For many veterans, the family home is the biggest thing they own and the hardest thing to pass on. If it ends up in probate, the family may wait months for a court to act. Several tools can move a home to loved ones outside probate, and some states allow a special deed for this. The Texas Estates Code, for example, says an owner "may transfer the individual's interest in real property to one or more beneficiaries effective at the transferor's death by a transfer on death deed." This guide explains the main options, the states where official sources confirm them, and an important Medicaid issue every family should know.
Key Takeaways
- A transfer-on-death (TOD) deed lets a home pass at death without probate in states that allow it. Texas and Ohio are confirmed by their official statutes.
- In Texas and Ohio, the TOD document must be recorded before the owner dies, and in Texas the deed is revocable.
- A home titled in a living trust passes to beneficiaries without probate, according to California's courts.
- Joint tenancy with right of survivorship passes the home to the surviving owner, but bar associations warn of creditor and control risks.
- Avoiding probate does not always protect a home from Medicaid. For people 55 and older, states must seek recovery for certain long-term care costs.
- Rules for deeds, trusts, and Medicaid recovery are state law; an estate attorney can confirm what applies.
Table of Contents
- Why the Home Often Ends Up in Probate
- Transfer-on-Death Deeds
- Living Trusts and the Family Home
- Joint Tenancy and Other State Options
- Medicaid Estate Recovery and the Home
- Ask the Navigator
- Frequently Asked Questions
- Sources
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From the AVOY Book Library Guide To Living Trusts covers this in more depth, with step-by-step guidance. Get the Book → |
Why the Home Often Ends Up in Probate
A home that does not pass by a TOD deed, a trust, joint ownership, or a simplified state procedure may need probate before it can be sold or retitled. California's courts say formal probate "typically takes 9 to 18 months and can sometimes take even longer."
What changes the outcome
What matters is how the home is titled and what paperwork was recorded before death. The main options are:
- A transfer-on-death deed, in states that allow one
- A living trust that holds title to the home
- Joint ownership with right of survivorship
- A state small-estate or simplified procedure, where available
Transfer-on-Death Deeds
A transfer-on-death deed (Ohio calls its version a transfer on death designation affidavit) names who will receive the home when the owner dies. Not every state allows one, and the rules differ. This guide lists only states where the official statute was reviewed.
Texas
Texas Estates Code Chapter 114 allows TOD deeds. Key points from the statute:
- The deed must "be recorded before the transferor's death in the deed records in the county clerk's office of the county where the real property is located" (section 114.055).
- "A transfer on death deed is revocable regardless of whether the deed or another instrument contains a contrary provision" (section 114.052).
- It works without notice to, delivery to, or acceptance by the beneficiary during the owner's life, and without payment (section 114.056).
- During the owner's life, the deed "does not affect an interest or right of the transferor," including the right to sell or mortgage the home (section 114.101).
- The beneficiary takes the home subject to existing mortgages, liens, and other interests at the owner's death (section 114.104).
Ohio
Ohio uses a "transfer on death designation affidavit" under Ohio Revised Code section 5302.22. At the owner's death, "title to the real property or interest in the real property specified in the affidavit vests in the transfer on death beneficiary or beneficiaries designated in the affidavit." The affidavit "shall be recorded with the county recorder" before the death of the person who signed it.
Other states
Other states may have different rules, different names for the document, or no TOD deed at all. Before relying on one, families can check the state's official statutes or ask an estate attorney. In both Texas and Ohio, the document must be recorded before the owner dies.
Living Trusts and the Family Home
A revocable living trust can hold title to a home. The Superior Court of California in Orange County explains, "When a living trust holds title to some of the decedent's property, that property also passes to the beneficiaries without probate."
The deed must be changed
The words "holds title" matter. A home that was never deeded into the trust may not pass this way. Many families have an estate attorney prepare and record a new deed into the trust after the trust is signed.
The successor trustee takes over
When the owner dies, the successor trustee manages and transfers the home as the trust directs. The Consumer Financial Protection Bureau's trustee guide lists four duties: act in the beneficiaries' best interest, manage property carefully, keep trust property separate, and keep good records. The guide describes managing carefully as protecting property and paying bills on time.
Joint Tenancy and Other State Options
When two people own a home as joint tenants with right of survivorship, the survivor becomes the owner when the other dies. The Colorado Bar Association says this lets the surviving owner receive the asset "outside of any probate estate process because the title to the asset is transferred by operation of law."
The trade-offs
The Oklahoma Bar Association warns that joint tenancies "can be severed by bankruptcy proceedings, actions of creditors and other means." It notes that adding a non-spouse can raise federal gift tax issues, and that co-owners who disagree may face "expensive litigation." When the last joint owner dies, the home may still need probate.
Simplified procedures for the home
Some states have shortcuts just for homes. Two official examples:
- California: The California Courts Self Help Guide lists a court petition for real property with a limit of $750,000 for a main home in California, for deaths on or after April 1, 2025.
- Texas: Texas Estates Code section 205.006 allows a homestead to pass under a small estate affidavit when it is the only real property in the estate and the affidavit is recorded in the deed records. Section 205.001 sets the Texas small estate affidavit limit at $75,000 in estate assets, not counting the homestead and exempt property, and requires a 30-day wait after the death.
Medicaid Estate Recovery and the Home
Families planning to protect a home should know about Medicaid estate recovery. This applies if the veteran or spouse receives Medicaid long-term care.
What federal law requires
Medicaid.gov states: "For individuals age 55 or older, states are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services." It also says states may recover for other Medicaid services, and that "under certain conditions, money remaining in a trust after a Medicaid enrollee has passed away may be used to reimburse Medicaid."
Protections for families
Medicaid.gov says states "may not recover from the estate of a deceased Medicaid enrollee who is survived by a spouse, child under age 21, or blind or disabled child of any age." States must also have a process to waive recovery when it "would cause an undue hardship."
Liens on the home
States may place a lien on the home of a Medicaid enrollee who is permanently institutionalized. Medicaid.gov says this is not allowed when certain people live in the home: a spouse, a child under 21, a blind or disabled child of any age, or a sibling with an equity interest in the home. An elder law attorney in your state can explain how a TOD deed, trust, or joint tenancy is treated there. For VA long-term care options, see VA Nursing Home and Long-Term Care Benefits.
Ask the Navigator
Want to know how your home is titled and what that means for your family? Ask AVOY Veteran Navigator AI™ at avoyvet.com, and take the free Veteran Legacy Checklist to review your deed, trust, and long-term care plans.
Frequently Asked Questions
Can I still sell my home after signing a TOD deed?
In Texas, yes. Section 114.101 says the deed does not affect the owner's right to transfer or mortgage the property during life. Other states have their own rules.
Does a TOD deed have to be recorded?
In Texas and Ohio, yes, before the owner dies. Texas requires recording with the county clerk; Ohio requires recording with the county recorder.
Does the beneficiary inherit the mortgage?
In Texas, the beneficiary takes the home subject to the mortgages, liens, and other interests in place at the owner's death (section 114.104).
Does avoiding probate protect my home from Medicaid?
Not always. Medicaid.gov says states must seek recovery for certain long-term care costs for people 55 and older, and trust money can be used to repay Medicaid under certain conditions. An elder law attorney can explain your state's rules.
Is joint tenancy the same as a TOD deed?
No. A joint tenant is a current co-owner. Bar associations warn this exposes the home to the co-owner's creditors and disputes. In Texas, a TOD deed does not affect the owner's rights during life.
Sources
- Texas Estates Code Chapter 114, Transfer on Death Deed — Texas Legislature
- Texas Estates Code Chapter 205, Small Estate Affidavit — Texas Legislature
- Ohio Revised Code 5302.22, Transfer on death designation affidavit — Ohio Laws
- Wills & Trusts — Superior Court of California, County of Orange
- Overview of formal probate — California Courts Self Help Guide
- When formal probate may not be needed — California Courts Self Help Guide
- Joint Tenancy — Colorado Bar Association
- Joint Tenancy: The Pros & Cons — Oklahoma Bar Association
- Help for trustees under a revocable living trust — Consumer Financial Protection Bureau
- Estate Recovery — Medicaid.gov
Educational information only — not legal, tax, financial, or medical advice, and not affiliated with the U.S. Department of Veterans Affairs. Estate and probate rules vary by state; an estate attorney in your state can confirm what applies. For VA benefits help, contact a VA-accredited VSO (often free), claims agent, or attorney.
