TOD Deed Kentucky: Transfer-on-Death Real Estate After Senate Bill 34

Real estate is the asset that most often forces Kentucky families into probate. When a property is titled solely in the deceased owner's name with no joint tenant and no trust, it cannot legally transfer to heirs without a court proceeding. That means months of waiting, court filing fees, and often attorney costs — for a transfer the owner might have arranged beforehand with a single recorded document.

Kentucky's legislature addressed this directly with Senate Bill 34 in the 2026 session, introducing the Uniform Real Property Transfer on Death Act. The TOD deed — widely used in other states for years — is now available in Kentucky as a tool to pass real estate outside of probate.

What a TOD Deed Does

A transfer-on-death deed (also called a beneficiary deed in some states) allows a property owner to name one or more beneficiaries who will receive the property automatically at the owner's death, without the property passing through the probate estate. The property does not change hands during the owner's lifetime — the owner retains full control, can sell or mortgage the property, and can change or revoke the deed at any time before death. The beneficiary has no rights in the property while the owner is alive.

At the owner's death, the beneficiary records the death certificate and an affidavit with the county clerk's office, and the property title transfers. No court involvement is required.

How Kentucky's TOD Deed Law Works Under SB 34

Senate Bill 34 enacted the Uniform Real Property Transfer on Death Act, bringing Kentucky in line with more than two dozen other states that recognize the instrument. The core mechanics:

Execution requirements. The TOD deed must be signed by the property owner (the transferor) and notarized. It must contain the legal description of the property and clearly designate the beneficiary or beneficiaries. The deed must explicitly state that the transfer takes effect at the transferor's death.

Recording requirement — critical. The TOD deed must be recorded in the county clerk's office of the county where the property is located before the owner's death. A TOD deed that is not recorded before death has no legal effect. This distinguishes it from a will, which can be executed and stored privately — the TOD deed must be in the public record to work.

Revocability. The deed remains fully revocable until death. The owner can revoke it by recording a revocation instrument or by recording a new TOD deed that supersedes the previous one. Selling the property also effectively cancels the TOD designation on that property.

Multiple beneficiaries. Owners can designate multiple beneficiaries. If you name two children, they take the property as tenants in common in equal shares unless the deed specifies otherwise. If a designated beneficiary dies before the owner, the default rule under the Uniform Act is that their share lapses (goes to the surviving beneficiaries or back to the estate) unless the deed explicitly provides for a contingent beneficiary.

What a TOD Deed Does Not Cover

A TOD deed is a title instrument — it only applies to the specific real property described in the deed. It does not:

• Cover personal property, bank accounts, vehicles, or any other asset
• Create a trust or alter the owner's rights during their lifetime
• Automatically satisfy a mortgage — a beneficiary who inherits a property through a TOD deed takes it subject to any existing mortgage, lien, or encumbrance. The debt doesn't disappear.
• Override Medicaid estate recovery in all cases. Kentucky operates as an "expanded recovery" state, meaning the Department for Medicaid Services can pursue assets that pass outside of traditional probate — including, potentially, property transferred via TOD deed — to recover long-term care costs. Families using TOD deeds for Medicaid planning should consult with an elder law attorney before assuming the home is protected.

Comparing TOD Deeds to Other Methods of Avoiding Probate for Real Estate

Before TOD deeds were available in Kentucky, property owners had a few options to avoid real estate going through probate:

Joint tenancy with right of survivorship. When two people own property as joint tenants, the surviving owner automatically inherits the deceased owner's share. This works well for spouses, but adding a child as joint tenant gives that child immediate co-ownership rights — including the ability to force a sale — and can create gift tax implications.

Life estate deed. The owner conveys the property to a beneficiary but retains a "life estate," meaning they keep the right to live there until death. At death, full ownership passes to the beneficiary automatically. The limitation: once recorded, a life estate deed is difficult to undo. The owner cannot sell the property without the beneficiary's consent, and it may be treated as a transfer by Medicaid's look-back rules.

Revocable living trust. Property transferred into a revocable trust passes to trust beneficiaries at death without probate. This is flexible and comprehensive but involves upfront legal costs to create the trust and the administrative step of actually re-titling property into the trust.

TOD deed. Simpler to execute than a trust, easier to revoke than a life estate, and does not give the beneficiary any current ownership interest. For single-property owners who want to designate an heir without the complexity of a trust, a TOD deed is generally the least burdensome option.

The Real Property Implications of Kentucky Dower Rights

One important legal interaction: Kentucky's dower and curtesy laws (KRS 392.020) give a surviving spouse certain rights in property owned during the marriage. If the property owner is married and attempts to transfer property via a TOD deed without their spouse's knowledge or cooperation, the surviving spouse may still have a claim — particularly under the dower provisions that protect a one-third life estate in real property owned at any point during the marriage.

The 2026 amendment to KRS 392.020 (House Bill 886) created an exception: the one-third life estate dower interest does not apply to real property a spouse acquired through inheritance during the marriage, provided that inherited property was never used as the couple's primary residence. This was intended to protect family farmland and generational properties. However, for property that was not inherited and not subject to this exception, spouses should both be involved in executing a TOD deed to prevent future title complications.

How to Execute a Kentucky TOD Deed

The general steps:

1. Obtain or draft the deed. Kentucky law requires the specific statutory language triggering the transfer-on-death mechanism. Legal form vendors provide templates, but because the deed must meet Kentucky's new statutory requirements under SB 34 and include an accurate legal description of the property, having an attorney or title company review it before recording is advisable.

2. Include the legal description. The legal description from your current deed (not just the address) must appear in the TOD deed.

3. Name your beneficiary or beneficiaries. Be specific — use full legal names and, where applicable, relationship. If naming contingent beneficiaries (backups if a primary beneficiary dies first), include them explicitly.

4. Sign and notarize. The deed must be notarized before recording.

5. Record with the county clerk. Take the notarized deed to the county clerk's office for the county where the property is located. Recording fees vary by county and are charged per page. Recording must occur before your death for the deed to have any legal effect.

6. Review periodically. If your wishes change — different beneficiaries, sale of the property, change in marital status — update or revoke the deed by recording a new document.

After Death: How the Beneficiary Claims the Property

When the owner dies, the beneficiary does not have to go to court. The standard process:

1. Obtain a certified copy of the death certificate ($6 per copy from the Kentucky Office of Vital Statistics)
2. Prepare an affidavit confirming the owner's death and the beneficiary's identity and relationship to the deed
3. Record the death certificate and affidavit with the county clerk where the property is located
4. Notify the local Property Valuation Administrator (PVA) so property tax assessments are updated to the new owner

The property is now in the beneficiary's name. If there is a mortgage, the lender should be notified, and the beneficiary will need to arrange ongoing payments or refinancing. The TOD deed passes the asset, not the liability.

A TOD deed is one of several tools available to Kentucky families trying to reduce what their estate will go through in probate. The Kentucky Funeral Laws & Consumer Rights Guide covers real estate transfer methods, the small-estate dispensation process (AOC-830), spousal dower rights, and the full sequence of tasks that follow a death — so families can navigate what comes next without relying entirely on expensive professional guidance.

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