Transfer-on-Death Deed

TRANSFER-ON-DEATH DEED — NOT CURRENTLY AVAILABLE IN IDAHO

Table of Contents

1. Important Notice
2. Current Idaho Law
3. Pending Legislation
4. Alternative Non-Probate Transfer Methods
5. Revocable Living Trust
6. Joint Tenancy with Right of Survivorship
7. Community Property with Right of Survivorship
8. Idaho-Specific Considerations
9. Comparison of Alternatives
10. Sources and References

1. Important Notice

Idaho does not currently authorize transfer-on-death (TOD) deeds for real property. Idaho has not adopted the Uniform Real Property Transfer on Death Act (URPTODA) or any equivalent statute as of the date of this template. However, legislation to authorize TOD deeds is currently pending in the Idaho Legislature.

2. Current Idaho Law

Idaho law does not recognize any deed instrument that automatically transfers real property upon the owner's death without probate or a trust. Real property in Idaho must pass through:

• Probate — through a valid last will and testament or intestate succession
• Non-probate ownership structures — joint tenancy with right of survivorship, community property with right of survivorship
• Trust-based transfers — property held in a revocable living trust

3. Pending Legislation

Senate Bill 1399 (S1399) — 2026 Idaho Legislature

Idaho Senate Bill 1399 would adopt the Uniform Real Property Transfer on Death Act, creating a statutory framework for TOD deeds in Idaho.

Key Provisions (if enacted):

• Would authorize revocable, nontestamentary TOD deeds for real property
• Would require recording before the transferor's death
• Would include optional statutory forms and revocation procedures
• Would state that TOD deeds do not affect the transferor's or beneficiary's eligibility for public assistance during the transferor's life

Status (as of April 2, 2026):

• Introduced and referred to the Senate Judiciary and Rules Committee (as of March 18, 2026)
• Not yet enacted

4. Alternative Non-Probate Transfer Methods

*Requires consent of all owners to sever.

5. Revocable Living Trust

A revocable living trust is the most common alternative to a TOD deed in Idaho for avoiding probate.

Key Features:

• Grantor retains full control during lifetime
• Fully revocable and amendable
• Property must be re-titled in the name of the trust
• Successor trustee distributes property upon grantor's death without probate
• Compatible with Idaho's community property system

Requirements:
☐ Trust agreement drafted and executed
☐ Deed transferring property to the trust recorded with the county recorder
☐ Trustee designated (typically the grantor during lifetime)
☐ Successor trustee designated

6. Joint Tenancy with Right of Survivorship

Key Features:

• Property automatically passes to surviving joint tenant(s) upon death
• No probate required
• Must be expressly created with right of survivorship language

Requirements:
☐ Deed must expressly create joint tenancy with right of survivorship
☐ Deed recorded with the county recorder

Cautions:

• Adding a joint tenant is a present gift of an interest
• Exposes property to the co-owner's creditors
• Cannot be revoked unilaterally
• May convert community property to joint tenancy — consult counsel

7. Community Property with Right of Survivorship

Idaho is a community property state. Idaho Code § 15-6-401 allows spouses to hold community property with a right of survivorship.

Key Features:

• Available only to married couples
• Decedent's community property interest passes automatically to surviving spouse
• Avoids probate for the property
• Retains community property character (important for tax basis step-up)
• Both spouses receive a full step-up in basis at first death (IRC § 1014(b)(6))

Requirements:
☐ Both spouses must execute the designation
☐ The instrument must be recorded with the county recorder
☐ Must expressly state "community property with right of survivorship"

8. Idaho-Specific Considerations

Community Property

Idaho is one of nine community property states. All property acquired during marriage is presumed to be community property. This affects:

• How property passes at death
• Tax basis considerations (full step-up for community property)
• The need for both spouses' consent for transfers

Homestead Exemption

Idaho provides a homestead exemption protecting up to $175,000 of equity in a primary residence from creditor claims (Idaho Code § 55-1003). This protection is automatic for the owner's primary residence.

Medicaid Estate Recovery

Idaho has Medicaid estate recovery laws (Idaho Code § 56-218) allowing the state to recover Medicaid costs from the estates of deceased recipients. This recovery may extend to the estate of a surviving spouse. Any non-probate transfer strategy should account for potential Medicaid liens.

Small Estate Affidavit

For estates valued at $100,000 or less in personal property (Idaho Code § 15-3-1201), a small estate affidavit may be available. However, this does not apply to real property transfers.

Summary Administration

Idaho offers simplified probate procedures for smaller estates, which may reduce the burden of probate for real property transfers.

9. Comparison of Alternatives

10. Sources and References

• Idaho Code § 55-601 et seq. — Conveyances of Real Property
• Idaho Code § 15-6-401 — Community Property with Right of Survivorship
• Idaho Code § 55-1003 — Homestead Exemption
• Idaho Code § 56-218 — Medicaid Estate Recovery
• Idaho Code § 15-3-1201 — Small Estate Affidavit
• Senate Bill 1399 (2026) — Proposed Uniform Real Property Transfer on Death Act
• Uniform Real Property Transfer on Death Act (Uniform Law Commission, 2009)

This document is provided for informational purposes only and does not constitute legal advice. Idaho does not currently authorize transfer-on-death deeds for real property. Consult a licensed Idaho attorney for guidance on non-probate transfer strategies.