Transfer on Death Deed Oregon: How It Works, Costs, and Medicaid Catch

A Transfer on Death (TOD) deed is one of the most effective estate planning tools available to Oregon homeowners. Record it during your lifetime, and upon your death the property automatically passes to the designated beneficiary — no probate, no court filing, no delays.

But there's a critical limitation that catches Oregon families completely off guard: a TOD deed does not protect the property from Oregon's Medicaid estate recovery program.

What Is an Oregon TOD Deed?

Authorized under ORS 93.948–93.979, an Oregon Transfer on Death deed is a legal instrument that names one or more beneficiaries to receive real property when the owner dies. The key features:

• The owner retains full control during their lifetime — they can sell, mortgage, lease, or revoke the deed at any time
• The beneficiary has no legal interest in the property while the owner is alive — they have no right to occupy it, and the owner's creditors cannot attach the beneficiary's interest
• Upon the owner's death, the property automatically vests in the named beneficiary by operation of law
• No probate is required — the beneficiary simply records an affidavit of survivorship and a certified death certificate with the county

The deed does not trigger gift taxes at the time of recording because no present interest is transferred.

How to Create a Valid Oregon TOD Deed

An Oregon TOD deed must meet standard deed requirements and explicitly state that the transfer takes effect at the owner's death. To be legally effective, it must be:

1. Signed by the owner before a notary public
2. Recorded in the county where the property is located during the owner's lifetime — an unrecorded TOD deed has no legal effect

You cannot record a TOD deed after the owner's death; it must be on record while the owner is alive.

The deed can name multiple beneficiaries. You can specify whether they take equal shares, specify different percentages, or designate contingent beneficiaries (who inherit if the primary beneficiary predeceases the owner).

County Recording Costs

Recording an Oregon TOD deed requires paying county clerk fees. Under ORS 205.320 and related statutes, the total cost to record a single-page document in Oregon is typically $86 to $112 — substantially more than the $5 base page fee suggests.

Here's why: Oregon attaches multiple mandatory surcharges to every recorded document. Most significant is the $60 Low-Income Housing Alliance Tax (enacted under House Bill 4007). Additional surcharges include a $10 Department of Revenue Assessment and Taxation fee and a $1 Oregon Land Information System Fund fee. The base fee itself is $5 per page. A non-standard form that fails formatting requirements triggers an additional $20 penalty.

Plan for $90–$115 to record the deed.

How to Use the TOD Deed After the Owner Dies

When the owner dies, the beneficiary activates the transfer by recording two documents with the county clerk in the county where the property is located:

1. A certified copy of the owner's death certificate
2. An Affidavit of Survivorship (or similar affidavit confirming the beneficiary's identity and the owner's death)

This process is entirely outside the probate court. The county assessor should also receive a change of ownership notification to update property tax records.

Revoking an Oregon TOD Deed

The owner can revoke a TOD deed at any time before death by either:

• Recording a written revocation with the same county clerk
• Recording a new, superseding TOD deed that names a different beneficiary
• Selling or transferring the property (which extinguishes the beneficiary designation)

The revocation must also be recorded to be effective — an unrecorded revocation is legally ineffective against a good-faith beneficiary.

The Medicaid Estate Recovery Problem

Here is the caveat that matters most for many Oregon families:

Oregon uses an expanded definition of the estate for Medicaid recovery purposes, enacted in 1995. Under this expanded definition, the Oregon Department of Human Services can assert recovery claims against assets that pass outside of formal probate — including property transferred via a TOD deed, joint tenancy, or living trust.

In plain terms: if the decedent received Oregon Medicaid long-term care benefits (or General Assistance) at any point after age 55, the state may file a recovery claim against the property even after it has already passed to the beneficiary via the TOD deed.

Common estate planning advice — "use a TOD deed to protect the house from probate" — does not mean the house is shielded from Medicaid recovery in Oregon. The state's reach in this area was tested in Nay v. DHS (2014), which confirmed that recovery is limited to assets where the Medicaid recipient held legal title or interest at the moment of death. A TOD deed, while avoiding probate, keeps the property in the owner's estate for these purposes until the moment of death.

The practical implication: if the decedent was on Oregon Medicaid and owned a home with a TOD deed, the beneficiary should contact the ODHS Estate Administration Unit before taking any action on the property. Do not sell or encumber the property until you understand the state's recovery claim.

TOD Deed vs. Other Probate-Avoidance Strategies

All of the commonly promoted probate-avoidance strategies fail to shield assets from Oregon Medicaid recovery. Only an irrevocable trust, established well in advance and meeting specific requirements, may offer some protection — and that requires professional legal advice to execute correctly.

For estate planning purposes, TOD deeds remain excellent tools for avoiding the cost and delay of probate. For Medicaid planning, they do not accomplish what many families assume they do.

If you're administering an Oregon estate that includes TOD property and potential Medicaid recovery claims, the Oregon Estate Settlement Guide walks through the notification requirements, creditor management, and distribution process in the right sequence.

See more Oregon guides →