Revocable Transfer Upon Death Deed

After previous legislative rejections, California is the latest state to adopt a transfer upon death deed, effective January 1, 2016. Although very similar to the model act currently adopted by almost half of the U.S. states, California’s version emphasizes the revocability of the deed and officially refers to it as the Revocable Transfer Upon Death Deed (RTDD). California Assembly Bill 139 modified portions of the existing Family Code and creates a new section of the Probate Code beginning with Section 5600, et seq.

The effect of the deed is to pass the property directly to the beneficiary (named grantee) without probate upon the death of the owner. Its main purpose is to provide an affordable alternative, particularly for seniors, to traditional probate and estate planning. The RTDD does not affect any ownership rights during the lifetime of the transferor and does not convey any immediate rights to the transferee beneficiary.

In September of 2021, California’s governor signed Senate Bill 315 into law, which went into effect on January 1, 2022. This has made a few changes to the RTDD process, and also extends the statute until January 1, 2032.

Here are a few of the key provisions:

• From 2022 on, notarizing the RTDD will require two witnesses to be present. They must sign as well. The beneficiary of the RTDD should not be a witness.
• Revoking the RTDD will involve signing a new document with a notary.
• When the homeowner passes, the beneficiary will need to notify the homeowner’s heirs.
• The creator of the RTDD must use the new notice form, from 2022 onward.

The RTDD only affects residential properties. By definition, this includes real property improved with one–to–four residential dwelling units, a residential condominium unit, or a single tract of agricultural real estate consisting of 40 or less acres improved with a single family residence.

The RTDD must substantially comply with the statutory form set forth in Probate Code Section 5642, which includes a list of common questions and answers about the use of the form. The RTDD must be signed and dated by the record owner and acknowledged before a notary public. It must be recorded on or within 60 days of execution.

The RTDD may be revoked at any time before the transferor’s death. It may be revoked by recording the statutory form under Probate Code Section 5644, which must be signed and notarized and recorded before the transferor’s death. Recording a new RTDD or selling or transferring the property prior to death of the transferor will also revoke the RTDD. If the property is held by multiple owners, the RTDD only affects the transferor’s interest. If the property is held in joint tenancy or as community property with right of survivorship at the time of the transferor’s death, the RTDD is void and the property passes pursuant to the right of survivorship. Probate Code Section 5664.

Upon the death of the owner, evidence of the death pursuant to Probate Code Section 210 must be recorded by way of affidavit or declaration of death. The evidence of death must include the name of the decedent, date and place of death, a description of the real property being transferred, and certified copy of the death certificate.