For many people, their house is their largest asset. In 2016, California joined a myriad of other states in offering a simplified option for transferring your house at death. A Transfer on Death Deed (TOD deed) allows you to pass your house to a person (or multiple people) upon your death without having to go through probate. This sounds great, but how do you know if a TOD deed is the right choice for you? Understanding a little more about the TOD deed should help you decide.
How does it work?
In the TOD deed, you identify the legal description of the property to be transferred and the beneficiary you are transferring to. You must name the beneficiary. You cannot simply state a class of people, such as “my children.” You may name more than one beneficiary, but they will take title as tenants in common (equal shares). The TOD deed must be recorded within 60 days of signing. When you die, the property will pass to your beneficiary without probate. Your beneficiary records evidence of your death, along with a change in ownership notice.
Will you still own your home?
Yes. You still retain all ownership rights while you are alive. Title does not transfer until your death. You can change your mind anytime up until your death and either revoke the TOD deed, or file a new one with a new beneficiary. You can also still sell or mortgage the property. Be aware, however, that if you sell the property, your TOD deed will be effectively revoked. You will still pay your property taxes and your property is still subject to your debts. Your beneficiary will take title subject to any liens or mortgages on the property.
What does it not do?
A TOD deed cannot be used for business or commercial property. If you own the property jointly with someone else, your TOD deed will not be effective unless you are the last joint owner to die. Also, if you only own a share of the property with a co-owner, all co-owners must complete and record their own TOD deed to transfer the property. As stated above, if you have more than one beneficiary, they will take it in equal shares as tenants in common. If you want them to have unequal shares or joint tenancy with rights of survivorship, you cannot use this type of deed. In addition, you cannot have a “contingent beneficiary” in case your named beneficiary dies before you. A TOD deed does not avoid gift and estate taxes. Nor does this deed affect your eligibility for Medi-Cal.
A TOD deed may help you simplify your estate plan, but as you can see, it is not the right solution for every estate. You should look closely at your entire estate plan to decide if the TOD deed can accomplish your estate planning needs.
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