beneficiary may lapse if the beneficiary dies before the owner, but a second beneficiary can still take title under the TOD deed if that beneficiary survives the property owner.

Must the owner notify the beneficiaries of the Kansas TOD deed?

No. Notice to a TOD beneficiary is not required under Kansas’s TOD deed law.29 The beneficiary’s signature, acceptance of, or consent to a TOD deed is likewise unnecessary. A property owner may also revoke or change an existing TOD deed without telling the beneficiary or getting the beneficiary’s consent.30

Although notifying a beneficiary is not necessary legally, a property owner recording a TOD deed should make the beneficiary aware of the TOD deed or leave instructions for informing the beneficiary of the TOD deed upon the owner’s death. The beneficiary is responsible for recording evidence of the property owner’s death so that the county land records are updated to reflect the title transfer under the TOD deed.31

Can a Kansas TOD deed be used when the property is mortgaged?

Yes, an existing mortgage on real estate does not prevent the property owner from recording a Kansas TOD deed. A mortgage agreement typically includes a due-on-sale clause allowing the lender to demand faster payment of the loan balance if the property owner transfers the real estate without the lender’s consent. A federal law called the Garn-St. Germain Depository Institutions Act of 1982, though, says lenders cannot use due-on-sale clauses or demands for faster payment in response to “a transfer to a relative resulting from the death of a borrower.” 32 An unpaid mortgage balance does not make a TOD deed less effective.

A Kansas TOD deed transfers real estate along with all debts owed on the property—including mortgages—in effect during the property owner’s lifetime.33 That means a mortgage still applies after a TOD transfer. The beneficiary takes title with the mortgage still in force unless the mortgage debt is paid by other funds when the property owner’s estate is dealt with.

Must a Kansas TOD deed be recorded?

Yes, a Kansas TOD deed must be recorded before the owner’s death.34 The property owner must record the TOD deed in the land records maintained by the office of the register of deeds for the county where the property is located.35 A Kansas TOD deed that is signed and confirmed by a notary but not recorded before the owner dies has no effect. The real estate becomes part of the owner’s probate estate and is handled with the owner’s other assets.

Can a Kansas TOD deed be signed by an agent who has power of attorney?

A Kansas TOD deed must be “signed by the record owner” of the real estate.36 Kansas’s general deed laws allow a property owner’s authorized agent—including an agent acting under power of attorney—to sign a deed on a property owner’s behalf.37 An agent acting under a validly signed general power of attorney document also has authority to sign a deed for the owner under Kansas’s power-of-attorney law.38

A power-of-attorney document must clearly give the agent signing a Kansas TOD deed the power to do so. The property owner must specifically name the agent as able to create or change survivorship rights and TOD designations in the owner’s property.39 An agent given general powers to act for a property owner—but not the specific power to create a TOD designation—cannot sign a valid TOD deed on the property owner’s behalf.40

Can an agent who has power of attorney sign a TOD deed if the owner is incapacitated?

Kansas law is not entirely clear about whether an agent under a durable power of attorney can sign a TOD deed on behalf of a property owner who cannot sign on their own.41 A Kansas property owner must have the same mental capacity to create a TOD deed as is necessary to create a will or choose a beneficiary.42 Kansas’s power-of-attorney law clearly forbids an agent from creating a will on an owner’s behalf.43 A TOD deed signed by an agent on behalf of a property owner who lacks mental capacity is most likely invalid.

What are the requirements for a Kansas TOD deed?

A Kansas TOD deed must meet each of the following requirements to make a valid real-estate transfer when the property owner dies:44

  • Property owner’s name. It must name the current owner of the real estate.
  • Property description. It must include a legal description of the real estate to be transferred upon the owner’s death.
  • Beneficiary’s name. It must name a specific beneficiary to take title when the current owner dies.
  • Transfer on death. It must state that the owner wants to transfer title to the beneficiary upon the owner’s death. The abbreviation TOD is acceptable.
  • Revocability. It must contain a statement showing that the TOD deed can be revoked, is not effective until death, and overrides any prior TOD deeds affecting the property after the description of the real estate.
  • Owner’s signature. The current property owner must sign it.
  • Notarization. The owner’s signature must be confirmed by a notary.
  • Recording. It must be recorded—before the property owner’s death—with the register of deeds’ office for the county where the property is located.

A statement of consideration—or a payment amount in exchange for the TOD transfer—is not needed in a Kansas TOD deed.45

The Kansas TOD deed law includes a basic form for creating TOD deeds.46 A Kansas TOD deed should have a similar form to the legal template. TOD deeds must also meet Kansas’ general requirements for recorded documents affecting real estate.47

Need a transfer-on-death deed that meets Kansas recording requirements?

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  1. Kan. Stat. § 59-3501.
  2. Kan. Stat. § 59-3506.
  3. Kan. Stat. § 59-3504(a).
  4. Kan. Stat. § 58-501.
  5. Kan. Stat. § 59-3504(a).
  6. See Kan. Stat. § 58-501.
  7. Kan. Stat. § 59-3501(a).
  8. Kan. Stat. § 59-3505(a). A life estate holder cannot transfer life estate rights using a TOD deed because their rights end when the estate holder dies. See Kan. Stat. § 58-503.
  9. Kan. Stat. § 59-3508; Kan. Stat. § 17-49a02.
  10. Kan. Stat. § 59-3506; Kan. Stat. § 58-2414.
  11. Kan. Stat. § 59-3503.
  12. Kan. Stat. § 59-3502.
  13. See Kan. Stat. § 58-503.
  14. Kan. Stat. § 59-3503.
  15. Kan. Stat. § 59-3503(a).
  16. Kan. Stat. § 59-3501(b).
  17. Kan. Stat. § 59-3503(c).
  18. Kan. Stat. § 59-3504(a).
  19. Kan. Stat. § 59-3504(b).
  20. See Kan. Stat. § 58-501.
  21. Kan. Stat. § 59-3501(a).
  22. Kan. Stat. § 58-501.
  23. See Kirkpatrick v. Ault, 280 P.2d. 637 (Kan. 1955); Kan. Stat. §58-501.
  24. See Kan. Stat. § 59-3501(a); Kan. Stat. § 59-3505(a).
  25. Kan. Stat. § 59-3505(a).
  26. Kan. Stat. § 59-3504(c).
  27. Kan. Stat. § 59-3504(c).
  28. See Kan. Stat. § 59-3501(a).
  29. Kan. Stat. § 59-3501(b).
  30. Kan. Stat. § 59-3503.
  31. See Kan. Stat. § 58-501.
  32. 12 USC § 1701j-3(d)(5).
  33. Kan. Stat. § 59-3504(b).
  34. Kan. Stat. § 59-3502.
  35. Kan. Stat. § 19-1204; Kan. Stat. § 58-2221.
  36. Kan. Stat. § 59-3501(a).
  37. Kan. Stat. § 58-2209.
  38. Kan. Stat. § 58-654(d).
  39. Kan. Stat. § 58-654(f).
  40. Kan. Stat. § 58-654(b).
  41. See Kan. Stat. § 58-652.
  42. Moore v. Miles (In re Estate of Moore), 390 P.3d 551 (Kan. Ct. App. 2017).
  43. See Kan. Stat. § 58-654(g).
  44. See Kan. Stat. § 59-3501(a); Kan. Stat. § 59-3502.
  45. Kan. Stat. § 59-3501(a).
  46. Kan. Stat. § 59-3502.
  47. See, e.g., Kan. Stat. § 28-115; Kan. Stat § 58-2209.