Executive Summary

Probate-avoidance deeds have become a core tool of modern estate planning, but availability varies by jurisdiction. Thirty-four states plus the District of Columbia have enacted transfer-on-death deed (TODD) statutes; Part A lists each by name. All of those statutes are currently in effect except Maryland’s, which is enacted but does not take effect until October 1, 2026 — so as of August 2026, a TODD is available in thirty-three states plus the District of Columbia. A subset of states rely instead on the common-law enhanced life estate — often called a “lady bird” deed — where recognized. In five states — Florida, Michigan, and Vermont (see Part B), Vermont uniquely by statute (27 V.S.A. ch. 6), plus Texas and West Virginia (see Part A), which have also enacted TODD statutes — the lady bird deed is generally accepted in current estate-planning and title practice; outside Vermont, however, its authority is common-law or practice-based, and controlling authority and underwriting requirements should be confirmed before relying on it. Sixteen states have not enacted a TODD statute; Part B lists all sixteen, along with alternatives such as a lady bird deed (where recognized), a revocable trust, survivorship ownership, or a traditional life estate deed.

The landscape is moving quickly. New York and Georgia adopted TODD statutes effective in 2024; New Hampshire’s URPTODA-based statute took effect July 1, 2024; Delaware’s URPTODA-based statute took effect December 4, 2025; and Maryland’s TODD law takes effect October 1, 2026. For attorneys advising clients with real property in multiple states, knowing which instrument is available where is essential to choosing the right deed and recording it correctly.

This guide summarizes the differences between the two instruments and provides a state-by-state reference current as of August 2026.

Legend. Terminology in this guide follows state-specific statutes and practices (e.g., “beneficiary deed,” “TOD instrument,” “deed upon death,” “TOD designation affidavit”). These labels should not be treated as interchangeable for drafting or recording purposes, because each jurisdiction’s statutory terminology and form requirements control. Always use the statute’s defined instrument name when drafting and recording. “URPTODA-based” indicates adoption of the Uniform Real Property Transfer on Death Act or a materially similar enactment, usually with state-specific modifications.

The Two Instruments at a Glance

Transfer-on-Death Deed (TODD)

A TODD is a recorded instrument, authorized by statute, that designates a beneficiary to receive real property automatically at the owner’s death. It conveys nothing during life: the owner keeps complete ownership and may revoke the designation at any time by recording a revocation or a new TODD. Many TODD jurisdictions use a URPTODA-based framework, but state-specific terminology and form requirements vary.

Lady Bird Deed (Enhanced Life Estate Deed)

A lady bird deed conveys a remainder interest to named beneficiaries while the grantor retains an enhanced life estate — a life estate coupled with the unrestricted power to sell, mortgage, gift, or reconvey the property without the remaindermen’s consent. If the power is never exercised, the property vests in the remaindermen at death outside probate. In nearly every recognizing state the instrument rests on common law rather than statute, which is why its acceptance varies sharply; Vermont is the exception, having codified it in the Enhanced Life Estate Deed Act, 27 V.S.A. ch. 6 (effective July 13, 2020).

Key Differences

Medicaid note: the comparisons above address probate exposure only. They are not a determination of Medicaid eligibility, transfer-penalty treatment, lien exposure, or expanded estate-recovery exposure — probate avoidance does not necessarily mean Medicaid estate-recovery avoidance, particularly in expanded-recovery jurisdictions.

Part A — Jurisdictions That Have Enacted a TODD Statute (34 States + D.C.)

All enacted laws listed below are currently in effect except Maryland’s, which is enacted but not effective until October 1, 2026 (marked accordingly). Statutes are cited for reference; always confirm the current version and any local recording requirements before preparing an instrument. All effective dates and legislative statuses are stated as of August 2026 — confirm current status before drafting. Where a citation uses “et seq.” or a chapter-level reference, cite the specific section or subdivision relevant to the issue. State-specific instrument names appear in the Notes column to aid form selection. “URPTODA-based” indicates a statute derived from the Uniform Real Property Transfer on Death Act; most adopting states modify the uniform text, so do not assume strict uniformity.

* Common-law/practice-based treatment; not expressly codified.

Part B — States Without an Enacted TODD Statute (16 States)

In these states the lady bird deed (where recognized), a revocable living trust, survivorship ownership, joint tenancy, or a traditional life estate deed fills the gap, depending on state practice. Cross-references: Texas and West Virginia appear in Part A (enacted TODD); each also recognizes the lady bird deed at common law. Maryland, which has enacted a TODD statute effective October 1, 2026, appears in Part A.

Recent Enacted Legislative Developments (2024–2026)

• Maryland (2026): 2026 Md. Laws chs. 750–751 (S.B. 651 / H.B. 738) enacted; TODDs become available October 1, 2026 — the newest addition to the list, though not yet available as of August 2026. The act also exempts TODDs for a primary or secondary residence from transfer and recordation taxes. Confirm final codification and official forms as they issue.
• Delaware (2025): Adopted a URPTODA-based act at 25 Del. C. ch. 2, effective December 4, 2025.
• New York (2024): Real Property Law § 424 took effect July 19, 2024. Note the two-witness-plus-acknowledgment execution requirement — stricter than most states — and the requirement that the deed be recorded before the transferor’s death.
• Georgia (2024): O.C.G.A. § 44-17-1 et seq. effective July 1, 2024.
• New Hampshire (2024): URPTODA-based act adopted at RSA chapter 563-D, effective July 1, 2024.
• Match the instrument to the state. A TODD recorded in a non-TODD state lacks statutory footing; a lady bird deed in a state with uncertain authority may draw title-insurance objections. Verify availability before drafting.
• Mind execution and recording formalities. Some states add requirements beyond a standard deed — California’s witnessed, notarized statutory form; New York’s two-witness-plus-acknowledgment rule — and recording before the owner’s death is typically required. Some states require use of statutory forms; confirm witness and notary counts, any mandatory disclosures, and each statute’s recording deadline (some require recording within a set period after execution).
• Not every state uses a deed. In some jurisdictions the operative instrument is a non-deed form — e.g., Wisconsin’s recorded beneficiary designation and Ohio’s TOD designation affidavit. Use the statute’s defined instrument name when drafting and recording.
• Do not assume uniformity among URPTODA-based states. Execution, revocation, and creditor provisions frequently deviate from the uniform text; verify each state’s statute rather than relying on the “URPTODA-based” label.
• Multi-state clients often need state-specific instruments. A client with a Florida homestead and a North Carolina beach house illustrates the point: a lady bird deed may suit the Florida property, while North Carolina planning often relies on a revocable trust or other approaches given North Carolina’s uncertain authority and title-insurance caution. Consider ancillary-probate implications and title-insurer underwriting positions in each state.
• Consider the creditor-claim window. Under many URPTODA-based statutes, property passing by TODD remains reachable by estate creditors for a statutory period — an important distinction from certain trust funding strategies. Durations and scope vary; verify the governing statute.
• Record revocations properly. A will generally does not revoke a TODD; any change of plan should be documented by a recorded instrument consistent with the applicable statute (see Key Differences — Revocation).
• California: confirm the TOD deed sunset remains Jan. 1, 2032 and watch for amendments affecting the statutory form or witness requirements.
• New York, Delaware, and Maryland: verify implementation details, official forms, and any county-level prerequisites for these newly effective statutes.
• Maryland codification: confirm the final codified citations for 2026 Md. Laws chs. 750–751 once published, and the official TODD and revocation forms.
• North Carolina: re-check title-insurance underwriting positions on enhanced life estate deeds and any emerging case law.
• Michigan: reconfirm Michigan Title Standard 9.3 references for lady bird deeds and any title-industry updates.
• Connecticut and Pennsylvania: validate the continued absence of an enacted TODD statute.
• URPTODA-based labels: spot-check against the most recent codifications for state-specific deviations affecting execution, revocation, or creditor treatment.

Practice Pointers

• Match the instrument to the state. A TODD recorded in a non-TODD state lacks statutory footing; a lady bird deed in a state with uncertain authority may draw title-insurance objections. Verify availability before drafting.
• Mind execution and recording formalities. Some states add requirements beyond a standard deed — California’s witnessed, notarized statutory form; New York’s two-witness-plus-acknowledgment rule — and recording before the owner’s death is typically required. Some states require use of statutory forms; confirm witness and notary counts, any mandatory disclosures, and each statute’s recording deadline (some require recording within a set period after execution).
• Not every state uses a deed. In some jurisdictions the operative instrument is a non-deed form — e.g., Wisconsin’s recorded beneficiary designation and Ohio’s TOD designation affidavit. Use the statute’s defined instrument name when drafting and recording.
• Do not assume uniformity among URPTODA-based states. Execution, revocation, and creditor provisions frequently deviate from the uniform text; verify each state’s statute rather than relying on the “URPTODA-based” label.
• Multi-state clients often need state-specific instruments. A client with a Florida homestead and a North Carolina beach house illustrates the point: a lady bird deed may suit the Florida property, while North Carolina planning often relies on a revocable trust or other approaches given North Carolina’s uncertain authority and title-insurance caution. Consider ancillary-probate implications and title-insurer underwriting positions in each state.
• Consider the creditor-claim window. Under many URPTODA-based statutes, property passing by TODD remains reachable by estate creditors for a statutory period — an important distinction from certain trust funding strategies. Durations and scope vary; verify the governing statute.
• Record revocations properly. A will generally does not revoke a TODD; any change of plan should be documented by a recorded instrument consistent with the applicable statute (see Key Differences — Revocation).

Verification Watch List (as of August 2026)

The items below are the most likely to change or to carry state-specific nuance; confirm each against current statutes, session activity, and title-industry guidance before relying on this guide in a specific matter.

The items below are the most likely to change or to carry state-specific nuance; confirm each against current statutes, session activity, and title-industry guidance before relying on this guide in a specific matter.

• California: confirm the TOD deed sunset remains Jan. 1, 2032 and watch for amendments affecting the statutory form or witness requirements.
• New York, Delaware, and Maryland: verify implementation details, official forms, and any county-level prerequisites for these newly effective statutes.
• Maryland codification: confirm the final codified citations for 2026 Md. Laws chs. 750–751 once published, and the official TODD and revocation forms.
• North Carolina: re-check title-insurance underwriting positions on enhanced life estate deeds and any emerging case law.
• Michigan: reconfirm Michigan Title Standard 9.3 references for lady bird deeds and any title-industry updates.
• Connecticut and Pennsylvania: validate the continued absence of an enacted TODD statute.
• URPTODA-based labels: spot-check against the most recent codifications for state-specific deviations affecting execution, revocation, or creditor treatment.

This guide is provided for general informational purposes only and does not constitute legal advice. Statutory citations, effective dates, and availability are current to the best of our knowledge as of August 2026; legislation, title standards, and underwriting practices in this area change frequently, and every citation and status should be independently verified before relying on it in practice. Consult licensed counsel in the relevant jurisdiction for advice on any specific matter.

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