FAQ For TODs – Common Questions About Transfer On Death Deeds

Questions about using Transfer on Death (TOD) deeds

Housing & Economic Rights Advocates, an East Bay legal aid organization, recently gave an estate planning workshop here at Alameda County Law LibraryHERA provides estate planning services, fees for which are based on a sliding scale.  During the program, the HERA staff attorneys discussed the various estate planning options that may be used to avoid the court costs that mount up when as estate goes through the probate process.  One of the topics discussed was the Transfer on Death deed (TOD) – pros and cons.  The attorneys provided a TOD FAQ document to the attendees.  The FAQ is part of the text of California Probate Code Section 5642 which introduced TODs to California.

Quick review

Back in 2015, California legislators passed legislation to allow for the use of a document – Transfer on Death (TOD) deed –  that allows for transfer of property title after the death of an owner.   A TOD avoids the need to include real property as an asset when probating an estate.  As of January 1, 2016, a property owner may record, in the county property records, a document that names a beneficiary who will receive the interest that the owner has in real property after the owner’s death.  The document is revocable – it can be rescinded while the owner still lives.  There are rules to follow and subsequent paperwork to be completed for this transaction to be completed successfully.  The TOD has its limitations and restrictions.  Using it may not allow you to transfer your property as you would like.  A prior post with more details and links to TOD document templates can be read HERE.

Here is the FAQ:

From California Probate Code Section 5642 (Added by Stats. 2015, Ch. 293, Sec. 17. Effective January 1, 2016. Repealed as of January 1, 2021, pursuant to Section 5600.)

COMMON QUESTIONS ABOUT THE USE OF THIS FORM
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.

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 this form. Have it notarized. RECORD the form in the county where the property is located. The form MUST be recorded on or before 60 days after the date you sign it or the deed has no effect.

IS THE “LEGAL DESCRIPTION” OF THE PROPERTY NECESSARY?

Yes.

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. Follow the instructions given by the county recorder to make the form part of the official property records.

WHAT IF I SHARE OWNERSHIP OF THE PROPERTY?

This form only transfers YOUR share of the property. If a co-owner also wants to name a TOD beneficiary, that co-owner must complete and RECORD a separate form.

CAN I REVOKE THE TOD DEED IF I CHANGE MY MIND?

Yes. You may revoke the TOD deed 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 ways to revoke a recorded TOD deed: (1) Complete, have notarized, and RECORD a revocation form. (2) Create, have notarized, and RECORD a new TOD deed. (3) Sell or give away the property, or transfer it to a trust, before your death and RECORD the deed. A TOD deed can only affect property that you own when you die. A TOD deed cannot be revoked by will.

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. To avoid any doubt, you may wish to RECORD a TOD deed revocation form before creating the new instrument. A TOD deed cannot be revoked by will, or by purporting to leave the subject property to anyone via will.

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.

I AM BEING PRESSURED TO COMPLETE THIS FORM. WHAT SHOULD I DO?

Do NOT complete this form unless you freely choose to do so. If you are being pressured to dispose of your property in a way that you do not want, you may want to alert a family member, friend, the district attorney, or a senior service agency.

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 (Prob. Code § 210), and file a change in ownership notice (Rev. & Tax. Code § 480). If you received Medi-Cal benefits, your beneficiary must notify the State Department of Health Care Services of your death and provide a copy of your death certificate (Prob. Code § 215).

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 this form.

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?

Yes.

DOES THE TOD DEED HELP ME TO AVOID GIFT AND ESTATE TAXES?

No.

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.

DOES THE TOD DEED AFFECT MY ELIGIBILITY FOR MEDI-CAL?

No.

AFTER MY DEATH, WILL MY HOME BE LIABLE FOR REIMBURSEMENT OF THE STATE FOR MEDI-CAL EXPENDITURES?

Your home may be liable for reimbursement. If you have questions, you should consult an attorney.

 

The Alameda County Law Library provides access to legal information sources to for members of the Alameda County community to conduct legal research.  The staff of the Alameda County Law Library are not practicing attorneys.  We cannot give you legal advice or refer you to a lawyer. If you are seeking professional advice on California law, you should consult with a lawyer licensed by the State Bar of California.

 

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How Estate Planning Helps You – HERA – ACLL September 21, 2017

How Estate Planning Helps You – While You Are Alive and Afterward will be a program offered by HERA – Housing & Economic Rights Advocates at Alameda County Law Library on Thursday, September 21, 2017 at Noon.

The HERA staff attorneys will explain key concerns and key documents that will help you address handling your belongings and your health the way you want to.

Those documents include:

  • Living trust
  • Will
  • Power of attorney
  • Advance health care directive
  • Transfer on death documents for certain kinds of accounts

About the Speakers: 

Aeyoung Kim is a staff attorney at Housing and Economic Rights Advocates (HERA) providing estate planning services and probate assistance.  Before becoming an attorney, Ms. Kim worked for 11 years in the Superior Court of San Diego County, primarily in the Probate Division as a Probate Examiner. Ms. Kim is bilingual in Korean and English.

Kendra Bowen is a staff attorney at Housing and Economic Rights Advocates (HERA) providing estate planning services.  With her Juris Doctor from UC Hastings School of Law, Ms. Bowen also brings general litigation and real estate experience.

$5.00 Registration Fee

Online registration at http://bit.ly/2heraestateplanning

 

Prince Died Without A Will – Don’t Be A Prince

No will

The Los Angeles Times recently published an op-ed piece entitled –  “How could someone rich and famous like Prince die without a will? It’s not unusual. Just ask an estate lawyer.”  In the piece, Jack B. Osborn, an estate attorney,  goes on to write –

Amazingly, it is not unusual for the rich and famous to die without a will. Jimi Hendrix, Pablo Picasso, Bob Marley, Howard Hughes, Sonny Bono and Abraham Lincoln all died without a will. Lincoln was the first president to die without a will even though he was an attorney.

Thinking about death, never mind what happens after you die, is hard for most people.  Mr. Osborn states that only 41% of people ages 55 to 64 have a will.  Without a will controlling the settling of an estate and distribution of the assets, the lawyer fees can take a larger share of those assets.  Mr. Osborn notes –

The American Bar Association estimates that probate proceedings cost Americans up to $2 billion per year, of which nearly $1.5 billion is paid in attorneys’ fees.

Where there’s a will, there’s a way

An individual can take a number of steps to prepare for the passing of assets to the next generation.  Alameda County Law Library makes available resources to help you research the legal issues involved with drawing up a will, planning your estate, or establishing a living (revocable during one’s life) trust.

Getting started with the process –

For the non-attorney, materials from the NOLO publishing company can be most helpful –

  • 101 Law Forms for Personal Use / NOLO Editors KF 170 .L46 2013 (Self Help) – various templates depending on your personal family situation
  • The Mom’s Guide to Wills & Estate Planning / Liza Hanks KF 750 .Z9 H3273 2009 (Self Help)
  • Make Your Own Living Trust 12th ed. / Denis Clifford  KF 734  .C58 201 (Self Help) – avoiding probate, other ways to pass on property

and one of our more useful titles as it does a wonderful job of summarizing most legal procedures and issues involving death and the transfer of property

  • How to Probate an Estate in California: A Step by Step Guide 23rd ed. / Julia Nissley KFC 205  Z9 N57 2016 (Self Help)

Many of the NOLO titles are available through the ACLL website.

  • Access the Legal Databases webpage on ACLL’s website.
  • Once you are at the page, move down the screen until you see –
NOLO (EBSCO Legal Information Reference Center)

Provides more than 220 online full text legal reference books and thousands of legal forms, the majority from Nolo, the nation’s oldest provider of legal information for consumers and small businesses including: California specific books and forms, business law, property and real estate, rights and disputes and much more. These books and forms may be searched, printed and e-mailed both from within the library and outside the library. Laptop access is available to Legal Information Reference Center materials and forms in both libraries via WiFi. Please click on EBSCO Legal Information Reference Center to connect to this database from anywhere. It is also available from the public computers’ menu at the Main Library and on a public computer at the Branch Library in Hayward.

For detailed information on how to use the the NOLO database click here.

  • The here link at the end provides instructions on how to log on to the database, as well as, search for information from a particular NOLO title.

There are other resources on the internet that are helpful when tackling the issues of drafting a will.

New to California – Transfer on Death deeds

In the past, many individuals added others to the title of real property as joint tenants in an attempt to avoid formal probate court proceedings after death.  As of the beginning of the 2016, California real property owners have another simplified option for transferring real property after death – Transfer on Death deed (TOD)  See a prior post for more information and resources on this option. POST HERE

Don’t be a Prince.  Be a prince for your heirs.  Make a tough situation simpler for them and make a will.

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Estate Planning for Your Google Afterlife

GoogleDeath
A user of Google products like Gmail, Google+, cloud storage Drive, Picasa, and YouTube can use Google Account Manager to automatically delete his Gmail, Google+, cloud storage Drive, Picasa, and YouTube data after a set time period of inactivity OR to notify a trusted friend or relative that his data can be downloaded. That set period of inactivity set by the user could be attributed to many causes. Death is one reason for inactivity. The chosen person, or up to 10 people chosen by the user, would be notified of the user’s inactivity and if previously given permission by the now departed, they would have the opportunity to download the deceased’s data. The chosen person or persons could not take over the deceased’s accounts to send emails, post photos, or load YouTube videos from the deceased’s accounts, but the data would be available for download as indicated by the deceased.
If the deceased did not utilize Google Account Manager to provide for access to his accounts after his death, there is a procedure for an authorized representative of the deceased to gain access. It is a two step process involving establishing the representative’s identity and supplying the deceased’s death certificate in the first step. Only after completing the first step may the representative go on to the second step which requires a U.S. court order and/or submitting additional materials. Visit the Google website for further information.