AB 139 Flyer
WHAT IS A TRANSFER UPON DEATH DEED?
WHAT DOES THE TOD DEED DO?
When you die, the identified property will transfer to your named beneficiary without probate. The TOD deed has no effect until you die. You can revoke it at any time.
WHO CAN MAKE A REVOCABLE TRANSFER ON DEATH DEED?
An owner of real property who has the capacity to contract may make a revocable transfer on death deed of the property.
IS THERE A SPECIFIC TOD FORM I NEED TO USE?
Yes. The TOD form is considered a “statutory” form and must be substantially the same as found in CA Probate Code section 5642. This is a two-page form and both pages must be recorded.
CAN I USE THIS DEED TO TRANSFER BUSINESS PROPERTY?
This deed can only be used to transfer (1) a parcel of property that contains one to four residential dwelling units, (2) a condominium unit, or (3) a parcel of agricultural land of 40 acres or less, which contains a single-family residence.
HOW DO I USE THE TOD DEED?
Complete the TOD Deed form. Have it notarized. RECORD (pursuant to CA Civil Code section 1170) the form in the county where the property is located. The form MUST be recorded on or after the date you sign it or the deed has no effect
IS THE “LEGAL DESCRIPTION” OF THE PROPERTY NECESSARY?
HOW DO I FIND THE “LEGAL DESCRIPTION” OF THE PROPERTY?
This information may be on the deed you received when you became an owner of the property. This information may also be available in the office of the county recorder for the county where the property is located. If you are not absolutely sure, consult an attorney.
HOW DO I “RECORD” THE FORM?
Take the completed and notarized form to the County recorder for the county in which the property is located. The TOD Deed must be recorded on or before 60 days after the date it was executed. Follow the instructions given by the County Recorder to make the form part of the official property records.
CAN I REVOKE THE TOD DEED IF I CHANGE MY MIND?
Yes. A transferor who has the capacity to contract may revoke a TOD at any time. No one, including your beneficiary, can prevent you from revoking the deed.
HOW DO I REVOKE THE TOD DEED?
There are three (3) ways to revoke a TOD deed: (1) Complete, have notarized and RECORD a Revocation form (see “statutory” form in CA Probate Code section 5644); (2) Create, have notarized, and RECORD a new TOD Deed; (3) Sell or gift the property, or transfer it to a trust, before your death and RECORD the proper deed. A TOD deed can only affect property that you own when you die.
CAN I REVOKE A TOD DEED BY CREATING A NEW DOCUMENT THAT DISPOSES OF THE PROPERTY (FOR EXAMPLE, BY CREATING A NEW TOD DEED OR BY ASSIGNING THE PROPERTY TO A TRUST)?
Yes, but only if the new document is RECORDED, before your death. To avoid any doubt, you may wish to RECORD a TOD deed revocation form before creating the new instrument.
IF I SELL OR GIVE AWAY THE PROPERTY DESCRIBED IN A TOD DEED, WHAT HAPPENS WHEN I DIE?
If the deed or other document used to transfer your property is RECORDED before your death, the TOD deed will have no effect. If the transfer document is not RECORDED before your death, the TOD deed will take effect.
DO I NEED TO TELL MY BENEFICIARY ABOUT THE TOD DEED?
No. But secrecy can cause later complications and might make it easier for others to commit fraud.
WHAT DOES MY BENEFICIARY NEED TO DO WHEN I DIE?
Your Beneficiary must RECORD evidence of your death (Probate Code Section 210) and file a change of ownership notice (Rev. and Tax. Code Section 490).
WHAT IF I NAME MORE THAN ONE BENEFICIARY?
Your beneficiaries will become co-owners in equal shares as tenants in common. If you want a different result, you should not use the TOD Deed.
HOW DO I NAME BENEFICIARIES?
You MUST name your beneficiaries individually, using each beneficiary’s FULL name. You MAY NOT use general terms to describe beneficiaries, such as “my children.” For each beneficiary that you name, you should briefly state that person’s relationship to you (for example, my spouse, my son, my daughter, my friend, etc.).
WHAT IF A BENEFICIARY DIES BEFORE I DO?
If all beneficiaries die before you, the TOD deed has no effect. If a beneficiary dies before you, but other beneficiaries survive you, the share of the deceased beneficiary will be divided equally between the surviving beneficiaries. If that is not the result you want, you should not use the TOD deed.
WHAT IS THE EFFECT OF A TOD DEED ON PROPERTY THAT I OWN AS JOINT TENANCY OR COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP?
If you are the first joint tenant or spouse to die, the deed is VOID and has no effect. The property transfers to your joint tenant or surviving spouse and not according to this deed. If you are the last joint tenant or spouse to die, the deed takes effect and controls the ownership of your property when you die. If you do not want these results, do not use this form. The deed does NOT transfer the share of a co-owner of the property. Any co-owner who wants to name a TOD beneficiary must complete and RECORD a SEPARATE deed.
CAN I ADD OTHER CONDITIONS ON THE FORM?
No. If you do, your beneficiary may need to go to court to clear title.
IS PROPERTY TRANSFERRED BY THE TOD DEED SUBJECT TO MY DEBTS?
HOW DOES THE TOD DEED AFFECT PROPERTY TAXES?
The TOD deed has no effect on your property taxes until your death. At that time, property tax law applies as it would to any other change of ownership