Transfer on Death Deeds in New York: RPL § 424 Guide

Since July 19, 2024, a New York homeowner can sign a transfer on death deed that passes real estate to a named beneficiary at death without probate. The authority is Real Property Law (RPL) § 424, added through the April 2024 state budget. The deed costs little to prepare, but the statute is strict about how it is signed, recorded and revoked, and it leaves open questions that matter for co-op owners, people with debts and families with minor children.

What is a transfer on death deed in New York?

A transfer on death deed (often called a TOD deed or TODD) is a recorded deed that transfers your interest in real property to one or more beneficiaries effective at your death, and has no effect before then. RPL § 424(3) states the authorization in one sentence:

The statute calls the deed "nontestamentary", which means it is not a will and does not pass through the will. The statutory form printed in § 424(15) tells owners plainly: "Probate is not required." The property goes to the beneficiary by operation of the recorded deed, not by order of the Surrogate's Court.

When did RPL § 424 take effect?

The Oneida County Clerk's Office lists the effective date as July 19, 2024, and explains that "Part of the New York State budget process in April 2024 included a bill which amended Real Property Law §424 to add a Transfer on Death Deed and associated Revocation." (Oneida County Clerk.) The official text on the New York State Senate's Open Legislation site shows the current revision of the section dated 2024-07-26.

Who can use a TOD deed, and for what property?

Any individual with the capacity to make a will can sign a TOD deed for an interest in New York real property. Subdivision 6 sets the capacity standard at the same level required to make a will, and subdivision 1(e) defines "property" as "an interest in real property located in this state which is transferable on the death of the owner."

That definition covers a house, a multi-family building, vacant land and a condominium unit. Condominium units qualify because RPL § 339-g provides that "Each unit, together with its common interest, shall for all purposes constitute real property."

What about co-op apartments?

Section 424 does not mention cooperative apartments at all. It reaches only "an interest in real property", and it gives no express answer for co-op shares. Because of that gap, we do not rely on a TOD deed to pass a Manhattan or Brooklyn co-op. For co-op owners we look at a revocable trust or a will, and we review the co-op's own transfer rules.

Does it work for jointly owned property?

Yes, but survivorship comes first. Under § 424(11)(c), if a transferor who is a joint owner dies survived by another joint owner, the property belongs to the surviving joint owner with right of survivorship. Under § 424(11)(d), the TOD deed takes effect only when the transferor is the last surviving joint owner. A deed made by joint owners can be revoked only "by all of the living joint owners", per § 424(9)(b)(2).

How do you sign and record a valid TOD deed?

A TOD deed must meet five requirements listed in § 424(7), and missing any one of them can defeat the transfer. The deed:

1. must contain the essential elements and formalities of a properly recordable inter vivos deed;
2. must state that the transfer to the designated beneficiary is to occur at the transferor's death;
3. must be signed by two witnesses who were present at the same time and witnessed the signing;
4. must be acknowledged before a notary public; and
5. must be recorded before the transferor's death in the county where the property is located.

The two-witness requirement is the easiest one to miss. The instructions printed on the back of the statutory form tell owners to have the form acknowledged and recorded but do not repeat the witness rule; the form itself has lines for two witnesses, and subdivision 7(c) makes them mandatory. An unrecorded deed found in a drawer after death does nothing: the form warns, "This form must be recorded before your death, or it will not be effective."

The deed does not need the beneficiary's knowledge or signature. Section 424(8) makes it effective without notice, delivery, acceptance or consideration. The statutory form still recommends telling beneficiaries, noting that "Secrecy can cause later complications and might make it easier for others to commit fraud."

The legal description of the property is required. The form answers its own question, "Is the 'legal description' of the property necessary?" with one word: "Yes." The form notes that it "may be on the deed you received when you became an owner of the property."

How do you revoke a New York TOD deed?

A recorded TOD deed can be revoked only by a recorded instrument, never by tearing it up or by a later will. The deed is revocable "even if the deed or another instrument contains a contrary provision" (§ 424(4)). Under § 424(9)(a), the revoking instrument must be one of three things:

• a new TOD deed that revokes the earlier one expressly or by inconsistency;
• an instrument of revocation that expressly revokes it (the statute supplies a form in § 424(16)); or
• an ordinary deed during life that expressly revokes the TOD deed.

Whichever you use must be acknowledged after the original deed and recorded before your death in the county where the TOD deed is recorded. Section 424(9)(c) closes the other door: "After a transfer on death deed is recorded, it shall not be revoked by a revocatory act on the deed." The statutory form adds, "You may not revoke the TOD deed by will." Selling or mortgaging the property during life remains your right under § 424(10)(a).

Divorce also matters. Under § 424(12)(b), divorce, annulment or dissolution of marriage has the same effect on a TOD deed as under EPTL § 5-1.4, which revokes revocable dispositions to a former spouse unless the governing instrument says otherwise. Fraud, undue influence, duress and mistake remain grounds to challenge the deed under § 424(12)(a), the same grounds raised in will contests based on undue influence.

What happens at death, and what does the beneficiary receive?

At the owner's death, the interest passes to the designated beneficiary in accordance with the deed, but only if that beneficiary survives the owner. Under § 424(11)(a)(2), the interest of a beneficiary who fails to survive "lapses," which is why the statutory form provides a line for an alternate beneficiary. Two or more beneficiaries take "in equal and undivided shares with no right of survivorship" (§ 424(11)(a)(3)).

The beneficiary takes the property subject to every mortgage, lien and encumbrance on it at death (§ 424(11)(b)), and the deed carries no covenant or warranty of title "even if the deed contains a contrary provision" (§ 424(11)(e)). A beneficiary who does not want the property may renounce all or part of it as if the interest came under a will (§ 424(13)).

Does a TOD deed protect the house from creditors or affect Medicaid?

No. During the owner's life, the deed changes nothing for creditors or benefits, and after death the property can be reached for the estate's unpaid claims. Section 424(10) says that during the transferor's life the deed shall not:

After death, § 424(14)(a) allows the estate to enforce an allowed claim, or a statutory allowance to a surviving spouse or child, against the TOD property to the extent the probate estate is insufficient. Under § 424(14)(c), that proceeding must be commenced no later than eighteen months after the transferor's death. The statute does not name Medicaid estate recovery specifically, so a family should not assume a TOD deed puts the home beyond that claim. Medicaid planning involves separate rules, discussed in our article on the Medicaid five-year lookback in New York.

TOD deed or revocable trust: which fits?

A TOD deed is the simpler document for a single piece of real estate passing outright to adults; a revocable trust does more but requires more work. The differences that matter in practice:

• Execution. A lifetime trust must be in writing and acknowledged in the manner required for recording a real property conveyance, or signed before two witnesses, under EPTL § 7-1.17. A TOD deed needs both two witnesses and a notary, plus recording.
• Funding. Under EPTL § 7-1.18, a trust "shall be valid as to any assets therein to the extent the assets have been transferred to the trust", which for real estate held by a sole trustee means recording a deed into the trust. A TOD deed leaves title in your name until death. See our guide to funding a trust in New York.
• Scope. A TOD deed covers only real property. A trust can hold real estate and other assets, such as bank and brokerage accounts.
• Management. Section 424 passes property outright; it has no mechanism for holding real estate for a minor or a beneficiary who cannot manage it. A trust can name a successor trustee and set terms for distribution.
• Revocation. Both are revocable. A TOD deed is revoked only by a recorded instrument; a trust amendment or revocation follows the formalities in EPTL § 7-1.17(b).

For a broader comparison of planning tools, read living trust vs. will in New York.

What mistakes can invalidate a TOD deed?

Each of these errors runs into a specific rule in § 424(7), (9) or (11).

• Signing before a notary with no witnesses, or with witnesses who were not present at the same time.
• Leaving the deed unrecorded until after death.
• Naming one beneficiary with no alternate, so the gift lapses if that person dies first.
• Trying to change beneficiaries in a later will instead of recording a new instrument.
• Using a TOD deed for a co-op apartment, which the statute does not mention.

Talk to a New York estate planning attorney

A TOD deed can be the right tool for a house or condominium that should go straight to adult children, and the wrong one for a co-op, a blended family or a beneficiary who needs protection. We prepare, witness and record TOD deeds and revocations, and we review whether a revocable trust fits better. Schedule a free consultation with Alan Vaitzman, Esq. at Estate Law New York, 17th Floor, 299 Broadway, New York, NY 10007, through our contact page.

Frequently Asked Questions

Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.