Lady Bird Deed vs Transfer-on-Death Deed in Texas
Texas has two non-probate deeds for a house: the common-law Lady Bird deed and the statutory transfer-on-death deed under Estates Code Chapter 114 — each works differently at death.
What a Lady Bird Deed Is
A Lady Bird deed — also called an enhanced life estate deed — lets a Texas homeowner name who inherits the house at death while keeping full control of the property during life. Unlike the transfer-on-death deed, no dedicated Texas statute creates the Lady Bird deed: it is a common-law instrument that runs on ordinary Texas deed and conveyancing law, recognized by title companies and courts through practice rather than through a section of the Estates Code.
The owner keeps what lawyers call a life estate, plus a set of powers an ordinary life estate does not include — the 'enhanced' part of the name. The owner can sell, mortgage, lease, or revoke the arrangement at any time, without asking the remainder beneficiaries (the people named to inherit the house) for permission or a signature.
- Sell the house outright during life, without remainder-beneficiary consent
- Mortgage or refinance the house, without remainder-beneficiary consent
- Revoke the deed or name a different beneficiary at any time before death
- Keep living in, leasing, or otherwise using the property exactly as before
Because none of this depends on a probate filing, a Lady Bird deed is usually set up years before a death is anticipated, as part of ordinary estate planning. Heirs and buyers most often encounter the term after the fact — when a title search on a house shows a recorded Lady Bird deed and no probate case, and the question becomes what a beneficiary needs to do to sell. For the wider set of pathways that apply when no such deed was ever recorded, see our main guide to selling a house in probate in Texas.
How a Lady Bird Deed Works During Life and at Death
During the owner's lifetime, a Lady Bird deed changes nothing about the owner's control of the house. The recorded deed does name the remainder beneficiaries, but property tax and homestead treatment continue as before, and the owner can sell or refinance the house exactly as if the deed did not exist — the beneficiaries' interest stays fully subject to the owner's retained powers. What changes is what happens automatically the moment the owner dies.
At death, the property vests in the named remainder beneficiaries immediately and automatically, without the house ever becoming part of the probate estate. No executor, no Letters Testamentary or Letters of Administration, and no probate case are required to move title.
- The beneficiary obtains a certified copy of the death certificate
- The beneficiary records the death certificate, together with any confirmation paperwork the title company requests, in the county where the property sits
- The beneficiary then holds and can deal with the property as its owner
Because vesting is automatic, whichever beneficiary designation was last recorded before death controls. An owner who wants to change beneficiaries has to record a new deed (or a revocation) while alive — nothing can be changed after death.
For a seller trying to close quickly, this is the practical payoff of a Lady Bird deed: the paperwork a title company asks for after death is short, and there is no probate docket to wait on. A buyer's title company still reviews the recorded deed and the death certificate before insuring the sale, but the review is a records check rather than a court filing.
Lady Bird Deeds and Medicaid Estate Recovery
Texas runs a Medicaid Estate Recovery Program (MERP) that lets the state file a claim against a deceased Medicaid recipient's probate estate to recover the cost of long-term-care benefits it paid. MERP applies when the person was age 55 or older and received Medicaid-funded long-term care — it is not triggered by every Medicaid recipient's death.
Texas law also provides a hardship waiver from MERP recovery under 1 TAC § 373.209, available when the home's value is under $100,000 and the heir's household income is below 300% of the federal poverty level. Separately, MERP does not recover from an estate at all when a surviving spouse, a child under 21, or a disabled child survives the decedent.
MERP claims are asserted against the probate estate, and a Lady Bird deed moves the house outside the probate estate at death. Texas estate-planning practice generally treats a Lady Bird-deeded home as sitting outside MERP's ordinary reach for that reason — but this is a practice pattern, not a statutory guarantee written into the deed itself. Anyone weighing Medicaid planning around a Lady Bird deed should confirm the strategy with a Texas elder-law attorney before relying on it.
What a Transfer-on-Death Deed Is
A transfer-on-death deed (TODD) is Texas's statutory version of a non-probate deed, created by the Texas Real Property Transfer on Death Act, Estates Code Chapter 114. Like a Lady Bird deed, it lets an owner name a beneficiary who receives the house automatically at death, without the property passing through probate — but it runs on specific statutory rules that the Lady Bird deed does not have.
Execution and Recording (§ 114.055)
To be effective, a TODD must be executed, acknowledged before a notary, and recorded in the deed records of the county where the property is located — before the owner dies (§ 114.055). A TODD that was signed but never recorded, or recorded only after death, has no effect; the property falls back into the probate estate as if the deed never existed.
Revocability (§ 114.052)
A TODD is revocable at any time before death (§ 114.052). The owner can record a later TODD naming a different beneficiary, or record a revocation outright, without needing the current beneficiary's consent. Because the deed only takes effect at death, the owner keeps full ownership and the right to sell or mortgage the property in the meantime.
The 120-Hour Survival Rule (§ 114.103)
If the named beneficiary dies before the owner, or within 120 hours after the owner's death, the transfer fails as to that beneficiary under § 114.103, and the property passes as though no TODD had been recorded — usually back into the probate estate, unless the owner had also named a valid alternate beneficiary.
The 2019 Change: No More Statutory TODD Form
Texas no longer offers a fill-in-the-blank statutory transfer-on-death deed form. House Bill 2782, passed in 2019, repealed the optional statutory form that had lived in Estates Code § 114.151, so there is no current official state form to download — any template now stands or falls on Chapter 114's own requirements, without a statutory safe harbor behind it.
This directly answers a common search for a 'free TODD form' or 'TODD PDF' for Texas: no official state form exists to download. A transfer-on-death deed still has to satisfy § 114.055's execution, acknowledgment, and recording requirements on its own terms, and in practice most owners have an attorney draft the deed language for the specific property and beneficiary designation rather than risk a generic template.
- No state-published fill-in TODD form has existed since HB 2782 took effect in 2019
- In practice an attorney — not the county clerk or a downloaded template — drafts a current TODD, since validity turns on meeting Chapter 114's requirements, not on using any official form
- Chapter 114's underlying requirements (execution, acknowledgment, recording before death) did not change; only the availability of the optional form did
The same is true of the Lady Bird deed, which never had a statutory form in the first place — both instruments on this page are, today, attorney-drafted documents rather than downloadable forms.
The Creditor Claim Window
A transfer-on-death deed moves the house outside probate, but it does not move the house outside the reach of the decedent's creditors. Under Texas estate creditor-claim rules, creditors of the estate can generally reach property that passed by TODD for up to two years after the owner's death.
Because that claim window stays open for up to two years, title companies commonly hesitate to insure a beneficiary's sale of TODD property inside that window unless the beneficiary can show the decedent's debts are paid or otherwise resolved — a title-industry practice, not a Chapter 114 rule written on the deed itself. A sale attempted early in the window can stall at the title company rather than at the courthouse.
This creditor-window friction is the practical reason Texas market practice tends to favor the Lady Bird deed over the TODD for a homeowner focused on a fast, unencumbered resale after death. Because a Lady Bird deed's remainder interest already sat behind powers the owner held and could have exercised during life, title companies are typically more comfortable insuring a beneficiary's sale soon after death than they are with a fresh TODD transfer — a practice distinction made by title underwriters weighing estate-creditor exposure, not a ranking written into any statute.
For a beneficiary who wants to sell a TODD-conveyed house to a cash buyer within that first year or two, the practical move is to get ahead of the question rather than be surprised by it at closing: pull together proof that the decedent's known debts (medical bills, credit cards, liens) are paid or settled, and raise it with the title company early. A buyer who is already comfortable with as-is, non-probate purchases will generally work with that timeline rather than walk away from it.
Lady Bird Deed vs Transfer-on-Death Deed
Lady Bird deeds and transfer-on-death deeds both move a Texas house to a named beneficiary at death without probate, but they differ in legal basis, revocability mechanics, and — most practically for a quick resale — how comfortable title companies are insuring a sale soon after death.
| Feature | Lady Bird Deed | Transfer-on-Death Deed |
|---|---|---|
| Legal basis | Common law — no Texas statute creates or governs it | Statutory — Estates Code Chapter 114 (Texas Real Property Transfer on Death Act) |
| Who drafts it | Usually attorney-drafted in practice; there was never a state form | Usually attorney-drafted in practice; the optional state form (§ 114.151) was repealed by HB 2782 in 2019 |
| Owner's control during life | Full life estate plus power to sell, mortgage, or revoke without remainder-beneficiary consent | Full ownership retained; deed is revocable under § 114.052 and takes effect only at death |
| Recording requirement | Recorded during the owner's life like any deed | Must be executed, acknowledged, and recorded before death (§ 114.055) |
| If beneficiary dies first | Handled by the deed's drafting (alternate beneficiaries) | Beneficiary must survive the owner by 120 hours, or the transfer fails (§ 114.103) |
| Effect at death | Vests in the beneficiary automatically, outside probate | Passes to the named beneficiary automatically, outside probate |
| Creditor claim window / insurability | Title companies are typically comfortable insuring a sale soon after death (practice) | Estate creditors can reach the property up to two years after death; title companies often want proof debts are resolved before insuring a sale in that window (practice) |
Neither deed helps if the owner died without ever recording one. In that case the house passes through the estate instead: with a valid will, through probate — an administration or muniment of title; with no will, as intestate property, where heirs typically need either a court-ordered determination of heirship or a recorded affidavit of heirship before a title company will insure a sale.
Costs and Selling the House After the Owner Dies
What a Lady Bird or TOD Deed Costs
Because neither deed has a state-supplied form to fill in, cost is essentially attorney fees. Texas sets no statutory percentage or fixed fee schedule for this kind of legal work, so the drafting fee is whatever the individual attorney quotes for the property and the family situation — typically more where the title carries complications such as existing liens or a contested family picture. Get a specific quote from a Texas real estate or elder-law attorney for the property in question.
Because a house that passed by Lady Bird deed or TODD never opens a probate case, there is no probate filing fee, no executor commission, and no inventory to file for that property — the drafting fee is the whole cost of the deed itself. That is a meaningful contrast with the pathways covered elsewhere on this site, where a probate filing fee and, in some cases, an executor's statutory commission apply on top of attorney fees.
Selling After the Owner Dies
Once the owner has died and the beneficiary has recorded the death certificate — and, for a TODD, cleared the creditor-window question above — the beneficiary holds the property outright and can list and sell it as owner. No Letters Testamentary, no probate case, and no court order are required for either deed type.
- A certified copy of the death certificate
- The recorded Lady Bird deed or TODD itself
- For a TODD sold inside the roughly two-year creditor window, evidence the decedent's debts are resolved, to satisfy the title company
Frequently Asked Questions
Is there a free Lady Bird deed or TOD deed form to download in Texas?
How does a Lady Bird deed compare to a living trust?
Can a Lady Bird deed or TOD deed be revoked?
What happens if the named beneficiary dies before the owner?
Does either deed avoid probate completely?
Can the beneficiary sell the house right away after the owner dies?
Do I need a lawyer to create a Lady Bird deed or TOD deed in Texas?
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