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SUCCESSFULLY FINALIZING A TRANSFER ON DEATH TRANSACTION

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Daniel T. Cronin, Esq., Thrasher, Dinsmore & Dolan, LPA

Alert for Ohio Attorneys: In order to complete the property transfer envisioned when a decedent executed either a Transfer on Death Deed or a Transfer on Death Designation Affidavit, a Medicaid Estate Recovery Form must be submitted to the respective county recorder’s office.

Between 2000-2009, the State of Ohio permitted the recordation of Transfer on Death Deeds.  Effective December 28, 2009, Ohio altered this statutory scheme so that persons desiring to transfer property in this manner were required to instead execute a Transfer on Death Designation Affidavit. See R.C. §5302.22.  Once the Grantor under either of these instruments passes away, an Affidavit of Confirmation must be recorded with the county recorder’s office in which the real property is located. See R.C. §5302.222. However, practitioners should be advised that, in order to successfully transfer the property, a Medicaid Estate Recovery Form is required to be filed along with the Affidavit of Confirmation.  Pursuant to R.C. §5302.221, a county recorder is required to prevent the recordation of an Affidavit of Confirmation unless the approved Medicaid Estate Recovery Program Form is submitted prior to recordation.  That form can be found on the Ohio Department of Jobs & Family Services website at this link:

http://medicaid.ohio.gov/Portals/0/Resources/Publications/Forms/ODM07408.pdf

This new statutory requirement became effective in September, 2013; however it has come to the author’s attention that some recorder’s offices are not requiring the submission of this form.  As set forth in that form, the Administrator of the Medicaid Estate Recovery Program is required to either release or encumber the property within thirty days of the receipt of the form.  However, the statute is silent on the effect of a practitioner’s failure to submit the required form prior to recordation, and the failure of the county office to demand the same.  In an effort to ensure that Medicaid Estate Recovery does not remain a source of unknown liability for your clients, practitioners should be advised to proactively submit the required form.

If you have questions on Transfer on Death Deeds or Transfer on Death Designation Affidavits, please feel free to contact the author at DCronin@tddlaw.com, or by telephone at (440) 285-2242.