California Transfer on Death (TOD) Deed — Probate Code §§ 5600–5698

A revocable transfer on death deed — a "revocable TOD deed" — is a recorded instrument that makes a donative transfer of real property to a named beneficiary, operates on the owner's death, and stays revocable until then (§ 5614(a), (b)). The Probate Code's TOD-deed part applies to an owner who dies on or after January 1, 2016, whether the deed was signed or recorded before, on or after that date (§ 5600(a)). During the owner's life the deed changes nothing: the owner keeps every ownership right and may sell, borrow against or otherwise deal with the property, and the beneficiary gets no legal or equitable right in it (§ 5650).

The deed is only as good as its formalities. It is not effective unless it is signed and dated, witnessed by two people, notarized and recorded in time (§§ 5624, 5626(a)). After the owner dies, the beneficiary has to record proof of death, serve notice on the owner's heirs and file with the county assessor (§§ 5680–5682; Revenue and Taxation Code § 480(b)). This page walks through those rules as the statute states them.

An owner of real property who has the capacity to contract may make a revocable TOD deed (§ 5620). The owner must identify the beneficiary by name (§ 5622); a natural person, a trust or a legal entity may be named (§ 5608). The statutory form says to use the beneficiary's full name and not a general term such as "my children" (§ 5642(a)).

The deed reaches only "real property" as the statute defines it: a parcel improved with one to four residential dwelling units, or a residential separate interest and its appurtenant common area in a common interest development (§ 5610(a)). It does not reach a parcel of agricultural land greater than 40 acres (§ 5610(b)), and the definition is read as of the execution date shown on the deed (§ 5610(c)). The deed may be used even where ownership is not usually evidenced by a deed (§ 5614(c)). Using a TOD deed does not stop an owner from using any other method of conveying property that postpones enjoyment until death (§ 5602).

A revocable TOD deed is not effective unless three conditions are met: the owner signs and dates it; two witnesses who were present at the same time sign, having witnessed either the owner's signing or the owner's acknowledgment of the signature; and the deed is acknowledged before a notary public (§ 5624). Anyone generally competent to be a witness may witness, and a deed is not invalid because an interested witness signed it — but if a beneficiary is also a subscribing witness, there is a presumption that the witness procured the deed by duress, menace, fraud or undue influence, unless the witness is named solely in a fiduciary capacity (§ 5625(a)–(c)).

The deed must be recorded on or before 60 days after the date it was acknowledged before the notary, or it is not effective (§ 5626(a)). The owner need not deliver the deed to the beneficiary, and the beneficiary need not accept it, during the owner's life (§ 5626(b), (c)). The statutory form (§ 5642) is the model: a deed must be "substantially" in that form. Its notes say the deed can be used only for residential property, that the owner should provide only the information the form asks for, and that adding other conditions may force the beneficiary to go to court to clear title (§ 5642(a), (b)). Failure to record the "Common Questions" pages of the form does not affect the deed, for deeds executed on or after July 9, 2018 and for earlier deeds only if the owner was alive on July 9, 2018 (§ 5626(d)). An error or ambiguity in describing the property or the beneficiary does not invalidate the deed if a court can determine the owner's intention (§ 5659).

An owner who has the capacity to contract may revoke a revocable TOD deed at any time (§ 5630). The revoking instrument must be executed and recorded in the same manner as a TOD deed, and the beneficiary's joinder, consent, agreement or notice is not required (§ 5632). The Code gives a statutory revocation form (§ 5644), which says it must be recorded on or before 60 days after it is notarized to be effective.

If two recorded TOD deeds cover the same property, the later executed deed is the operative instrument and its recordation revokes the earlier one; revoking the later deed does not revive the earlier (§ 5628). If a timely recorded TOD deed and another instrument both purport to dispose of the same property, the later executed of the two controls when the other instrument is revocable, but an irrevocable disposition controls over the TOD deed (§ 5660(a)); a claim that the deed is inoperative on that ground must be brought as a contest (§ 5660(b)). The statutory form adds that a TOD deed cannot be revoked by will, and that if the owner sells or gives away the property, the TOD deed has no effect only if the transfer document is recorded within 120 days after the TOD deed would otherwise operate (§ 5642(b)). A contest of a revocation may be filed by the personal representative or a beneficiary of the revoked deed, and the court may remedy a wrongful revocation by reviving the revoked deed (§ 5690(a)(3)).

At the owner's death the deed transfers all of the owner's interest to the beneficiary, subject to the beneficiary's right to disclaim (§ 5652(a)(1)). A beneficiary's interest is contingent on surviving the owner and lapses if the beneficiary does not; with more than one beneficiary, they take as tenants in common in equal shares, and a lapsed share passes to the others in equal shares (§ 5652(a)(2)–(4)). The property passes subject to liens, encumbrances, easements and leases of record at death, or recorded within 120 days after the beneficiary's affidavit of service under § 5682(c) is recorded (§ 5652(b)), and without covenant or warranty of title (§ 5652(e)). Special rules apply to stock cooperatives (§ 5652(c), (d)). If title is held in joint tenancy, or as community property with right of survivorship, at death, the TOD deed is void and survivorship governs (§ 5664).

The property stays within reach of the owner's debts. A creditor with a lien or encumbrance of record at death has priority over the beneficiary's creditors (§ 5670). Each beneficiary is personally liable for the owner's unsecured debts, such as funeral expenses, last-illness expenses and wage claims (§§ 5618, 5672), up to the property's fair market value at death less liens and encumbrances (§ 5674(b)); if a probate administration is opened the beneficiary is liable for a share through the estate (§§ 5674(a), 5677), and may return the property to the estate (§ 5678). Property transferred by the deed is subject to claims of the State Department of Health Care Services as the law authorizes (§ 5654(b)).

On taxes: executing, recording or revoking a TOD deed is not a change in ownership and requires no documentary transfer tax declaration or preliminary change of ownership report, but the transfer at the owner's death is a change in ownership for property taxation (§ 5656). The statutory form states that the deed is exempt from documentary transfer tax under Revenue and Taxation Code § 11930 (§ 5642(a)), and that section exempts a deed that transfers real property by reason of death outright to any person or entity (Revenue and Taxation Code § 11930). The beneficiary is liable to the estate for prorated estate and generation-skipping transfer taxes as Division 10 provides (§ 5680(d)); the form notes that a TOD deed does not avoid gift and estate taxes (§ 5642(b)).

The beneficiary may establish the death by recording an affidavit of death in the county where the property is located; the affidavit is executed by a person with knowledge, describes the real property and attaches an attested or certified copy of the death record (§ 5680(a); § 210(a)). The beneficiary is the transferee who files the change in ownership statement (§ 5680(b)): for a transfer by reason of death outside probate, that statement is due with the county recorder or assessor within 150 days after the date of death (Revenue and Taxation Code § 480(b)). The beneficiary is also treated as a beneficiary for the notice to the Director of Health Care Services referred to in § 215 (§ 5680(c)).

The beneficiary must serve notice on the owner's heirs with a copy of the deed and the death certificate (§ 5681(a)). The statutory notice tells an heir who believes the deed is invalid that they have only 120 days from the date of the notice to file a fully effective challenge (§ 5681(b)). The beneficiary relies on a final judicial determination of heirship if one is known, and otherwise makes a good-faith determination of the heirs by any reasonable means (§ 5681(c)). No copy is needed for an heir who cannot be located after reasonable diligence or is unknown (§ 5681(d)); service is by any of the methods described in Section 1215, to the last known address (§ 5681(e)); and when there are several beneficiaries, only one need comply (§ 5681(f)). A beneficiary who fails to serve a known heir is responsible for the heir's damages unless the beneficiary made a reasonably diligent effort (§ 5681(g)(1)).

The beneficiary then records an affidavit stating that the § 5681 notice was served (§ 5682(c)). Together with the recorded death affidavit, a person who deals with the beneficiary in good faith and for valuable consideration has the same protections as if the beneficiary had received the property by a final order for distribution of the estate (§ 5682(a)–(c)).

A challenge to a TOD deed is a contest proceeding. The transferor's personal representative or an interested person may file one (§ 5690(a)(2)); a contest may not be commenced before the owner's death, and it accrues on the date of death (§ 5692); and the contestant may record a lis pendens (§ 5690(c)). Each subscribing witness is to be produced and examined (§ 5690(d)). If the court finds the transfer invalid, a contest commenced with a lis pendens recorded no later than 120 days after the § 5682(c) affidavit is recorded leads to an order voiding the deed and transferring the property to the person entitled to it; after that window the court may still grant relief but it cannot disturb a good-faith purchaser or encumbrancer for value who acted earlier (§ 5694). Ordinary invalidating grounds — fraud, undue influence, duress, mistake — still apply, and a conservator or guardian may seek invalidation before the owner's death (§ 5696). Other penalties and remedies for a deed procured by fraud, undue influence, menace or duress are not limited (§ 5698).

The TOD-deed part is scheduled to be repealed on January 1, 2032, unless a later statute enacted before then deletes or extends that date. The repeal does not affect the validity or effect of a revocable TOD deed executed before January 1, 2032, or the owner's ability to revoke by recording a signed, notarized instrument substantially in the § 5644 form (§ 5600(c)). The Law Revision Commission is to study whether the deed is working and should be continued, and report to the Legislature on or before January 1, 2031 (§ 5605(a), (b)). The 2022 revisions of the part do not apply to a deed or revocation form signed before January 1, 2022 (§ 5600(d)).

This page is general information, not legal advice. Read the enacted text linked below, and talk to a lawyer about a specific deed or estate.