AB 139: Nonprobate transfers: revocable transfer upon death deeds.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2015-09-21
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding, according to specified rules. The bill would require that a person have the capacity to contract in order to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The bill would require that a revocable TOD deed be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding, according to specified rules. The bill would require that a person have the capacity to contract in order to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The bill would require that a revocable TOD deed be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding, according to specified rules. The bill would require that a person have the capacity to contract in order to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The bill would require that a revocable TOD deed be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding, according to specified rules. The bill would require that a person have the capacity to contract in order to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The bill would require that a revocable TOD deed be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding. proceeding, according to specified rules. The bill would require that a person have testamentary the capacity to contract in order to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The bill would require that a revocable TOD deed must be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would also make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding. The bill would require that a person have testamentary capacity to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The revocable TOD deed must be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would also make conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(1)Existing law provides that a person may 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.
This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding. The bill would require that a person have testamentary capacity to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The revocable TOD deed must be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owners life, does not affect his or her ownership rights and, specifically, is part of the owners estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owners death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would also make conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.
(2)Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.
This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.
(3)Existing law establishes simplified procedures for dealing with a decedents estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedents property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the
judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE
FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Division 5 (commencing with Section 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(15)Any other interest created by a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.SEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5044.(a)Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5046.Nothing in this chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5048.(a)This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.
(c)Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means any of the following:
(a)Real property improved with not less than one nor more than four residential dwelling units.
(b)A condominium unit, including the limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit.
(c)A single tract of agricultural real estate consisting of 40 acres or less that is improved with a single-family residence.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has the capacity to contract may make a revocable transfer on death deed of the property.
5622.The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has the capacity to contract may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be substantially in the following form.
(a)The first page of the form shall be substantially the following:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED AND NOTARIZED | ||
Use this deed to transfer the residential property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER PAGES OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed and notarized or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the legal description of the residential property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the FULL NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children) and state the RELATIONSHIP that each named person has to you (spouse, son, daughter, friend, etc.): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below (your name should exactly match the name shown on your title documents): | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must execute and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)Subsequent pages of a form executed under this section shall be in substantially the following form:
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 beneficiarys 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 persons 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. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below (your name should exactly match the name shown on your title documents): | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property on the transferors death according to the following rules:
(1)Subject to the beneficiarys right to disclaim the transfer, the interest in the property is transferred to the beneficiary in accordance with the deed.
(2)The interest of a beneficiary is contingent on the beneficiary surviving the transferor. Notwithstanding Section 21110, the interest of a beneficiary that fails to survive the transferor lapses.
(3)Except as provided in paragraph (4), if there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(4)If there is more than one beneficiary, the share of a beneficiary that lapses or fails for any reason is transferred to the others in equal shares.
(b)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death, including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(c)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)Property transferred by a revocable transfer on death deed is subject to claims of the State Department of Health Care Services to the extent authorized by law.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
(f)If property is restored to the transferors estate under this section, that property shall be treated as a specific gift and any proceeds remaining from the sale of the property after the payment of claims shall be returned to the beneficiary.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)(1)An action for the disqualification of a beneficiary under Part 3.7 (commencing with Section 21360) of Division 11 may be brought to contest the validity of a transfer of property by a revocable transfer on death deed.
(2)An action to contest the validity of a transfer of property by a revocable transfer on death deed may be filed by the transferors personal representative or an interested person under Part 19 (commencing with Section 850) of Division 2.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)For the purposes of the applicable limitations period, a contest proceeding accrues on the date of the transferors death.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.(a)Nothing in this chapter limits the application of principles of fraud, undue influence, duress, mistake, or other invalidating cause to a transfer of property by a revocable transfer on death deed.
(b)Notwithstanding subdivision (a) of Section 5692, the conservator or guardian of a transferor may, before the transferors death, petition the court for invalidation of a revocable transfer on death deed executed by the transferor.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:
(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.
(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.
(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:
(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.
(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.
(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.
(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:
(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.
(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:
(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.
(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the
judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE
FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Division 5 (commencing with Section 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(15)Any other interest created by a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.SEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5044.(a)Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5046.Nothing in this chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5048.(a)This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.
(c)Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means any of the following:
(a)Real property improved with not less than one nor more than four residential dwelling units.
(b)A condominium unit, including the limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit.
(c)A single tract of agricultural real estate consisting of 40 acres or less that is improved with a single-family residence.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has the capacity to contract may make a revocable transfer on death deed of the property.
5622.The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has the capacity to contract may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be substantially in the following form.
(a)The first page of the form shall be substantially the following:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED AND NOTARIZED | ||
Use this deed to transfer the residential property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER PAGES OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed and notarized or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the legal description of the residential property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the FULL NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children) and state the RELATIONSHIP that each named person has to you (spouse, son, daughter, friend, etc.): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below (your name should exactly match the name shown on your title documents): | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must execute and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)Subsequent pages of a form executed under this section shall be in substantially the following form:
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 beneficiarys 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 persons 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. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below (your name should exactly match the name shown on your title documents): | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property on the transferors death according to the following rules:
(1)Subject to the beneficiarys right to disclaim the transfer, the interest in the property is transferred to the beneficiary in accordance with the deed.
(2)The interest of a beneficiary is contingent on the beneficiary surviving the transferor. Notwithstanding Section 21110, the interest of a beneficiary that fails to survive the transferor lapses.
(3)Except as provided in paragraph (4), if there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(4)If there is more than one beneficiary, the share of a beneficiary that lapses or fails for any reason is transferred to the others in equal shares.
(b)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death, including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(c)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)Property transferred by a revocable transfer on death deed is subject to claims of the State Department of Health Care Services to the extent authorized by law.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
(f)If property is restored to the transferors estate under this section, that property shall be treated as a specific gift and any proceeds remaining from the sale of the property after the payment of claims shall be returned to the beneficiary.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)(1)An action for the disqualification of a beneficiary under Part 3.7 (commencing with Section 21360) of Division 11 may be brought to contest the validity of a transfer of property by a revocable transfer on death deed.
(2)An action to contest the validity of a transfer of property by a revocable transfer on death deed may be filed by the transferors personal representative or an interested person under Part 19 (commencing with Section 850) of Division 2.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)For the purposes of the applicable limitations period, a contest proceeding accrues on the date of the transferors death.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.(a)Nothing in this chapter limits the application of principles of fraud, undue influence, duress, mistake, or other invalidating cause to a transfer of property by a revocable transfer on death deed.
(b)Notwithstanding subdivision (a) of Section 5692, the conservator or guardian of a transferor may, before the transferors death, petition the court for invalidation of a revocable transfer on death deed executed by the transferor.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:
(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.
(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.
(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:
(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.
(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.
(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.
(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:
(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.
(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:
(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.
(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the
judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE
FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Division 5 (commencing with Section 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(15)Any other interest created by a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.SEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5044.(a)Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5046.Nothing in this chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5048.(a)This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.
(c)Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means any of the following:
(a)Real property improved with not less than one nor more than four residential dwelling units.
(b)A condominium unit, including the limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit.
(c)A single tract of agricultural real estate consisting of 40 acres or less that is improved with a single-family residence.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has the capacity to contract may make a revocable transfer on death deed of the property.
5622.The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has the capacity to contract may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be substantially in the following form.
(a)The first page of the form shall be substantially the following:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED AND NOTARIZED | ||
Use this deed to transfer the residential property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER SIDE PAGES OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed and notarized or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the legal description of the residential property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the FULL NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children) and state the RELATIONSHIP that each named person has to you (spouse, son, daughter, friend, etc.): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below (your name should exactly match the name shown on your title documents): | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must execute and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)Subsequent pages of a form executed under this section shall be in substantially the following form:
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 beneficiarys 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 persons 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. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below (your name should exactly match the name shown on your title documents): | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property on the transferors death according to the following rules:
(1)Subject to the beneficiarys right to disclaim the transfer, the interest in the property is transferred to the beneficiary in accordance with the deed.
(2)The interest of a beneficiary is contingent on the beneficiary surviving the transferor. Notwithstanding Section 21110, the interest of a beneficiary that fails to survive the transferor lapses.
(3)Except as provided in paragraph (4), if there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(4)If there is more than one beneficiary, the share of a beneficiary that lapses or fails for any reason is transferred to the others in equal shares.
(b)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death, including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(c)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)Property transferred by a revocable transfer on death deed is subject to claims of the State Department of Health Care Services to the extent authorized by law.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
(f)If property is restored to the transferors estate under this section, that property shall be treated as a specific gift and any proceeds remaining from the sale of the property after the payment of claims shall be returned to the beneficiary.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)(1)An action for the disqualification of a beneficiary under Part 3.7 (commencing with Section 21360) of Division 11 may be brought to contest the validity of a transfer of property by a revocable transfer on death deed.
(2)An action to contest the validity of a transfer of property by a revocable transfer on death deed may be filed by the transferors personal representative or an interested person under Part 19 (commencing with Section 850) of Division 2.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)For the purposes of the applicable limitations period, a contest proceeding accrues on the date of the transferors death.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.(a)Nothing in this chapter limits the application of principles of fraud, undue influence, duress, mistake, or other invalidating cause to a transfer of property by a revocable transfer on death deed.
(b)Notwithstanding subdivision (a) of Section 5692, the conservator or guardian of a transferor may, before the transferors death, petition the court for invalidation of a revocable transfer on death deed executed by the transferor.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:
(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.
(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.
(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:
(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.
(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.
(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.
(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:
(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.
(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:
(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.
(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the
judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE
FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Division 5 (commencing with Section 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(15)Any other interest created by a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.SEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5044.(a)Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5046.Nothing in this chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5048.(a)This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.
(c)Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means the fee or an interest in real property. The term includes, but is not limited to, any of the following interests in real property:
(a)A leasehold.
(b)An interest in a common interest development within the meaning of Section 6534 of the Civil Code.
(c)An easement, license, permit, or other right in property, to the extent the right is both of the following:
(1)A recordable interest in property.
(2)Transferable on death of the owner of the right.
5610.Real property means any of the following:
(a)Real property improved with not less than one nor more than four residential dwelling units.
(b)A condominium unit, including the limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit.
(c)A single tract of agricultural real estate consisting of 40 acres or less that is improved with a single-family residence.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has the capacity to contract may make a revocable transfer on death deed of the property.
5622.The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has the capacity to contract may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be substantially in the following form.
(a)The first page of the form shall be substantially the following:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED AND NOTARIZED | ||
Use this deed to transfer the property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER SIDE OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed and notarized or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the legal description of the property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the FULL NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children) and state the RELATIONSHIP that each named person has to you (spouse, son, daughter, friend, etc.): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below (your name should exactly match the name shown on your title documents): | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must execute and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)Subsequent pages of a form executed under this section shall be in substantially the following form:
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. |
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 beneficiarys 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 persons 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. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below (your name should exactly match the name shown on your title documents): | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property on the transferors death according to the following rules:
(1)Except as provided in paragraph (2), Subject to the beneficiarys right to disclaim the transfer, the interest in the property is transferred to the beneficiary in accordance with the deed.
(2)The interest of a beneficiary is contingent on the beneficiary surviving the transferor. Notwithstanding Section 21110, the interest of a beneficiary that fails to survive the transferor lapses.
(3)Except as provided in paragraph (4), if there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(4)If there is more than one beneficiary, the share of a beneficiary that lapses or fails for any reason is transferred to the others in equal shares.
(b)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death, including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(c)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)Property transferred by a revocable transfer on death deed is subject to claims of the State Department of Health Care Services to the extent authorized by law.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
(f)If property is restored to the transferors estate under this section, that property shall be treated as a specific gift and any proceeds remaining from the sale of the property after the payment of claims shall be returned to the beneficiary.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)The transferors personal representative or an interested person may, under Part 19 (commencing with Section 850) of Division 2, contest the validity of a transfer of property by a revocable transfer on death deed.
5690.(a)(1)An action for the disqualification of a beneficiary under Part 3.7 (commencing with Section 21360) of Division 11 may be brought to contest the validity of a transfer of property by a revocable transfer on death deed.
(2)An action to contest the validity of a transfer of property by a revocable transfer on death deed may be filed by the transferors personal representative or an interested person under Part 19 (commencing with Section 850) of Division 2.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)For the purposes of the applicable limitations period, a contest proceeding accrues on the date of the transferors death.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.(a)Nothing in this chapter limits the application of principles of fraud, undue influence, duress, mistake, or other invalidating cause to a transfer of property by a revocable transfer on death deed.
(b)Notwithstanding subdivision (a) of Section 5692, the conservator or guardian of a transferor may, before the transferors death, petition the court for invalidation of a revocable transfer on death deed executed by the transferor.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:
(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.
(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.
(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:
(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.
(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.
(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.
(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:
(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.
(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:
(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.
(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the
judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE
FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Division 5 (commencing with Section 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(15)Any other interest created by a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.SEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5044.(a)Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5046.Nothing in this chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5048.(a)This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.
(c)Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.(a)This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
(b)This part does not invalidate a deed of real property, otherwise effective to convey title to the property, that is not recorded until after the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means the fee or an interest in real property. The term includes, but is not limited to, any of the following interests in real property:
(a)A leasehold.
(b)An interest in a common interest development within the meaning of Section 6534 of the Civil Code.
(c)An easement, license, permit, or other right in property, to the extent the right is both of the following:
(1)A recordable interest in property.
(2)Transferable on death of the owner of the right.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has testamentary the capacity to contract may make a revocable transfer on death deed of the property.
5622.(a)The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
(b)The transferor may name more than one beneficiary. If there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(c)The transferor may name as beneficiary the trustee of a trust even if the trust is revocable.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has testamentary the capacity to contract may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be substantially in the form provided in this section. following form.
(a)The face first page of the form shall be in substantially the following form: following:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED AND NOTARIZED | ||
Use this deed to transfer the property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER SIDE OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed and notarized or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the FULL NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children): children) and state the RELATIONSHIP that each named person has to you (spouse, son, daughter, friend, etc.): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below: below (your name should exactly match the name shown on your title documents): | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must complete execute and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)The reverse side Subsequent pages of a form executed under this section shall be in substantially the following form:
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. |
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, notarize, have notarized, and RECORD a revocation form. (2) Create Create, have notarized, and RECORD a new TOD deed, trust, or other estate planning document that disposes of the same property. deed. (3) Sell or give away the property 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. |
IF I CREATE A NEW TOD DEED, TRUST, OR OTHER ESTATE PLANNING DOCUMENT THAT DISPOSES OF THE SAME PROPERTY, DOES THAT AUTOMATICALLY REVOKE A RECORDED TOD DEED? No. If you want the new document to revoke a recorded TOD deed, the new document MUST be signed and dated after the deed you wish to revoke and it MUST be RECORDED. To avoid any doubt you may wish to RECORD a TOD deed revocation form before creating the new instrument. |
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, 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. shares as tenants in common. If you want a different result, you should not use this form. You MUST name your beneficiaries individually. You MAY NOT use general terms to describe beneficiaries, such as my children. |
WHAT IF A BENEFICIARY DIES BEFORE I DO? You should probably create and RECORD a new deed. Otherwise, the property will transfer according to the general rules on failed gifts, which may not meet your needs. See Prob. Code 2111021111. |
HOW DO I NAME BENEFICIARIES? You MUST name your beneficiaries individually, using each beneficiarys 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 persons 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? If your estate is subject to reimbursement, any property transferred by a TOD deed will also be subject to reimbursement. Your home may be liable for reimbursement. If you have questions, you should consult an attorney. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below: below (your name should exactly match the name shown on your title documents): | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property to the beneficiary on the transferors death. death according to the following rules:
(b)A revocable transfer on death deed may condition the beneficiarys right to the property on an intervening life estate, but may not create a future interest in a beneficiary.
(1)Except as provided in paragraph (2), the interest in the property is transferred to the beneficiary in accordance with the deed.
(2)The interest of a beneficiary is contingent on the beneficiary surviving the transferor. Notwithstanding Section 21110, the interest of a beneficiary that fails to survive the transferor lapses.
(3)Except as provided in paragraph (4), if there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(4)If there is more than one beneficiary, the share of a beneficiary that lapses or fails for any reason is transferred to the others in equal shares.
(c)
(b)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death, including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(d)
(c)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)For the purpose of a claim of the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code, property transferred by a revocable transfer on death deed is a part of the estate of the decedent, and the beneficiary is a recipient of the property by distribution or survival.
(b)Property transferred by a revocable transfer on death deed is subject to claims of the State Department of Health Care Services to the extent authorized by law.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
(f)If property is restored to the transferors estate under this section, that property shall be treated as a specific gift and any proceeds remaining from the sale of the property after the payment of claims shall be returned to the beneficiary.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)The transferors personal representative or an interested person may, under Part 19 (commencing with Section 850) of Division 2, contest the validity of a transfer of property by a revocable transfer on death deed.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)A contest proceeding shall be commenced within the earlier of the following times:
(1)Three years after the transferors death.
(2)One year after the beneficiary establishes the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
(b)For the purposes of the applicable limitations period, a contest proceeding accrues on the date of the transferors death.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.(a)Nothing in this chapter limits the ability of a conservator or guardian of a transferor or prospective transferor, or another interested person, to petition the court for invalidation of a revocable transfer on death deed recorded by the transferor or prospective transferor on the basis application of principles of fraud, undue influence, duress, mistake, or other invalidating cause. cause to a transfer of property by a revocable transfer on death deed.
(b)Notwithstanding subdivision (a) of Section 5692, the conservator or guardian of a transferor may, before the transferors death, petition the court for invalidation of a revocable transfer on death deed executed by the transferor.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:
(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.
(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.
(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:
(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.
(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.
(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.
(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:
(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.
(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:
(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.
(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the
judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE
FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Division 5 (commencing with Section 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(15)Any other interest created by a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.SEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5044.(a)Nothing in this chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5040 or 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5046.Nothing in this chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5048.(a)This chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this chapter.
(c)Sections 5040 and 5042 do not apply, and the applicable law in effect before the operative date of this chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.(a)This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
(b)This part does not invalidate a deed of real property, otherwise effective to convey title to the property, that is not recorded until after the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means the fee or an interest in real property. The term includes, but is not limited to, any of the following interests in real property:
(a)A leasehold.
(b)An interest in a common interest development within the meaning of Section 6534 of the Civil Code.
(c)An easement, license, permit, or other right in property, to the extent the right is both of the following:
(1)A recordable interest in property.
(2)Transferable on death of the owner of the right.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has testamentary capacity may make a revocable transfer on death deed of the property.
5622.(a)The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
(b)The transferor may name more than one beneficiary. If there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(c)The transferor may name as beneficiary the trustee of a trust even if the trust is revocable.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has testamentary capacity may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be in the form provided in this section.
(a)The face of the form shall be in substantially the following form:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED | ||
Use this deed to transfer the property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER SIDE OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below: | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must complete and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)The reverse side of a form executed under this section shall be in substantially the following form:
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. |
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. |
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, notarize, and RECORD a revocation form. (2) Create and RECORD a new TOD deed, trust, or other estate planning document that disposes of the same property. (3) Sell or give away the property before your death and RECORD the deed. A TOD deed can only affect property that you own when you die. |
IF I CREATE A NEW TOD DEED, TRUST, OR OTHER ESTATE PLANNING DOCUMENT THAT DISPOSES OF THE SAME PROPERTY, DOES THAT AUTOMATICALLY REVOKE A RECORDED TOD DEED? No. If you want the new document to revoke a recorded TOD deed, the new document MUST be signed and dated after the deed you wish to revoke and it MUST be RECORDED. To avoid any doubt you may wish to RECORD a TOD deed revocation form before creating the new instrument. |
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. If you want a different result, you should not use this form. You MUST name your beneficiaries individually. You MAY NOT use general terms to describe beneficiaries, such as my children. |
WHAT IF A BENEFICIARY DIES BEFORE I DO? You should probably create and RECORD a new deed. Otherwise, the property will transfer according to the general rules on failed gifts, which may not meet your needs. See Prob. Code 2111021111. |
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? If your estate is subject to reimbursement, any property transferred by a TOD deed will also be subject to reimbursement. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below: | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property to the beneficiary on the transferors death.
(b)A revocable transfer on death deed may condition the beneficiarys right to the property on an intervening life estate, but may not create a future interest in a beneficiary.
(c)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death death, including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(d)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)For the purpose of a claim of the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code, property transferred by a revocable transfer on death deed is a part of the estate of the decedent, and the beneficiary is a recipient of the property by distribution or survival.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)The transferors personal representative or an interested person may, under Part 19 (commencing with Section 850) of Division 2, contest the validity of a transfer of property by a revocable transfer on death deed.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)A contest proceeding shall be commenced within the earlier of the following times:
(1)Three years after the transferors death.
(2)One year after the beneficiary establishes the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.Nothing in this chapter limits the ability of a conservator or guardian of a transferor or prospective transferor, or another interested person, to petition the court for invalidation of a revocable transfer on death deed recorded by the transferor or prospective transferor on the basis of fraud, undue influence, duress, mistake, or other invalidating cause.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
(a)In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
(b)A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time.
(c)The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that partys death, an order of any of the following conditions continues to be binding upon that partys estate:
(1)The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made.
(2)Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the partys sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the courts satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, health and medical insurance coverage includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program.
(3)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other partys right to a probate homestead in the residence in which the other party resides at the time the severance is granted.
(4)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party.
(5)Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other partys rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.
(6)The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party.
(7)(A)The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5600 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(B)Except upon a showing of good cause, this paragraph does not apply to any of the following:
(i)A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise.
(ii)An irrevocable trust.
(iii)A trust of which neither party is the grantor.
(iv)Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor.
(v)The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(vi)The appointment of a party as a trustee.
(8)In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g).
(9)Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either partys community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following:
(A)An order that the party provide an undertaking.
(B)An order to provide a security interest by Qualified Domestic Relations Order from that partys share of a retirement plan or plans.
(C)An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code.
(D)An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the partys death before judgment has been entered with respect to the community ownership of that asset, and until the other partys interest therein has been distributed to him or her.
(E)If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues.
(10)Any other condition the court determines is just and equitable.
(d)Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur:
(1)The partys retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.
(2)To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant:
(A)An order pursuant to Section 2610 disposing of each partys interest in retirement plan benefits, including survivor and death benefits.
(B)An interim order preserving the nonemployee partys right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.
(C)An attachment to the judgment granting a dissolution of the status of the marriage, as follows:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
(e)The moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator.
(f)A judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues.
(g)If the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the persons death.
SEC. 2.Section 2040 of the Family Code is amended to read:2040.(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.
(2)Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the partys own separate property to pay reasonable attorneys fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorneys retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorneys retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
(4)Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b)Nothing in this section restrains any of the following:
(1)Creation, modification, or revocation of a will.
(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4)Creation of an unfunded revocable or irrevocable trust.
(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:
WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.
(d)For the purposes of this section:
(1)Nonprobate transfer means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.
(2)Nonprobate transfer does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).
(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).
SEC. 3.Section 69 is added to the Probate Code, to read:69.Revocable transfer on death deed or revocable TOD deed means a revocable transfer on death deed as described in Section 5614.
SEC. 4.Section 250 of the Probate Code is amended to read:250.(a)A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1)Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust.
(2)Any property of the decedent by intestate succession.
(3)Any of the decedents quasi-community property the killer would otherwise acquire under Section 101 or 102 upon the death of the decedent.
(4)Any property of the decedent under Part Division 5 (commencing with Section 5700) of Division 5. 5000).
(5)Any property of the decedent under Part 3 (commencing with Section 6500) of Division 6.
(b)In the cases covered by subdivision (a):
(1)The property interest or benefit referred to in paragraph (1) of subdivision (a) passes as if the killer had predeceased the decedent and Section 21110 does not apply.
(2)Any property interest or benefit referred to in paragraph (1) of subdivision (a) which passes under a power of appointment and by reason of the death of the decedent passes as if the killer had predeceased the decedent, and Section 673 does not apply.
(3)Any nomination in a will or trust of the killer as executor, trustee, guardian, conservator, or custodian which becomes effective as a result of the death of the decedent shall be interpreted as if the killer had predeceased the decedent.
SEC. 5.Section 267 of the Probate Code is amended to read:267.(a)Interest includes the whole of any property, real or personal, legal or equitable, or any fractional part, share, or particular portion or specific assets thereof, or any estate in any such property, or any power to appoint, consume, apply, or expend property, or any other right, power, privilege, or immunity relating to property.
(b)Interest includes, but is not limited to, an interest created in any of the following manners:
(1)By intestate succession.
(2)Under a will.
(3)Under a trust.
(4)By succession to a disclaimed interest.
(5)By virtue of an election to take against a will.
(6)By creation of a power of appointment.
(7)By exercise or nonexercise of a power of appointment.
(8)By an inter vivos gift, whether outright or in trust.
(9)By surviving the death of a depositor of a Totten trust account or P.O.D. account.
(10)Under an insurance or annuity contract.
(11)By surviving the death of another joint tenant.
(12)Under an employee benefit plan.
(13)Under an individual retirement account, annuity, or bond.
(14)Under a transfer on death beneficiary designation in a deed or other instrument.
(14)
(15)Any other interest created by any a testamentary or inter vivos instrument or by operation of law.
SEC. 6.Section 279 of the Probate Code is amended to read:279.(a)A disclaimer to be effective shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b)In the case of any of the following interests, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after the death of the creator of the interest or within nine months after the interest becomes indefeasibly vested, whichever occurs later:
(1)An interest created under a will.
(2)An interest created by intestate succession.
(3)An interest created pursuant to the exercise or nonexercise of a testamentary power of appointment.
(4)An interest created by surviving the death of a depositor of a Totten trust account or P.O.D. account.
(5)An interest created under a life insurance or annuity contract.
(6)An interest created by surviving the death of another joint tenant.
(7)An interest created under an employee benefit plan.
(8)An interest created under an individual retirement account, annuity, or bond.
(9)An interest created under a transfer on death beneficiary designation in a deed or other instrument.
(c)In the case of an interest created by a living trust, an interest created by the exercise of a presently exercisable power of appointment, an outright inter vivos gift, a power of appointment, or an interest created or increased by succession to a disclaimed interest, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs latest:
(1)The time of the creation of the trust, the exercise of the power of appointment, the making of the gift, the creation of the power of appointment, or the disclaimer of the disclaimed property.
(2)The time the first knowledge of the interest is acquired by the person able to disclaim.
(3)The time the interest becomes indefeasibly vested.
(d)In case of an interest not described in subdivision (b) or (c), a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within nine months after whichever of the following times occurs later:
(1)The time the first knowledge of the interest is acquired by the person able to disclaim.
(2)The time the interest becomes indefeasibly vested.
(e)In the case of a future estate, a disclaimer is conclusively presumed to have been filed within a reasonable time if it is filed within whichever of the following times occurs later:
(1)Nine months after the time the interest becomes an estate in possession.
(2)The time specified in subdivision (b), (c), or (d), whichever is applicable.
(f)If the disclaimer is not filed within the time provided in subdivision (b), (c), (d), or (e), the disclaimant has the burden of establishing that the disclaimer was filed within a reasonable time after the disclaimant acquired knowledge of the interest.
SEC. 7.Section 2580 of the Probate Code is amended to read:2580.(a)The conservator or other interested person may file a petition under this article for an order of the court authorizing or requiring the conservator to take a proposed action for any one or more of the following purposes:
(1)Benefiting the conservatee or the estate.
(2)Minimizing current or prospective taxes or expenses of administration of the conservatorship estate or of the estate upon the death of the conservatee.
(3)Providing gifts for any purposes, and to any charities, relatives (including the other spouse or domestic partner), friends, or other objects of bounty, as would be likely beneficiaries of gifts from the conservatee.
(b)The action proposed in the petition may include, but is not limited to, the following:
(1)Making gifts of principal or income, or both, of the estate, outright or in trust.
(2)Conveying or releasing the conservatees contingent and expectant interests in property, including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety.
(3)Exercising or releasing the conservatees powers as donee of a power of appointment.
(4)Entering into contracts.
(5)Creating for the benefit of the conservatee or others, revocable or irrevocable trusts of the property of the estate, which trusts may extend beyond the conservatees disability or life. A special needs trust for money paid pursuant to a compromise or judgment for a conservatee may be established only under Chapter 4 (commencing with Section 3600) of Part 8, and not under this article.
(6)Transferring to a trust created by the conservator or conservatee any property unintentionally omitted from the trust.
(7)Exercising options of the conservatee to purchase or exchange securities or other property.
(8)Exercising the rights of the conservatee to elect benefit or payment options, to terminate, to change beneficiaries or ownership, to assign rights, to borrow, or to receive cash value in return for a surrender of rights under any of the following:
(A)Life insurance policies, plans, or benefits.
(B)Annuity policies, plans, or benefits.
(C)Mutual fund and other dividend investment plans.
(D)Retirement, profit sharing, and employee welfare plans and benefits.
(9)Exercising the right of the conservatee to elect to take under or against a will.
(10)Exercising the right of the conservatee to disclaim any interest that may be disclaimed under Part 8 (commencing with Section 260) of Division 2.
(11)Exercising the right of the conservatee (A) to revoke or modify a revocable trust or (B) to surrender the right to revoke or modify a revocable trust, but the court shall not authorize or require the conservator to exercise the right to revoke or modify a revocable trust if the instrument governing the trust (A) evidences an intent to reserve the right of revocation or modification exclusively to the conservatee, (B) provides expressly that a conservator may not revoke or modify the trust, or (C) otherwise evidences an intent that would be inconsistent with authorizing or requiring the conservator to exercise the right to revoke or modify the trust.
(12)Making an election referred to in Section 13502 or an election and agreement referred to in Section 13503.
(13)Making a will.
(14)Making or revoking a revocable transfer on death deed.
SEC. 8.Section 5000 of the Probate Code is amended to read:5000.(a)A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, revocable transfer on death deed, marital property agreement, or other written instrument of a similar nature is not invalid because the instrument does not comply with the requirements for execution of a will, and this code does not invalidate the instrument.
(b)Included within subdivision (a) are the following:
(1)A written provision that money moneys or other benefits due to, controlled by, or owned by a decedent before death shall be paid after the decedents death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(2)A written provision that money moneys due or to become due under the instrument shall cease to be payable in the event of the death of the promisee or the promisor before payment or demand.
(3)A written provision that any property controlled by or owned by the decedent before death that is the subject of the instrument shall pass to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument, or later.
(c)Nothing in this section limits the rights of creditors under any other law.
SEC. 9.Section 5302 of the Probate Code is amended to read:5302.Subject to Section 5600: 5040:
(a)Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent. If there are two or more surviving parties, their respective ownerships during lifetime are in proportion to their previous ownership interests under Section 5301 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedents death; and the right of survivorship continues between the surviving parties.
(b)If the account is a P.O.D. account:
(1)On death of one of two or more parties, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole party or of the survivor of two or more parties, (A) any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the party, (B) if two or more P.O.D. payees survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c)If the account is a Totten trust account:
(1)On death of one of two or more trustees, the rights to any sums remaining on deposit are governed by subdivision (a).
(2)On death of the sole trustee or the survivor of two or more trustees, (A) any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear and convincing evidence of a different intent, (B) if two or more beneficiaries survive, any sums remaining on deposit belong to them in equal and undivided shares unless the terms of the account or deposit agreement expressly provide for different shares, and (C) if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(d)In other cases, the death of any party to a multiple-party multiparty account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedents estate.
(e)A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a P.O.D. payee designation, cannot be changed by will.
SEC. 10.The heading of Part 4 (commencing with Section 5600) of Division 5 of the Probate Code is repealed.4.NONPROBATE TRANSFER TO FORMER SPOUSESEC. 11.A heading is added as Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:3.Nonprobate Transfer to Former SpouseSEC. 12.Section 5600 of the Probate Code is amended and renumbered to read:5600.5040.(a)Except as provided in subdivision (b), a nonprobate transfer to the transferors former spouse, in an instrument executed by the transferor before or during the marriage, fails if, at the time of the transferors death, the former spouse is not the transferors surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not cause a nonprobate transfer to fail in any of the following cases:
(1)The nonprobate transfer is not subject to revocation by the transferor at the time of the transferors death.
(2)There is clear and convincing evidence that the transferor intended to preserve the nonprobate transfer to the former spouse.
(3)A court order that the nonprobate transfer be maintained on behalf of the former spouse is in effect at the time of the transferors death.
(c)Where a nonprobate transfer fails by operation of this section, the instrument making the nonprobate transfer shall be treated as it would if the former spouse failed to survive the transferor.
(d)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on the apparent failure of a nonprobate transfer under this section or who lacks knowledge of the failure of a nonprobate transfer under this section.
(e)As used in this section, nonprobate transfer means a provision, other than a provision of a life insurance policy, of either of the following types:
(1)A provision of a type described in Section 5000.
(2)A provision in an instrument that operates on death, other than a will, conferring a power of appointment or naming a trustee.
SEC. 13.Section 5601 of the Probate Code is amended and renumbered to read:5601.5042.(a)Except as provided in subdivision (b), a joint tenancy between the decedent and the decedents former spouse, created before or during the marriage, is severed as to the decedents interest if, at the time of the decedents death, the former spouse is not the decedents surviving spouse as defined in Section 78, as a result of the dissolution or annulment of the marriage. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b)Subdivision (a) does not sever a joint tenancy in either of the following cases:
(1)The joint tenancy is not subject to severance by the decedent at the time of the decedents death.
(2)There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
(c)Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section.
(d)For purposes of this section, property held in joint tenancy includes property held as community property with right of survivorship, as described in Section 682.1 of the Civil Code.
SEC. 14.Section 5602 of the Probate Code is amended and renumbered to read:5602.5044.(a)Nothing in this part chapter affects the rights of a purchaser or encumbrancer of real property for value who in good faith relies on an affidavit or a declaration under penalty of perjury under the laws of this state that states all of the following:
(1)The name of the decedent.
(2)The date and place of the decedents death.
(3)A description of the real property transferred to the affiant or declarant by an instrument making a nonprobate transfer or by operation of joint tenancy survivorship.
(4)Either of the following, as appropriate:
(A)The affiant or declarant is the surviving spouse of the decedent.
(B)The affiant or declarant is not the surviving spouse of the decedent, but the rights of the affiant or declarant to the described property are not affected by Section 5600 5040 or 5601. 5042.
(b)A person relying on an affidavit or declaration made pursuant to subdivision (a) has no duty to inquire into the truth of the matters stated in the affidavit or declaration.
(c)An affidavit or declaration made pursuant to subdivision (a) may be recorded.
SEC. 15.Section 5603 of the Probate Code is amended and renumbered to read:5603.5046.Nothing in this part chapter is intended to limit the courts authority to order a party to a dissolution or annulment of marriage to maintain the former spouse as a beneficiary on any nonprobate transfer described in this part, chapter, or to preserve a joint tenancy in favor of the former spouse.
SEC. 16.Section 5604 of the Probate Code is amended and renumbered to read:5604.5048.(a)This part chapter, formerly Part 4 (commencing with Section 5600), is operative on January 1, 2002.
(b)Except as provided in subdivision (c), this part chapter applies to an instrument making a nonprobate transfer or creating a joint tenancy whether executed before, on, or after the operative date of this part. chapter.
(c)Sections 5600 5040 and 5601 5042 do not apply, and the applicable law in effect before the operative date of this part chapter applies, to an instrument making a nonprobate transfer or creating a joint tenancy in either of the following circumstances:
(1)The person making the nonprobate transfer or creating the joint tenancy dies before the operative date of this part. chapter.
(2)The dissolution of marriage or other event that terminates the status of the nonprobate transfer beneficiary or joint tenant as a surviving spouse occurs before the operative date of this part chapter.
SEC. 17.Part 4 (commencing with Section 5600) is added to Division 5 of the Probate Code, to read:4.REVOCABLE TRANSFER ON DEATH DEED1.General Provisions1.Preliminary Provisions5600.(a)This part applies to a revocable transfer on death deed made by a transferor who dies on or after January 1, 2016, whether the deed was executed or recorded before, on, or after January 1, 2016.
(b)Nothing in this part invalidates an otherwise valid transfer under Section 5602.
(c)This part shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date. The repeal of this part pursuant to this subdivision shall not affect the validity or effect of a revocable transfer on death deed that is executed before January 1, 2021, and shall not affect the authority of the transferor to revoke a transfer on death deed by recording a signed and notarized instrument that is substantially in the form specified in Section 5644.
5602.(a)This part does not preclude use of any other method of conveying real property that is permitted by law and that has the effect of postponing enjoyment of the property until the death of the owner.
(b)This part does not invalidate a deed of real property, otherwise effective to convey title to the property, that is not recorded until after the death of the owner.
5604.(a)Except as provided in subdivision (b), nothing in this part affects the application to a revocable transfer on death deed of any other statute governing a nonprobate transfer on death, including, but not limited to, any of the following provisions that by its terms or intent would apply to a nonprobate transfer on death:
(1)Division 2 (commencing with Section 100).
(2)Part 1 (commencing with Section 5000) of this division.
(3)Division 10 (commencing with Section 20100).
(4)Division 11 (commencing with Section 21101).
(b)Notwithstanding subdivision (a), a provision of another statute governing a nonprobate transfer on death does not apply to a revocable transfer on death deed to the extent this part provides a contrary rule.
2.Definitions5606.Unless the provision or context otherwise requires, the definitions in this article govern the construction of this part.
5608.Beneficiary means a person named in a revocable transfer on death deed as transferee of the property.
5610.Real property means the fee or an interest in real property. The term includes, but is not limited to, any of the following interests in real property:
(a)A leasehold.
(b)An interest in a common interest development within the meaning of Section 6534 of the Civil Code.
(c)An easement, license, permit, or other right in property, to the extent the right is both of the following:
(1)A recordable interest in property.
(2)Transferable on death of the owner of the right.
5612.Recorded has the meaning provided in Section 1170 of the Civil Code.
5614.(a)Revocable transfer on death deed means an instrument created pursuant to this part that does all of the following:
(1)Makes a donative transfer of real property to a named beneficiary.
(2)Operates on the transferors death.
(3)Remains revocable until the transferors death.
(b)A revocable transfer on death deed may also be known as a revocable TOD deed.
5616.Transferor means an owner of real property who makes a revocable transfer on death deed of the property.
2.Execution and Revocation1.Execution5620.An owner of real property who has testamentary capacity may make a revocable transfer on death deed of the property.
5622.(a)The transferor shall identify the beneficiary by name in a revocable transfer on death deed.
(b)The transferor may name more than one beneficiary. If there is more than one beneficiary, they take the property as tenants in common, in equal shares.
(c)The transferor may name as beneficiary the trustee of a trust even if the trust is revocable.
5624.A revocable transfer on death deed is not effective unless the transferor signs and dates the deed and acknowledges the deed before a notary public.
5626.(a)A revocable transfer on death deed is not effective unless the deed is recorded on or before 60 days after the date it was executed.
(b)The transferor is not required to deliver a revocable transfer on death deed to the beneficiary during the transferors life.
(c)The beneficiary is not required to accept a revocable transfer on death deed from the transferor during the transferors life.
5628.(a)If a revocable transfer on death deed is recorded for the same property for which another revocable transfer on death deed is recorded, the later executed deed is the operative instrument and its recordation revokes the earlier executed deed.
(b)Revocation of a revocable transfer on death deed does not revive an instrument earlier revoked by recordation of that deed.
2.Revocation5630.A transferor who has testamentary capacity may revoke a revocable transfer on death deed at any time.
5632.(a)An instrument revoking a revocable transfer on death deed shall be executed and recorded before the transferors death in the same manner as execution and recordation of a revocable transfer on death deed.
(b)Joinder, consent, or agreement of, or notice to, the beneficiary is not required for revocation of a revocable transfer on death deed.
3.Statutory Forms5642.A revocable transfer on death deed shall be in the form provided in this section.
(a)The face of the form shall be in substantially the following form:
SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This document is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. | ||
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED | ||
Use this deed to transfer the property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER SIDE OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed or it will not be effective. | ||
PROPERTY DESCRIPTION | ||
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this deed: | ||
BENEFICIARY(IES) | ||
Print the NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like my children): | ||
TRANSFER ON DEATH | ||
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed. | ||
Sign and print your name below: | ||
| Date | ||
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must complete and RECORD a SEPARATE deed. | ||
ACKNOWLEDGMENT OF NOTARY | ||
State of California | ) | |
County of | ) | |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | ||
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | ||
WITNESS my hand and official seal. | ||
Signature ___________________________ (Seal) | ||
(b)The reverse side of a form executed under this section shall be in substantially the following form:
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. |
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. |
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, notarize, and RECORD a revocation form. (2) Create and RECORD a new TOD deed, trust, or other estate planning document that disposes of the same property. (3) Sell or give away the property before your death and RECORD the deed. A TOD deed can only affect property that you own when you die. |
IF I CREATE A NEW TOD DEED, TRUST, OR OTHER ESTATE PLANNING DOCUMENT THAT DISPOSES OF THE SAME PROPERTY, DOES THAT AUTOMATICALLY REVOKE A RECORDED TOD DEED? No. If you want the new document to revoke a recorded TOD deed, the new document MUST be signed and dated after the deed you wish to revoke and it MUST be RECORDED. To avoid any doubt you may wish to RECORD a TOD deed revocation form before creating the new instrument. |
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. If you want a different result, you should not use this form. You MUST name your beneficiaries individually. You MAY NOT use general terms to describe beneficiaries, such as my children. |
WHAT IF A BENEFICIARY DIES BEFORE I DO? You should probably create and RECORD a new deed. Otherwise, the property will transfer according to the general rules on failed gifts, which may not meet your needs. See Prob. Code 2111021111. |
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? If your estate is subject to reimbursement, any property transferred by a TOD deed will also be subject to reimbursement. |
A transferor may revoke a revocable transfer on death deed by an instrument in substantially the following form:
Revocation of Revocable Transfer on Death (TOD) Deed | ||
(California Probate Code Section 5600) | ||
Recording Requested By: | ||
When Recorded Mail This Deed To | ||
Name: | ||
Address: | ||
Assessors Parcel Number:Space Above For Recorders Use | ||
This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code 11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code 480.3. |
IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE | |
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form. | |
PROPERTY DESCRIPTION | |
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this revocation: | |
REVOCATION | |
I revoke any TOD deed to transfer the described property that I executed before executing this form. | |
SIGNATURE AND DATE | |
Sign and print your name below: | |
Date | |
ACKNOWLEDGMENT OF NOTARY | |
State of California | ) |
County of | ) |
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. | |
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. | |
WITNESS my hand and official seal. | |
Signature ___________________________ (Seal) | |
During the transferors life, execution and recordation of a revocable transfer on death deed:
(a)Does not affect the ownership rights of the transferor, and the transferor or the transferors agent or other fiduciary may convey, assign, contract, encumber, or otherwise deal with the property, and the property is subject to process of the transferors creditors, as if no revocable transfer on death deed were executed or recorded.
(b)Does not create any legal or equitable right in the beneficiary, and the property is not subject to process of the beneficiarys creditors.
(c)Does not transfer or convey any right, title, or interest in the property.
5652.(a)A revocable transfer on death deed transfers all of the transferors interest in the property to the beneficiary on the transferors death.
(b)A revocable transfer on death deed may condition the beneficiarys right to the property on an intervening life estate, but may not create a future interest in a beneficiary.
(c)Property is transferred by a revocable transfer on death deed subject to any limitation on the transferors interest that is of record at the transferors death including, but not limited to, a lien, encumbrance, easement, lease, or other instrument affecting the transferors interest, whether recorded before or after recordation of the revocable transfer on death deed. The holder of rights under that instrument may enforce those rights against the property notwithstanding its transfer by the revocable transfer on death deed.
(d)A revocable transfer on death deed transfers the property without covenant or warranty of title.
5654.(a)For the purpose of determination of eligibility for health care under Chapter 7 (commencing with Section 14000) or Chapter 8 (commencing with Section 14200) of Part 3 of Division 9 of the Welfare and Institutions Code, execution and recordation of a revocable transfer on death deed is not a lifetime transfer of the property.
(b)For the purpose of a claim of the State Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code, property transferred by a revocable transfer on death deed is a part of the estate of the decedent, and the beneficiary is a recipient of the property by distribution or survival.
5656.For the purpose of application of the property taxation and documentary transfer tax provisions of the Revenue and Taxation Code:
(a)Execution and recordation of, or revocation of, a revocable transfer on death deed of real property is not a change in ownership of the property and does not require declaration or payment of a documentary transfer tax or filing of a preliminary change of ownership report.
(b)Transfer of real property on the death of the transferor by a revocable transfer on death deed is a change in ownership of the property.
2.Other Instruments and Forms of Tenure5660.If a revocable transfer on death deed recorded on or before 60 days after the date it was executed and another instrument both purport to dispose of the same property:
(a)If the other instrument is not recorded before the transferors death, the revocable transfer on death deed is the operative instrument.
(b)If the other instrument is recorded before the transferors death and makes a revocable disposition of the property, the later executed of the revocable transfer on death deed or the other instrument is the operative instrument.
(c)If the other instrument is recorded before the transferors death and makes an irrevocable disposition of the property, the other instrument and not the revocable transfer on death deed is the operative instrument.
5664.If, at the time of the transferors death, title to the property described in the revocable transfer on death deed is held in joint tenancy or as community property with right of survivorship, the revocable transfer on death deed is void. The transferors interest in the property is governed by the right of survivorship and not by the revocable transfer on death deed.
5666.(a)Chapter 2 (commencing with Section 5010) of Part 1 applies to a revocable transfer on death deed of community property.
(b)For the purpose of application of Chapter 2 (commencing with Section 5010) of Part 1 to a revocable transfer on death deed of community property, written consent to the deed, revocation of written consent to the deed, or modification of the deed, is ineffective unless recorded within the time required by that chapter for execution or service of the written consent, revocation, or modification.
5668.A revocable transfer on death deed of community property with right of survivorship is subject to Section 5666, relating to a revocable transfer on death deed of community property.
3.Creditors5670.Notwithstanding any other statute governing priorities among creditors, a creditor of the transferor whose right is evidenced at the time of the transferors death by an encumbrance or lien of record on property transferred by a revocable transfer on death deed has priority against the property over a creditor of the beneficiary, regardless of whether the beneficiarys obligation was created before or after the transferors death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded.
5672.Each beneficiary is personally liable to the extent provided in Section 5674 for the unsecured debts of the transferor. Any such debt may be enforced against the beneficiary in the same manner as it could have been enforced against the transferor if the transferor had not died. In any action based on the debt, the beneficiary may assert any defense, cross-complaint, or setoff that would have been available to the transferor if the transferor had not died. Nothing in this section permits enforcement of a claim that is barred under Part 4 (commencing with Section 9000) of Division 7. Section 366.2 of the Code of Civil Procedure applies in an action under this section.
5674.(a)A beneficiary is not liable under Section 5672 if proceedings for the administration of the transferors estate are commenced and the beneficiary satisfies the requirements of Section 5676.
(b)The aggregate of the personal liability of a beneficiary under Section 5672 shall not exceed the sum of the following:
(1)The fair market value at the time of the transferors death of the property received by the beneficiary pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at that time.
(2)The net income the beneficiary received from the property.
(3)If the property has been disposed of, interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this paragraph, fair market value of the property has the same meaning as defined in paragraph (2) of subdivision (a) of Section 5676.
5676.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the transferors estate are commenced, each beneficiary is liable for:
(1)The restitution to the transferors estate of the property the beneficiary received pursuant to the revocable transfer on death deed if the beneficiary still has the property, together with (A) the net income the beneficiary received from the property and (B) if the beneficiary encumbered the property after the transferors death, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the transferors estate of the fair market value of the property if the beneficiary no longer has the property, together with (A) the net income the beneficiary received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the beneficiary received pursuant to the revocable transfer on death deed, less the amount of any liens and encumbrances on the property at the time of the transferors death.
(b)Subject to subdivision (c), if proceedings for the administration of the transferors estate are commenced and a beneficiary made a significant improvement to the property received by the beneficiary pursuant to the revocable transfer on death deed, the beneficiary is liable for whichever of the following the transferors estate elects:
(1)The restitution of the property, as improved, to the estate of the transferor upon the condition that the estate reimburse the beneficiary for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the beneficiary for principal and interest on any liens or encumbrances that were on the property at the time of the transferors death.
(2)The restoration to the transferors estate of the fair market value of the property, determined as of the time of the transferors death, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the time of the transferors death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the beneficiary to satisfy a liability under Section 5672.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the transferor. Whether or not the personal representative brings an action under this section, the personal representative may enforce the liability only to the extent of the beneficiarys liability under Section 5672. The reasonable cost of proceeding under this section shall be reimbursed as an extraordinary service under Sections 10801 and 10811. Action under this section is optional. A personal representative is never required to act under this section.
(e)An action to enforce the liability under this section is forever barred three years after the transferors death. The three-year period specified in this subdivision is not tolled for any reason. Nothing in this subdivision affects the requirements of Section 215, any law that may toll the limitations period for the commencement of a Medi-Cal estate recovery action, or the time for commencement of an action by the Department of Health Care Services under Section 14009.5 of the Welfare and Institutions Code.
4.Effectuation of Transfer5680.(a)The beneficiary may establish the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2. For the purpose of this subdivision, the beneficiary is a person empowered by statute to act on behalf of the transferor or the transferors estate within the meaning of Section 103526 of the Health and Safety Code.
(b)For the purpose of filing the change in ownership statement required by Section 480 of the Revenue and Taxation Code, the beneficiary is a transferee of real property by reason of death.
(c)For the purpose of giving the notice to the Director of Health Care Services provided for in Section 215, the beneficiary is a beneficiary of the transferor.
(d)The beneficiary is liable to the transferors estate for prorated estate and generation-skipping transfer taxes to the extent provided in Division 10 (commencing with Section 20100).
5682.If both of the following conditions are satisfied, a person dealing with a beneficiary of a revocable transfer on death deed of real property shall have the same rights and protections as the person would have if the beneficiary had been named as a distributee of the property in an order for distribution of the transferors estate that had become final:
(a)The person acted in good faith and for a valuable consideration.
(b)An affidavit of death was recorded for the property under Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5.Contest5690.(a)The transferors personal representative or an interested person may, under Part 19 (commencing with Section 850) of Division 2, contest the validity of a transfer of property by a revocable transfer on death deed.
(b)The proper county for a contest proceeding is the proper county for proceedings concerning administration of the transferors estate, whether or not proceedings concerning administration of the transferors estate have been commenced at the time of the contest.
(c)On commencement of a contest proceeding, the contestant may record a lis pendens in the county in which the revocable transfer on death deed is recorded.
5692.(a)A contest proceeding pursuant to Section 5690 shall not be commenced before the transferors death.
(b)A contest proceeding shall be commenced within the earlier of the following times:
(1)Three years after the transferors death.
(2)One year after the beneficiary establishes the fact of the transferors death under the procedure provided in Chapter 2 (commencing with Section 210) of Part 4 of Division 2.
5694.If the court in a contest proceeding determines that a transfer of property by a revocable transfer on death deed is invalid, the court shall order the following relief:
(a)If the proceeding was commenced and a lis pendens was recorded within 120 days after the transferors death, the court shall void the deed and order transfer of the property to the person entitled to it.
(b)If the proceeding was not commenced and a lis pendens was not recorded within 120 days after the transferors death, the court shall grant appropriate relief but the court order shall not affect the rights in the property of a purchaser or encumbrancer for value and in good faith acquired before commencement of the proceeding and recordation of a lis pendens.
5696.Nothing in this chapter limits the ability of a conservator or guardian of a transferor or prospective transferor, or another interested person, to petition the court for invalidation of a revocable transfer on death deed recorded by the transferor or prospective transferor on the basis of fraud, undue influence, duress, mistake, or other invalidating cause.
SEC. 18.Section 13111 of the Probate Code is amended to read:13111.(a)Subject to the provisions of this section, if proceedings for the administration of the decedents estate are commenced in this state, or if the decedents personal representative has consented to the payment, transfer, or delivery of the decedents property under this chapter and the personal representative later requests that the property be restored to the estate, each person to whom payment, delivery, or transfer of the decedents property is made under this chapter is liable for:
(1)The restitution of the property to the estate if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after it was delivered or transferred to the person, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property and (B) interest on the fair market value of the property from the date of disposition at the rate payable on a money judgment. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property paid, delivered, or transferred to the person under this chapter, less any liens and encumbrances on the property at that time.
(b)Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the payment, delivery, or transfer of the decedents property under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the person liable under this subdivision presents the affidavit or declaration under this chapter, of the property paid, delivered, or transferred to the person under this chapter, less the amount of any liens and encumbrances on the property at that time.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110.
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. In an action to enforce the liability Whether or not the personal representative brings an action under this section, the courts judgment personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after presentation of the affidavit or declaration under this chapter to the holder of the decedents property, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
(f)In the case of a nondomiciliary decedent, restitution under this section shall be made to the estate in an ancillary administration proceeding.
SEC. 19.Section 13206 of the Probate Code is amended to read:13206.(a)Subject to subdivisions (b), (c), (d), and (e), if proceedings for the administration of the decedents estate are commenced, or if the decedents personal representative has consented to use of the procedure provided by this chapter and the personal representative later requests that the property be restored to the estate, each person who is designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 is liable for:
(1)The restitution to the decedents estate of the property the person took under the certified copy of the affidavit if the person still has the property, together with (A) the net income the person received from the property and (B) if the person encumbered the property after the certified copy of the affidavit was issued, the amount necessary to satisfy the balance of the encumbrance as of the date the property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the property if the person no longer has the property, together with (A) the net income the person received from the property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the property. For the purposes of this paragraph, the fair market value of the property is the fair market value, determined as of the time of the disposition of the property, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at the time the certified copy of the affidavit was issued.
(b)Subject to subdivision (d), if the person fraudulently executed or filed the affidavit under this chapter, the person is liable under this section for restitution to the decedents estate of three times the fair market value of the property. For the purposes of this subdivision, the fair market value of the property is the fair market value, determined as of the time the certified copy of the affidavit was issued, of the property the person took under the certified copy of the affidavit, less the amount of any liens and encumbrances on the property at that time.
(c)Subject to subdivision (d), if proceedings for the administration of the decedents estate are commenced and a person designated as a successor of the decedent in a certified copy of an affidavit issued under Section 13202 made a significant improvement to the property taken by the person under the certified copy of the affidavit in the good faith belief that the person was the successor of the decedent to that property, the person is liable for whichever of the following the decedents estate elects:
(1)The restitution of the property, as improved, to the estate of the decedent upon the condition that the estate reimburse the person making restitution for (A) the amount by which the improvement increases the fair market value of the property restored, determined as of the time of restitution, and (B) the amount paid by the person for principal and interest on any liens or encumbrances that were on the property at the time the certified copy of the affidavit was issued.
(2)The restoration to the decedents estate of the fair market value of the property, determined as of the time of the issuance of the certified copy of the affidavit under Section 13202, less the amount of any liens and encumbrances on the property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the issuance of the certified copy of the affidavit.
(d)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13204 or 13205.
(e)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. In an action to enforce the liability Whether or not the personal representative brings an action under this section, the courts judgment personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(f)An action to enforce the liability under this section is forever barred three years after the certified copy of the affidavit is issued under Section 13202, or three years after the discovery of the fraud, whichever is later. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 20.Section 13562 of the Probate Code is amended to read:13562.(a)Subject to subdivisions (b), (c), and (d), if proceedings for the administration of the decedents estate are commenced, the surviving spouse is liable for:
(1)The restitution to the decedents estate of the decedents property if the surviving spouse still has the decedents property, together with (A) the net income the surviving spouse received from the decedents property and (B) if the surviving spouse encumbered the decedents property after the date of death, the amount necessary to satisfy the balance of the encumbrance as of the date the decedents property is restored to the estate.
(2)The restitution to the decedents estate of the fair market value of the decedents property if the surviving spouse no longer has the decedents property, together with (A) the net income the surviving spouse received from the decedents property prior to disposing of it and (B) interest from the date of disposition at the rate payable on a money judgment on the fair market value of the decedents property. For the purposes of this paragraph, the fair market value of the decedents property is the fair market value of the decedents property, determined as of the time of the disposition of the decedents property, less the amount of any liens and encumbrances on the decedents property at the time of the decedents death.
(b)Subject to subdivision (c), if proceedings for the administration of the decedents estate are commenced and the surviving spouse made a significant improvement to the decedents property in the good faith belief that the surviving spouse was the successor of the decedent to the decedents property, the surviving spouse is liable for whichever of the following the decedents estate elects:
(1)The restitution of the decedents property, as improved, to the estate of the decedent upon the condition that the estate reimburse the surviving spouse for (A) the amount by which the improvement increases the fair market value of the decedents property restored, valued as of the time of restitution, and (B) the amount paid by the surviving spouse for principal and interest on any liens or encumbrances that were on the decedents property at the time of the decedents death.
(2)The restoration to the decedents estate of the fair market value of the decedents property, valued as of the time of the decedents death, excluding the amount of any liens and encumbrances on the decedents property at that time, together with interest on the net amount at the rate payable on a money judgment running from the date of the decedents death.
(c)The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the surviving spouse to satisfy a liability under Chapter 3 (commencing with Section 13550).
(d)An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. In an action to enforce the liability Whether or not the personal representative brings an action under this section, the courts judgment personal representative may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent.
(e)An action to enforce the liability under this section is forever barred three years after the death of the decedent. The three-year period specified in this subdivision is not tolled for any reason.
SEC. 21.(a)The California Law Revision Commission shall study the effect of Californias revocable transfer on death deed set forth in Part 4 (commencing with Section 5600) of Division 5 of the Probate Code and make recommendations in this regard. The commission shall report all of its findings to the Legislature on or before January 1, 2020.
(b)In the study required by subdivision (a), the commission shall address all of the following:
(1)Whether the revocable transfer on death deed is working effectively.
(2)Whether the revocable transfer on death deed should be continued.
(3)Whether the revocable transfer on death deed is subject to misuse or misunderstanding.
(4)What changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding.
(5)Whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
(c)(1)The report required by subdivision (a) shall comply with Section 9795 of the Government Code.
(2)Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2024.
|
Date
|
Status
|
|---|---|
| Jul 14, 2015 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 6. Noes 0.) (July 7). |
| Sep 21, 2015 | Chaptered by Secretary of State - Chapter 293, Statutes of 2015. |
| Sep 21, 2015 | Approved by the Governor. |
| Sep 9, 2015 | Enrolled and presented to the Governor at 4 p.m. |
| Sep 1, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 78. Noes 0.). |
| Sep 1, 2015 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 78. Noes 0. Page 2729.). |
| Sep 1, 2015 | Assembly Rule 77 suspended. (Page 2729.) |
| Sep 1, 2015 | Assembly Rule 77 suspended. |
| Aug 31, 2015 | Read third time. Passed. Ordered to the Assembly. (Ayes 40. Noes 0. Page 2309.). |
| Aug 31, 2015 | Read third time. Passed. Ordered to the Assembly. |
| Aug 31, 2015 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after September 2 pursuant to Assembly Rule 77. |
| Aug 27, 2015 | Read second time. Ordered to third reading. |
| Aug 26, 2015 | Read third time and amended. Ordered to second reading. |
| Aug 18, 2015 | Read second time. Ordered to third reading. |
| Aug 17, 2015 | From committee: Be placed on second reading file pursuant to Senate Rule 28.8. |
| Jul 15, 2015 | Read second time and amended. Re-referred to Com. on APPR. |
| Jan 9, 2015 | Introduced. To print. |
| Jun 29, 2015 | From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. |
| May 7, 2015 | Referred to Com. on JUD. |
| Apr 9, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0.) |
| Apr 9, 2015 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0. Page 855.) |
| Apr 9, 2015 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Mar 26, 2015 | Read second time. Ordered to consent calendar. |
| Mar 25, 2015 | From committee: Do pass. To Consent Calendar. (Ayes 16. Noes 0.) (March 25). |
| Mar 25, 2015 | From committee: Do pass. Ordered to Consent Calendar. (Ayes 16. Noes 0.) (March 25). |
| Mar 17, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 10. Noes 0.) (March 17). Re-referred to Com. on APPR. |
| Mar 9, 2015 | Re-referred to Com. on JUD. |
| Mar 5, 2015 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Jan 26, 2015 | Referred to Com. on JUD. |
| Jan 12, 2015 | Read first time. |
| Jan 12, 2015 | From printer. May be heard in committee February 11. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 1, 2015 | AB 139 GATTO Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 31, 2015 | Assembly 3rd Reading AB139 Gatto By Leno | Senate Floor |
Passed |
|
| Jul 7, 2015 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 9, 2015 | AB 139 GATTO Consent Calendar Second Day Regular Session | Assembly Floor |
Passed |
|
| Mar 25, 2015 | Do pass. To Consent Calendar. | Assembly Standing Committee on Appropriations |
Passed |
|
| Mar 17, 2015 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| AARP California | ** Support | Aug 31, 2015 |
| California Advocates for Nursing Home Reform | ** Against | Aug 31, 2015 |
| California Communities United Institute | ** Support | Aug 31, 2015 |
| California Escrow Association | * Against | Mar 17, 2015 |
| California Escrow Association | * Indeterminate | Mar 17, 2015 |
| California Land Title Association | * Against | Mar 17, 2015 |
| California Land Title Association | * Neutral | Mar 17, 2015 |
| California Law Revision Commission | * Indeterminate | Jul 7, 2015 |
| California Senior Legislature | ** Support | Aug 31, 2015 |
| Conference of California Bar Associations | ** Support | Aug 31, 2015 |
| Howard Jarvis Taxpayers Association | ** Support | Aug 31, 2015 |
| Law Revision Commission | * Support | Mar 17, 2015 |
| One individual | ** Support | Mar 17, 2015 |
AB 139
Page 3
CONCURRENCE IN SENATE AMENDMENTS
AB 139
(Gatto)
As Amended August 26, 2015
Majority vote
ASSEMBLY: |
78-0 |
(April 9, 2015) |
SENATE: |
40-0 |
(August 31, 2015) |
Original Committee Reference: JUD.
SUMMARY: Seeks to establish, until January 1, 2021, a new, non-probate method for conveying real property upon death through a revocable transfer upon death deed (RTDD). Specifically, this bill:
Allows an interest in certain residential real property to be transferred on death by recording an RTDD signed and acknowledged by the record owner of the property, with the capacity to contract, and designating a beneficiary or beneficiaries. The deed transfers ownership of that property interest upon the death of the owner. Is effective for any RTDD made by a transferor who dies on or after January 1, 2016, regardless of when the RTDD was executed or recorded. No RTDD may be executed on or after January 1, 2021, but any RTDD properly executed before that date remains valid and may be revoked after that date.
Requires that to be valid an RTDD must be recorded within 60 days of execution.
Provides that an RTDD does not affect any ownership rights during the transferor's lifetime, nor does it convey any rights to the beneficiary or the beneficiary's creditors during the transferor's lifetime. An RTDD is not effective until the transferor's death.
Provides a statutory form RTDD and requires that an RTDD must be in a substantially similar form. The statutory deed provides information to the transferor, including explaining how the RTDD works, how it is effectuated and some of its consequences.
Provides a statutory form for revocation of an RTDD.
Provides that an RTDD may have multiple beneficiaries, who take in equal shares as tenants in common, but does not provide for alternate beneficiaries. The RTDD does not provide for class gifts, e.g., gifts to the transferor's unnamed grandchildren. Provides that if a beneficiary dies prior to the transfer, the remaining beneficiaries take in equal shares. If all beneficiaries die prior to the transfer, the RTDD has no effect.
Provides that an RTDD is revocable at any time by a transferor with capacity to contract. If an RTDD and another revocable instrument have both been recorded and both purport to dispose of the same property, the instrument that has been executed later prevails. If two deeds – one revocable and one irrevocable – are both recorded, the irrevocable deed prevails, even if recorded earlier.
Provides that an RTDD must transfer all the transferor's interest in the property.
Provides that property subject to an RTDD is still part of the transferor's estate for purposes of Medi-Cal eligibility and will be subject to Medi-Cal reimbursement claims. Property subject to an RTDD is subject to claims from the transferor's secured and unsecured creditors. Allows the beneficiary to avoid unsecured claims by returning the property to the transferor's estate.
Requires the beneficiary to effectuate transfer of the property by recording an affidavit of the transferor's death.
Provides that, if property is held in joint tenancy or as community property with right of survivorship when the transferor dies, the transfer is void and the property passes pursuant to the right of survivorship. Provides, in the information accompanying the statutory deed, that if a transferor wants to sever the joint tenancy and not have the property pass through right of survivorship rules, the transferor cannot use the RTDD.
Permits contest of the RTDD for, among other things, lack of capacity to transfer, transfer to disqualified person, fraud, duress, and undue influence.
Requires the California Law Revisions Commission (CLRC) to study the effects of the RTDD and make recommendations to the Legislature by January 1, 2020.
The Senate amendments limit the real property to which a RTDD may be used, change the capacity requirements for the owner, specify that a beneficiary's interest lapses if he or she predeceases the owner, specify that a RTDD can only be revoked by a recorded document and require that the RTDD contain the legal description of the property.
EXISTING LAW:
Directs the CLRC to study the effect of California's non-probate transfer provisions and statutes in other states that establish beneficiary deeds as a means of conveying real property through non-probate transfers, with the objective of determining whether such legislation should be enacted in California. (AB 12 (DeVore), Chapter 422, Statutes of 2005.)
Permits the non-probate transfer on death of non-real property instruments including an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature.
Provides that upon death of one joint tenant, real property held in joint tenancy with right of survivorship vests immediately in the surviving joint tenant or tenants.
Provides for the non-probate transfer of real property insofar as persons may execute a revocable deed to a beneficiary while reserving a life estate. (Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570.)
Provides that, if a transferee under a will, trust, deed or other instrument fails to survive the transferor, transfer does not lapse but passes to the issue (decedents) of the transferee if the transferee is related to the transferor or the transferor's spouse.
FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: In 2005, the Legislature passed AB 12, which directed the CLRC to study California's non-probate transfer provisions and determine whether California should enact a beneficiary deed – a deed which transfers real property outside of probate upon death of the transferor. In October 2006, the CLRC issued its recommendation that California adopt a revocable transfer on death deed, noting that while the deed has advantages and disadvantages, creation of such a deed would, on the whole, be beneficial in California. AB 250 (DeVore) of the 2007-08 Regular Session, AB 724 (DeVore) of the 2009-10 Regular Session, and AB 699 (Wagner) of 2011, sought to implement the recommendations of the CLRC and create an RTDD in California. All three bills passed out of the Assembly, but failed passage in the Senate. This bill is substantially similar to those bills, except that it does not allow for a life estate as part of an RTDD and limits what property an RTDD may effect.
In recommending creation of an RTDD in California, the CLRC balanced the generally positive, although quite limited, experience of other states, the need for a simple, low-cost method of conveying real property with the very real concerns raised by opponents of the RTDD. In order to address some of opponents' well-founded concerns, the CLRC recommends that California undertake a comprehensive review of all non-probate transfers and their consequences. However, in the interim, the CLRC recommends that California establish a carefully crafted RTDD.
In 2009, the National Conference of Commissioners on Uniform State Laws approved a uniform act on RTDDs. At that time, 13 states had allowed some version of RTDDs. (National Conference of Commissioners on Uniform State Laws, Uniform Real Property Transfer on Death Act (2009).) Since that time, ten additional states plus the District of Columbia have adopted some version of the uniform act and at least another three states are considering it this year. Thus nearly half of the states permit use of RTDDs today.
A simplified RTDD could make it easier to commit financial abuse. In recognition of the risks associated with an RTDD, this bill directs the CLRC to study the effect of the RTDD in California and report back to the Legislature by January 1, 2020. The report must address the following issues: 1) whether the revocable transfer on death deed is working effectively; 2) whether the revocable transfer on death deed should be continued; 3) whether the revocable transfer on death deed is subject to misuse or misunderstanding; 4) what changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding; and, 5) whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
This bill also, by its own terms sunsets on January 1, 2021. RTDDs executed before that time would remain valid, but RTDDs executed after that date would not be valid. This sunset, together with the study by CLRC, should help minimize risks of abuse or misuse associated with the RTDD, but would not prevent such risks during the five years that RTDDs would be valid in California.
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0001756
AB 139
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 139
Amended: 8/26/15 in Senate
SENATE JUDICIARY COMMITTEE: 6-0, 7/7/15
AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 78-0, 4/9/15 (Consent) - See last page for vote
SUBJECT: Nonprobate transfers: revocable transfer upon death deeds
DIGEST: This bill creates a new nonprobate residential real property transfer instrument, the “Simple Revocable Transfer on Death (TOD) Deed,” which would be effective upon death of the transferor. This bill sunsets on January 1, 2021.
Senate Floor Amendments of 8/26/15 clarify that the bill only applies to residential real property.
Existing law:
Provides various methods by which a person may transfer his or her real property interests to another person upon death, such as through a will, a trust, a joint tenancy with right of, community property with right of survivorship, an intervivos transfer with reserved life estate, and a nonprobate transfer.
Provides that, unless otherwise provided, when one spouse dies intestate leaving property that passes to the other spouse, or dies testate and by will leaves the property to the surviving spouse, the property passes to the surviving spouse, as specified, and no probate administration is necessary.
Provides that title to a decedent’s property, subject to probate administration and the rights of beneficiaries, creditors, and other persons as provided by law, passes on the decedent’s death to the person to whom it is devised in the decedent’s last will or, in the absence of such a devise, to the decedent’s heirs as prescribed in the laws governing intestate succession.
Authorizes a successor of the decedent (a beneficiary) to collect personal property of the decedent from the holder of the property through an affidavit procedure, which requires, among other things, the successor to declare under penalty of perjury that no other person has a superior right to the interest of the decedent in the described property, and, if the decedent’s estate includes real property, an inventory and appraisal of the real property must be attached to the affidavit. That procedure can be utilized after 40 days have elapsed since the date of the decedent’s death, the total gross fair market value of the decedent’s real and personal property is $150,000 or less (a “small estate”), and there has been no probate administration.
Authorizes a person claiming to be a successor of the decedent to petition the court for transfer of a particular item of real property, if 40 days have elapsed since the death of the decedent, without procuring letters of administration or awaiting probate of the will, and requires the petitioner to complete an affidavit declaring, among other things, that the real property is valued at $50,000 or less and no other person has a superior right to the interest of the decedent in the described property.
Requires the petitioner to attach an inventory and appraisal of all of the decedent’s real property.
Authorizes a successor of the decedent to complete an affidavit, not earlier than six months after the date of the decedent’s death, to be filed with the clerk of the court, for transfer of one or more particular items of a decedent’s real property in an amount of $50,000 or less if the gross fair market value of the decedent’s real and personal property in this state does not exceed $150,000, an inventory and appraisal of the real property is attached to the affidavit, and the successor declares, among other things, that the funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.
Authorizes the trustee of a trust, which is considered a beneficiary of the deceased settlor, to utilize these procedures to transfer an item of real or personal property of the decedent into the trust.
Makes the successor personally liable to unsecured creditors for the debts of the decedent, any person having a superior right to the property by testate or intestate succession from the decedent, and liable to the estate.
Provides that, when a husband or wife dies intestate leaving property that passes to the surviving spouse, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse, the property passes to the survivor subject to creditors and claimants, and no administration is necessary.
Provides, after 40 days from the death of a spouse, to the surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse, full power to sell, convey, lease, mortgage, or otherwise deal with and dispose of the community or quasi-community real property, and the right, title, and interest of any grantee, purchaser, encumbrancer, or lessee shall be free of rights of the estate of the deceased spouse or of devisees or creditors of the deceased spouse to the same extent as if the property had been owned as the separate property of the surviving spouse.
Makes the surviving spouse personally liable for the debts of the decedent.
Provides that a surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, as are granted to and imposed upon a widow or a widower.
Permits the nonprobate transfer of property on death, including an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature.
Provides for the nonprobate transfer of real property insofar as persons may execute a revocable deed to a beneficiary while reserving a life estate.
Provides that upon the death of one joint tenant, real property held in joint tenancy with right of survivorship vests immediately in the surviving joint tenant or tenants.
Provides that, if a transferee under a will, trust, deed, or other instrument fails to survive the transferor or is treated as if the transferee predeceased the transferor, or fails to survive a future time, the transfer does not lapse but instead passes to the issue of the deceased transferee, except as otherwise provided.
This bill:
Establishes a new nonprobate transfer instrument, the TOD deed, to transfer residential real property, as specified, upon a transferor’s death. Specifically, this bill:
Defines the instrument, which transfers real property to a named beneficiary upon the death of the transferor outside of probate, and establishes the rules for making and revoking the instrument;
Authorizes only the transfer of real property improved with not less than one nor more than four residential dwelling units, a condominium unit, including the limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit, or a single tract of agricultural real estate consisting of 40 acres or less that is improved with a single-family residence;
Provides a mandatory statutory form of a TOD deed containing the required information, instructions, and answers to a long list of “commonly asked questions” about the instrument;
Establishes rules regarding the effect of the execution and recordation of a TOD deed, and their interaction with other types of instruments;
Establishes rules for a TOD deed beneficiary’s liability for the debts of a transferor, including rules for when an action is filed based on the debts, rules for the beneficiary’s liability for restitution under specified circumstances, who may bring an action to enforce the beneficiary’s liability, and payment of costs for a proceeding to enforce the beneficiary’s liability;
Establishes rules regarding the effectuation of the property transfer, and a beneficiary’s standing vis á vis a distributee under a final order of distribution if the property was probated;
Establishes rules for a contest involving the TOD deed;
Allows only a personal representative to enforce liability of a beneficiary of a TOD deed or any other beneficiary of a decedent with a small estate, to the extent necessary to protect heirs, devisees, and creditors of the transferor-decedent, and, as to creditors, provide for recovery of the reasonable cost of a proceeding under this provision as an extraordinary service by the personal representative or the attorney of the decedent’s estate; and
Makes other conforming changes.
Directs the California Law Revision Commission (CLRC) to study the effect of the TOD deed as established by this bill and to report to the Legislature on or before January 1, 2020, with specific instructions to study:
Whether the TOD deed is working effectively;
Whether the TOD deed should be continued;
Whether the TOD deed is subject to misuse or misunderstanding;
What changes should be made to the TOD deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding; and
Whether the TOD deed has been used to perpetuate financial abuse on property owners and, if so, how the law should be changed to minimize this abuse.
Sunsets on January 1, 2021, however, the sunset does not affect the validity or effect of a TOD deed executed before January 1, 2021, and does not affect the authority of the transferor to revoke a TOD deed.
Background
In 2005, AB 12 (DeVore, Chapter 422, Statutes of 2005) was introduced as a bill to create the instrument that AB 139 now calls “revocable transfer on death deed,” but was subsequently amended to instead direct the CLRC to study this type of deed and determine whether California should create it as a new nonprobate transfer instrument that becomes effective only upon the death of the transferor. The study was recommended for the following reasons: (1) there is a 1914 California case that already allows for the use of beneficiary deeds (another name for the revocable TOD deed) that has never been overturned (Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570); (2) various parties, including the California Land Title Company, the California Judges Association, and the Trusts and Estates Section of the State Bar, expressed strong opposition to the bill for lack of clarity and failure to address unintended consequences; and (3) there existed the possibility of countless litigation because of the potential impact of a beneficiary deed on the transferor’s property ownership and of fraudulent transfers.
The CLRC was directed to address a non-exclusive list of issues in its study, including, for example, whether and when a beneficiary deed would be the most appropriate nonprobate transfer mechanism to use, if a beneficiary deed should be recorded or held by the grantor or grantee until the time of death, and, if not recorded, whether a potential for fraud is created and what effect the recordation of a beneficiary deed would have on the transferor’s property rights after recordation. The CLRC issued its recommendation in October 2006, noting that while the deed has advantages and disadvantages, “creation of a TOD deed would be beneficial in California.”
In 2009, the National Conference of Commissioners on Uniform State Laws finalized a Uniform Real Property Transfer on Death Act, which provides a simple procedure for the transfer of real property outside of probate. That Act has been enacted in eight states, and 19 other states have enacted various acts for the same purpose. This bill is not based on that Act but, instead, maintains the CLRC recommended proposal with modifications from each legislative attempt to enact it. Accordingly, this bill creates a method and mandatory form for the transfer of real property upon the death of the transferor.
Comments
The author writes:
California law offers individuals several mechanisms to transfer real property to a chosen beneficiary at death. Those mechanisms include, but are not limited to, a will, trust, joint tenancy, and community property. While some of the available mechanisms must happen during the property owner’s lifetime, others happen upon death, and each vary in the cost and ease of transfer, revocability options, ownership rights, effect on Medi-Cal eligibility, and availability to creditors.
The most common form of real property transfer upon death, a will, must pass through probate, a lengthy legal process that involves proving in court that a deceased person’s will is valid, inventorying and appraising property, and paying debts and taxes. The process is often grueling, can take up to a year, and often results in statutory probate fees in the thousands of dollars. Similarly, establishment of a revocable trust can cost upwards of $2,000. For seniors and individuals whose estate consists primarily of the home, the money to establish a trust is out of the question.
Although other estate planning options are available to property owners, the [revocable transfer on death deed (revocable TOD deed)] is the most simple and inexpensive transfer mechanism on the market today. Furthermore, it may be the only tool available to unmarried homeowners who wish to leave their property to a lifelong partner, family member, friend or loved one upon death, but who do not want to transfer present interest (such as joint tenancy) or cannot afford to set up a trust. Some families attempt to pass real property to a family member by adding the recipient’s name to the title as a joint tenant with rights of survivorship. The property will pass to the recipient at the death of the joint owner, but there are also significant consequences during the owner’s life, such as exposing the property to the joint tenant’s creditors, and gives the joint tenant the power to approve or disapprove a sale.
Related/Prior Legislation
AB 699 (Wagner, 2011) was substantially similar to AB 139 and failed passage in the Senate Judiciary Committee.
AB 724 (DeVore, 2010) was substantially similar to AB 139 and failed passage in the Senate Appropriations Committee.
AB 250 (DeVore, 2007) incorporated recommendations of the CLRC and was substantially similar to AB 139. AB 250 failed passage in the Senate Judiciary Committee.
AB 12 (DeVore, Chapter 422, Statutes of 2005) - See Background.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
AARP California
California Communities United Institute
California Senior Legislature
Conference of California Bar Associations
Howard Jarvis Taxpayers Association
OPPOSITION: (Verified 8/26/15)
California Advocates for Nursing Home Reform
ASSEMBLY FLOOR: 78-0, 4/9/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Calderon, O'Donnell
Prepared by: Tara Welch / JUD. / (916) 651-4113
8/28/15 8:45:11
**** END ****
AB 139
Page 8
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: AB 139
Amended: 7/15/15 in Senate
SENATE JUDICIARY COMMITTEE: 6-0, 7/7/15
AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 78-0, 4/9/15 (Consent) - See last page for vote
SUBJECT: Nonprobate transfers: revocable transfer upon death deeds
DIGEST: This bill creates a new nonprobate property transfer instrument, the “Simple Revocable Transfer on Death (TOD) Deed,” which would be effective upon death of the transferor. This bill sunsets on January 1, 2021.
Existing law:
Provides various methods by which a person may transfer his or her real property interests to another person upon death, such as through a will, a trust, a joint tenancy with right of, community property with right of survivorship, an intervivos transfer with reserved life estate, and a nonprobate transfer.
Provides that, unless otherwise provided, when one spouse dies intestate leaving property that passes to the other spouse, or dies testate and by will leaves the property to the surviving spouse, the property passes to the surviving spouse, as specified, and no probate administration is necessary.
Provides that title to a decedent’s property, subject to probate administration and the rights of beneficiaries, creditors, and other persons as provided by law, passes on the decedent’s death to the person to whom it is devised in the decedent’s last will or, in the absence of such a devise, to the decedent’s heirs as prescribed in the laws governing intestate succession.
Authorizes a successor of the decedent (a beneficiary) to collect personal property of the decedent from the holder of the property through an affidavit procedure, which requires, among other things, the successor to declare under penalty of perjury that no other person has a superior right to the interest of the decedent in the described property, and, if the decedent’s estate includes real property, an inventory and appraisal of the real property must be attached to the affidavit. That procedure can be utilized after 40 days have elapsed since the date of the decedent’s death, the total gross fair market value of the decedent’s real and personal property is $150,000 or less (a “small estate”), and there has been no probate administration.
Authorizes a person claiming to be a successor of the decedent to petition the court for transfer of a particular item of real property, if 40 days have elapsed since the death of the decedent, without procuring letters of administration or awaiting probate of the will, and requires the petitioner to complete an affidavit declaring, among other things, that the real property is valued at $50,000 or less and no other person has a superior right to the interest of the decedent in the described property.
Requires the petitioner to attach an inventory and appraisal of all of the decedent’s real property.
Authorizes a successor of the decedent to complete an affidavit, not earlier than six months after the date of the decedent’s death, to be filed with the clerk of the court, for transfer of one or more particular items of a decedent’s real property in an amount of $50,000 or less if the gross fair market value of the decedent’s real and personal property in this state does not exceed $150,000, an inventory and appraisal of the real property is attached to the affidavit, and the successor declares, among other things, that the funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.
Authorizes the trustee of a trust, which is considered a beneficiary of the deceased settlor, to utilize these procedures to transfer an item of real or personal property of the decedent into the trust.
Makes the successor personally liable to unsecured creditors for the debts of the decedent, any person having a superior right to the property by testate or intestate succession from the decedent, and liable to the estate.
Provides that, when a husband or wife dies intestate leaving property that passes to the surviving spouse, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse, the property passes to the survivor subject to creditors and claimants, and no administration is necessary.
Provides, after 40 days from the death of a spouse, to the surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse, full power to sell, convey, lease, mortgage, or otherwise deal with and dispose of the community or quasi-community real property, and the right, title, and interest of any grantee, purchaser, encumbrancer, or lessee shall be free of rights of the estate of the deceased spouse or of devisees or creditors of the deceased spouse to the same extent as if the property had been owned as the separate property of the surviving spouse.
Makes the surviving spouse personally liable for the debts of the decedent.
Provides that a surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, as are granted to and imposed upon a widow or a widower.
Permits the nonprobate transfer of property on death, including an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature.
Provides for the nonprobate transfer of real property insofar as persons may execute a revocable deed to a beneficiary while reserving a life estate.
Provides that upon the death of one joint tenant, real property held in joint tenancy with right of survivorship vests immediately in the surviving joint tenant or tenants.
Provides that, if a transferee under a will, trust, deed, or other instrument fails to survive the transferor or is treated as if the transferee predeceased the transferor, or fails to survive a future time, the transfer does not lapse but instead passes to the issue of the deceased transferee, except as otherwise provided.
This bill:
Establishes a new nonprobate transfer instrument, the TOD deed, for use as specified to transfer real property upon a transferor’s death. Specifically, this bill:
Defines the instrument, which transfers real property to a named beneficiary upon the death of the transferor outside of probate, and establishes the rules for making and revoking the instrument;
Provides a mandatory statutory form of a TOD deed containing the required information, instructions, and answers to a long list of “commonly asked questions” about the instrument;
Establishes rules regarding the effect of the execution and recordation of a TOD deed, and their interaction with other types of instruments;
Establishes rules for a TOD deed beneficiary’s liability for the debts of a transferor, including rules for when an action is filed based on the debts, rules for the beneficiary’s liability for restitution under specified circumstances, who may bring an action to enforce the beneficiary’s liability, and payment of costs for a proceeding to enforce the beneficiary’s liability;
Establishes rules regarding the effectuation of the property transfer, and a beneficiary’s standing vis á vis a distributee under a final order of distribution if the property was probated;
Establishes rules for a contest involving the TOD deed;
Allows only a personal representative to enforce liability of a beneficiary of a TOD deed or any other beneficiary of a decedent with a small estate, to the extent necessary to protect heirs, devisees, and creditors of the transferor-decedent, and, as to creditors, provide for recovery of the reasonable cost of a proceeding under this provision as an extraordinary service by the personal representative or the attorney of the decedent’s estate; and
Makes other conforming changes.
Directs the California Law Revision Commission (CLRC) to study the effect of the TOD deed as established by this bill and to report to the Legislature on or before January 1, 2020, with specific instructions to study:
Whether the TOD deed is working effectively;
Whether the TOD deed should be continued;
Whether the TOD deed is subject to misuse or misunderstanding;
What changes should be made to the TOD deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding; and
Whether the TOD deed has been used to perpetuate financial abuse on property owners and, if so, how the law should be changed to minimize this abuse.
Sunsets on January 1, 2021, however, the sunset does not affect the validity or effect of a TOD deed executed before January 1, 2021, and does not affect the authority of the transferor to revoke a TOD deed.
Background
In 2005, AB 12 (DeVore, Chapter 422, Statutes of 2005) was introduced as a bill to create the instrument that AB 139 now calls “revocable transfer on death deed,” but was subsequently amended to instead direct the CLRC to study this type of deed and determine whether California should create it as a new nonprobate transfer instrument that becomes effective only upon the death of the transferor. The study was recommended for the following reasons: (1) there is a 1914 California case that already allows for the use of beneficiary deeds (another name for the revocable TOD deed) that has never been overturned (Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570); (2) various parties, including the California Land Title Company, the California Judges Association, and the Trusts and Estates Section of the State Bar, expressed strong opposition to the bill for lack of clarity and failure to address unintended consequences; and (3) there existed the possibility of countless litigation because of the potential impact of a beneficiary deed on the transferor’s property ownership and of fraudulent transfers.
The CLRC was directed to address a non-exclusive list of issues in its study, including, for example, whether and when a beneficiary deed would be the most appropriate nonprobate transfer mechanism to use, if a beneficiary deed should be recorded or held by the grantor or grantee until the time of death, and, if not recorded, whether a potential for fraud is created and what effect the recordation of a beneficiary deed would have on the transferor’s property rights after recordation. The CLRC issued its recommendation in October 2006, noting that while the deed has advantages and disadvantages, “creation of a TOD deed would be beneficial in California.”
In 2009, the National Conference of Commissioners on Uniform State Laws finalized a Uniform Real Property Transfer on Death Act, which provides a simple procedure for the transfer of real property outside of probate. That Act has been enacted in eight states, and 19 other states have enacted various acts for the same purpose. This bill is not based on that Act but, instead, maintains the CLRC recommended proposal with modifications from each legislative attempt to enact it. Accordingly, this bill creates a method and mandatory form for the transfer of real property upon the death of the transferor.
Comments
The author writes:
California law offers individuals several mechanisms to transfer real property to a chosen beneficiary at death. Those mechanisms include, but are not limited to, a will, trust, joint tenancy, and community property. While some of the available mechanisms must happen during the property owner’s lifetime, others happen upon death, and each vary in the cost and ease of transfer, revocability options, ownership rights, effect on Medi-Cal eligibility, and availability to creditors.
The most common form of real property transfer upon death, a will, must pass through probate, a lengthy legal process that involves proving in court that a deceased person’s will is valid, inventorying and appraising property, and paying debts and taxes. The process is often grueling, can take up to a year, and often results in statutory probate fees in the thousands of dollars. Similarly, establishment of a revocable trust can cost upwards of $2,000. For seniors and individuals whose estate consists primarily of the home, the money to establish a trust is out of the question.
Although other estate planning options are available to property owners, the [revocable transfer on death deed (revocable TOD deed)] is the most simple and inexpensive transfer mechanism on the market today. Furthermore, it may be the only tool available to unmarried homeowners who wish to leave their property to a lifelong partner, family member, friend or loved one upon death, but who do not want to transfer present interest (such as joint tenancy) or cannot afford to set up a trust. Some families attempt to pass real property to a family member by adding the recipient’s name to the title as a joint tenant with rights of survivorship. The property will pass to the recipient at the death of the joint owner, but there are also significant consequences during the owner’s life, such as exposing the property to the joint tenant’s creditors, and gives the joint tenant the power to approve or disapprove a sale.
Related/Prior Legislation
AB 699 (Wagner, 2011) was substantially similar to AB 139 and failed passage in the Senate Judiciary Committee.
AB 724 (DeVore, 2010) was substantially similar to AB 139 and failed passage in the Senate Appropriations Committee.
AB 250 (DeVore, 2007) incorporated recommendations of the CLRC and was substantially similar to AB 139. AB 250 failed passage in the Senate Judiciary Committee.
AB 12 (DeVore, Chapter 422, Statutes of 2005) - See Background.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
AARP California
California Communities United Institute
California Senior Legislature
Conference of California Bar Associations
Howard Jarvis Taxpayers Association
OPPOSITION: (Verified 8/17/15)
California Advocates for Nursing Home Reform
ASSEMBLY FLOOR: 78-0, 4/9/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Calderon, O'Donnell
Prepared by: Tara Welch / JUD. / (916) 651-4113
8/18/15 17:18:13
**** END ****
AB 139 (Gatto)
Page 13 of 13
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 139 (Gatto)
Version: June 29, 2015
Hearing Date: July 7, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Nonprobate transfers: revocable transfer upon death deeds
DESCRIPTION
This bill would create a new nonprobate property transfer instrument, the “Simple Revocable Transfer on Death (TOD) Deed,” which would be effective upon death of the transferor. Specifically, this bill would:
establish rules for the making and revocation of a revocable TOD deed, and provide a mandatory statutory form deed and form revocation;
outline the beneficiary’s liability for debts of the transferor and the procedure for restitution to the estate by the beneficiary of the revocable TOD deed;
establish the procedure for contesting a revocable TOD deed and for a creditor to collect payment for the transferor’s debts;
require the California Law Revision Commission to report back to the Legislature on or before January 1, 2020, on specified data concerning the use, misuse, or misunderstanding of the revocable TOD deed and recommendations for change; and
make other conforming changes.
This bill would sunset on January 1, 2021.
(This analysis reflects author’s amendments to be offered in Committee.)
BACKGROUND
In 2005, AB 12 (DeVore, Chapter 422, Statutes of 2005) was introduced as a bill to create the instrument that AB 139 now calls “revocable transfer on death deed,” but was subsequently amended to instead direct the California Law Revision Commission (CLRC) to study this type of deed and determine whether California should create it as a new nonprobate transfer instrument that becomes effective only upon the death of the transferor. The study was recommended for the following reasons: (1) there is a 1914 California case that already allows for the use of beneficiary deeds (another name for the revocable TOD deed) that has never been overturned (Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570); (2) various parties, including the California Land Title Company, the California Judges Association, and the Trusts and Estates Section of the State Bar, expressed strong opposition to the bill for lack of clarity and failure to address unintended consequences; and (3) there existed the possibility of countless litigation because of the potential impact of a beneficiary deed on the transferor’s property ownership and of fraudulent transfers.
The CLRC was directed to address a non-exclusive list of issues in its study, including, for example, whether and when a beneficiary deed would be the most appropriate nonprobate transfer mechanism to use, if a beneficiary deed should be recorded or held by the grantor or grantee until the time of death, and, if not recorded, whether a potential for fraud is created and what effect the recordation of a beneficiary deed would have on the transferor’s property rights after recordation. The CLRC issued its recommendation in October 2006, noting that while the deed has advantages and disadvantages, “creation of a TOD deed would be beneficial in California.”
In 2009, the National Conference of Commissioners on Uniform State Laws finalized a Uniform Real Property Transfer on Death Act, which provides a simple procedure for the transfer of real property outside of probate. That Act has been enacted in eight states, and 19 other states have enacted various acts for the same purpose. This bill is not based on that Act but, instead, maintains the CLRC recommended proposal with modifications from each legislative attempt to enact it.
Accordingly, this bill would create a method and mandatory form for the transfer of real property upon the death of the transferor. This bill is substantially similar to AB 250 (DeVore, 2007), which incorporated recommendations of the CLRC and failed passage in this Committee on a vote of 1-3. This bill is also substantially similar to AB 724 (DeVore, 2010), which failed passage in the Senate Appropriations Committee. This bill is also substantially similar to AB 699 (Wagner, 2011), which failed passage in this Committee on a vote of 1-4.
CHANGES TO EXISTING LAW
Existing law provides various methods by which a person may transfer his or her real property interests to another person upon death, such as through a will (Prob. Code Sec. 6100 et seq.), a trust (Prob. Code Sec. 15000 et seq.), a joint tenancy with right of survivorship (Civ. Code Sec. 683), community property with right of survivorship (Civ. Code Sec. 682.1), an intervivos transfer with reserved life estate (Tennant v. John Tennant Memorial Home (1914) Cal. 570.), and a nonprobate transfer (Prob. Code Secs. 13000, 13500).
Existing law provides that, unless otherwise provided, when one spouse dies intestate leaving property that passes to the other spouse, or dies testate and by will leaves the property to the surviving spouse, the property passes to the surviving spouse, as specified, and no probate administration is necessary. (Prob. Code Sec. 13500.)
Existing law provides that title to a decedent’s property, subject to probate administration and the rights of beneficiaries, creditors, and other persons as provided by law, passes on the decedent’s death to the person to whom it is devised in the decedent’s last will or, in the absence of such a devise, to the decedent’s heirs as prescribed in the laws governing intestate succession. (Prob. Code Secs. 7000, 7001.)
Existing law authorizes a successor of the decedent (a beneficiary) to collect personal property of the decedent from the holder of the property through an affidavit procedure, which requires, among other things, the successor to declare under penalty of perjury that no other person has a superior right to the interest of the decedent in the described property, and, if the decedent’s estate includes real property, an inventory and appraisal of the real property must be attached to the affidavit. (Prob. Code Secs. 13100, 13101, 13103.) That procedure can be utilized after 40 days have elapsed since the date of the decedent’s death, the total gross fair market value of the decedent’s real and personal property is $150,000 or less (a “small estate”), and there has been no probate administration. (Prob. Code Sec. 13100.)
Existing law authorizes a person claiming to be a successor of the decedent to petition the court for transfer of a particular item of real property, if 40 days have elapsed since the death of the decedent, without procuring letters of administration or awaiting probate of the will, and requires the petitioner to complete an affidavit declaring, among other things, that the real property is valued at $50,000 or less and no other person has a superior right to the interest of the decedent in the described property. (Prob. Code Sec. 13151.) Existing law also requires the petitioner to attach an inventory and appraisal of all of the decedent’s real property. (Id.)
Existing law authorizes a successor of the decedent to complete an affidavit, not earlier than six months after the date of the decedent’s death, to be filed with the clerk of the court, for transfer of one or more particular items of a decedent’s real property in an amount of $50,000 or less if the gross fair market value of the decedent’s real and personal property in this state does not exceed $150,000, an inventory and appraisal of the real property is attached to the affidavit, and the successor declares, among other things, that the funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid. (Prob. Code Sec. 13200.)
Existing law also authorizes the trustee of a trust, which is considered a beneficiary of the deceased settlor, to utilize these procedures to transfer an item of real or personal property of the decedent into the trust. (Prob. Code Sec. 13051(b).)
Existing law makes the successor personally liable to unsecured creditors for the debts of the decedent, any person having a superior right to the property by testate or intestate succession from the decedent, and liable to the estate. (Prob. Code Secs. 13204, 13205, and 13206.)
Existing law provides that, when a husband or wife dies intestate leaving property that passes to the surviving spouse, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse, the property passes to the survivor subject to creditors and claimants, and no administration is necessary. (Prob. Code Sec. 13500.)
Existing law, after 40 days from the death of a spouse, provides to the surviving spouse or the personal representative, guardian of the estate, or conservator of the estate of the surviving spouse, full power to sell, convey, lease, mortgage, or otherwise deal with and dispose of the community or quasi-community real property, and the right, title, and interest of any grantee, purchaser, encumbrancer, or lessee shall be free of rights of the estate of the deceased spouse or of devisees or creditors of the deceased spouse to the same extent as if the property had been owned as the separate property of the surviving spouse. (Prob. Code Sec. 13540.)
Existing law makes the surviving spouse personally liable for the debts of the decedent. (Prob. Code Sec. 13550.)
Existing law provides that a surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, as are granted to and imposed upon a widow or a widower. (Fam. Code Sec. 297.5.)
Existing law permits the nonprobate transfer of property on death, including an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature. (Prob. Code Sec. 5000.)
Existing case law provides for the nonprobate transfer of real property insofar as persons may execute a revocable deed to a beneficiary while reserving a life estate. (Tennant v. John Tennant Memorial Home (1914) Cal. 570.)
Existing law provides that upon the death of one joint tenant, real property held in joint tenancy with right of survivorship vests immediately in the surviving joint tenant or tenants. (Civ. Code Sec. 683.)
Existing law provides that, if a transferee under a will, trust, deed, or other instrument fails to survive the transferor or is treated as if the transferee predeceased the transferor, or fails to survive a future time, the transfer does not lapse but instead passes to the issue of the deceased transferee, except as otherwise provided. (Prob. Code Sec. 21110.)
This bill would establish a new nonprobate transfer instrument, the revocable transfer on death (TOD) deed, for use as specified to transfer real property upon a transferor’s death. Specifically, this bill would:
define the instrument, the simple revocable TOD deed, which would transfer real property to a named beneficiary upon the death of the transferor outside of probate, and establish the rules for the making and the revocation of the instrument;
provide a mandatory statutory form of a revocable TOD deed containing the required information, instructions, and answers to a long list of “commonly asked questions” about the instrument;
establish rules regarding the effect of the execution and recordation of a revocable TOD deed, and their interaction with other types of instruments;
establish rules for a revocable TOD deed beneficiary’s liability for the debts of a transferor, including rules for when an action is filed based on the debts, rules for the beneficiary’s liability for restitution under specified circumstances, who may bring an action to enforce the beneficiary’s liability, and payment of costs for a proceeding to enforce the beneficiary’s liability;
establish rules regarding the effectuation of the property transfer, and a beneficiary’s standing vis á vis a distributee under a final order of distribution if the property was probated;
establish rules for a contest involving the revocable TOD deed;
allow only a personal representative to enforce liability of a beneficiary of a revocable TOD deed or any other beneficiary of a decedent with a small estate, to the extent necessary to protect heirs, devisees, and creditors of the transferor-decedent, and, as to creditors, provide for recovery of the reasonable cost of a proceeding under this provision as an extraordinary service by the personal representative or the attorney of the decedent’s estate; and
make other conforming changes.
This bill would direct the California Law Revision Commission to study the effect of the revocable TOD deed as established by this bill and to report to the Legislature on or before January 1, 2020, with specific instructions to study:
whether the revocable TOD deed is working effectively;
whether the revocable TOD deed should be continued;
whether the revocable TOD deed is subject to misuse or misunderstanding;
what changes should be made to the revocable TOD deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding; and
whether the revocable TOD deed has been used to perpetuate financial abuse on property owners and, if so, how the law should be changed to minimize this abuse.
This bill would sunset on January 1, 2021, however, the sunset would not affect the validity or effect of a revocable TOD deed that is executed before January 1, 2021, and would not affect the authority of the transferor to revoke a TOD deed.
COMMENT
1. Stated need for the bill
The author writes:
California law offers individuals several mechanisms to transfer real property to a chosen beneficiary at death. Those mechanisms include, but are not limited to, a will, trust, joint tenancy, and community property. While some of the available mechanisms must happen during the property owner’s lifetime, others happen upon death, and each vary in the cost and ease of transfer, revocability options, ownership rights, effect on Medi-Cal eligibility, and availability to creditors.
The most common form of real property transfer upon death, a will, must pass through probate, a lengthy legal process that involves proving in court that a deceased person’s will is valid, inventorying and appraising property, and paying debts and taxes. The process is often grueling, can take up to a year, and often results in statutory probate fees in the thousands of dollars. Similarly, establishment of a revocable trust can cost upwards of $2,000. For seniors and individuals whose estate consists primarily of the home, the money to establish a trust is out of the question.
Although other estate planning options are available to property owners, the [revocable transfer on death deed (revocable TOD deed)] is the most simple and inexpensive transfer mechanism on the market today. Furthermore, it may be the only tool available to unmarried homeowners who wish to leave their property to a lifelong partner, family member, friend or loved one upon death, but who do not want to transfer present interest (such as joint tenancy) or cannot afford to set up a trust. Some families attempt to pass real property to a family member by adding the recipient’s name to the title as a joint tenant with rights of survivorship. The property will pass to the recipient at the death of the joint owner, but there are also significant consequences during the owner’s life, such as exposing the property to the joint tenant’s creditors, and gives the joint tenant the power to approve or disapprove a sale.
2. Addressing concerns of elder and dependent adult financial abuse
Existing law provides various protections against elder and dependent adult financial abuse. Prior attempts to enact the revocable TOD deed raised various concerns about the ability for bad actors to utilize this deed to take advantage of an elder or dependent adult. California’s dramatically high home values make its elders and dependent adults particularly attractive to individuals looking to prey on this population. According to the California Association of Realtors, “Housing Market Update, Monthly Sales and Price Statistics June 2015,” the average real property value in California ranges from $170,000 in Glen County (Central Valley) to $1.375 million in San Francisco.
Proponents state that the target population of the revocable TOD deed is senior citizens who are looking for a simple and inexpensive way to give away their one asset, their home. Notably, the transfer on death instrument would be most beneficial for small estates, particularly situations where there is one owner and one beneficiary, or between committed partners who are not married or do not have a civil union, or those who do not need the tax benefits of a living trust. (Attorneys Title Guarantee Fund, Transfer on Death Instrument: Advantages and Disadvantages (Sept. 21, 2011) <https://www.atgf.com/underwriting/news/transfer-death-instrument-advantages-and-disadvantages> [as of June 29, 2015].) For example, a widow might create a TOD deed to transfer her sole asset, a house, to her only child as the beneficiary. (Id.) This would ensure that the widow retains rights in her house during her lifetime. (Id.) On her death, the house would transfer to her child while avoiding the delay of probate. A TOD deed can avoid the complexity and expenses of a living trust and the disadvantages. (Id.)
Ohio enacted revocable TOD deed statutes in 2000, which were subsequently repealed in 2009 in favor of a transfer on death affidavit, and has multiple examples of elder financial abuse concerns arising from TOD deeds. In Treadway v. Free Pentecostal Pater Ave. Church of God, Inc. (2008) 2008-Ohio-1663, the grandchildren of the decedent challenged the will and TOD deeds of their grandmother that made the preacher’s daughter of a local church the beneficiary of the grandmother’s assets and real property. In Treadway, the preacher’s daughter took over care of the grandmother during her decline from cancer, and the grandchildren alleged they were restricted from visiting their grandmother during her declining health. (Id., pp. 2-3.) During this time, the caretaker was appointed by the grandmother on two different trips to attorneys’ offices as the grandmother’s attorney-in-fact, estate executor, and beneficiary of several TOD deeds. (Id, p. 2.) The court held that the grandchildren, who would have, in a prior version of the grandmother’s will, inherited from the grandmother’s estate if their father predeceased their grandmother, lacked standing to contest the will because their future interest had not vested (their father was still alive), and the trial court lacked subject matter jurisdiction since any failed gift to the caretaker would have reverted to the estate, which fell under the jurisdiction of the probate court. Otherwise, since the grandchildren were not personal representatives (the caretaker was the executor), they had no standing to challenge the TOD deed transfers. (Id., pp. 11-12.)
In another Ohio case, Hamblin v. Daugherty (2007) 2007-Ohio-5893, the decedent’s will provided for equal distribution of the decedent’s estate to his three daughters; however, only one of the daughters received the decedent’s property, which was transferred automatically outside of probate and included three parcels of the decedent’s real property transferred through a TOD deed prepared by an attorney employer of the beneficiary daughter. The two daughters who received no property challenged the transfers, including a claim that the TOD deed transferring the three parcels was executed by the decedent on a day in which he was in the hospital having surgery. (Id., p. 13.) The contesting daughters, after several appeals, were ultimately successful in proving undue influence, and the property was ordered to be included in the decedent’s estate. (Hamblin v. Daugherty (2008) 2008-Ohio-5306.)
As demonstrated by the Ohio cases, this bill may have the potential to encourage and enable adult and elder financial abuse. This bill would provide that the transferor is not required to deliver a revocable TOD deed to the beneficiary, and the beneficiary is not required to accept the deed from the transferor, during the transferor’s life. (Proposed Sec. 5624 (b) and (c).) Illinois, a state that has adopted a revocable transfer on death instrument (not a deed), requires acceptance by a beneficiary prior to transfer of the property, which is missing from most other state statutes and the Uniform Real Property Transfer on Death Act adopted by the National Conference of Commissioners on Uniform State Laws. This safeguard was included to let the beneficiary decide whether he or she wants to take title to the property, particularly if it has environmental problems or building code violations. (C. Brown, The Transfer on Death Instrument Comes to Illinois (Dec. 2011) Illinois State Bar Association <http://www.isba.org/ibj/ 2011/12/thetransferondeathinstrumentcomesto> [as of June 29, 2015].)
Illinois primarily relied on the Uniform Real Property Transfer on Death Act adopted by the National Conference of Commissioners on Uniform State Laws, but made additional revisions to the uniform act, including limiting its application to residential real estate transfers. According to the Illinois Bar Association, “[t]he uniform act and other state statutes do not limit the type of real estate that can be transferred, the [Illinois State Bar Association] drafters believed the greatest demand for this type of instrument was where the client’s only real estate is a principal or vacation residence. Although the scope of the act may be expanded, the limitation to residential real estate allows the title industry, recording officials, and the practicing bar to become familiar with the act and its application.” (C. Brown, The Transfer on Death Instrument Comes to Illinois (Dec. 2011) Illinois State Bar Association <http://www.isba.org/ibj/2011/12/ thetransferondeathinstrumentcomesto> [as of June 29, 2015].)
In order to incorporate additional protections discovered as necessary in other states and to address elder and dependent adult financial abuse concerns, the author offers amendments in Committee to:
authorize a direct contest for disqualification of a beneficiary under the presumption of fraud or undue influence statutes so that an individual who was not appointed as the executor or personal representative (such as in Treadway v. Free Pentecostal Pater Ave. Church of God, Inc.) has standing to challenge the validity of the transfer;
limit the application of the bill to only residential real property, units in residential cooperatives, or, condominium units, or a single tract of agriculture real estate consisting of 40 acres or less which is improved with a single family residence, which more effectively provides for the transfer of a person’s home without the additional, and, arguably, unnecessary ability to transfer commercial real estate; and
allow the beneficiary of the deed to disclaim the transfer in case the beneficiary does not want the property.
Author’s amendments:
On page 20, strike lines 12 through 21 and insert:
5610. “Real property” means real property improved with not less than one nor more than four residential dwelling units, units in residential cooperatives; or, condominium units, including the limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit; or a single tract of agriculture real estate consisting of 40 acres or less which is improved with a single family residence.”
On page 29, in line 18, strike and replace “Except as provided in paragraph (2)” with “Subject to the beneficiary’s right to disclaim the transfer”
On page 35, in line 3, strike the text after “(a)” and lines 4 through 6, and insert:
(1) An action for the disqualification of a beneficiary under Part 3.7 (commencing with Section 21360) of Division 11 may be brought to contest the validity of a transfer of property by a revocable transfer on death deed.
(2) An action to contest the validity of a transfer of property by a revocable transfer on death deed may be filed by the transferor’s personal representative or an interested person under Part 19 (commencing with Section 850) of Division 2.
Additionally, the California Assessors’ Association, Executive Committee of the Trust and Estate Section of the State Bar or California (TEXCOM), and the California Advocates for Nursing Home Reform raised various concerns regarding notarization, testamentary capacity, and instructions attached to the TOD deed form. Accordingly, this bill was previously amended as follows:
instead of the lower standard of “testamentary capacity” requirement in prior TOD deed bills, the amendments instead authorize an owner of real property who has the capacity to contract to make a revocable TOD deed;
requires the TOD deed to be notarized;
clarifies the TOD deed form and common questions sections on the form to require the legal description of the property, the full name of the beneficiary and relationship of the beneficiary to the transferor, and require the TOD deed to contain the exact name of the transferor as it appears on the title documents of the property;
clarifies the TOD deed common questions section as to how to revoke the TOD deed, what happens if the transferor creates a new document that disposes of the property, as well as liability for Medi-Cal reimbursement;
strikes a provision that would have provided the bill would not invalidate a deed otherwise effective to convey title to the property that is not recorded until after the death of the owner;
provides anti-lapse provisions, modeled after the Uniform Real Property Transfer on Death Act, to clarify that if a beneficiary is not living at the time the property transfers to a beneficiary, the interest lapses; if there are multiple beneficiaries that survive the transferor, they take the property as tenants in common, in equal shares, and the share of a beneficiary that fails or lapses is transferred to the other beneficiaries in equal shares;
clarifies that if the property is restored to the transferor’s estate, as specified, the property is treated as a specific gift and any proceeds remaining from the sale of the property after the payment of creditor’s claims are returned to the beneficiary; and
revises the contest statutes of limitations and contests of the conservator or guardian of a transferor prior to the transferor’s death.
These amendments significantly narrow the bill, provide greater protection from bad actors, and clarify the use of the TOD deed form so that individuals are better informed about the requirements and effects of the deed.
3. Public and private creditors: beneficiary is personally liable for transferor’s debts
Under this bill, a creditor of the transferor who has an encumbrance or lien of record against the property transferred by a revocable TOD deed has priority over a creditor of the beneficiary, regardless of whether the beneficiary incurred the obligation before or after the transferor’s death and regardless of whether the obligation is secured or unsecured, voluntary or involuntary, recorded or unrecorded. (Proposed Sec. 5670.)
A beneficiary is personally liable to a creditor for the unsecured debts of the transferor, to the extent provided under the bill. (Proposed Sec. 5672.) Because the goal of the revocable TOD deed is to transfer property directly and, thus, avoid probate, the only mechanism for collecting on outstanding liabilities of the estate of the transferor would be a civil action against the revocable TOD deed beneficiary to restore or return the property so it may be liquidated and distributed to creditors.
Additionally, decedents may have received Medi-Cal services for several years prior to death. Typically, the Department of Health Care Services (DHCS) collects the costs of medical services from the decedent’s estate, which in many instances consists only of the decedent’s home. This bill would allow the decedent’s home to pass to a beneficiary, subject to a Medi-Cal reimbursement claim, which may result in costly litigation by DHCS to collect from an uncooperative TOD deed beneficiary. Although the beneficiary of a TOD is still responsible for any debts associated with the estate, there is no mechanism, outside of civil action, for collecting outstanding debt. For individuals with no will and no person available to act as estate administrator, the public administrator would be appointed, and neither public administrator offices, nor counties, can afford to pay for a civil proceeding to collect debt that would have otherwise been awarded in the probate process.
However, this bill is similar to the other non-probate process for transferring title of a small estate ($150,000 or less), which also makes the petitioning party liable for creditor claims. Alternatively, if the property is transferred through a trust, creditors are severely limited in their ability to collect on debts until the trustee initiates a creditors claims process, which the trustee may, but is not required, to perform. (Prob. Code Sec. 19000, et seq.)
4. Recordation requirement
This bill requires the revocable TOD deed to be recorded within 60 days of its execution and notarization. Although Ohio has no recordation deadline, it’s courts have determined that public policy supports the requirement that a TOD deed be recorded before the death of the grantor because the designation of a TOD beneficiary can be revoked or changed at any time, without the consent of the beneficiary, by the owner’s executing and recording a deed to one or more persons, including the owner, with or without the designation of another TOD beneficiary, so the requirement that the deed be recorded before the grantor’s death helps alleviate concerns about fraud and undue influence, and the formality of the recording process helps ensure that the owner intended to make the transfer. (Mattia v. Hall (2008) 2008 Ohio 180.)
5. Sunset and report requirement
This bill contains a sunset date of January 1, 2021, and as of that date would be repealed unless another bill extended or removed the sunset. Importantly, this bill also requires the CLRC, by January 1, 2020, to study the utility and potential problems with the revocable TOD deed after it has been enacted, and report its findings to the Legislature for its consideration in extending or removing the sunset. These provisions will help the Legislature determine whether the concerns regarding elder and dependent adult financial abuse have been realized or whether the TOD deed is working as intended.
Support: AARP California; California Communities United Institute; California Senior Legislature; Conference of California Bar Associations; Howard Jarvis Taxpayers Association
Opposition: California Advocates for Nursing Home Reform
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation:
AB 699 (Wagner, 2011) See Background; Comment 2.
AB 724 (DeVore, 2010) See Background; Comment 2.
AB 250 (DeVore, 2007) See Background; Comment 2.
AB 12 (DeVore, Chapter 422, Statutes of 2005) See Background; Comment 2.
Prior Vote:
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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AB 139
Page 2
Date of Hearing: March 25, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB 139
(Gatto) – As Amended March 5, 2015
Policy Committee: |
Judiciary |
Vote: |
10 - 0 |
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Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill, until January 1, 2021, establishes a new, non-probate method for conveying real property upon death through a "revocable transfer upon death deed" (RTDD). Specifically, this bill:
Allows an interest in real property to be transferred on death by recording a RTDD signed and acknowledged by the record owner of the property and designating a beneficiary or beneficiaries. The deed transfers ownership of that property interest upon the death of the owner.
Provides an RTDD form in statute, and provides a statutory form for revocation of an RTDD. The RTDD form provides information to the transferor, including explaining how the RTDD works, how it is effectuated and some of its consequences.
Provides that property subject to RTDD is still part of transferor's estate for purposes of Medi-Cal eligibility and will be subject to Medi-Cal reimbursement claims.
Requires the California Law Revision Commission (CLRC) to study the impacts of RTDDs and report its findings and recommendations to the Legislature by January 2020.
FISCAL EFFECT:
Absorbable costs for the CLRC’s study and report.
Potential minor savings in probate court costs and backlogs.
COMMENTS:
Background and Purpose. AB 12 (DeVore)/Chapter 422 of 2005, directed the CLRC to study California's non-probate transfer provisions and determine whether California should enact a beneficiary deed--a deed which transfers real property outside of probate upon death of the transferor. In October 2006, the CLRC issued its recommendation that California adopt a revocable transfer on death deed, noting that while the deed has advantages and disadvantages, creation of such a deed would, on the whole, be beneficial in California.
According to the author, "Unlike California, more than twenty other states, including Oregon, Washington, Colorado, Illinois, and Arizona, offer what is called a “Revocable Transfer on Death” Deed. The tool is a nonprobate mechanism for transferring property directly to one (or more) beneficiaries… Although other estate planning options are available to property owners, the Revocable Transfer on Death Deed is the most simple and inexpensive transfer mechanism on the market today. Furthermore, it may be the only tool available to unmarried homeowners who wish to leave their property to a lifelong partner, family member, friend or loved one upon death, but who do not want to transfer present interest (such as joint tenancy) or cannot afford to set up a trust."
Prior Legislation. Three very similar bills—AB 699 (Wagner, 2011), AB 724 (Devore, 2009-10, and AB 250 (Devore, 2007)—have passed the Assembly but failed in the Senate.
Opposition. California Escrow Association and California Land Title Association believe that if this bill becomes law, RTDDs “will become the new form of easy, convenient, and cheap elder abuse.” In addition, they believe the RTDD is complex and, when used by transferors without advice from legal counsel, could well create confusion and ambiguity that could cloud the property’s title.
Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081
AB 139
Page 9
Date of Hearing: March 17, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 139
(Gatto) – As Amended March 5, 2015
SUBJECT: Non-probate transfers: revocable transfer upon death deeds
KEY ISSUES:
Should owners of real property be PERMITTED to transfer their property on death outside of probate through a “ReVOCABLE TRANSFER UPON DEATH DEED"?
Might this bill INADVERTENTLY make estate planning more complicated by creating yet another non-probate device WHICH could add CONFUSion to THE ESTATE PLANNING PROCESS and make FINANCIAL abuse easier to commit?
SYNOPSIS
This bill, following recommendations by the California Law Revision Commission (CLRC), allows owners of real property, until January 1, 2021, to transfer their property upon death, outside the normal probate procedure, through a written instrument known as a "revocable transfer upon death deed” (RTDD). Very similar bills – AB 699 (Wagner, 2011), AB 250 (DeVore, 2007) and AB 724 (DeVore, 2009-10) – passed out of this Committee and the Assembly, but failed passage in the Senate.
In 2005, legislation directed the CLRC to study California's non-probate transfer provisions, as well as beneficiary deeds in other states, in order to determine whether California should enact legislation statutorily creating a beneficiary deed. In recommending creation of an RTDD in California, the CLRC balanced the generally positive, although limited, experience of other states, the need for a simple, low-cost method of conveying real property with the very real concerns of possible misuse or abuse raised by opponents of the RTDD. In order to address some of the opponents' well-founded concerns, the CLRC recommended that California undertake a comprehensive review of all non-probate transfers and their consequences. However, in the interim, the CLRC recommended that California establish a carefully crafted RTDD.
As recommended by the CLRC, this bill establishes a new, non-probate method for conveying real property upon death through an RTDD that is signed and recorded within 60 days of execution. The RTDD, which requires use of a statutorily created deed, does not affect any ownership rights during the transferor's lifetime, nor does it convey any rights to the beneficiary or the beneficiary's creditors during the transferor's lifetime. It may be revoked at any time by a subsequently recorded document that revokes the RTDD or disposes of the property.
The bill is supported by California Communities United Institute and the Conference of California Bar Associations, who believe that the bill provides seniors with a simple, no cost method to transfer property to their heirs.
The bill is opposed by the California Land Title Association and the California Escrow Association, who argue that the bill "creates risks that put California’s most vulnerable group – senior citizens – at great risk for real property fraud.”
SUMMARY: Seeks to establish, until January 1, 2021, a new, non-probate method for conveying real property upon death through a "revocable transfer upon death deed.” Specifically, this bill:
Allows an interest in real property to be transferred on death by recording an RTDD signed and acknowledged by the record owner of the property and designating a beneficiary or beneficiaries. The deed transfers ownership of that property interest upon the death of the owner. Is effective for any RTDD made by a transferor who dies on or after January 1, 2016, regardless of when the RTDD was executed or recorded. No RTDD may be executed on or after January 1, 2021, but any RTDD properly executed before that date remains valid and may be revoked after that date.
Requires that to be valid an RTDD must be recorded within 60 days of execution.
Provides that an RTDD does not affect any ownership rights during the transferor's lifetime, nor does it convey any rights to the beneficiary or the beneficiary's creditors during the transferor's lifetime. An RTDD is not effective until the transferor's death.
Provides a statutory form RTDD and requires that an RTDD must be in that form. The statutory deed provides information to the transferor, including explaining how the RTDD works, how it is effectuated and some of its consequences.
Provides a statutory form for revocation of an RTDD.
Provides that an RTDD may have multiple beneficiaries, who take in equal shares as tenants in common, but does not provide for alternate beneficiaries. The RTDD does not provide for class gifts, e.g., gifts to the transferor's unnamed grandchildren.
Provides that an RTDD is revocable at any time by a transferor with testamentary capacity. If an RTDD and another revocable instrument have both been recorded and both purport to dispose of the same property, the instrument that has been executed later prevails. If two deeds – one revocable and one irrevocable – are both recorded, the irrevocable deed prevails, even if recorded earlier.
Provides that an RTDD must transfer all the transferor's interest in the property.
Provides that property subject to an RTDD is still part of the transferor's estate for purposes of Medi-Cal eligibility and will be subject to Medi-Cal reimbursement claims. Property subject to an RTDD is subject to claims from the transferor's secured and unsecured creditors. Allows the beneficiary to avoid unsecured claims by returning the property to the transferor's estate.
Requires the beneficiary to effectuate transfer of the property by recording an affidavit of the transferor's death.
Provides that, if property is held in joint tenancy or as community property with right of survivorship when the transferor dies, the transfer is void and the property passes pursuant to the right of survivorship. Provides, in the information accompanying the statutory deed, that if a transferor wants to sever the joint tenancy and not have the property pass through right of survivorship rules, the transferor cannot use the RTDD.
Permits contest of the RTDD for, among other things, lack of capacity to transfer, transfer to disqualified person, fraud, duress, and undue influence.
Requires the CLRC to study the effects of the RTDD and make recommendations to the Legislature by January 1, 2020.
EXISTING LAW:
Directs the California Law Revisions Commission to study the effect of California's non-probate transfer provisions and statutes in other states that establish beneficiary deeds as a means of conveying real property through non-probate transfers, with the objective of determining whether such legislation should be enacted in California. (AB 12 (DeVore), Chap. 422, Stat. 2005.)
Permits the non-probate transfer on death of non-real property instruments including an insurance policy, contract of employment, bond, mortgage, promissory note, certified or uncertified security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature. (Probate Code Section 5000.)
Provides that upon death of one joint tenant, real property held in joint tenancy with right of survivorship vests immediately in the surviving joint tenant or tenants. (Civil Code Section 683.)
Provides for the non-probate transfer of real property insofar as persons may execute a revocable deed to a beneficiary while reserving a life estate. (Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570.)
Provides that, if a transferee under a will, trust, deed or other instrument fails to survive the transferor, transfer does not lapse but passes to the issue (decedents) of the transferee if the transferee is related to the transferor or the transferor's spouse. (Probate Code Section 21110.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: In 2005, the Legislature passed AB 12 (DeVore), Chap. 422, Stat. 2005, which directed the CLRC to study California's non-probate transfer provisions and determine whether California should enact a beneficiary deed – a deed which transfers real property outside of probate upon death of the transferor. In October 2006, the CLRC issued its recommendation that California adopt a revocable transfer on death deed, noting that while the deed has advantages and disadvantages, creation of such a deed would, on the whole, be beneficial in California. AB 250 (DeVore, 2007), AB 724 (DeVore, 2009-10) and AB 699 (Wagner, 2011) sought to implement the recommendations of the CLRC and create an RTDD in California. All three bills passed out of the Assembly, but failed passage in the Senate. This bill is nearly identical to those bills, except that it does not allow for a life estate as part of an RTDD.
In support of the bill, the author writes:
Unlike California, more than twenty other states, including Oregon, Washington, Colorado, Illinois, and Arizona, offer what is called a “Revocable Transfer on Death” Deed. The tool is a nonprobate mechanism for transferring property directly to one (or more) beneficiaries. Under a TOD Deed, the property owner retains full power and control over the property, and the deed must be recorded to have effect. The owner may revoke, at any point, the TOD Deed by executing either another TOD Deed, thus naming a different beneficiary, or by executing a revocation tool. Like the TOD Deed, the revocation must also be recorded to take effect. Operating in the same manner as a will, the new TOD Deed does not transfer or create any new interest in the property until the transferor’s death, which may not occur until years later. Furthermore, unlike simply adding someone to the property title, a TOD Deed does not create a new tax liability for the beneficiary. Upon the owner’s death, the title vests in the beneficiary, subject to all interests affecting the title to which the owner was subject (such as Medi-Cal reimbursement).
Although other estate planning options are available to property owners, the Revocable Transfer on Death Deed is the most simple and inexpensive transfer mechanism on the market today. Furthermore, it may be the only tool available to unmarried homeowners who wish to leave their property to a lifelong partner, family member, friend or loved one upon death, but who do not want to transfer present interest (such as joint tenancy) or cannot afford to set up a trust.
California Law Revision Commission Study: As directed by the Legislature, the CLRC conducted a study to determine whether a beneficiary deed should be statutorily created in California. In particular, the Legislature asked the CLRC to address the following specific issues:
(1) Whether and when a beneficiary deed would be the most appropriate non-probate transfer mechanism to use, if a beneficiary deed should be recorded or held by the grantor or grantee until the time of death, and, if not recorded, whether a potential for fraud is created.
(2) What effect the recordation of a beneficiary deed would have on the transferor's property rights after recordation.
(3) How a transferor may exert his or her property rights in the event of a dispute with the beneficiary.
(4) Whether it would be more difficult for a person who has transferred a potential interest in the property by beneficiary deed to change his or her mind than if the property were devised by will to the transferee or transferred through a trust or other instrument.
(5) The tax implications of a beneficiary deed for the transferor, the transferee, and the general public as a result of the non-probate transfer, including whether the property would be reassessed and if tax burdens would shift or decrease.
The CLRC began its study by reviewing existing options for transferring real property at death. These methods include transfer by will or intestate succession, trust, survivorship rights created by joint tenancy or community property, transfer with a reserved life estate, and a revocable transfer deed as recognized by Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570. Each of the methods of transfer has its advantages and disadvantages. For example, a will generally requires probate, which is a time consuming and costly way to transfer property. A trust is expensive to set up, particularly if the sole purpose is to convey one piece of property. Joint tenancy with right of survivorship creates immediate property interests in all the joint tenants. A current transfer, with a reserved life estate for the transferor, is nonrevocable, preventing the transferor from later changing his or her mind. A revocable deed under Tennant has been used rarely and its legal consequences are not fully understood.
At the time of the CLRC study, nine other states, including Colorado, New Mexico, Ohio and Wisconsin, statutorily recognized an RTDD. (Today eleven additional states have statutorily authorized RTDDs.) The CLRC's investigation revealed minor difference between the states' RTDDs and found that practitioners generally liked having the option of the RTDD. However, most of the statutes were too new to provide evidence of their effectiveness or of their susceptibility to misuse or abuse.
The CLRC then focused on the operational issues of how an RTDD should work. The result is the very detailed statutory rules set out in this bill. They govern how an RTDD is established, revoked and challenged, rights of creditors, including Medi-Cal reimbursement rights, and how the transfer works for property held jointly. Detailed provisions are set out above.
Finally, the CLRC considered public comments. Generally groups that provide legal assistance to seniors favor creation of the RTDD. These groups argue that seniors on a limited income needed a low-cost, simple method of transferring real property. An RTDD, they contend, will help individuals avoid both probate and trust mills, which can be costly and inefficient, especially for a small estate containing only a single family home. Other professionals, including judges, attorneys, lenders and title companies had more reservations. They noted that while an RTDD creates a quick and low-cost way to transfer property, "it is not necessarily the safest or most reliable method of accurately ensuring the transferor's wishes are carried out as the transferor intended." (CLRC Report at 205.) They argued that, like a quitclaim deed that can be executed without an attorney, it can be abused and can help facilitate fraud on the transferor or his intended beneficiaries. Moreover, because it is so simple to use, it may be used inappropriately, without advice of counsel. Finally, they argue that the RTDD is just another device added to the proliferation of estate planning tools, resulting in further "confusion, inconsistency, litigation, and frustration for all involved." (CLRC Report at 206.)
In recommending creation of an RTDD in California, the CLRC balanced the generally positive, although quite limited, experience of other states, the need for a simple, low-cost method of conveying real property with the very real concerns raised by opponents of the RTDD. In order to address some of the opponents' well-founded concerns, the CLRC recommends that California undertake a comprehensive review of all non-probate transfers and their consequences. However, in the interim, the CLRC recommends that California establish a carefully crafted RTDD.
National Conference of Commissioners on Uniform State Laws Approves RTDDs and About Half the States Allow RTDDs: In 2009, the National Conference of Commissioners on Uniform State Laws approved a uniform act on RTDDs. At that time, 13 states had allowed some version of RTDDs. (National Conference of Commissioners on Uniform State Laws, Uniform Real Property Transfer on Death Act (2009).) Since that time, ten additional states plus the District of Columbia have adopted some version of the uniform act and at least another three states are considering it this year. Thus nearly half of the states permit use of RTDDs today.
This bill establishes a mandatory RTDD form. This bill establishes a mandatory form RTDD that must be used when executing an RTDD. The mandatory form prevents a transferor from using the RTDD if he or she wants to transfer his or her property other than as permitted by the form. Failure to use the statutory form does not necessarily invalidate the deed, but the provisions of this bill would not apply to such a deed. The transfer may still be valid under the Tennant case. The transferor can also dispose of his or her property through use of another testamentary instrument, such as a will or a trust.
Establishing a mandatory RTDD form has several advantages. It standardizes the form, which will help ensure that property owners who do not seek legal counsel may be able to successfully transfer property through use of an RTDD. It also makes implementation of the RTDD easier for title companies. In addition, the statutory deed informs transferors of their rights and the rights of their beneficiaries, and explains some of the pitfalls of the RTDD.
Some will argue that the RTDD should be designed to be more flexible, taking into consideration many possible wishes that a transferor may have and helping to effectuate them, particularly allowing the transferor to create a life estate. A life estate permits the holder to occupy the property exclusively during his or her lifetime. The property is then transferred automatically to the remainder beneficiaries on the death of the life tenant. Life estates can serve very useful estate planning purposes. For example, a homeowner, who has children from a prior marriage, can leave his house to his children, while still ensuring his second wife has a home to live for the remainder of her life. Previous versions of the bill allowed for a life estate. However, the Trusts and Estates Section of the State Bar had opposed the life estate provision, believing there were too many complicated considerations to allow a life estate to be accomplished by a form deed, and this bill does not permit the use of a life estate.
However, the statutory form, with its significant risks of misuse by those who do not consult with counsel when appropriate, may not be able to be everything to every transferor. Instead, the form attempts to help effectuate the most common wish of transferors with relatively simple property issues – to transfer the property to their beneficiaries. A transferor with more complicated needs should rightly consult with experts and transfer the property through other transfer options.
The RTDD provides for multiple beneficiaries, but not alternate beneficiaries. The RTDD provides for transfer to multiple beneficiaries who take their interest equally as tenants in common. The bill requires that the beneficiaries must be specifically named and cannot include a class of people, such as transfers to "my children and grandchildren." Most other states with RTDD also preclude class gifts. Prohibiting class gifts allows the title company to readily ascertain who the beneficiaries are, thus preventing delays or other complications in the transfer of title.
The bill specifically prevents the use of alternate beneficiaries should any named beneficiary predecease the transferor. As a result, the general rules of lapse come into play. Under California's lapse and anti-lapse rules, if a transferee under a will, trust, deed or other instrument fails to survive the transferor, the transfer does not lapse but passes to the transferee's issue (decedents) as long as the transferee is related to the transferor or the transferor's spouse. (Probate Code Section 21110.) If the transferee is not related, the transfer fails and the property comes back into the transferor's estate for disposition. While several of the states that have RTDDs have specifically prohibited application of anti-lapse rules to these deeds, the CLRC believes that "equity demands application of the anti-lapse principles" to RTDDs just as they apply to other testamentary gifts and that application of these principles is precisely what the majority of transferors would intend. (CLRC Report at 172.)
If, at the transferor's death, property is held jointly with right of survivorship, the RTDD is void. Under current law, when property is help by joint tenancy or by community property with right of survivorship and one of the joint tenants or spouses dies, the property passes, by operation of law, to the other joint tenant(s) or the surviving spouse. Absent severance of the joint tenancy, any attempt to transfer the property by the first joint tenant to die is ineffective. The property passes to the surviving joint tenant(s) or spouse.
The bill proposes to follow that general rule for the RTDD. All joint tenants or spouses can execute a separate RTDD. Only the RTDD of the last joint tenant or spouse to die will be effective. That last joint tenant or surviving spouse can always change his or her mind and revoke the RTDD since he or she owns the property free and clear. The bill and the statutory deed make clear that if property is held jointly with right of survivorship, an RTDD executed by the first to die will have no effect.
Will the bill have the unintended consequence of steering persons away from legal assistance that they may need? It is unclear what role lawyers will play in the execution and recording of these RTDDs. On the one hand, one author of a previous version of the bill suggests that the reform might allow real property owners to avoid lawyers altogether through the simple recording of a beneficiary deed. On the other hand, the primary criticism of the “trust mills” is that they minimize the role of lawyers, through the use of prefabricated trusts, when the input of a lawyer’s expertise is often necessary. The State Bar's Conference of Delegates passed a resolution in response to the original RTDD bill expressing concern that, in creating yet another “probate avoidance” device, the bill may have the unintended consequence of steering people away from needed legal assistance that can avoid unforeseen problems in estate planning.
An RTDD could increase the risk of financial abuse. A simplified RTDD could make it easier to commit financial abuse. Seniors could sign without realizing what they were signing or its consequences. Proponents of the bill counter that far simpler tools – such as a quitclaim deed which transfer all of a person's interest in real property to the beneficiary at execution – already exist that can cause far more harm. However, just because there are other tools to transfer property that are also subject to abuse, does not mitigate the fact that this new transfer tool could cause significant harm to unwary seniors and other property owners: There is a very real possibility that an RTDD could be used as a tool for financial abuse or could simply be misused by those who do not understand the transfer deed and all its implications.
This concern is highlighted by a story from an opponent of a previous version of the bill about his father whose live-in caregiver not only had him execute a new will making the caregiver his beneficiary but also made the caregiver his beneficiary on all pay on death accounts and executed a New Mexico RTDD in favor of the caregiver. While this case does indeed demonstrate how the RTDD can be misused and abused in the wrong hands, it also makes clear that existing methods of conveying property at death can be abused and why significant transfers to caregivers are particularly suspect.
In recognition of the risks associated with an RTDD, the bill directs the CLRC to study the effect of the RTDD in California and report back to the Legislature by January 1, 2020. The report must address the following issues: (1) whether the revocable transfer on death deed is working effectively; (2) whether the revocable transfer on death deed should be continued; (3) whether the revocable transfer on death deed is subject to misuse or misunderstanding; (4) what changes should be made to the revocable transfer on death deed or the law associated with the deed to improve its effectiveness and to avoid misuse or misunderstanding; and (5) whether the revocable transfer on death deed has been used to perpetuate financial abuse on property owners and, if so, how the law associated with the deed should be changed to minimize this abuse.
The bill also, by its own terms sunsets on January 1, 2021. RTDDs executed before that time would remain valid, but RTDDs executed after that date would not be valid. This sunset, together with the study by CLRC, should help minimize risks of abuse or misuse associated with the RTDD, but would not prevent such risks during the five years that RTDDs would be valid in California.
ARGUMENTS IN SUPPORT: In support of the bill, the Conference of California Bar Associations writes:
AB 139 will be of particular benefit to senior citizens whose estate consists primarily – or even exclusively – of the family home. There are thousands of elderly people throughout the state who are barely getting by, but whose home, purchased long ago and paid off, may be worth several hundreds of thousands of dollars. It also will be valuable to unmarried homeowners who wish to leave their home to their partner, loved one, or family member upon death, but do not want to transfer a present ownership interest in the property. Existing law offers these individuals no good options. Transfer by will (even a statutory or holographic will) makes the property subject to statutory probate fees of likely thousands of dollars. Establishing a revocable trust can cost well over $1,000 if done by a reputable attorney, and can place the prospective trustor at the mercy of scam artists and charlatans if not. Other alternatives generally suffer from problems of cost, complexity, tax implications, irrevocability, or a combination of all these issues.
ARGUMENTS IN OPPOSITION: California Escrow Association and California Land Title Association believe that if this bill becomes law, RTDDs “will become the new form of easy, convenient, and cheap elder abuse.” In addition, they believe the RTDD is complex and, when used by transferors without advice from legal counsel, could well create confusion and ambiguity that could cloud the property’s title.
REGISTERED SUPPORT / OPPOSITION:
Support
California Communities United Institute
Conference of California Bar Associations
Howard Jarvis Taxpayers Association
One individual
Opposition
California Escrow Association
California Land Title Association
Analysis Prepared by: Leora Gershenzon and Khadijah Hargett / JUD. / (916) 319-2334
Discussed in Hearing
53SEC
Assembly Floor
1MIN
Senate Floor
8MIN
Senate Standing Committee on Judiciary
12MIN
Assembly Standing Committee on Judiciary
Bill Author
