Transfer on Death Deed in New Hampshire: How It Works

On July 1, 2024, New Hampshire enacted the Uniform Real Property Transfer on Death Act (URPTODA), codified as RSA Chapter 563-D. This legislation introduced the Transfer on Death (TOD) deed to the state — a mechanism that allows real estate to pass directly to named beneficiaries at death, bypassing the probate court entirely.

If you are currently settling a New Hampshire estate that includes real property, understanding whether a TOD deed exists can dramatically simplify the transfer process. If you are engaged in estate planning, a TOD deed is now one of the tools available to help your family avoid probate on real estate.

What a Transfer on Death Deed Does

A TOD deed is a deed recorded during the property owner's lifetime that names one or more beneficiaries to receive the property automatically upon the owner's death. The key characteristics:

No probate. When the owner dies, ownership transfers directly to the named beneficiary without any court involvement. The beneficiary does not need to open an estate or obtain a judge's order to receive the property.

Owner retains full control during life. Recording a TOD deed does not give the beneficiary any present interest in the property. The owner can sell the property, refinance it, mortgage it, or revoke the TOD deed entirely while alive. The beneficiary has no rights until the moment of the owner's death.

Revocable at any time. The owner can revoke a TOD deed by recording a revocation document at the County Registry of Deeds before death. It can also be superseded by recording a new TOD deed. The beneficiary cannot prevent revocation and has no say in the matter.

No effect on estate taxes. The IRS treats property transferred via a TOD deed as part of the gross estate for federal estate tax purposes (though this rarely matters given the high federal exemption). The NH Real Estate Transfer Tax exemption for transfers by devise or intestate succession also applies to TOD deed transfers — no transfer tax is owed when the beneficiary records the property in their name after the owner's death.

How to Create a Valid TOD Deed in New Hampshire

Under RSA 563-D, a TOD deed must meet specific requirements to be valid:

1. Written instrument. The deed must be in writing and clearly identify the property by its legal description and county.
2. Beneficiary designation. The deed must explicitly state that the transfer takes effect on the transferor's death and name the beneficiary or beneficiaries.
3. Capacity. The transferor must have testamentary capacity — the same mental capacity required to make a will.
4. Signed and notarized. The deed must be signed by the owner and acknowledged before a notary public.
5. Recorded during the owner's lifetime. This is the critical requirement. A TOD deed has no legal effect unless it is recorded at the County Registry of Deeds before the transferor's death. A deed that is signed but never recorded does nothing.

The recording fees follow the standard County Registry schedule: $10 for the first page, $4 for each additional page, plus a mandatory $25 LCHIP surcharge. There is no transfer tax on recording the TOD deed itself (the tax-exempt transfer happens at death, not at recording).

How the Beneficiary Claims the Property After Death

After the owner dies, the beneficiary does not go to probate court. Instead, they record an Affidavit of Survivorship (or comparable document as specified under RSA 563-D) at the County Registry of Deeds in the county where the property is located, along with a certified copy of the death certificate. Once recorded, the beneficiary's ownership is on record.

This process typically takes days, not months. Compared to the six-to-twelve-month probate timeline for real estate subject to formal administration, a TOD deed transfer is dramatically faster.

If the property is located in multiple counties, the beneficiary must record the affidavit and death certificate in each county's Registry of Deeds separately.

Important Limits of the TOD Deed

The TOD deed is a powerful probate-avoidance tool, but it has meaningful limitations that families must understand.

Creditors still have claims. The property passes to the beneficiary subject to the owner's outstanding debts at death. If the estate is insolvent and creditors have valid claims, the beneficiary may ultimately lose the property to satisfy those debts. The TOD deed bypasses probate administration, but it does not eliminate underlying debt obligations.

New Hampshire Medicaid Estate Recovery applies. This is the most significant limitation for many families. New Hampshire uses an "expanded recovery" definition under RSA 167:14-a. The NH Department of Health and Human Services (DHHS) Estate Recovery Unit is authorized to recover against property that passes outside of probate — including property transferred via a TOD deed. If the decedent received Old Age Assistance, Medicaid, or other state medical benefits, the DHHS can still pursue recovery against the property even though it was transferred via a TOD deed.

This is a critical distinction that catches families off guard. Many assume that bypassing probate also bypasses Medicaid recovery. In New Hampshire, that assumption is wrong. Only an irrevocable trust, fully funded more than five years before applying for Medicaid, provides protection against the DHHS Estate Recovery Unit. A TOD deed, a revocable living trust, a joint tenancy with right of survivorship, and a life estate all remain within the state's recovery reach under RSA 167:14-a.

Pre-existing mortgages and liens survive. If the property is encumbered by a mortgage, HELOC, or other lien, the beneficiary receives the property subject to those encumbrances. The TOD deed does not discharge debts secured against the real estate.

Beneficiary must survive the owner. If the named beneficiary dies before the property owner, and no alternate beneficiary is named, the TOD deed fails and the property falls back into the estate subject to probate. RSA 563-D provides rules for what happens when a beneficiary fails to survive — review the statute or consult an attorney if this is a concern.

TOD Deed vs. Other Probate-Avoidance Tools

New Hampshire residents have several options for transferring real estate at death without going through probate. Here is how the TOD deed compares:

Joint tenancy with right of survivorship: Property held in joint tenancy passes automatically to the surviving joint tenant at death. This works well for spouses or two parties who will own together, but adding a child as joint tenant gives them an immediate ownership interest during the owner's lifetime (creating tax and creditor complications). With a TOD deed, the owner retains 100% control until death.

Revocable living trust: A funded living trust transfers property at death according to trust terms without probate. This provides more sophisticated control (multiple beneficiaries, staggered distributions, trustee management), but requires creating a trust document and formally transferring title into the trust. A TOD deed is simpler and less expensive for a single piece of real estate with a clear beneficiary.

Both are subject to Medicaid recovery in New Hampshire. This is the equalizer — a revocable trust and a TOD deed have the same vulnerability to DHHS claims. Neither provides more protection than the other against the Estate Recovery Unit.

If You Are Settling an Estate with a TOD Deed

If you are the administrator of a New Hampshire estate and you discover that the decedent recorded a TOD deed on their real property:

1. The property is not a probate asset. Do not include it on the Inventory of Fiduciary (NHJB-2125-Pe) unless required by the court for other reasons.
2. The named beneficiary should record their Affidavit of Survivorship and a certified death certificate at the relevant County Registry of Deeds.
3. Confirm whether the DHHS Estate Recovery Unit has any pending claims — if the decedent received Medicaid benefits, recovery can still attach to this property despite the TOD deed.
4. Check for outstanding mortgages, property tax arrears, or other liens that the beneficiary will inherit with the property.

For a full guide to settling a New Hampshire estate — including how probate assets and non-probate assets interact, Medicaid recovery procedures, and step-by-step instructions for the court process — visit /us/new-hampshire/estate-settlement/.

The TOD deed is a welcome addition to New Hampshire's estate planning toolkit. It gives property owners a simple, inexpensive way to keep real estate out of probate — but it works best when you understand both what it does and what it cannot protect against.

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