I inherited a rental property from my mother via a transfer on death deed. My father however is leaving me his residence via a survivorship deed. What, if any, are the differences? Thanks.
Construction / Development Lawyer
While the ultimate result may be the same, there is a huge difference between a Transfer on Death Deed and a Survivorship Deed.
With a Transfer on Death Deed, the property owner can change the deed at any time, adding or deleting your or other names. You have no current ownership interest, so you have no say in what happens. Your ownership interest only becomes current upon the death of the property owner.
A survivorship deed means that you have a current ownership interest. You actually own 100% of the "undivided whole" interest in the property. Neither owner can sell the property or change the deed to eliminate the other person without that other person's (your) "permission." That permission would be you signing a deed transferring your interest in the property to the other owner or some other party.
With a transfer on death deed, you have no control over the property because you have no current interest in the property. With a survivorship deed, you have shared control over the property with the other owner(s).
One warning, however, if your father hasn't already transferred the property to you, you want to be sure that he uses the right form. The usual form that I see most frequently used to add a person under a survivorship deed is a "Quit Claim" deed form (not all quit claim deeds will make the title survivorship, but the survivorship form that seems to be most common is the quit claim form). Most people think that this is really pronounced "Quick Claim," that it is a "quick" way to transfer the property. This couldn't be more wrong. With a Quit Claim Deed all you are doing is "quitting" your interest in the property, whether you actually have an interest or not, to the other party or parties. The survivorship deed form you want is the "General Warranty" form.
The reason is that when your father originally bought the property, he probably had title insurance. Title insurance insures that the owner transferring title actually has good title. If your father uses a Survivorship Deed that has general warranty covenants, if there turns out to be a problem with the title that precedes your father's ownership, the title insurance will still be in place. Using the quit claim form will release the title insurer from further liability.
If you are not sure, go to an attorney that handles real estate on a regular basis. He or she can easily help you transfer the title. You will also want to be sure that you don't have to pay the transfer tax ($4.00/$1,000 of property value). Ohio provdes for an exemption from the tax if the transfer is a gift "between husband and wife, or parent and child or the spouse of either." You just have to be sure that you complete the correct form to claim the exemption.
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Mr. O'Roarke is correct. The real difference is whether the original owner or owners want to have the freedom to rename a beneficiary at any time as in the transfer on death deed, or use a survivorship deed that makes the owners equal and necessary to convey the property.
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