Sometimes It Is The Simple Tasks That Get You

A transfer on death affidavit is a simple tool that allows real property to be transferred upon the death of the owner without probate administration. The preparation of the affidavit is fairly straightforward. The requirements for the affidavit and the process are clearly described in R.C. 5302.22.

Despite the simplicity of the transfer on death affidavit, OBLIC has seen a sharp rise in claims arising from them. It appears that the danger in these transfer on death affidavits lies in their simplicity. Drafting the affidavit is a task that a lawyer may think can be knocked out without much thought or even delegated to nonlawyer staff.  However, failing to give these affidavits proper attention can easily lead to a malpractice claim.  If a lawyer overlooks one of the requirements for the affidavit, fails to catch a clerical error, or fails to file the affidavit before the death of the owner, the tool fails at its sole purpose—to avoid probate.

These affidavits also give rise to claims because the only deadline for filing is the death of the owner of the property. Without a deadline on the calendar, filing may be overlooked until after the owner has died.  At that point, it is too late. Filing the affidavit after the death of the owner will be ineffective.

If your practice involves drafting transfer on death affidavits, consider these practice pointers:

(1)   use our “double-check” list below

(2)   create a recurring calendar reminder that requires manual confirmation that the affidavit has been filed to remove the reminder from the calendar  (Here are tutorial links for Outlook; iPhone/iPad; Android; Clio; and MyCase.)

We urge you to double check that the requirements of the statute have been met and file these affidavits promptly to prevent this simple affidavit from becoming a complicated problem.

Transfer on Death Double-Check List

Get the Deed

• • Is it the correct property?

Prepare the Affidavit

• • Is the property description accurate?
  • Is the number of the recorded instrument correct?
  • If less than the entire interest is to be transferred, is the specific interest accurately described?
  • Is there a statement that the affiant is the person identified on the record as the owner?
  • Is there a statement about the affiant’s marital status?
  • If the affiant is married, is there a statement from the spouse regarding dower rights?
  • Are the transfer on death beneficiaries identified correctly?
  • Has the affiant notarized the affidavit?

File the Affidavit

• • Is it recorded in the right county?