Staying Informed About California Transfer on Death Deeds

Tightening Up the Rules

This year has been an interesting one for California’s revocable transfer on death deed. Beginning in 2022, California homeowners using TOD deeds (sometimes just called TODDs) must have two adult witnesses sign the document. So, for a valid TOD deed, you must sign the document, have your signature notarized, have two witnesses, and file the deed for public recording with the county within 60 days once it’s notarized.

First, no need to panic. If your California TOD was properly recorded before Jan. 1, 2022, it will still be a valid document.

Now, let’s look at the California TOD deed in its updated form.

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Estate Planning With a Transfer on Death Deed

New Rules for California Homeowners

A parent and child standing outside discussing important things.

Since 2016, California has been offering homeowners a very simple way to transfer their homes to beneficiaries. It’s called the transfer on death deedalso written as TOD deed, TODD, or beneficiary deed. A TOD deed, where a state allows it, enables a named beneficiary to take title without the need for probate or trust administration.

Fast-forward to September 2021. California’s governor has signed Senate Bill 315 into law. This has changed the way a homeowner can create or revoke a transfer on death deed, starting in 2022.

Note: If a California TOD is executed before Jan. 1, 2022, it will be valid.

Now, what’s the difference between the current TOD law and the one that takes effect in 2022? Let’s check it

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What Happens When Wills and Deeds Conflict?

Image of paper legal documents for the last will and testament. Captioned: What Happens When Wills and Deeds Conflict?

When a person passes away, the death certificate and last will are submitted to the county probate court. A person representative begins the process of passing assets along as the will directs — except when other valid legal instruments have priority. One of those instruments is the all-important real estate deed.

Houses can be left to their owners’ chosen beneficiaries through wills. But when someone who co-owns a house passes away, questions may arise as to what the last will says versus what the deed says. In case of a conflict, does the last will get the last word? Short answer: probably not. The long answer starts with the way the title is vested.

Survivorship Rights Vs. Tenancies in Common

When an owner dies, a properly signed and recorded deed directs and channels the person’s property interest to its next owner, typically according to the following rules.

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Update: The State of the Transfer on Death Deed

Image of a very clean front porch on a house.

Ever thought about placing some of your key assets in instruments that bypass the probate process? In a number of states, homeowners have the option of placing their real estate in a transfer on death deed. Think of a retirement account that’s transferred to its designated beneficiary on death. In the same way, with a transfer on death deed for real estate, a home can pass to a designated person, people, or a charity automatically upon the current owner’s death.

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Adding Someone to Your Real Estate Deed? Know the Risks.

Image of a house. Captioned: Adding Someone to Your Deed? Know the Risks

It’s your home. You might wish to add another person—perhaps an intimate friend or a family member. Doing this is a relatively simple action. And you have the right to do it.

Still, be sure to consider the unintended consequences. However well-intended your desire to bring a loved one onto your real estate deed, the conveyance is fraught with risks and potential frustrations. Be aware that:

  • A deed that conveys an interest in your real estate ownership (“adds someone on”) has the legal effect of giving that additional person the same bundle of rights to which you are entitled.
  • Once the conveyance happens, it cannot be undone except with that other additional owner’s consent.  

Consider the following aspects carefully.

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Texas Adds Statutory Transfer on Death Deeds to Estate Planning Arsenal

As of September 1, 2015, owners of real property in Texas gained access to the statutory transfer on death deed (TODD). Modeled after the Uniform Real Property Transfer on Death Act and located at Chapter 14 of the Texas Estates Code, the Texas Real Property Transfer on Death Act governs the use of transfer on death deeds in the State of Texas.

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Understanding Transfer on Death Deeds

Real estate is often one of the most significant assets to consider in a comprehensive estate plan. There are several ways to distribute the property after the owner’s death. Some of the more common options are wills, trusts, joint ownership, or transfer on death (TOD) deeds. Note: unless identified otherwise, all definitions originated with Black’s Law Dictionary, Eighth Edition.

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Revoking a Transfer on Death Designation Affidavit in Ohio

Ohio Revised Code 5302.23(B)(5) contains the rules for revoking a recorded transfer on death designation affidavit. In short, it states that the owner of real estate previously identified as a transfer on death interest may revoke or change a beneficiary designation at any time before the owner’s death, without the consent of that transfer on death beneficiary. Simply execute and record a new transfer on death designation affidavit, including all information from the prior form, but stating the revocation or change where appropriate.

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Nebraska Statutory Transfer on Death Deed Options

The Nebraska Uniform Real Property Transfer on Death Act is found at Sections 76-3401 to 76-3423 of the Nebraska Revised Statutes. This useful law provides an option for land owners to convey their real estate after their death, but without the need to include it in a will.

A transfer on death deed (TODD), when lawfully executed, allows property owners to retain absolute title to and control over their land during their lives ( 76-3414). The deeds are also revocable (76-3413). In part, these features are possible because unlike traditional deeds (warranty deeds, quitclaim deeds, etc.), TODDs do not require consideration from or notice to the beneficiary ( 76-3411).

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