New York Transfer on Death Deed: How It Works (2026)

A New York transfer-on-death deed is a recorded deed that names who will receive your house, condominium unit, or land when you die, without probate. You keep full ownership and can change your mind at any time during life. The deed is valid only if you have the capacity needed to make a will, sign it before a notary and two witnesses, and record it before your death (RPL 424).

What a transfer-on-death deed is

For decades, New Yorkers watched relatives in Florida, Texas, Ohio, and other states record a simple “beneficiary deed” and wondered why they could not do the same. That changed when New York enacted Real Property Law 424, effective July 19, 2024. The statute lets the owner of New York real property (the “transferor”) sign and record a deed during life that names one or more “designated beneficiaries” to receive the property when the owner dies. The statute applies to TOD deeds made before or after its effective date, as long as the owner dies on or after July 19, 2024.

Three features define the tool:

• It is revocable. The owner can cancel or replace it at any time by recording a new instrument.
• It is nontestamentary. The property passes under the deed, not under the will, so it is not part of the probate estate that Surrogate's Court supervises.
• It has no effect during life. Recording the deed does not transfer any interest during the owner's life (RPL 424(10)(a), (e)). The beneficiary cannot block a sale or mortgage, and does not need to sign the deed, know about it, accept it, or pay anything for it to be valid.

In practice, a TOD deed works like a payable-on-death designation on a bank account, but for real estate. It is one of the tools discussed in our guide on how to avoid probate in New York.

Who can use a TOD deed, and for what property

Capacity. Any individual who owns an interest in New York real property can sign a TOD deed if they have the mental capacity the statute requires. RPL 424 sets that standard at the capacity needed to make a will. In plain terms, the owner must understand the nature and extent of the property, who their close family members are, and what the deed does. The deed is signed during life but takes effect only at death, so disappointed relatives often raise capacity questions years later. A deed signed while the owner's health is declining deserves the same care as a will: a careful file made at the time of signing and witnesses who have no stake in the outcome.

What property qualifies. RPL 424 covers interests in real property. That includes houses, two- and three-family homes, condominium units, vacant land, and other interests recorded in the land records.

Co-ops. Shares in a cooperative apartment corporation, along with the proprietary lease, are generally treated as personal property under New York law, not as real property. Because a TOD deed under RPL 424 transfers interests in real property, it typically does not reach a Brooklyn or Manhattan co-op. Many New York City homeowners live in co-ops, so this matters. Co-op owners who want to avoid probate usually turn to a revocable trust (if the co-op board permits trust ownership) or to a carefully drafted will combined with other non-probate transfers.

Naming beneficiaries and alternates. An owner may name one beneficiary or several, and may name alternates. Unless the deed says otherwise, co-beneficiaries who survive the owner take equal undivided shares as tenants in common, with no right of survivorship between them.

If a named beneficiary dies before the owner, that beneficiary's share lapses. The anti-lapse rule that applies to wills (EPTL 3-3.3) does not apply, so the share does not pass automatically to that beneficiary's children. Instead, unless the deed provides otherwise, the lapsed share goes to the remaining concurrent beneficiaries pro rata (RPL 424(11)(a)(4)). If the sole beneficiary dies before the owner and no alternate is named, the deed transfers nothing. The property then goes through probate or administration after all.

How to sign, witness, and record a TOD deed

The signing rules are stricter than for an ordinary deed, and this is where do-it-yourself attempts most often fail. Under RPL 424, a valid TOD deed must meet each of these requirements:

• Form. It must contain the essential elements and formalities of a properly recordable deed: the owner, the beneficiary, and a legal description of the property. It must also state that the transfer to the beneficiary takes effect at the owner's death.
• Acknowledgment. The owner must sign it and acknowledge it before a notary public, just like any deed that will be recorded.
• Two witnesses. Two witnesses must also sign. They must be present at the same time and watch the owner sign. The statute requires both the acknowledgment and the two witnesses, so one does not replace the other. Recording offices read these requirements literally.
• Recording before death. The statute requires the deed to be recorded, before the owner's death, in the office of the county clerk where the property is located.

No payment is required, and the beneficiary does not have to accept delivery of the deed. The statute includes an optional statutory form, but a form alone is not enough. The legal description must match the recorded chain of title, and the recording office will reject a deed that fails its formatting rules or is missing the required transfer forms.

How recording works in New York City. As a practical matter, for property in Brooklyn, Manhattan, Queens, and the Bronx, deeds are recorded with the Office of the City Register through the ACRIS system. For Staten Island, deeds are recorded with the Richmond County Clerk. Outside the city, for example in Nassau or Suffolk, the deed goes to that county's clerk.

What recording costs depend on. Each county sets its own recording fees, and they change from time to time. Outside New York City, expect a base recording fee, a per-page charge, and a fee for the required transfer forms. In the five boroughs, the City Register's fee schedule applies, and the Register typically requires the state and city transfer tax forms even when no tax is due. The recording cost is usually modest compared with legal fees. The bigger cost of a TOD deed is a mistake discovered only after death, when it can no longer be fixed.

What happens at death. At the owner's death, the property passes to the designated beneficiaries who survive the owner. They take it subject to every mortgage, lien, and other encumbrance that exists at that time. The deed carries no warranty of title to the beneficiary (RPL 424(11)(e)). To become the owner on record, the beneficiary will need to record whatever the recording office asks for. In practice that is usually a certified death certificate and an affidavit, though this is recording-office practice rather than a specific requirement of RPL 424. A beneficiary who does not want the property can renounce it (RPL 424(13)).

Revoking a TOD deed, and what a later will does

A TOD deed can be revoked only by a recorded instrument. RPL 424 recognizes three methods:

• a new TOD deed that expressly revokes the earlier one or is inconsistent with it;
• a separate instrument of revocation; or
• an ordinary deed that conveys the property during life.

Each revoking instrument must be acknowledged and recorded before the owner's death. Tearing up the deed, writing “void” on it, or telling the family it is cancelled accomplishes nothing.

A later will does not override the deed. The deed is nontestamentary, so the property passes under the deed even if a will signed afterward leaves the house to someone else. This surprises many families. If you record a TOD deed and later change your estate plan, you must revoke or replace the deed in the land records. Updating the will alone is not enough.

Divorce. A divorce or annulment revokes a TOD designation in favor of the former spouse, under the same rule that applies to wills and other dispositions (EPTL 5-1.4, applied by RPL 424(12)(b)). Even so, it is cleaner to record a new deed after a divorce than to rely on the automatic rule.

Selling or mortgaging during life. The beneficiary has no present interest, so the owner can sell, mortgage, lease, or give away the property during life without the beneficiary's consent. A sale defeats the deed for the property sold. A new mortgage stays with the property, and the beneficiary takes the property subject to it.

Joint owners and spouses

When joint tenants own the property, or spouses own it as tenants by the entirety, the right of survivorship controls at the first death. If one joint owner dies and another survives, the property belongs to the surviving joint owner, not to the TOD beneficiary. The TOD deed takes effect only if the transferor is the last surviving joint owner (RPL 424(11)(c)-(d)).

Two more rules matter:

• A TOD deed signed by joint owners can be revoked only with the participation of all living joint owners.
• A deed signed by only one joint owner affects only that owner's interest, and only if that owner survives the others.

Married couples who want the house to pass to their children after both spouses die can do this with a single deed signed by both spouses. The deed must clearly address what happens on the first death and on the second.

Medicaid, estate recovery, and creditors

This is the most misunderstood part of the law. A TOD deed is a probate-avoidance tool, not an asset-protection tool.

• Medicaid eligibility. RPL 424(10)(d) provides that recording a TOD deed has no effect on the owner's eligibility for public benefits during life. The house remains fully yours, and the deed does not transfer an interest while you are alive, so recording it should not by itself be treated as a transfer of assets. That said, how a particular Medicaid application will be reviewed should be confirmed for your situation. The deed also offers none of the protection an irrevocable Medicaid asset protection trust is designed to provide.
• Estate recovery. For recovery purposes, New York defines the estate as property passing by will or by intestacy (SSL 369(6)). Property passing by TOD deed is outside that definition today. Recovery applies only to benefits paid at age 55 or older, and there is no recovery while there is a surviving spouse or a surviving child who is under 21, blind, or disabled. The legislature can change these definitions, so no one should rely on a TOD deed alone to avoid Medicaid estate recovery.
• Lifetime Medicaid liens. Separately, New York may place a lien during life on the real property of a Medicaid recipient who is permanently institutionalized (SSL 369(2)(a)(ii), (2)(b)(i)(A)). Statutory exceptions apply for certain family members who live in the home. A TOD deed does not prevent that lien, and the beneficiary takes the property subject to it.
• Creditors during life. The deed does not affect the rights of the owner's creditors. They can still place and enforce liens against the property as if no deed existed.
• Creditors after death. Beyond existing liens, RPL 424 makes the property available for the owner's allowed claims and statutory allowances to the extent the probate estate cannot pay them. The statute limits that exposure to 18 months after the owner's death. If several non-probate transferees are liable, the liability is apportioned by the net value each received.

The mortgage and the due-on-sale clause

Recording a TOD deed does not trigger a due-on-sale clause during life. Under RPL 424(10)(a) and (e), no interest passes to the beneficiary while the owner is alive, so there is no transfer for the lender to act on.

At death, a separate federal rule applies. The Garn-St Germain Act bars a lender from enforcing a due-on-sale clause on a transfer to a relative that results from the death of a borrower (12 U.S.C. 1701j-3(d)(5)). That protection is limited to residential property with fewer than five dwelling units. In practice, a child who inherits a one- to four-family home by TOD deed can usually keep paying the existing mortgage. The beneficiary should notify the servicer promptly and may need to ask to be treated as a successor in interest to receive statements and modification options. A beneficiary who is not a relative, or who inherits a larger building or commercial property, does not get this protection and should expect the lender to review the loan.

Pitfalls we see most often

• The deed was never recorded. A carefully drafted TOD deed found in a drawer after the funeral transfers nothing. Recording before death is a condition of validity, not a formality.
• A beneficiary died first. With several beneficiaries, the lapsed share shifts to the others pro rata, which may not be what the owner intended for a deceased child's family. With a sole beneficiary and no alternate, the property falls back into the probate estate.
• The beneficiary is a minor or has a disability. A minor cannot manage real property, so Surrogate's Court may appoint a guardian of the property (SCPA 1701, 1702(1)). For a beneficiary on SSI or Medicaid, inherited property generally counts as a resource unless an exclusion applies, such as the recipient's own home for SSI (42 U.S.C. 1382b(a)(1)). Benefits are lost only if countable resources exceed the limits, but that risk is real. A trust can handle both situations. A TOD deed cannot.
• Capacity and undue influence. The deed is signed privately and takes effect years later, so it invites the same challenges as a will: lack of capacity, undue influence, and fraud. A careful file made at signing and independent witnesses matter.
• Title insurance. The deed carries no warranty of title, and title insurers are still developing their practices for property that passed by TOD deed. Before insuring a sale by the beneficiary, some ask for extra affidavits, a waiting period, or proof that no creditor claims are outstanding. Given the 18-month creditor window, expect extra steps if the beneficiary plans to sell soon after the owner's death.
• Several children, one house. Siblings who inherit equal undivided shares have no built-in way to handle buy-outs, carrying costs, or a sale. That can end in a partition action. A trust can name a trustee with authority to sell and divide the proceeds.
• Co-op owners. Co-op shares are generally treated as personal property, so a TOD deed typically will not move them.
• A will that contradicts the deed. A later will does not change who takes under a recorded TOD deed.
• Forgetting the rest of the plan. A TOD deed moves one asset. It does nothing about incapacity, bank accounts, or retirement plans.

Taxes: the step-up in basis still applies

The owner keeps full ownership until death, so the property is included in the owner's estate for tax purposes. The beneficiary receives a stepped-up income tax basis equal to the date-of-death value under Internal Revenue Code section 1014. That is the same treatment a probate or trust transfer receives, and it is generally more favorable than the carryover basis that applies to a lifetime gift of the house.

Because the property is included in the estate, it also counts toward the New York estate tax base. New York's estate tax has a “cliff”: once the New York taxable estate exceeds 105% of the basic exclusion amount, the exclusion is lost entirely (Tax Law 952(c)(2)(B)). A TOD deed does nothing to change that math. Our estate tax cliff guide explains how the cliff works.

New York real estate transfer tax is generally not due on the transfer at death. Tax Law 1401 excludes a devise, bequest, or inheritance from the definition of a taxable conveyance, and Tax Law 1405(b)(4) exempts conveyances without consideration. Neither section mentions TOD deeds by name, so the recording office will still expect the transfer forms showing why no tax is due.

When a trust is the better tool

A TOD deed fits a narrow situation well: a single owner, a single piece of real property (not a co-op), one or two adult, financially stable beneficiaries, no Medicaid concern on the horizon, and a wish to keep things simple and inexpensive.

Outside that situation, a revocable living trust usually serves the family better. A trust:

• covers incapacity through a successor trustee;
• holds every asset, not just one;
• provides for alternates, minors, and beneficiaries with disabilities;
• lets a trustee sell the house and divide the proceeds among several children;
• can hold co-op shares if the board permits;
• avoids probate in every state where you own property; and
• can be paired with irrevocable planning when long-term care is a concern.

Our revocable living trust guide explains how funding and administration work. Some clients use both: a trust for the overall plan, and a TOD deed as a short-term bridge for a property that will be moved into the trust later. Whatever the combination, the deed, the will, the trust, and the beneficiary designations must all say the same thing.

Official sources and recording notes

• The statute. The official text of Real Property Law 424 is on the New York State Senate website.
• Where to record. The statute requires recording with the county clerk where the property is located.
• New York City in practice. Brooklyn, Manhattan, Queens, and Bronx deeds are recorded with the NYC Department of Finance, Office of the City Register, through ACRIS. Staten Island deeds are recorded with the Richmond County Clerk.
• Outside the city. Nassau, Suffolk, Westchester, and other counties each have their own clerk, fee schedule, and cover-page rules.

How Schwartsman Law Group can help

Schwartsman Law Group PLLC prepares and records transfer-on-death deeds for homeowners in Brooklyn, Queens, Manhattan, and on Long Island. We also tell clients plainly when a trust would serve them better. Schwartsman Law Group PLLC and its attorneys are licensed to practice law in New York only.

We serve families in English, Spanish, and Russian from three offices:

• Brooklyn: 2102 Avenue Z, Suite 305, Brooklyn, NY 11235
• Manhattan: 590 Madison Ave, 21st Floor, New York, NY 10022
• Long Island / Manhasset: 1129 Northern Blvd, Suite 404, Manhasset, NY 11030

Call +1 212 518 3868, email ms@schwartsmanlaw.com, or request a free consultation to find out whether a TOD deed belongs in your plan.

This guide provides general information about New York law and is not legal advice for any particular situation.