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  The document is revocable – it can be rescinded while the owner still lives.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 Repealed as of January 1, 2021, pursuant to Section 5600.)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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Help Finding Your Way Around The County Recorder & Assessor’s Offices – Tutorials From The Advanced Media Institute

On its website, to assist in the education and training of journalism students, the Advanced Media Institute at UC Berkeley has a collection of tutorials including research tutorials.  Journalists frequently need to research the same subject areas as legal researchers – court cases, property records and business information.  Many of these practical and well-organized research tutorials were authored by Paul Grabowicz for students in his Computer Assisted Reporting class.

For Alameda County legal researchers, these tutorials are especially helpful because, as they are coming out of Berkeley, the organization and procedures of Alameda County and other East Bay government offices are highlighted.

This link – https://multimedia.journalism.berkeley.edu/tutorials/ – will take you to the home page for the tutorials.  The website policy does not allow for any republishing of the content of the tutorials without express written permission but feel free to explore these internet resources.

Researching Alameda County and other East Bay property records

Tutorial: Assessor’s Office https://multimedia.journalism.berkeley.edu/tutorials/assessors-office/  researching who owns a piece of property by address and assessed value, this information is only available in-person, no internet site

Tutorial: Recorder’s Office https://multimedia.journalism.berkeley.edu/tutorials/recorders-office/   guide to what can and cannot be found within county property ownership records, includes abbreviation list for documents listed in records

Other tutorials legal researchers might find informative

Tutorial: Bankruptcy Court Records https://multimedia.journalism.berkeley.edu/tutorials/bankruptcy-court-records/

Tutorial: Business and Corporation Records https://multimedia.journalism.berkeley.edu/tutorials/business-and-corporation-records/

Tutorial: Businesses Regulation Agencies https://multimedia.journalism.berkeley.edu/tutorials/businesses-regulatory-and-licensing-agencies/

Tutorial: Civil Court Lawsuits https://multimedia.journalism.berkeley.edu/tutorials/civil-court-lawsuits/

Tutorial: Criminal Court Records https://multimedia.journalism.berkeley.edu/tutorials/criminal-court-records/

Tutorial: Public Records Act Request Resources https://multimedia.journalism.berkeley.edu/tutorials/public-records-act-requests    includes examples of sample letters with filing information

New To CEB And New To ACLL – Real Property Ownership & Taxation

CEB has published a new title  – Real Property Ownership & Taxation.  It is now available at the Alameda County Law Library in paper and digital form through the OnLAW database.

ACLL, due to a severe decrease in our revenue stream, is not able to buy many new paper titles these days.  The decision was made to get this one in both formats as it deals with the types of California real property issues many of our patrons – lawyer and pro se – come to our library to research.

This desktop reference is for common questions and issues involving commercial and residential real property ownership.

Here are some of the topics covered:

  • Forms of ownership: how to take title to property
  • Property taxation and assessment during a transfer or sale
  • Income taxation of property sales, transfers, and exchanges
  • Estate planning considerations, including estate and gift taxation
  • Highlights of escrow and recordation of property transfers
  • Insuring title to property
  • Insuring property interests against loss and damage
  • Lis pendens
  • Homesteads
  • How to appeal a tax assessment
  • Bankruptcy impact on title and sales
  • Impact of death on ownership and transfer of property

The chapter on California homestead law provides a detailed discussion of the legal issues of this area of real property law –  one for which a resource can be difficult to find.

CEB Partner Program

Just a reminder – you can support the goals of the ACLL by participating in the CEB partner program when you place a new order for CEB products. Use CEB priority code9629Awhen you place an order with Continuing Education of the Bar.  ACLL will receive a credit on a future invoice.

 

Lien In

Lien In

At the Alameda County Law Library, we regularly have patrons who approach the Reference Desk and make the following statement – “I want to file a lien.”  Tell me more, Pat Patron. That statement alone is not enough information for a law librarian to steer a person to a good resource.

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Image from the photo archives of the British Museum

Please note: below is a general overview to help with research into the area of California lien law.  This information should not be construed as legal advice.  Please obtain legal counsel from a person licensed to practice law in the State of California to decide what actions best fit your legal needs.

California law restricts when people can file liens on property.  If a person wants to file a lien because they feel a debt is owed or they feel they have a right to some of the value of a piece of property, they must follow the standards set out under the law and use proper legal forms.

What is the definition of “lien?”

Type in “lien” as a search term in the online version of Black’s Law Dictionary, you get 96 hits.  Look under the “L” listing and you find:

lien (leen or lee-ən) n. (16c) A legal right or interest that a creditor has in another’s property, lasting usu. until a debt or duty that it secures is satisfied. • Typically, the creditor does not take possession of the property on which the lien has been obtained.

Black’s Law Dictionary (10th ed. 2014)

Under this entry alone, there are over 70 sub-entries.

Nolo’s website offers a more user-friendly description of a lien,  helpful to non-attorneys –

A lien is a notice attached to your property telling the world that a creditor claims you owe it some money.  A lien is typically a public record.  It is generally filed with a county records office (for real property) or with a state agency, such as the secretary of state (for cars, boats, office equipment, and the like).  Liens on real estate are a common way for creditors to collect what they are owed.  Liens on personal property, such as motor vehicles, are less frequently used but can be an effective way for someone to collect.

Margaret Reiter, http://www.nolo.com/legal-encyclopedia/what-property-lien.html

This definition illustrates that personal property as well as real property can be subject to liens.  It also touches on the issue that simply filing a lien does not produce a flow of money to the claimant.  More than one pro per – “in propria persona” or a litigant representing herself without an attorney – has come to the Reference Desk to ask what document is needed to have the court force the other party to pay the judgment just granted. The reality that a successful judgment is just one more step in a long process can be a shock.

So, if Pat Patron states that she wants to file a lien, what should she be asking herself?

Consensual lien – Has the owner of the property voluntarily allowed a lien or an encumbrance to be recorded against the property? 

Consensual liens are granted for a number of reasons including: a mortgage for purchase, a reverse mortgage to provide funds in retirement, or, to insure payment for professional services related to the property, such as, solar power installations.

ACLL has titles that provide samples or templates of contracts and recordable documents for these types of business arrangements.  We also have practice guides for researching the law that discusses the rights and obligations of the parties involved.  The titles include:

  • California Legal Forms: Transaction Guide, Volume 10, “Real Estate Transactions” (KFC 68 C32) hard copy only at ACLL
  • Warner, How to Buy a House in California, Chapters 8, 9, 10 discuss mortgages and their obligations. (KFC 169.Z9 W37 2000 — Self-Help Area)  Also available through the Nolo-EBSCO Legal Information Reference Center database

Judgment lien – Has the patron been successful pursuing a lawsuit within a court and been granted a favorable judgment?

Once a judgment has been obtained, the party needs “to collect” the judgment.  An excellent overview of the procedures and strategies to collect what is owed is covered in the title written for non-attorneys – How to Collect When You Win a Lawsuit in California (KFC 1065 Z9 S38 2016).  Chapter 4 includes a good summary discussion of judgment liens.

The How to Collect title also discusses liens on personal property – boats, automobiles, art – in addition to real property – land, house, apartment building.

Another title in ACLL’s collection that may be useful to understand the debt collection process is David Cook’s book, The Debt Collector’s Handbook (KF 1024 .C66 2014)

Mechanics’ lienIs the patron a worker in the construction trade who has provided services related to the improvement of a piece of property?

There are special provisions under the law to help insure payment for people whose skills help increase the value of real property.  The United States Founding Fathers introduced the first mechanics’ lien legislation.  No such lien rights existed in England where many of the U.S.’s legal concepts are rooted.  (See Scott Wolfe Jr.’s post at http://www.zlien.com/articles/a-short-history-of-the-mechanic-lien/).

A mechanics’ lien may be a common form of a lien but the law of mechanics’ liens itself is highly detailed.  There are a number of steps that must be taken to insure the lien’s legality.  Sources for researching the area of mechanics’ liens:

  • CEB’s California Mechanics’ Liens and Related Construction Remedies, Chapter 3, “Preparing, Serving, and Recording Mechanics’ Lien and Notice of Lien” (KFC 229 C3)
  • Handling Mechanics’ Liens and Related Remedies (Private Works) (KFC 995 .A1 C35) This CEB Action Guide describes the rights and remedies, including mechanics’ liens, stop notices, and bonds of the principal parties involved in a private work of improvement.

There are also information sources available on the internet –

Foreclosing on the lien

Because of recent economic events, most people have heard of the term “foreclosure.”  Foreclosure is most frequently associated with the process by which a company that provided the money for the owner to purchase a property enforces its legal rights to force a sale of the property to recover the money owed.  In a legal context, the term can also be used when a creditor tries to force the sale of any property on which he has filed a lien, allowing him to obtain what is owed.  For more information see – 42A California Jurisprudence 3d, Section 60, Jacobs, Liens, VII. Remedies and Enforcement, B. Foreclosure Action. (available on Westlaw.)

Turning again to Black’s Legal Dictionary –

foreclosure (for-kloh-zhər) (18c) A legal proceeding to terminate a mortgagor’s interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property. Cf. repossession.

Black’s Law Dictionary (10th ed. 2014)

Most research guides state that undertaking an action to foreclosure on a lien to collect on a debt, though possible, is usually too costly and time consuming to make it worthwhile for an individual who is trying to collect monies owed.

As the author of How to Collect Win You Win a Lawsuit, Andres Schonviesner, states in Chapter 4 –

If the judgment debtor owns real property, the judgment creditor may place a lien on the property.  If the debtor tries to sell or refinance the property, the creditor will be paid the judgment amount plus accrued interest from the escrow.  In some situations, it may also be possible to “foreclose” on the judgment lien, and force the sale of the property.  This is only an option if there is enough equity in the property to pay all existing liens and exemptions, as well as the costs of foreclosure.

Most creditors who file liens on real property wait until the property is sold for other reasons to collect money owed.  A number of factors makes this a good strategy – one, when the property is sold or re-financed, there is an expectations of funds becoming available and, two, the new owner will not want to assume burden of the lien.  Finance companies want to know the property title is “clear”  with no other claims filed in the records prior to theirs.

The law of foreclosure is very complicated and beyond the scope of this post.

Claims involving real estate – lis pendens

 Many pro pers come into the library to research filing a “lien” because they want to assert legal rights over a certain piece of property.  They want to make a legal claim public so another cannot transfer title.  An example would be when an owner of a family home dies without a will and there is disagreement with surviving family members as to who owns the property.

A party to an action who asserts a claim to real property may record a “notice of pendency of action” (often referred to as a “lis pendens”) with the recorder in each county in which all or part of the real property is located.  See California Code of Civil Procedure §405.20

California Real Property Remedies and Damages, CEB, Section 13.4

Chapter 13 of California Real Property Remedies and Damages (KFC 169 A75 C34 2002) provides a comprehensive discussion of procedures and forms involved in lis pendens/notice of pendency of action matters. Included are the rules for who can file a lis pendens.  If the signer of the lis pendens is not a licensed attorney, the party acting in pro per must obtain approval of a judge before a lis pendens can be recorded.

If a lis pendens is signed by a party appearing in pro per, approval of the judge of the court in which the action is pending is required before the notice may be recorded. California Code of Civil Procedure §405.21. The statute does not address the procedure for obtaining a judge’s approval of the notice or the means of memorializing such approval. Presumably, the request for approval should be made in the same manner as any other ex parte application. See, e.g., California Rules of Court 3.12003.1207.  If a claimant appearing in propria persona requests court approval for a proposed notice, the court may approve the notice. California Code of Civil Procedure §405.21.

California Real Property Remedies and Damages, Section 13.32, see also Section  13.116

Special liens

Here are some other special subject liens that may be seen in public property records–

Tax or assessment liens – Government tax agencies are not subject to the same rules as ordinary citizens.

Workers’ compensation claimhttp://www.dir.ca.gov/dwc/iwguides/iwguide10.pdf

Filing a notice and request for allowance of lien is how you make a claim for payment of money you’re owed in a workers’ compensation case.  Attached is a lien form. Complete the form. Be sure to sign and date it. This form can also be completed at: http://www.dir.ca.gov/dwc/FORMS/EAMS%20Forms/ADJ/DWCForm6.pdf.

Family law

In California, in a marital action, a spouse may file a lien against his or her interest in community real estate to secure pay­ment of attorney fees in the action. The lien affects only the filing spouse’s interest in the property. California Family Code Section 2033.

Child support liens

Special provisions exist in California Family Code Section for liens for back child support.  See California Family Code Section 17523 –  http://tinyurl.com/gpfrn4t

And also – https://www.childsup.ca.gov/portals/0/resources/docs/training/resources/realpropertyliens07-10.pdf

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California Nonprobate Transfers – Revocable Transfer On Death Deeds – New Deed Form Under California Law

Another tool in the avoiding probate toolkit – Consider a deed that transfers property after death

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Alameda County’s Clerk – Recorder’s Office
Existing law provided that a person could pass real property to a beneficiary at death by various methods including by will, intestate succession, trust, and titling the property in joint tenancy, among others.

Beginning this year, Californians who wish to take legal steps to avoid probate of real property might want to consider the revocable Transfer on Death deed (TOD), also known as a beneficiary deed.  As of January 1, 2016, a property owner may record this type of document to name beneficiaries who will receive any interest that owner has in real property after the owner’s death – without the need for probate.

One method, frequently used, was to add names of family members and others to a property’s title as joint tenants.  Doing so avoided having to probate the property but this transaction also gave ownership rights to the new joint tenants – making it available for partial sale, refinancing, or, even allowing creditors to place a lien on the property.  The new TOD deed also avoids issues involving possible additional taxation – gift or property reassessment.  A TOD deed can be revoked if the owner chooses to do so during his or her lifetime.

As with any deed, all legally required rules must be properly followed.  The documents will need to be notarized and recorded with the county recorder to become a part of the public land records.  There are other issues to consider involving the use of a TOD for any property owner.  A document which discusses some common questions has been published by the Sacramento (CA) Public Law Library.  A copy can be read here –  FAQ_TOD_SPLL

 

Below are samples with basic instructions for the documents involved in a Transfer on Death deed transaction:

For legislative background information, here is a copy of the chaptered version of the bill passed last September – 20150AB139_93-2

For more information see – http://saclaw.org/new-way-to-avoid-probate-transfer-on-death-deeds/

 

The Alameda County Law Library provides access to legal information sources to allow the public to conduct legal research. The staff of the Alameda County Law Library are not practicing attorneys.  If you are seeking advice on California law, be sure to consult with a lawyer licensed by the State Bar of California.

 

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September 15, 2014 Deadline for Alameda County Property Owners to File Assessment Appeals

Ron ThomsenThe Regular Appeal Filing Period in Alameda County is July 2 through September 15. Applications for the Regular Filing Period must be received/postmarked no later than September 15. The Alameda County Assessor has a very informative website at http://www.acgov.org/assessor/. Go to http://www.acgov.org/clerk/assessment.htmto find much of the information you need for an appeal.

Assessment Appeals
The Clerk, Board of Supervisor’s Assessment Appeals Unit receives and processes assessment appeal applications; schedules hearings in accordance with legal requirements; maintains minutes and official records; provides administrative support to Assessment Appeal Board members and Hearing Officers; and provides assistance and education to the general public on the assessment appeals process. If you have questions about the appeals process please contact us at
(510) 272-3854.
Online Application for Changed Assessment
Press Release (88kb) *

This video walks you through the process of preparing and presenting your Assessment Appeal of your Property Tax Assessment at your county Board of Equalization or Assessment Appeals Board. State Board of Equalization Assessment Appeal Instructional Video.
The following documents are provided in Portable Document Format (PDF) and require the free Adobe Reader.
Application for Changed Assessment (PDF 544kb)
Withdrawal of Application for Changed Assessment (PDF 61kb) *
Notice: Application for Changed Assessment (PDF 174kb) *
Assessment Appeals Board Instruction Booklet – English (PDF 610kb) *
Assessment Appeals Board Instruction Booklet – Spanish (PDF 622kb) *
Assessment Appeals Board Instruction Booklet – Chinese (PDF 858kb) *
Request to Waive Nonrefundable $50 per Parcel Assessment Appeal Application Processing Fee (PDF 480kb) *
What to bring to AAB Hearing (PDF 240kb) *

In addition the Alameda County Law Library in Oakland has the definitive work Taxing California Property, 4th edition by Sean Flavin. It is a three volume loose-leaf shelved on the first floor of the Law Library in stack 116B with call number KFC 881 E35. It was last updated in 2014.
California Pleading and Practice, Chapter 540, “Taxes and Assessments “ with headings such as “In General”, “Structure and Administration of Property Tax System”, “Taxpayers’ Administrative Remedies”, and “Judicial Remedies Available to Taxpayers and Purchasers” provides explanations and forms.