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A recent decision from the Indiana Court of Appeals, Estate of Kogan v. Kogan, 2024 Westlaw 5200967 (Ind. Ct. App. 2024), highlights the importance of precision and statutory compliance in executing transfer on death, or TOD, deeds.
The Kogan case arose from a dispute over the validity of a TOD deed executed by a decedent, which ultimately resulted in the appellate court affirming the deed’s invalidity due to procedural and substantive defects. The ruling underscores the risks for business owners, estate planners and beneficiaries when estate transfer documents are not carefully drafted and executed.
Background: Competing claims to real estate
The dispute centered on real estate in Zionsville, Indiana, in which the decedent, Drew Albert Kogan, held a 78.34% interest individually and a 21.66% interest as trustee of the Drew Albert Kogan Trust. In 2012, following the death of his mother, Helen Kogan, the trust was created and received its share of the property.
On May 26, 2021, less than a year before his death, Drew executed a TOD deed that purported to transfer the real estate to two beneficiaries, Robert Evans and Raymond Rudolph Jr. The deed was prepared by a friend, Kevin Schiferl, and was later altered by Kevin’s wife, Carolyn, who inserted the word “trust” after Drew’s name at the instruction of a county recorder’s office employee.
This alteration created two versions of the deed: a recorded version with the handwritten change and an unrecorded version without it.
After Drew’s death in January 2022, the estate and trust—represented by his brothers and the successor trustee—challenged the validity of the recorded deed.
The beneficiaries, who only learned of the deed after Drew’s death, took possession of the property but were later ordered to relinquish it to the estate. The litigation involved cross-motions for summary judgment, with the estate and trust seeking to void the deed and the beneficiaries seeking to quiet title and reform the deed to reflect what they argued was Drew’s intent.
The trial court ultimately consolidated the estate and trust proceedings to resolve the ownership dispute.
Key issues on appeal
The appellate court addressed two primary issues: 1) whether the trial court erred in striking affidavits submitted by the beneficiaries, and 2) whether the trial court properly granted summary judgment in favor of the estate and trust, declaring the TOD deed invalid.
The Indiana Court of Appeals ultimately found that any error in striking the affidavits was harmless, as the outcome would not have changed even if the affidavits were considered.
Ambiguity and statutory noncompliance
Central to the court’s decision was the ambiguity in the TOD deed. The deed identified the trust as the “owner” but was executed by the decedent in his individual capacity. Indiana law requires that a TOD deed be executed by the owner or the owner’s legal representative.
The court found that the deed’s language failed to clearly identify whose interest was being transferred and, critically, attempted to transfer the trust’s interest “on owner’s death”—a legal impossibility, as a trust is not a living person.
The court also noted that the TOD deed referenced an instrument conveying the property to the trust, further muddying the waters as to the decedent’s intent and the actual interest being conveyed.
The beneficiaries sought to reform the deed to remove the ambiguity, arguing that the handwritten insertion of the word “trust” should be disregarded. However, the court held that equitable reformation is not available to grantees seeking to correct a gift deed against the grantor or the grantor’s estate.
Since the deed was a gift and the beneficiaries only learned of it after the decedent’s death, they could not seek reformation to correct the alleged mistake.
Implications for estate planning and real estate transfers
This decision serves as a cautionary tale for those involved in estate planning and real estate transfers. There are several implications related to estate planning and real estate transfers:
Strict compliance required: TOD deeds must strictly comply with statutory requirements, including clear identification of the owner and the interest being transferred.
Ambiguity is fatal: Ambiguous language or procedural missteps can render a TOD deed invalid, even if the decedent’s intent seems clear.
Limited remedies: Courts are reluctant to reform gift deeds at the request of beneficiaries, especially after the grantor’s death.
Takeaways for businesses and estate planners
Business owners and estate planners should ensure that all transfer documents, especially TOD deeds, are carefully drafted and reviewed for compliance with applicable statutes. Ambiguities or informal alterations—such as handwritten changes made at the recorder’s office—can have significant, unintended consequences. When in doubt, consult with legal counsel to avoid costly litigation and ensure that the decedent’s wishes are properly carried out.•
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Gregory Neibarger is co-chair of Dentons’ Fiduciary Litigation practice group. Ben Lewis is a member of Dentons’ Litigation and Dispute Resolution practice group. Opinions expressed are those of the authors.
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