Oregon Transfer on Death Deeds: Skip Probate on a Home

Most Oregon homeowners who want to leave the house to one child are not looking for an estate plan. They want one document that moves one parcel to one person without a court file. Oregon has it: the transfer on death deed, enacted in 2011 as the Uniform Real Property Transfer on Death Act, ORS 93.948 to 93.985.

This article is general legal information about Oregon law and is not legal advice for your situation. Reading it does not create an attorney-client relationship. The tax discussion is simplified; confirm any basis or estate tax question with a CPA before acting on it.

Table of Contents

• ➤ What a Transfer on Death Deed Does
• ➤ The Requirements, and the Recording Deadline That Defeats Most Attempts
• ➤ The Beneficiary Does Not Need to Know or Agree
• ➤ What It Does Not Do During Your Lifetime
• ➤ Revoking One, and Why Your Will Cannot Do It
• ➤ What the Beneficiary Actually Receives
• ➤ Creditor Claims and Statutory Allowances After Death
• ➤ How It Interacts With Probate and the Simple Estate Affidavit
• ➤ It Avoids Probate, Not Estate Tax
• ➤ Medicaid Estate Recovery
• ➤ Joint Ownership and Survivorship Complications
• ➤ Stepped-Up Basis and the Alternative of Gifting the House Now
• ➤ When a Trust Is the Better Choice
• ➤ Frequently Asked Questions
• ➤ Talk to a BFQ Law Oregon Estate Planning Attorney

What a Transfer on Death Deed Does

Under ORS 93.953 you may transfer property to designated beneficiaries effective at death, naming primary beneficiaries and alternates who take only if no primary beneficiary survives. You record the deed now and keep title, possession, the mortgage and the right to sell. At death the parcel passes outside probate, because ORS 93.957 declares the deed nontestamentary.

ORS 93.951 confirms the Act displaces no other method of transfer, and ORS 93.950 applies it wherever the transferor died on or after January 1, 2012. On the range, commonly stated wrong: ORS 93.948 provides that ORS 93.948 to 93.979 may be cited as the uniform act, and Oregon added ORS 93.981 to 93.985 on divorce and desertion.

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The Requirements, and the Recording Deadline That Defeats Most Attempts

ORS 93.961 imposes four mandatory requirements. The deed must contain the essential elements and formalities of a properly recordable inter vivos deed; state that the transfer occurs at the transferor's death; name the designated beneficiary; and be recorded before the transferor's death in the deed records of the county where the property is located.

Two cause nearly every failure. ORS 93.961(2) makes a class-only designation void, so a deed to "my children" fails. And the deed must be recorded before you die: not signed, not notarized, recorded. A deed executed in a hospital room and filed the next week is void, as the ORS 93.975 form warns. No grace period, no cure; the wrong county fails too.

ORS 93.959 sets capacity at will-making capacity, voids a deed procured by fraud, duress or undue influence, and requires any such proceeding within 18 months after death. Optional forms appear at ORS 93.975 and, for revocations, ORS 93.977. ORS 93.979 addresses the federal E-SIGN Act.

Requirement or exposure	Authority	Deadline or failure mode
Elements of a properly recordable inter vivos deed	ORS 93.961(1)(a)	Clerk may refuse recording; bad legal description clouds title
States the transfer occurs at your death	ORS 93.961(1)(b)	May otherwise read as a present conveyance
Names the beneficiary individually	ORS 93.961(1)(c), (2)	Class-only designation is void
Recorded in the county where the property sits	ORS 93.961(1)(d)	Before death. No grace period, no cure
Capacity equal to will-making capacity	ORS 93.959	Contest or fraud claim: 18 months after death
Revocation by recorded instrument	ORS 93.965(1)	Before death, same county; a will cannot do it
Creditor claims and statutory allowances	ORS 93.973(3)	Enforcement proceeding: 18 months after death

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The Beneficiary Does Not Need to Know or Agree

ORS 93.963 makes the deed effective without notice or delivery to, or acceptance by, the beneficiary during the transferor's life, and without consideration. ORS 93.967(2) adds that she acquires no interest even with notice.

So you can record a deed naming your daughter without telling her and without her signature, then change your mind and record a replacement. Because ORS 93.967(6) keeps the property outside her creditors' claims, nothing in her financial life touches your house while you are alive.

The drawback: a deed nobody knows about is a deed nobody acts on. Your beneficiary will need a certified death certificate and usually a recorded affidavit to clear title, so leaving no trace of the deed among your papers is a bad idea.

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What It Does Not Do During Your Lifetime

ORS 93.967 is a list of non-events. During the transferor's life, the deed does not:

• Affect any right of the transferor or another owner, including the right to transfer or encumber the property;
• Affect any right of the designated beneficiary, even with notice;
• Affect any right of a secured, unsecured or future creditor of the transferor;
• Affect eligibility of the transferor or beneficiary for public assistance or medical assistance as defined in ORS 414.025;
• Create a legal or equitable interest in favor of the beneficiary; or
• Subject the property to claims or process of the beneficiary's creditors.

So you may sell, refinance or deed the house away without permission, and your creditors stand where they stood. Read the fourth item narrowly: it addresses eligibility while you live, not what the state may recover after you die. ORS 93.955 makes the deed revocable even if it says otherwise.

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Revoking One, and Why Your Will Cannot Do It

ORS 93.965 is exhaustive, and the word "only" in subsection (1) is the whole ballgame. An instrument revokes a recorded deed only if it is acknowledged after the deed being revoked, is recorded before the transferor's death in the right county, and is a later transfer on death deed, an express revocation, or an inter vivos deed.

A will is none of those and cannot be recorded before your death, which is why it cannot revoke the deed. That follows from the structure of ORS 93.965(1) rather than an express sentence naming wills. A new will leaving "my residence to my son" does not disturb a recorded deed naming your daughter.

Three details matter. Under ORS 93.965(4) a recorded deed cannot be revoked by a revocatory act on the deed, so burning your copy accomplishes nothing. Under ORS 93.965(3), revocation by one of several transferors does not affect another's interest. ORS 93.965(2) lets an agent revoke only if the deed expressly granted that authority.

Oregon adds two automatic adjustments. Under ORS 93.981, unless the deed shows a different intent, a divorce or annulment after recording revokes all provisions favoring the former spouse. That covers divorce only, not separation, so in a dissolution proceeding in Oregon do not wait for the judgment. Under ORS 93.983 and ORS 93.985, property passing to a parent who deserted the transferor can be forfeited.

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What the Beneficiary Actually Receives

ORS 93.969(2) is the sentence to read twice: the beneficiary takes the property subject to all encumbrances, mortgages, liens and other interests existing at death. Nothing is cleared or paid off, and ORS 93.969(4) adds that the transfer carries no warranty of title.

Under ORS 93.969(1)(a) the interest transfers if the beneficiary survives you and lapses if she does not. A lapse with no alternate named under ORS 93.953(2)(b) leaves the house to pass under your will or by intestate succession, which is the probate you were avoiding. Naming an alternate is the cheapest insurance in the Act.

Concurrent beneficiaries take equal undivided shares with no right of survivorship under ORS 93.969(1)(b), and a lapsed share is redistributed proportionally. Two children named together become tenants in common of one house, which is the setup for a partition action. A co-ownership agreement, or confidential mediation, is worth more than the deed. A beneficiary may also disclaim under ORS 93.971 and ORS 105.623 to 105.649.

One practical note, market practice rather than statute: because the property stays exposed to estate liabilities for 18 months under ORS 93.973, title companies and lenders often want comfort on that before insuring or financing a sale.

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Creditor Claims and Statutory Allowances After Death

This is the point most consumer articles get wrong. ORS 93.973(1) lets a transferor's estate enforce a liability against property transferred by the deed, where the probate estate cannot satisfy a claim allowed under ORS 114.505 to 114.560 or ORS chapter 115, or an allowance to a spouse or child under ORS 114.015.

The exposure is a backstop, reaching the property only where the probate estate falls short, so leaving enough other assets keeps the house untouched. ORS 93.973(3) requires any proceeding within 18 months after death, and ORS 93.973(2) apportions liability among multiple transferred properties by net value.

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How It Interacts With Probate and the Simple Estate Affidavit

Property passing by a valid transfer on death deed is not a probate asset: no personal representative is needed and no court approves the transfer. The Oregon Judicial Department publishes probate information and local forms through the circuit court probate departments.

Taking the house out of the probate estate can also bring what remains under the ceilings for the simple estate affidavit, Oregon's streamlined alternative to full administration. ORS 114.510 permits it only where not more than $75,000 of value is personal property other than manufactured homes, and not more than $200,000 is real property and manufactured homes. ORS 114.515 says who may file.

One detail defeats many assumptions: under ORS 114.510(2)(b), value is the entire interest without reduction for liens or debts. A house worth $520,000 with a $400,000 mortgage counts as $520,000. Removing it by deed is often the only way the rest of the estate fits, and our Oregon probate attorneys can confirm whether yours does. Note that ORS 93.973(1)(a) ties deeded property to those same claims, so the affidavit does not insulate the house.

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It Avoids Probate, Not Estate Tax

Probate and estate tax are different systems, and confusing them is the most expensive misconception here. Probate retitles assets through a court. The Oregon estate tax taxes what you owned at death, and does not care whether an asset went through court.

The tax lives in ORS Chapter 118. Under ORS 118.160 a return is required for deaths on or after January 1, 2012 where the gross estate is $1 million or more, and the ORS 118.010 rate table begins at an Oregon taxable estate of $1,000,000 taxed at 10 percent. The Oregon Department of Revenue publishes Form OR-706.

A house passing by deed stays in the gross estate, because you owned it at death. The deed changes who receives it, not whether it counts. The threshold is not indexed, so a paid-down Portland house plus a retirement account can cross it. Read our guide to the Oregon estate tax at $1 million and have a CPA run your numbers.

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Medicaid Estate Recovery

Take one thing from this article: a transfer on death deed is not Medicaid planning. Oregon's statutes are unusually direct, and they cut both ways.

The good news is in the Act. ORS 93.967(4) provides that during your life the deed does not affect your eligibility, or your beneficiary's, for public or medical assistance as defined in ORS 414.025. Recording one is not a disqualifying transfer, because nothing has transferred.

The bad news is that the house stays reachable afterward, and the Act says so expressly. ORS 93.969(2) subjects the beneficiary's interest to all encumbrances existing at death, including a claim or lien by a state authorized to seek reimbursement for public or medical assistance, if the transferor's probate estate is insufficient to pay it.

The recovery statute reinforces it. Under ORS 416.350(2), assistance paid to an individual 55 or older when received, or of any age while permanently institutionalized, may be recovered from the estate or from any recipient of property held by the individual at death. ORS 416.350(6)(a) defines "estate" as all property in which the deceased had any legal title or interest at death, including assets conveyed through joint tenancy, survivorship, life estate, living trust or other similar arrangement.

To be precise: ORS 416.350(6)(a) does not name transfer on death deeds. The deed fits the catch-all "other similar arrangement," and the transferor plainly holds legal title at death, which is the definition's core test; the express hook is ORS 93.969(2). The property is therefore reachable, subject to the Act's insufficiency condition.

Protections still apply. Under ORS 416.350(2) a claim cannot be recovered until after a surviving spouse's death, and only when no surviving child is under 21, blind, or permanently and totally disabled. ORS 416.350(3) bars recovery where the need for aid resulted from a crime against the recipient, ORS 416.350(5) excludes disregarded long term care insurance, and ORS 416.350(4) shifts the burden to the recipient.

Because administrative rules and 42 U.S.C. 1396p shape this area, and ORS 416.351 contemplates possible limits, details change more often than the statutes. See the Oregon Department of Human Services estate recovery page and the Oregon Health Authority's payment recovery page. If long-term care is possible, see an elder law attorney first.

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Joint Ownership and Survivorship Complications

If you own your home with someone else, ORS 93.969(3) decides whether your deed ever operates. Where a transferor is a joint owner survived by other joint owners, the property belongs to the survivors with a right of survivorship. Only where the transferor is the last surviving joint owner is the deed effective.

Survivorship beats the deed. Spouses holding as tenants by the entirety cannot use a deed signed by one spouse alone to redirect the house away from the survivor. If the wife records a deed naming her daughter and the husband survives her, the house goes to the husband. The deed is not void, only waiting.

That leaves two routes: both owners sign one deed naming the same beneficiary, or each records a separate deed knowing only the last survivor's will operate. If they sign jointly, ORS 93.965(3) lets either revoke as to their own interest. Under a tenancy in common, the deed conveys only the transferor's fractional interest.

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Stepped-Up Basis and the Alternative of Gifting the House Now

Homeowners often consider a simpler-sounding alternative: deed the house to the child now. For most families that is worse, and the reason is income tax basis rather than probate.

Property acquired from a decedent generally takes a basis equal to its fair market value at the date of death under 26 U.S.C. § 1014, as explained in IRS Publication 551. Because the deed transfers at death rather than during life, the beneficiary's basis is generally the date-of-death value, and appreciation during your ownership is not taxed as gain when she sells.

A lifetime gift works the other way: a donee generally takes the donor's basis, so a house bought for $90,000 in 1988 and worth $560,000 today carries that low basis to your child, who faces gain on the full appreciation if she sells. Have a CPA confirm the figures.

A second caution: ORS 416.350(2) makes transfers by recipients of medical assistance without adequate consideration voidable and subject to being set aside under ORS 411.620(2). A gift can create exposure the deed does not, while surrendering your control and exposing the house to your child's creditors and divorce.

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When a Trust Is the Better Choice

A transfer on death deed does one thing: it moves one parcel to named people at death. It does no incapacity planning, so a stroke next year leaves the deed silent and your family needing a power of attorney. A beneficiary who is a minor, disabled, or on needs-based benefits gets an undivided interest in real estate with no trustee. It cannot stage distributions or hold the house for a surviving spouse before passing it to children from a first marriage.

There is also a liquidity trap. Pulling the house out of the probate estate reduces what the estate has to pay claims, while ORS 93.973 keeps the house exposed for 18 months and the estate tax still counts it. An estate can end up cash-poor and liable, with its only valuable asset already transferred.

Feature	Transfer on death deed	Will	Revocable living trust
Avoids probate for the house	Yes, if recorded before death	No, administered in court	Yes, if funded
Scope	One parcel per deed, Oregon only	The whole estate	Any asset retitled, any state
Plans for your incapacity	No	No, speaks only at death	Yes, successor trustee acts
Contingent beneficiaries	One layer, ORS 93.953(2)(b)	Flexible	Fully flexible
Management for a minor or disabled beneficiary	None	Via testamentary trust, after probate	Yes, including benefit protection
Privacy before death	Recorded and publicly searchable	Private until filed	Private, funding deed recorded
Exposure to your creditors and allowances	Yes, 18 months, ORS 93.973	Yes, via administration	Yes, not creditor protection
Reachable for Medicaid estate recovery	Yes, ORS 93.969(2), 416.350	Yes	Yes, named in ORS 416.350(6)(a)
Complexity to set up	Lowest: one recorded instrument	Moderate	Highest, and must be funded

Put positively: the deed is right when the facts are simple and likely to stay simple. One Oregon parcel, one or two competent adult beneficiaries, an estate under $1 million, no long-term care exposure, and enough other assets that your debts will not come out of the house. Our Oregon estate planning attorneys would rather tell you one recorded deed is enough than sell you a trust you do not need.

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Frequently Asked Questions

Is a transfer on death deed cheaper than a trust?

Almost always: one instrument plus a recording fee, against a trust that must be drafted and then funded. But a cheap document that leaves an 18-month creditor exposure under ORS 93.973, no incapacity plan, and two children as tenants in common is not a bargain.

Does my beneficiary have to agree, or even know?

No. ORS 93.963 makes the deed effective without notice, delivery or acceptance during your life, and without consideration; ORS 93.967(2) confirms she acquires no interest even with notice. Practically, tell someone you trust where the recorded deed is.

Can my will override the deed?

No. ORS 93.965(1) permits revocation only by an instrument acknowledged after the deed being revoked, recorded before your death in the right county, and taking the form of a later transfer on death deed, an express revocation, or an inter vivos deed. A will is none of these. If you rewrite your will, check the deed records.

Does the mortgage go away when I die?

No. Under ORS 93.969(2) the beneficiary takes subject to all mortgages, liens and encumbrances existing at your death, and ORS 93.969(4) gives no covenant or warranty of title. Your daughter inherits the house and the loan against it.

Can creditors still reach the house?

Yes, within limits. ORS 93.973(1) lets your estate enforce a liability against the property where your probate estate cannot satisfy allowed claims under ORS 114.505 to 114.560 or ORS chapter 115, or an allowance under ORS 114.015, and ORS 93.973(3) requires the proceeding within 18 months of death.

Does this avoid Oregon estate tax?

No. Under ORS 118.160 a return is required where the gross estate is $1 million or more for deaths on or after January 1, 2012, and a house passing by deed is still in that gross estate. The ORS 118.010 rate table starts at 10 percent above $1,000,000. Confirm your exposure with a CPA.

Can Medicaid recover against the property?

Yes. ORS 93.969(2) expressly subjects the property to a state claim or lien for medical assistance where the probate estate is insufficient, and ORS 416.350(2) allows recovery from any recipient of property held at death, with ORS 416.350(6)(a) defining "estate" to include survivorship, life estates, living trusts and similar arrangements.

What if my beneficiary dies before I do?

The interest lapses under ORS 93.969(1)(a)(B). An alternate named under ORS 93.953(2)(b) takes instead. Among concurrent beneficiaries, ORS 93.969(1)(b) redistributes the lapsed share proportionally. With no alternate and no surviving concurrent beneficiary, the house goes back into probate. Name an alternate.

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Talk to a BFQ Law Oregon Estate Planning Attorney

A transfer on death deed is a cheap, narrow, well-drafted tool. With one parcel, one child, a modest estate and no long-term care worry, it may be the whole answer. With a blended family, a spouse holding survivorship rights, or an estate near $1 million, it is the beginning of a plan rather than the end.

At BFQ Law, our Oregon estate planning practice drafts and records these deeds, reviews deeds recorded years ago that no longer match a client's intentions, prepares revocations under ORS 93.965 and ORS 93.977, and coordinates the deed with a will or trust.

To schedule a confidential consultation, reach out through our Oregon contact page or email Secretary.OR@bfqlaw.com. Bring your deed, your mortgage statement, and any will or trust you have, and we will tell you whether one recorded instrument is enough. Confirm tax and basis questions with your CPA.