You’ve just bought your first house. You’ve signed all the papers, written all the checks and now you are turning the knob on the front door and stepping into the pristine front hallway.
This is not usually a time you think of your eventual death, but you should still keep such an event in mind.
Why? Because one day you may want to pass this house along to a loved one. Such a laudable goal requires legal forethought and while there are several ways to make this happen, California lawmakers have enacted a law that makes it easier.
A transfer-on-death deed – also known as a beneficiary deed – is like a regular transfer deed with the caveat that it doesn’t happen until you die.
The transfer-on-death (TOD) deed consists of the current owner (you), a description of the property, the beneficiary’s name and a statement that the property won’t be transferred until your death. The beneficiary doesn’t have to sign anything or even be aware of the TOD deed.
You must file the TOD deed with the county land records office to make it official.
The beneficiary has no legal right to the property until your death or, if you’re married, until your spouse dies. You can also name an alternative beneficiary if you outlive the one you name in the TOD deed.
Because it is not a gift, it is not counted in the federal gift tax.
You retain ownership of the property, pay taxes on it, can sell it or take out other mortgages on it. It is not protected from creditors.
If you choose to revoke the TOD deed, you can do so at any time.
Other ways property is transferred
If you do not choose to file a TOD deed on your property, there are several ways your property will be transferred when you die.
If you are the sole owner, then the property will likely have to go through probate to determine who inherits it – either through your will or via state law.
If you have joint tenants, they will become the sole owners. If you are married, your spouse will become the sole owner. If you have formed a trust, the trust will become the owner.
There are also community property laws and tenancy in common laws that apply in California, but these don’t usually apply to homes.
If you are making a large purchase like your first home, it’s a good idea to review all your options with a qualified, experienced attorney.