Transfer on Death (TOD) deeds are legal instruments that allow individuals to transfer real property to designated beneficiaries upon their death without the need for probate. In Nevada, TOD deeds are a viable option for estate planning, but there are drawbacks. Here are the pros and cons associated with Transfer on Death by Deed for real property in Nevada:
Avoidance of Probate: One of the primary advantages of TOD deeds is that they help to bypass the probate process. Probate can be time-consuming and costly, and TOD deeds provide a streamlined way to transfer real property to beneficiaries without court involvement.
Flexibility: TOD deeds offer flexibility because the property owner retains full control and can make changes to the beneficiary designation or revoke the TOD deed if circumstances change.
Privacy: Since TOD deeds avoid probate, the transfer of real property occurs privately, without court records becoming public. This can be advantageous for individuals who value privacy in their estate planning.
Simplicity: TOD deeds are relatively simple to create and do not require the same level of legal complexity as some other estate planning tools.
Cost-Effective: Compared to the costs associated with probate, creating a TOD deed can be a cost-effective way to transfer real property to beneficiaries.
In general, if the real property is paid off, and not a lot of other debt, using a TOD deed is an option. This should be coupled with a proper Last Will and Testament and other estate planning documents.
Inflexibility After Death: While TOD deeds provide flexibility during the property owner's lifetime, once the owner passes away, the beneficiary designation becomes irrevocable. This lack of flexibility can be a disadvantage if circumstances change after the property owner's death.
Potential Challenges: If there are disputes or challenges to the TOD deed after the property owner's death, resolving these issues may require legal intervention.
Creditors' Claims: TOD deeds do not protect the property from the claims of creditors. If the property owner has outstanding debts, creditors may still make claims against the property after the owner's death.
Complex Family Situations: TOD deeds may not be suitable for individuals with complex family situations, such as blended families or situations where specific arrangements are needed to address unique family dynamics.
Limited to Real Property: TOD deeds only apply to real property and cannot be used for other types of assets, such as bank accounts or personal property.
It Can Take Time: Pursuant to NRS 111.689, creditors must be given notice and the notice must be published in a local newspaper. There is a 90-day period of time for a creditor to make a claim after first publication. Also, the Department of Health and Human Services has a right to recover for public assistance and may lien the property if this is not done correctly. Title companies are aware of this and cannot guarantee clear title until all steps have been accomplished and the proper timeline has passed.
Often, the drawbacks to using a TOD deed make it difficult for the inheriting party. There are multiple documents to prepare and/or record, and there can be a delay before a sale is possible due to the notice period. Overall, these steps can be as cumbersome as going to probate court. It's important for individuals considering TOD deeds or any estate planning tool to consult with legal professionals to ensure that their chosen method aligns with their specific circumstances and goals.