California
Estate Planning

Is California’s New Transfer on Death Deed a Safe Alternative to a Living Trust?

Perhaps you’ve heard from a well-meaning friend or advisor that you can use an inexpensive Transfer on Death Deed to keep your property out of court without going to the trouble of creating a Living Trust. If so, read this before you rely on a Transfer on Death Deed to ensure that you aren’t creating more trouble for the people you love.

On January 1, 2016, Assembly Bill 139 went into effect, providing California residents with a new way to transfer residential property to their heirs. Specifically, the law creates a Revocable Transfer on Death Deed (TOD Deed), intended to be a simple tool for transferring ownership of real property to beneficiaries upon the property owner’s death.

The law was initially heralded as a welcome alternative to Revocable Living Trusts, which some believe to be costly, time consuming, and complex. A TOD Deed allows named beneficiaries to assume ownership of your residential property without undergoing probate or trust administration.

However, before you rely on a TOD Deed as a cheaper alternative to full-on Revocable Living Trust planning, consider these factors …

First, the TOD Deed only applies to certain types of real property:

  1. A single-family home or condominium,
  2. A single-family residence on agricultural property of 40 acres or less, or
  3. A multi-family residence with no more than four units.

Moreover, a TOD Deed has several other restrictions and requirements.

  1. It must be signed and dated before a notary to be valid.
  2. It must be recorded within 60 days from the date it’s signed.
  3. It does not permit designation of beneficiaries by class (e.g. “my siblings”).
  4. It must strictly adhere to the form prescribed by the statute.

Finally, and most importantly BEWARE of these major risks:
The TOD Deed offers no protection from your creditors.

  1. If your property is held joint tenancy, your joint tenant becomes the sole owner upon your death and has full control of the property, and your Transfer on Death Deed is inapplicable.
  2. Unlike with a Living Trust, a Transfer on Death Deed cannot be used to manage, sell, or borrow against the property during your incapacity. This means that if you become incapacitated, there’s no action your beneficiary can take to get access to using your property as a resource for your care, as your Trustee could, if you had your property in a Revocable Living Trust.
  3. If the beneficiary is a minor upon your death, a court-appointed custodian will need to be named to control your property until the child reaches legal age. With a Living Trust, you get to name the person to handle the property until your child reaches legal age, and you can even set up your trust so that when your child does inherit it, he or she can receive it protected from a future divorce or future creditors.
  4. Title insurance companies have been reluctant to insure clear title until three years after the grantor’s death when a Transfer on Death deed is used. During this time, the beneficiary will likely be unable to sell or borrow against the property.
  5. The property may be subject to Medi-Cal Estate Recovery, if you received Medi-Cal benefits.

Unless extended, the new law will sunset on January 1, 2021, but TOD Deeds executed before that date will remain valid.

Warning: Since its inception, significant flaws have been found within the statute, and some advocates believe it will lead to increased elder abuse. For more on this, read a letter from the Executive Committee of the Trusts & Estates Section of the California Bar, appended as an exhibit to the California Law Revision Commission’s Memorandum # 2017-35.

Given these concerns, we recommend against the use of the TOD Deed and advise those seeking to transfer their real estate in a manner that is best for you, and the people you love to schedule a Family Wealth Planning Session™ with us to choose an option that will best meet your needs. Schedule online.

Read More
will mistakes eviction
Estate Planning

Could an Out of Date Will Leave You Facing Eviction?

Could an out of date will leave you facing eviction? It’s all too common, but unfortunately the way some lawyers handle their clients’ estate plans create more problems than solutions for future generations.

It’s critical that you understand exactly what will happen after you become incapacitated or when you die, to ensure that the people you love don’t end up cleaning up an estate planning nightmare while also grieving your passing.

Recently in Columbus, Ohio, a mom of four kids is not only grieving the death of her mother, but now also facing eviction from her home.

Here’s how it happened: Grandma signed a will in mid-2015 putting all of her assets in trust for the education of her six grandchildren. She indicated that her local bank should manage those assets for the benefit of the education of those grandchildren. That seems like a great thing to do, right?

Right. Except that then in 2016, Grandma then bought a home for one of her daughters and her daughter’s four children. And she didn’t update her will.

Unfortunately, this oversight is far too common due to the way many lawyers serve their clients. Their estate plans are often just focused on the documents and the one-time transaction, rather than ensuring they work with their clients on an ongoing basis, updating those documents each time life changes or asset changes occur.

So now, the daughter that is living in the house with her four children is being evicted. The bank was tasked with providing for the education of the children, so the bank is now selling the house with the intention of putting the money in trust for their education. Then, when they turn 21, they will get a distribution of whatever is left.


It’s hard to imagine that Grandma would have wanted this outcome for her daughter and four of her grandchildren. But without a clear plan that documents Grandma’s wishes, which could have included her daughter paying rent to the trust account for the benefit of all the grandchildren, the bank is within its right to evict the daughter and the four grandkids.

It’s a sad, sad tale. And one that could have been easily avoided if Grandma’s lawyer had foreseen the potential issues  and supported grandma to update her will.

When is the last time you had your estate plan reviewed? Have you developed a relationship with a trusted lawyer who you feel confident has your back and will make sure that your kids aren’t facing eviction or some other unexpected mess after your incapacity or death? If not, now is the time.

Schedule a consultation online.

Read More