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Non-Survivorship Property
Survivorship property is owned by more than one person and is either held by them as survivorship tenants or as tenants by the entireties.  For how to tell if property is held in survivorship and what happens on the death of an owner of survivorship property, see the When a Homeowner Dies page.

Non-survivorship property is either owned by a single person or by more than one person as tenants in common.  Upon the death of a non-survivorship property owner, his full or partial interest in the property is transferred to the new owner by one of the following:
 

 
  • Inheritance:  by Will or by Ohio’s Statute of Descent and Distribution
  • Transfer on Death Affidavit or Deed
  • Trust

Transfer by Inheritance

If the deceased homeowner had a will, the beneficiary named to inherit the real estate will become the new owner of the deceased’s share of the property.  If the homeowner died without a will, which is called dying “intestate”, Ohio’s statute of descent and distribution, Ohio Revised Code § 2105.06, sets forth who inherits the real estate and other assets:

 
  • If there is no surviving spouse, to the children of the deceased;

  • If there is a spouse and children of the surviving spouse and deceased, then the whole to the surviving spouse;

  • If there is a spouse and children of the decedent, but the surviving spouse is not the parent of all of the decedent's children, the estate is divided between them;

  • If there are no children or their lineal descendants, then the whole to the surviving spouse;

  • If there is no spouse and no children or their lineal descendants, to the parents of the deceased;

  • If there is no spouse, no children, and no parent surviving, to the brothers and sisters;

  • If there are no brothers or sisters, one-half to the paternal grandparents and one-half to the maternal grandparents;

  • If there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents;

  • if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate;

  • If there are no next of kin, to stepchildren;

  • If there are no stepchildren, to the state of Ohio.

Even if the deceased homeowner has a will naming the beneficiary to inherit the real estate, the transfer cannot take place until the deceased’s estate is administered by probate court to ensure that the will is valid, the deceased’s debts and taxes are paid and that the transfer of title is properly recorded.  For further information regarding estate administration, see the Hamilton County Probate Court website.

 

Transfer on Death Affidavit or Deed

In 2000 Ohio passed a new statute allowing a homeowner to name a person (beneficiary) or persons to whom their interest in real estate would be transferred upon their death.  This new document was called a Transfer on Death (TOD) Deed.  At the end of 2009, it was changed to a Transfer on Death (TOD) Affidavit.  See Ohio Revised Code § 5302.22 and TOD Affidavit Form.  Though a TOD Deed can no longer be created, those that were created between 2000 and 2009 are still valid.

The main benefits of a TOD Affidavit are:

 
  • A homeowner can transfer real property upon his death to a named beneficiary or beneficiaries without having to go through the probate process;

  • The transfer to the beneficiary upon the death of the homeowner is very similar to that of a survivorship tenancy, but unlike a survivorship tenancy, the named beneficiary or beneficiaries are not co-owners of the property;

  • The TOD Affidavit can be revoked or changed at any time for any reason; and

  • The TOD Affidavit has no effect on the homeowner’s ability to sell, transfer or mortgage the property during his life.
Once created, the TOD Affidavit must be filed in the Office of the County Recorder where the property is located.

Upon the death of the homeowner, a TOD Confirmation Affidavit must be filed with the Office of the County Recorder where the property is located along with a certified copy of the death certificate to complete the transfer of the real estate into the name of the surviving TOD beneficiary.

Transfer by Trust

If the real estate has been transferred into a living trust, then the real estate is owned by the trust, a separate legal entity from the person who created the trust and who is usually also the trust beneficiary.  When the trust beneficiary dies, the provisions of the trust itself controls what the trust does with the real estate.  Probate court estate administration is not involved because the person who died was not the legal owner of the real estate; rather, the trust owned the property.


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This website provides general legal information and not legal advice.  The law is complex and changes frequently. 
Before you apply any general legal information to a particular situation, consult an attorney. 
If you cannot afford an attorney call 1-866-Law-Ohio (1-866-529-6446) or visit OhioLegalServices.org for your closest legal aid office.

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