Mississippi Transfer on Death Deed Form

What Is a Mississippi Transfer-on-Death (TOD) Deed?

A Mississippi transfer-on-death deed—or TOD deed—is a legal document designed to transfer real estate to beneficiaries named in the deed on the death of an owner. Mississippi TOD deeds are popular estate planning tools that allow property owners to avoid probate at death without giving up control of a property during life.

The Mississippi Real Property Transfer-On-Death Act began allowing property owners to use Mississippi transfer-on-death deeds in 2020.¹ The act applies to TOD deeds signed after July 1, 2020, by a Mississippi property owner who dies after that date.²

What Is the Purpose of a Mississippi TOD Deed Form?

The key purpose of a Mississippi TOD deed form is to avoid probate (the legal process of dealing with away a person’s assets after death). A Mississippi TOD deed is a nontestamentary instrument, meaning that the property described in the TOD deed is not part of the owner’s probate estate.³ This means that the property described in the Mississippi TOD deed passes to the beneficiaries named in the TOD deed without the need for probate.

A secondary benefit of a Mississippi TOD form is retained control. An owner who makes a TOD deed keeps full control over the property. He or she can still sell, mortgage, or give away the property to someone else or cancel the beneficiary choice. Being able to avoid probate at death—coupled with being able to keep control during life—has the same effect as a living trust, but at a lower cost and with less hassle.

What Is the Benefit of Avoiding Probate?

Mississippi probate is a legal process. In most cases, an attorney must be hired to represent the estate in court. The attorney must file a series of documents with the court—including a list of estate assets—and publish a statement in the newspaper saying that the owner has died and inviting creditors to request payment from the estate. Many Mississippi property owners use a Mississippi TOD deed form to avoid the work, expense, and loss of privacy that are common with Mississippi probate.

What Types of Property Can Be Transferred Using a Mississippi TOD Deed?

A Mississippi TOD deed can be used to transfer only real estate located in the state of Mississippi.⁴ It cannot transfer vehicles or real estate located outside Mississippi.

What Is the Effect of a Mississippi TOD Deed While the Owner Is Alive?

Because a TOD deed allows the owner to keep control, it is designed to maintain the status quo. The Mississippi Real Property Transfer-On-Death Act lists a series of things that a Mississippi TOD deed does not change. During an owner’s life, a transfer-on-death deed does not:

1. Affect an interest or right of the owner or any other owner, including the owner’s right to transfer or encumber (mortgage) the real estate that is the subject of the deed;
2. Affect any homestead rights in the real estate;
3. Affect any property tax exemptions, including exemptions for residence homestead, persons 65 years of age or older, persons with disabilities, and veterans;
4. Affect an interest or right of a beneficiary of the real estate who is the subject of the deed (even if the beneficiary knows about the deed);
5. Affect an interest or right of a secured or unsecured creditor or future creditor of the owner (even if the creditor knows about the deed);
6. Affect the owner’s or beneficiary’s eligibility for any form of public assistance (like Medicaid);
7. Trigger a “due-on-sale” clause or similar clause in a mortgage document;
8. Invoke statutory real estate notice or disclosure requirements;
9. Create a legal or equitable interest in favor of the designated beneficiary; or
10. Subject the real estate to claims or process of a creditor of the designated beneficiary.⁵

Taken together, these rules make a Mississippi TOD deed a non-event while the owner is alive.

Can the Owner Sell the Property after Recording a TOD Deed?

Yes. An otherwise valid TOD deed will not transfer any interest to the named beneficiary if the owner signs a later deed transferring the property to someone else, as long as the more recent deed is recorded before the owner’s death in the chancery clerk’s office where the TOD deed was recorded.⁶ The beneficiary’s interest is subject to any transfer of the property prior to the owner’s death.⁷

Is a Mississippi TOD Deed Revocable?

Yes. All Mississippi TOD deeds can be revoked (canceled) by the owner. Two types of documents can revoke a previous TOD deed:

1. A later transfer-on-death deed that revokes the first transfer-on-death deed or part of it clearly or by inconsistency; or
2. By a revocation document that clearly revokes the transfer-on-death deed or part of it.

In each case, the revocation must be notarized by the owner after the date the owner signs and notarizes the TOD deed. It must also be recorded before the owner’s death in the official records of the chancery clerk of the same county where the first TOD deed was recorded.⁸

An owner may revoke a TOD deed simply by transferring the property to someone else.⁹ Because a beneficiary’s rights to the property are subject to any transfer of the property, the owner’s transfer to another owner voids the TOD deed.¹⁰

Because a TOD deed is not a testamentary instrument, it cannot be revoked by a will.¹¹ If the will includes provisions that dispose of the property in a different way than is described in the TOD deed, those provisions are disregarded. A divorce, however, does revoke a gift to a spouse as a named beneficiary of a TOD deed.¹²

What Is the Effect of a Mississippi TOD Deed When the Owner Dies?

When the owner dies—or, if more than one owner signed the TOD deed, when the last owner dies—the TOD deed transfers the property to the beneficiaries as the deed describes.¹³ The beneficiary accepts the property with no covenant or warranty of title (even if the deed claims to provide these).¹⁴

Can a Mississippi TOD Deed Leave Property to Multiple Beneficiaries?

Yes. The Mississippi Real Property Transfer-On-Death Act allows a TOD deed to transfer property to “one or more beneficiaries.”¹⁵ Unless the deed says otherwise, the beneficiaries receive equal shares with no right of survivorship. There is one exception: the share of a beneficiary that lapses or fails—for example, if the beneficiary dies before the owner—passes to the surviving beneficiary or beneficiaries.¹⁶

Can Joint Owners Sign a Mississippi TOD Deed?

Yes. The Mississippi Real Property Transfer-On-Death Act allows joint owners—also called joint owners with right of survivorship—to sign the same TOD deed. The law defines a joint owner as a person who owns property with one or more other persons with a right of survivorship. The term does not include a tenant in common, which has no right of survivorship.¹⁷

The survivorship rights inherent in joint ownership will trump the provisions of the TOD deed on the death of the first owner. If the owner is survived by other owners, the property passes to the surviving owners under the right of survivorship. On the death of the last surviving owner, the property passes to the beneficiaries under the TOD deed.¹⁸ These rules cover the common estate planning goal of leaving the property to a surviving spouse for his or her life, then to the children on the death of the surviving spouse.

Special rules apply to jointly owned property. Revocation by one owner does not affect the deed as to the interest of another owner who does not make that revocation.¹⁹ A TOD deed made by joint owners with a right of survivorship can be revoked only by all of the living joint owners.²⁰ The last surviving joint owner may also revoke the transfer-on-death deed.²¹

What Happens If the Beneficiary Named in a Mississippi TOD Deed Dies before the Owner?

The interest of a designated beneficiary depends on the beneficiary surviving the owner. Unless the deed says otherwise, the interest of a designated beneficiary who fails to survive the owner lapses (fails).²²

If the TOD deed leaves property to multiple beneficiaries, the default rules provide that any share of one beneficiary that lapses or fails for any reason is transferred to the other (or others) depending on what proportion of the property they already hold.²³

The default rules can be changed by adjusting the wording in the deed. A well-prepared TOD deed should be clear about what happens if a beneficiary dies before the owner.

Must the Owner Notify the Beneficiaries of the Mississippi TOD Deed?

No. A Mississippi TOD deed is valid whether or not the beneficiary knows about it, receives a copy of it, or approves it during the owner’s life.²⁴

Can a Mississippi TOD Deed Be Used When the Property is Mortgaged?

Yes. A TOD deed does not affect the owner’s ability to mortgage the property or trigger a “due on sale” clause in a mortgage.²⁵ A beneficiary takes the real estate subject to all transfers, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the real estate is subject at the owner’s death.²⁶

Must a Mississippi TOD Deed Be Recorded?

Yes. A Mississippi TOD deed must be recorded before the owner’s death in the deed records of the chancery clerk of the county where the real estate is located.²⁷ Failure to record the deed before the owner’s death invalidates the deed.

Can a Mississippi TOD Deed Be Signed by an Agent under a Power of Attorney?

Yes. As long as the power of attorney specifically authorizes a TOD deed, an agent under power of attorney can do so.²⁸ The mental ability required to make or revoke a transfer-on-death deed is the same as for a contract.²⁹

What Are the Requirements for a Mississippi TOD Deed?

The Mississippi Real Property Transfer-On-Death Act includes specific requirements for TOD deeds. To be effective, a transfer-on-death deed must:

1. Meet all the requirements that apply to Mississippi deeds, including names, addresses, and phone numbers of the parties and a valid legal description;
2. State that the transfer to the beneficiary occurs on the owner’s death (or, if multiple owners, on the death of the last owner to die); and
3. Be recorded before the owner’s death in the official records of the chancery clerk of the county where the real estate is located.³⁰

It is important that each Mississippi TOD deed be created with state-specific requirements in mind and include any custom phrasing required to achieve the owner’s goal. The use of a generic or fill-in-the-blank form can result in an invalid or useless deed.

1. Miss. Code § 91-27-1.
2. Miss. Code § 91-27-5.
3. Miss. Code § 91-27-13.
4. Miss. Code § 91-27-3(e).
5. Miss. Code § 91-27-23.
6. Miss. Code § 91-27-25.
7. Miss. Code § 91-27-29.
8. Miss. Code § 91-27-21(a).
9. Miss. Code § 91-27-25.
10. Miss. Code § 91-27-29.
11. Miss. Code § 91-27-21(b).
12. Miss. Code § 91-27-21(c).
13. Miss. Code § 91-27-27(4).
14. Miss. Code § 91-27-27(3).
15. Miss. Code § 91-27-9.
16. Miss. Code § 91-27-27(5).
17. Miss. Code § 91-27-3(c).
18. Miss. Code § 91-27-27(1).
19. Miss. Code § 91-27-21(d).
20. Miss. Code § 91-27-21(e).
21. Miss. Code § 91-27-27(2).
22. Miss. Code § 91-27-27(4).
23. Miss. Code § 91-27-27(5).
24. Miss. Code § 91-27-19(1).
25. Miss. Code § 91-27-23(5).
26. Miss. Code § 91-27-29.
27. Miss. Code § 91-27-17(3).
28. Miss. Code § 91-27-15(b).
29. Miss. Code § 91-27-15(a).
30. Miss. Code § 91-27-17.