Texas Transfer on Death Deed (TODD) for mineral rights: Chapter 114 rules and county recording
Under the Texas Real Property Transfer on Death Act (Estates Code Chapter 114), an individual may transfer an interest in Texas real property to one or more beneficiaries effective at the transferor's death. Here are the statutory requirements and common pitfalls when the asset is an oil, gas, or mineral interest.
This is general information from professional landmen, not legal advice. Only a licensed Texas attorney may prepare a Transfer on Death Deed or advise on estate planning.
Texas Estates Code § 114.051 authorizes an individual to transfer the transferor's interest in real property to one or more beneficiaries effective at the transferor's death by a Transfer on Death Deed (TODD), and § 114.002(5) defines "real property" as an interest in real property located in this state (which in Texas includes severed mineral interests and royalty interests in place). To be effective under § 114.055, a TODD must contain the essential elements and formalities of a recordable deed, state that the transfer of the interest to the designated beneficiary is to occur at the transferor's death, and be recorded before the transferor's death in the deed records in the county clerk's office of the county where the real property is located. A TODD is revocable during life, cannot be created by a power of attorney (§ 114.054), and transfers the interest at death without covenant of warranty of title (§ 114.103(d)).
1Mandatory requirements under § 114.055
| Requirement | Rule in Chapter 114 | Mineral-specific implication |
|---|---|---|
| Recorded before death in each county (§ 114.055(3)) | Must be recorded before the transferor's death in the deed records in the county clerk's office of the county where the real property is located. | An unrecorded TODD kept in a safe deposit box is void. If the owner holds minerals in five Texas counties, the TODD must be recorded in all five counties before death. |
| No Power of Attorney execution (§ 114.054(b)) | A transfer on death deed may not be created through use of a power of attorney. | An agent acting under a durable power of attorney cannot sign a TODD for an incapacitated mineral owner. |
| Specific legal description (§ 114.055(1)) | Must contain the essential elements and formalities of a recordable deed. | Writing "all my oil and gas royalties" or listing an operator's check-stub lease number without the Survey, Abstract, and source deed reference can fail the Statute of Frauds legal-description test. |
| Will does not revoke a recorded TODD (§ 114.057(b)) | A subsequent will may not revoke or supersede a transfer on death deed. | Revoking or changing a recorded TODD requires recording a statutory cancellation instrument or a subsequent TODD before death in the same county clerk's office (§ 114.057(a)). |
2What happens during the owner's lifetime (§ 114.101)
During the transferor's life, a recorded Transfer on Death Deed does not affect any right or interest of the transferor (Estates Code § 114.101(1)). The mineral owner retains 100% of the monthly royalty checks, 100% of the executive right to sign oil and gas leases, pooling agreements, or division orders, and the unfettered right to sell or revoke the TODD without notifying or obtaining the consent of the designated beneficiary (§ 114.056).
3What happens at death (§ 114.103)
On the death of the transferor, if the designated beneficiary survives the transferor by 120 hours, the interest in the real property is transferred to the beneficiary in accordance with the deed (Estates Code § 114.103(a)(1)-(2)). If multiple beneficiaries are named to receive concurrent interests, they take in equal and undivided shares with no right of survivorship among them unless the deed states otherwise (§ 114.103(a)(3)).
To update the county chain of title and operator division orders after the transferor's death, the designated beneficiary typically records an Affidavit of Death (with a certified copy of the death certificate) in the county clerk's office where the TODD was recorded, and submits the recorded TODD, recorded Affidavit of Death, death certificate, and IRS Form W-9 to each operator's Division Order department.
4Common mineral TODD failures we see in title examination
- Pre-death accrued royalties: A TODD transfers real property effective at death. Royalty funds held in operator suspense for oil and gas produced before the date of death are personal property belonging to the decedent's estate, not real property passing under the TODD.
- Omitted counties or surveys: A TODD that lists only the decedent's home-county tract or omits producing tracts in other Texas counties leaves those omitted counties in the decedent's probate or intestate estate.
- Lapsed beneficiary without an alternate: If a designated beneficiary predeceases the transferor (or fails to survive by 120 hours), that beneficiary's share lapses under § 114.103(a)(2), subject to the anti-lapse rules of § 114.103(b), unless an alternate beneficiary was properly designated.
Request an estate mineral review
Tell us about the estate or the recorded Transfer on Death Deed. We verify the county deed records, check whether all mineral tracts were covered, and assemble the operator transfer packages.
- A recent check stub or 1099-MISC from each operator
- The recorded Transfer on Death Deed, will, or probate papers
- Any letter from an operator about the death or a suspense
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