A California transfer on death deed lets you name a beneficiary who will receive your home directly when you die, without the property going through probate. To be valid, the deed must use the statutory form in Probate Code 5642, be signed in front of two witnesses who are present at the same time, be notarized, and be recorded with the county recorder within 60 days of notarization. Miss that 60-day window and the deed has no legal effect.1California Legislative Information. California Code PROB 5642 – Statutory Form for Revocable Transfer on Death Deed California’s TOD deed law is currently set to expire in 2032, so factor that timeline into your planning.
What Property You Can Transfer
Only certain residential real estate qualifies. Under Probate Code 5610, the deed can cover a property improved with one to four dwelling units, a condominium unit (including its allocated limited common elements), or a single agricultural parcel of 40 acres or less with a single-family residence on it.2California Legislative Information. California Probate Code 5610
Commercial property, vacant land, and larger agricultural parcels are out. So is a mixed-use building with five or more units. For property that doesn’t qualify, a living trust or another estate planning tool is the route to avoid probate.
How to Execute the Deed
You have to use the exact statutory form set out in Probate Code 5642. A custom deed or a generic transfer form will not work.
Fill in the legal description of the property and the name of your beneficiary. Your signature has to match the name on your existing title documents. Two witnesses must be physically present at the same time and either watch you sign or hear you acknowledge that it is your deed. The witness signatures themselves don’t need to be notarized, but yours does: a notary public acknowledges your signature separately.1California Legislative Information. California Code PROB 5642 – Statutory Form for Revocable Transfer on Death Deed
Do not use a beneficiary as a witness. While technically possible, it invites challenges that can invalidate the deed. Pick disinterested witnesses who have nothing to gain from the transfer.3San Diego County Assessor/Recorder/County Clerk. Revocable Transfer on Death (TOD) Deed FAQs
The 60-Day Recording Deadline
Take the signed, witnessed, and notarized deed to the recorder’s office in the county where the property is located. The 60 days runs from the date of notarization, not the date you signed. If you miss it, the deed is void and you have to start over with a new form.1California Legislative Information. California Code PROB 5642 – Statutory Form for Revocable Transfer on Death Deed Recording fees vary by county but are typically modest, generally in the range of $10 to $50.
Naming One or More Beneficiaries
You can name a single beneficiary or several. Multiple beneficiaries take the property as tenants in common, meaning each gets a separate share rather than joint ownership with survivorship rights. You can assign percentages; without them, the shares are equal.
The rules for a beneficiary who dies before you matter a lot. If all named beneficiaries predecease you, the deed has no effect and the property passes under your will or by intestacy as if you’d never created the deed. If some beneficiaries predecease you and others survive, the deceased beneficiary’s share is divided equally among the survivors. The statutory form itself warns that if this default isn’t what you want, you should not use the TOD deed and should look at other estate planning options.1California Legislative Information. California Code PROB 5642 – Statutory Form for Revocable Transfer on Death Deed
If You Co-Own the Property
Joint tenancy and community property with right of survivorship take priority over a TOD deed. If you are the first co-owner or spouse to die, your TOD deed is void, and the property passes to the surviving joint tenant or spouse under the existing title. The deed only takes effect if you are the last surviving owner.1California Legislative Information. California Code PROB 5642 – Statutory Form for Revocable Transfer on Death Deed
Each co-owner who wants a TOD beneficiary must complete and record their own separate deed. One spouse’s TOD deed does not reach the other spouse’s interest.
Changing Your Mind: Revoking or Replacing the Deed
You can revoke a TOD deed at any time during your life. The process mirrors the original: fill out a revocation form, have two witnesses present at the same time, notarize your signature, and record the revocation with the county recorder within 60 days of notarization. An unrecorded revocation has no effect.4San Diego County Assessor/Recorder/County Clerk. Revocation of Revocable Transfer on Death (TOD) Deed
There’s a shortcut for changing beneficiaries. Recording a new TOD deed on the same property automatically revokes any earlier TOD deed you made on it, so you don’t have to file a separate revocation first.1California Legislative Information. California Code PROB 5642 – Statutory Form for Revocable Transfer on Death Deed A co-owner’s revocation only affects that co-owner’s own deed and cannot revoke a deed made by another co-owner.
What the Deed Does Not Do
It Doesn’t Wipe Out Your Debts
A beneficiary who receives property through a TOD deed is personally liable for the deceased owner’s unsecured debts, enforceable in the same way the creditor could have enforced them against the original owner. The liability is capped at the fair market value of the property at the time of death, minus liens and encumbrances, plus any net income the beneficiary earned from the property after the transfer.5California Law Revision Commission. Revocable Transfer on Death (TOD) Deed
Creditors have three years from the transferor’s death to bring an enforcement action, with no tolling. Only the personal representative of the estate can bring it, and the court can enforce liability only to the extent needed to protect creditors. A beneficiary can also potentially avoid personal liability by returning the property to the estate for creditors if probate is opened.5California Law Revision Commission. Revocable Transfer on Death (TOD) Deed
It Doesn’t Prevent Property Tax Reassessment
Under Proposition 19, a family home transferred from a parent to a child keeps the parent’s existing assessed value only if the child moves in and uses it as a primary residence within one year and claims the homeowner’s exemption. For transfers between February 16, 2025 and February 15, 2027, the transferred value is capped at the parent’s assessed value plus $1,044,586; any market value above that combined figure is added to the tax base. The child must file Form BOE-19-P with the county assessor within three years of the transfer.6California State Board of Equalization. Proposition 19 Fact Sheet
If the beneficiary rents the property out or sells it instead of living there, the assessor reassesses at full market value. That property tax jump can offset a lot of the probate-avoidance benefit, so it’s worth thinking through before you sign.
It Doesn’t Trigger the Mortgage
If your home has a mortgage, the federal Garn-St Germain Act blocks the lender from calling the loan due when property with fewer than five units passes to a relative because of the borrower’s death.7Office of the Law Revision Counsel. 12 U.S. Code 1701j-3 – Preemption of Due-on-Sale Prohibitions The beneficiary keeps making the existing payments. They still inherit the debt, and missed payments can still lead to foreclosure.
Medi-Cal Estate Recovery
For Californians who died on or after January 1, 2017, Medi-Cal recovery is limited to assets that pass through probate. Because a TOD deed transfers the home outside of probate, the property generally isn’t reachable through a Medi-Cal recovery claim, which makes the deed useful for homeowners who received Medi-Cal benefits.8Medicaid.gov. Estate Recovery
States can still place liens on real property during the lifetime of a permanently institutionalized Medi-Cal enrollee, unless a spouse, minor child, or disabled child lives there. A lien recorded before death can complicate the transfer even though the TOD deed itself avoids probate.8Medicaid.gov. Estate Recovery
How a TOD Deed Can Be Challenged
After the owner’s death, a TOD deed can be attacked on grounds of lack of mental capacity or undue influence. The person contesting bears the burden of proof, which usually means showing that the owner didn’t understand what they were signing or was manipulated into executing the deed. Elderly owners are especially vulnerable, which is part of why the law requires both witnesses and notarization.
Procedural defects are easier to prove: failing to record within 60 days of notarization, using the wrong form, or missing a witness. A deed that wasn’t properly recorded essentially doesn’t exist, and the property will pass through probate as if it had never been signed.