North Dakota Transfer on Death Deed Form
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What is a North Dakota transfer-on-death (TOD) deed?
A North Dakota transfer-on-death deed—often called a TOD deed—is a written legal document that transfers property on the death of an owner to one or more beneficiaries named in the document. North Dakota transfer-on-death deeds were first authorized by statute in 2011.1
What is the purpose of a North Dakota TOD deed?
The main purpose of a North Dakota TOD deed is to avoid probate. A transfer-on-death deed is nontestamentary, meaning it requires no legal process (probate) to transfer property described in the TOD deed to the named beneficiaries.2 On the owner’s death, the property described in the TOD deed passes to the beneficiaries outside of the probate process.
North Dakota TOD deeds also allow the owner to retain complete control over the property while the owner is alive. The owner may sell, mortgage, or give away the property without the consent of or notice to the chosen beneficiaries. The owner may also change his or her mind, revoke the deed, or name different beneficiaries at any time.
Many property owners use a North Dakota TOD deed instead of a living trust, which fulfills the same purpose but with more expense and hassle. North Dakota TOD deeds are generally preferred over life estate deeds, which also avoid probate at death but come with more restrictions during life.
What is the benefit of avoiding probate?
Like other types of legal processes, probate can be long and expensive. It requires someone—often an attorney—to present a series of documents to a court for approval. These documents usually include a full list of the deceased person’s assets and known creditors. North Dakota property owners use TOD deeds to avoid the high cost, hassle, and loss of privacy involved in North Dakota probate.
What types of property can be transferred using a North Dakota TOD deed?
A North Dakota TOD deed form can be used only to transfer real estate located in North Dakota.3 It does not work for assets other than real estate (like cars) or for real estate located in other states.
What is the effect of a North Dakota TOD deed while the owner is alive?
A TOD deed is designed to be a non-event during the owner’s life. North Dakota law includes a list of things that do not change when an owner makes a TOD deed. During an owner’s life, a transfer-on-death deed does not:
- Affect any interest or right of any owner, including the right to sell, mortgage, or otherwise deal with the property;
- Affect an interest or right of someone who receives property from the owner (even if that person knows about the deed);
- Affect the rights of any of the owner’s creditors (even if the creditors know about the deed);
- Affect the owner’s or beneficiary’s ability to get any form of public assistance (like Medicaid);
- Give the beneficiary any interest in the property; or
- Allow creditors of the beneficiary to claim the property.4
Can the owner sell the property after recording a TOD deed?
Yes. A North Dakota TOD deed does not change the owner’s ability to sell the property.5 The beneficiary’s interest in the property is subject to any transfers that happen prior to the owner’s death.6 If the owner transfers the property before death, the beneficiary receives nothing.
Is a North Dakota TOD deed revocable?
Yes. A South Dakota transfer-on-death deed is revocable even if the deed itself says it is not.7 Three types of documents can revoke a TOD deed:
- A new TOD deed that revokes the deed or part of the deed (either by clear language or by inconsistency);
- An instrument of revocation that clearly revokes the deed or part of the deed; or
- A transfer of the property during life using a deed that clearly revokes the transfer-on-death deed or part of the deed.8
Each of these forms of revocation must be notarized after the date of the TOD deed being revoked and recorded. This must be done before the owner’s death and the document must be recorded in the public records in the Office of the County Recorder of the county where the deed is recorded.9
A property owner can also revoke a North Dakota TOD deed by transferring the property to someone else, in which case the beneficiary receives nothing.10
Special rules apply when multiple owners sign the same TOD deed. In that case, revocation by one owner does not affect the deed as to the interest of another owner. A deed of joint owners is revoked only if all of the living joint owners revoke it.11
Historically, many US states have allowed a person to revoke his or her will by a revocatory act such as burning, tearing, or otherwise destroying the document. Because a TOD deed is not a will (and is nontestamentary), it cannot be revoked by a revocatory act.12
What is the effect of a North Dakota TOD deed when the owner dies?
On the death of an owner—or, if joint owners sign a single deed, on the death of the last joint owner to die—the owner’s interest in the property is transferred to the beneficiary in accordance with the deed.13 If the deed names multiple beneficiaries and does not say otherwise, interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship.14
A beneficiary takes the property as is, with no warranty of title15 and subject to all transfers, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the owner’s death.16
Can a North Dakota TOD deed leave property to multiple beneficiaries?
Yes. A North Dakota property owner can leave the property to “one or more beneficiaries.”17 Unless the deed says something different, the beneficiaries will hold title in equal and undivided shares with no right of survivorship.18 There is one exception: if a beneficiary dies before the owner, that beneficiary’s interest goes to the surviving beneficiaries proportionally.19. These rules can be changed by customized phrasing in the deed.
Can joint owners sign a North Dakota TOD deed?
Yes. A single North Dakota TOD deed may be signed by joint owners. Joint owners can be joint tenants or tenants by the entirety (because of the survivorship rights), but not tenants in common.20
If joint owners sign the same deed, on an owner’s death, the property passes to the surviving joint owners due to the right of survivorship. On the death of the last surviving joint owner, the transfer-on-death deed takes effect.21 These rules allow, for example, a married couple to leave the property to each other for life (through the right of survivorship) and then transfer it to the children on the death of the second spouse to die (through the TOD deed).
What happens if the beneficiary named in a North Dakota TOD deed dies before the owner?
The interest of a beneficiary depends on the beneficiary surviving the owner. If a beneficiary dies before the owner, the transfer to that beneficiary lapses (fails).22
If the TOD deed leaves the property to multiple owners and does not say otherwise, the share of a deceased beneficiary that lapses or fails for any reason goes to the other beneficiary or beneficiaries.23
Custom language can be included in the deed to deal with the chance of lapse by describing what happens if a beneficiary dies before the owner.
Must the owner notify the beneficiaries of the North Dakota TOD deed?
No. A transfer-on-death deed works even without notice or delivery to or acceptance by the beneficiary during the owner’s life.24
Can a North Dakota TOD deed be used when the property is mortgaged?
Yes. A North Dakota TOD deed does not affect an existing mortgage or the owner’s ability to mortgage the property later.25
Must a North Dakota TOD deed be recorded?
Yes. A transfer-on-death deed must be recorded before the owner’s death. It must be recorded in the public records in the Office of the County Recorder of the county where the property is located.26
Can a North Dakota TOD deed be signed by an agent under a power of attorney?
The capacity required to make or revoke a transfer-on-death deed is the same as for a will.27 North Dakota law does not say an agent cannot sign a TOD deed for an owner. Still, care should be taken if the owner lacks the mental ability to make the deed on his or her own behalf. At the least, the power of attorney should specifically give the agent legal power to sign the deed for the owner. It is usually best to have the owner sign the deed if possible.
What are the requirements for a North Dakota TOD deed?
North Dakota’s TOD deed statute lists four specific requirements for North Dakota TOD deeds:
- A TOD deed must meet the requirements for all North Dakota deeds, including correct formatting, proper identification of the parties, and a valid legal description;
- A transfer-on-death deed must say that the transfer to the beneficiary will occur at the owner’s death.
- A transfer-on-death deed must have the phrase “transfer-on-death deed” or the abbreviation “TOD” in its title.
- A transfer-on-death deed must be recorded before the owner’s death in the public records in the Office of the County Recorder of the county where the property is located.28
Unlike with other types of North Dakota deeds, there is no need to obtain an auditor’s certificate of transfer or provide a statement of full consideration before recording the deed.29
Need a transfer-on-death deed that meets North Dakota recording requirements?
Each deed produced by our deed creation service is attorney-designed to comply with North Dakota law. Just complete a user-friendly interview and get a customized transfer-on-death deed in minutes.
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- See N.D. Cent. Code §§ 30.1-32.1-01, et seq.
- N.D. Cent. Code § 30.1-32.1-04.
- N.D. Cent. Code § 30.1-32.1-01(4).
- N.D. Cent. Code § 30.1-32.1-09.
- N.D. Cent. Code § 30.1-32.1-09.
- N.D. Cent. Code § 30.1-32.1-10.
- N.D. Cent. Code § 30.1-32.1-03.
- N.D. Cent. Code § 30.1-32.1-08(1)(a).
- N.D. Cent. Code § 30.1-32.1-08(1)(b).
- N.D. Cent. Code § 30.1-32.1-10.
- N.D. Cent. Code § 30.1-32.1-08(2).
- N.D. Cent. Code § 30.1-32.1-08(3).
- N.D. Cent. Code § 30.1-32.1-10(1)(a).
- N.D. Cent. Code § 30.1-32.1-10(1)(c).
- N.D. Cent. Code § 30.1-32.1-10(4).
- N.D. Cent. Code § 30.1-32.1-10(2).
- N.D. Cent. Code § 30.1-32.1-02.
- N.D. Cent. Code § 30.1-32.1-10(1)(c).
- N.D. Cent. Code § 30.1-32.1-10(1)(d).
- N.D. Cent. Code § 30.1-32.1-01(3).
- N.D. Cent. Code § 30.1-32.1-10(3).
- N.D. Cent. Code § 30.1-32.1-10(1)(b).
- N.D. Cent. Code § 30.1-32.1-10(1)(d).
- N.D. Cent. Code § 30.1-32.1-07.
- N.D. Cent. Code § 30.1-32.1-09(1).
- N.D. Cent. Code § 30.1-32.1-06(4).
- N.D. Cent. Code § 30.1-32.1-05.
- N.D. Cent. Code § 30.1-32.1-06.
- N.D. Cent. Code § 30.1-32.1-06(5).