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Transferring Your Home with a Transfer on Death Deed (TOD) - What You Need to Know


A law that became effective January 1, 2016, creates a Revocable Trasfer on Death Deed (“TOD Deed”) as a way for California residents to transfer residential property to named beneficiaries, effective upon death.

The stated purpose of the TOD Deed, according to the author of the bill, is to allow seniors and individuals whose estates consist primarily of a home, to avoid costly and/or complicated probates or trust administrations. In short, a TOD Deed, when properly executed, notarized and recorded is supposed to be a simple and inexpensive way to transfer residential property, while avoiding the necessity of a living trust or a will that may be subject to probate.

Definitions:

  1. Grantor: The individual who transfers property through the TOD Deed

  2. Beneficiary: The individual who inherits property through the TOD Deed

As with most “simple” and “inexpensive” legal strategies, there are pros and a lot of cons to the TOD Deed.

The Disadvantages:

The TOD Deed:

  • Offers no protection from the Grantor’s creditors. Therefore, the beneficiary may end up with nothing if the debts of the Grantor are larger than the worth of the property. Additionally, because there may be unsatisfied creditor’s claims against a property, some title companies are not willing to issue title insurance to the beneficiary until three years after the Grantor’s death.
  • Can only be used to transfer one to four residential dwelling units or condominium units, or a single-family residence with less than 40 acres of agricultural land.
  • Cannot be used to transfer residential property held as Joint Tenancy or as Community Property with Right of Survivorship, and cannot be used to create split interests such as a life estate.
  • Does not permit the designation of beneficiaries by class description (e.g., “my children”); the beneficiary or beneficiaries have to be specifically named.
  • Cannot designate “contingent beneficiaries”: if a beneficiary dies before the Grantor, the property goes to the other surviving beneficiaries in equal shares or, if no other beneficiaries, then it reverts to the Grantor estate and may then require a probate.
  • Can subject the Grantor (particularly elders with dementia) to undue influence and elder abuse, or cause resentment among family members.
  • Although the TOD was created to minimize the use of attorneys, because of the specificity of the form, a consumer may unwittingly void the transfer because of an error in the completion of the form.

The Advantages:

  • The new TOD Deed may be less expensive than a living trust, and may eliminate the waiting and expense of a probate.
  • The TOD Deed can be revoked at any time during the lifetime of the Grantor.
  • A TOD Deed should simplify the transfer process at death, as long as the deed is not voided by a drafting error in the part of the Grantor.
  • A TOD Deed retains the tax advantages of a transfer via trust or inheritance under a will.

Signing and Recording:

  • A revocable TOD deed is not effective unless the Grantor signs and dates the deed before a notary public.
  • The deed does not need to be delivered to the beneficiary.
  • The deed must be recorded 60 days or less from the time it is signed. Recent legislation – AB 1739 (Chau) -- clarified that the “Common Questions” portion of the statutory form does not need to be recorded.
  • If more than one beneficiary is named in the TOD, the ownership interests must be divided equally.

Revoking a TOD Deed:

  • The TOD Deed may be revoked by the Grantor at any time, but the Grantor must record a revocation form or another deed.
  • The TOD Deed can be revoked at any time and a new estate planning strategy can be pursued.
  • A TOD Deed may be revoked by recording a new and different TOD deed, as the law allows more than one revocable TOD deed, and provides that the effective deed will be the one which has the most recent recording date.
  • A TOD Deed may be revoked by transferring the property to someone else by any type of legally valid deed, and recording that deed, prior to the transferor's death.

Where to Find the Form:

The new law requires use of a specific form. The form is available for online download at a number of county sites (see for example Sacramento County’s form):
https://saclaw.org/wp-content/uploads/form-TOD-deed.pdf

The statutory deed form and revocation form are in the California Probate Code, Sections 5642 and 5644.

Note: AB 139 directs the California Law Revision Commission to study the effect of the TOD Deed as to whether the deed is working effectively, whether it has been used to perpetuate financial abuse, whether it needs changes and whether it should be continued, and to report back to the Legislature no later than January 1, 2020. Unless the Legislature acts otherwise, the law will sunset on January 1, 2021, but that would not invalidate any revocable TOD Deed executed before that date.

Page Last Modified: August 30, 2019