BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                        Senator Ellen M. Corbett, Chair
                           2007-2008 Regular Session


          AB 250                                                 A
          Assembly Member  DeVore                                B
          As Amended June 16, 2008
          Hearing Date:  June 24, 2008                           2
          Family Code; Probate Code                              5
          GMO:jd                                                 0
                                                                 

                                     SUBJECT
                                         
            Nonprobate Transfers:  Revocable Transfer On Death (TOD)  
                                      Deed

                                   DESCRIPTION  

          The bill would create two new nonprobate property transfer  
          instruments, the "Simple Revocable Transfer on Death (TOD)  
          Deed" and the "Revocable Transfer On Death (TOD) Deed With  
          Life Estate," which would be effective upon death of the  
          transferor.

          The bill would:
           establish rules for the making and revocation of these  
            deeds, and provide mandatory statutory form deeds and one  
            form revocation for use by transferors of either deed;
           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 or  
            the revocable TOD deed with life estate, if appropriate;
           establish the procedure for contesting a revocable TOD  
            deed or a revocable TOD deed with life estate and for a  
            creditor to collect payment for transferor's debts;
           require the California Law Revision Commission to report  
            back to the Legislature on or before January 1, 2013, on  
            specified data concerning the use, misuse, or  
            misunderstanding of the revocable TOD deed and  
            recommendations for change; and
            make other conforming changes.

          The bill contains a sunset date of January 1, 2014.
                                                                 
          (more)



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                                   BACKGROUND  

          AB 250 was heard by this committee on July 10, 2007.  At  
          the hearing, the author requested that no vote be taken on  
          the bill.  Amendments were made in April and June of 2008  
          to address some issues raised in last year's analysis of  
          the bill.  A summary of amendments made to the bill since  
          it was last heard in this committee may be found in Comment  
          2.
           
          AB 12 (DeVore), Chapter 422, Statutes of 2005, was  
          introduced as a bill to create the instrument that AB 250  
          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 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) 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 the following  
          non-exclusive list of issues in its study:
           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.
           What effect the recordation of a beneficiary deed would  
                                                                       




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            have on the transferor's property rights after  
            recordation.
           How a transferor may exert his or her property rights in  
            the event of a dispute with the beneficiary.
           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.
           The tax implications of a beneficiary deed on the  
            transferor, the transferee, and the general public as a  
            result of the nonprobate transfer, including whether the  
            property would be reassessed and if tax burdens would  
            shift or decrease.

          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."  
           

                             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, a trust, a joint  
          tenancy with right of survivorship, community property with  
          right of survivorship, an intervivos transfer with reserved  
          life estate, and a nonprobate transfer.
           
          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.  
          (Probate Code Sec. 5000.  All references are to the Probate  
          Code, unless otherwise indicated.)

           Existing 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.)

                                                                       




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           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. (Civil 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.  
          (Sec. 21110.)

           This bill  would establish two versions of 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:

          (1)define the instrument, the 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; 
          (2)define the instrument, the revocable TOD deed with life  
            estate, which would create a life estate in a named life  
            tenant, with a remainder interest in the named  
            beneficiaries; (  This bill  would treat both instruments  
            the same in all other respects.)
          (3)provide a mandatory statutory form of a revocable TOD  
            deed, each containing the required information,  
            instructions, and answers to a long list of "commonly  
            asked questions" about the instrument;
          (4)establish rules regarding the effect of the execution  
            and recordation of a revocable TOD deed, and their  
            interaction with other types of instruments;
          (5)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 beneficiary's liability, and payment of costs for  
            a proceeding to enforce beneficiary's liability;
          (6)establish rules regarding the effectuation of the  
            property transfer, and a beneficiary's standing vis ? vis  
            a distributee under a final order of distribution if the  
                                                                       




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            property was probated;
          (7)establish rules for a contest involving the revocable  
            TOD deed;
          (8)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 
          (9)make other conforming changes where appropriate.

           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, 2013, with specific instructions to  
          study:

          (1)whether the revocable TOD deed is working effectively;
          (2)whether the revocable TOD deed should be continued;
          (3)whether the revocable TOD deed is subject to misuse or  
            misunderstanding;
          (4)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
          (5)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  contains a sunset provision, making it  
          inoperative on January 1, 2014, unless extended or made  
          permanent by another statute.
                                         




                                    COMMENT
           
          1.    Stated need for the bill  

            The author states that the purpose of the bill is "to  
                                                                       




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            provide a simple and inexpensive way for a person to  
            transfer real property on death. ?Existing law provides  
            other ways to transfer real property to intended heirs  
            without probate, but cannot afford a trust (sic). Without  
            the availability of the TOD deed, some seniors will use  
            other means to make transfer (sic) the property, often  
            with undesirable results. ?The revocable TOD deed would  
            avoid all of these problems."

          2.    Amendments made to AB 250 since the last hearing on  
          July 10, 2007

             Following are the amendments made to the bill since it  
            was heard in committee last year:

             (a)    There are now two instruments, rather than one:  
               (1) the revocable TOD deed and (2) the revocable TOD  
               deed with life estate.  The two are treated  
               identically in all respects, except that a revocable  
               TOD deed with life estate names a life tenant and  
               remainder beneficiary(ies).  Simulations of these two  
               deeds, together with the Commonly Asked Questions on  
               the back of each deed, is provided to the Committee  
               with this analysis.
             (b)    The revocable TOD deed with life estate and the  
               Commonly Asked Questions page for this deed form have  
               been amended to reflect additional information  
               regarding the life tenant's interest.
             (c)    Both revocable TOD deeds must be recorded within  
               60 days of signing of the deed. (Previously the bill  
               only required recordation of the revocable TOD deed  
               before transferor's death.)
             (d)    The time for commencing an action and recording a  
               lis pendens to invalidate a revocable TOD deed was  
               extended from 90 days to 120 days after the  
               transferor's death. 
             (e)    The statutory revocation form has been changed to  
               remove the requirement of specifying recordation  
               details of the property that was the subject of the  
               TOD deed.
             (f)    The bill now contains a five-year sunset (January  
               1, 2014). 
             (g)    The notary acknowledgement on the statutory form  
               has been updated. 

                                                                       




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          3.    The CLRC Report
           
            Proponents of AB 12 (DeVore, Ch. 422, Stats. 2005) as  
            originally drafted argued that a beneficiary deed (or  
            something similar) would be very helpful to small  
            estates, and to lower-income people who cannot afford to  
            engage the services of an attorney for estate planning or  
            other professionals who practice financial and estate  
            planning.  Indeed, the CLRC report and recommendation on  
            which this bill is based states that the argument made  
            for a beneficiary deed (another name for a TOD deed) is  
            that "it is cheaper and quicker than probate, less  
            expensive than a lawyer-prepared trust, and preferable to  
            a joint tenancy." (CLRC Recommendation, Revocable  
            Transfer On Death (TOD) Deed, October 2006, page 200)  
            (hereinafter "CLRC Report").  The same report admits,  
            however, that "the revocable TOD deed may appear  
            deceptively simple, yet cause problems not anticipated by  
            a transferor who uses it." (CLRC Report, page 201.)

            The CLRC reports that it received numerous communications  
            emphasizing that a homeowner should be able to deed  
            property directly to heirs without the expense of probate  
            or a trust proceeding.  Indeed staff has received  
            numerous pleas, albeit mostly from the same people since  
            the last hearing, that state they serve senior citizens  
            and that "proposal for a simple, one page state  
            recognized beneficiary deed that we could use at the  
            Senior centers and elsewhere would be a real benefit to  
            California seniors." 

            The sample statutory form created by this bill for each  
            deed is attached to this analysis, as well as the  
            Commonly Asked Questions form for the back of the deed.   
            Although one could argue that each deed is simple enough  
            to fit on one page and the questions list short enough to  
            fit on the back of the deed, each deed is still a  
            daunting document to read, if the user is to understand  
            all of the nuances and after-effects of the legally  
            binding document once properly executed.  It would still  
            be questionable whether a potential transferor would  
            actually read and understand the Commonly Asked Questions  
            on the back of the form.  The result could be fodder for  
            litigation after transferor's death. 

                                                                       




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            When this committee heard AB 12, the committee  
            recommended that the CLRC report back to the Legislature  
            by January 1, 2009 instead of January 1, 2007 (see Senate  
            Judiciary Committee Analysis of AB 12, dated June 28,  
            2005, Comment 2).  The rationale for the committee's  
            recommendation was that this area is very complex and  
            full of pitfalls for the unwary consumer, and the CLRC  
            should be given the time, given all of its other work, to  
            study the area thoroughly and, if indeed a recommendation  
            to create a beneficiary deed is the result, to draft both  
            the bill and the form deed carefully. 

            However, in this case the CLRC, known for its  
            deliberative, paced work on a vast array of subject  
            matters, completed its work on this subject in less than  
            10 months, with the recommendation that constituted AB  
            250 by October 2006.  And in the full year since AB 250  
            was last heard in this committee, the CLRC has not  
            dispelled all of the concerns expressed by those who  
            oppose the use of the simplified TOD deed in California.   
            These concerns remain and are discussed throughout  
            Comments 5, 6, and 7.

            When AB 250 was heard in the Assembly Judiciary Committee  
            last year, that committee's concerns with the potential  
            misunderstanding and misuse of revocable TOD deeds and  
            the potential cases of fraudulent deeds conveyed under  
            duress or undue influence compelled the committee's  
            amendments to require that CLRC return to the Legislature  
            with a report on specific issues in three years (2012). 

            IS IT WISE TO PLACE A BRAND NEW INSTRUMENT FOR TRANSFERS  
            OF PROPERTY IN THE HANDS OF UNSOPHISTICATED TRANSFERORS  
            BEFORE IT IS FULLY VETTED?

            GIVEN THE RECURRING HORROR STORIES OF SENIORS BEING  
            CHEATED OUT OF THEIR HOMES BY A VARIETY OF FRAUDULENT  
            SCHEMES, WOULD THIS BILL GIVE SCAM ARTISTS A NEW TOOL  
            WITH WHICH TO DEFRAUD SENIORS?

          4.    Is the revocable TOD deed for small estates only?  

            There is no doubt the CLRC has done substantial  
            background work on this subject.  However, concerns  
            remain that the target users of this revocable TOD deed,  
                                                                       




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            i.e., individuals with small estates and low-income  
            persons, could be misled as to the efficacy of using the  
            deed instead of other avenues that may be available to  
            them now.

            The bill supposedly targets small estates yet has no  
            limitation on its use.  The Probate Code defines small  
            estates as consisting of a combined real and personal  
            property valued at less than $100,000.  

            Thus, a person with $100,000 equity in his home can,  
            under this bill, execute a revocable TOD deed and so can  
            a person with a $1 million equity in her home.  However,  
            it is likely that the beneficiary of the transferor with  
            the smaller estate can confirm the transfer of the  
            property by affidavit, as envisioned by this bill, but  
            the beneficiary of the transferor with the larger estate  
            will be in a probate administration proceeding anyway.   
            Further, the transferor with a small estate can simply  
            execute a deed (not a TOD deed, but a plain deed to the  
            property) that is not recorded but delivered to the  
            beneficiary.  The beneficiary can record the deed after  
            death and confirm the transfer by affidavit.  Under this  
            scenario, what is the advantage of a revocable TOD deed?   
            Another alternative is for the transferor with the small  
            estate to transfer the property to himself or herself and  
            the beneficiary in joint tenancy with right of  
            survivorship.  The resulting interest to the beneficiary  
            would not be too different than if the property were  
            transferred via a revocable TOD deed.


          5.    Revocable TOD Deed: execution, form, warranty of title
             
            AB 250 would create a new instrument that would allow the  
            nonprobate transfer of real property.  The revocable  
            transfer on death (RTOD) deed must be signed and dated by  
            a transferor with capacity, and acknowledged before a  
            notary public.  The deed must be recorded within 60 days  
            of the date it is executed; if it is not recorded within  
            this time period, it is void and ineffective.  If  
            properly executed and recorded, the RTOD deed would  
            transfer the property to the beneficiary upon  
            transferor's death. 

                                                                       




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            a.   Neither delivery nor acceptance is required  

               The bill would provide that the transferor is not  
               required to deliver a RTOD 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).)

               Proponents state that the target population of the  
               RTOD deed is senior citizens who are looking for a  
               simple and inexpensive way to give away their one  
               asset, their home.  Here is an example of how the  
               non-delivery and non-acceptance requirement could  
               create a problem.  Grandpa executes a RTOD deed naming  
               his only grandson as beneficiary of his home, records  
               it within 60 days as required, then quietly puts it  
               away in a box; he doesn't tell anyone about it.  Two  
               years later, Grandpa's memory is beginning to fail,  
               although he is not incompetent and still has legal  
               capacity.  He forgets the prior recorded, valid RTOD  
               deed in the box in the closet, and he executes another  
               RTOD deed naming his granddaughter who had just spent  
               one week visiting him.  He records this second RTOD  
               deed immediately but still does not deliver it to his  
               granddaughter or tells anyone about it.  Grandpa  
               clearly intended the property to go to his grandson  
               and he clearly had capacity when he executed the first  
               RTOD deed.  Grandpa also clearly intended to give the  
               property to his granddaughter through an RTOD deed but  
               simply forgot that he had already given the property  
               away.  Grandpa dies, and now there is a contest, which  
               will have to be resolved by litigation, which is the  
               last thing Grandpa probably would have wanted.   
               Perhaps if the property had a value less than $100,000  
               the grandchildren would be able to resolve the lack of  
               clarity about Grandpa's intent regarding the property.  
                However, if this house is worth $1 million, the issue  
               of testator's intent would undoubtedly be litigated.

               Although the rules provided in AB 250 for deciding  
               which RTOD deed would be the operative instrument (the  
               later recorded deed, since both are revocable,  
               proposed Secs. 5628(a); Sec. 5660(b).), the rules  
               provided for execution, recordation, and delivery (or  
               non-delivery) of the deed need clarity.  To avoid  
                                                                       




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               litigation, bright lines should be drawn, especially  
               when the testator's capacity and intent could easily  
               be questioned because of his or her being at a  
               vulnerable age.

                 SHOULD THESE RULES BE REVISITED?
                                                                        
               The California Judges Association (CJA) points out  
               this critical flaw in AB 250 in its letter dated June  
               11, 2008.  The CJA states that because delivery of the  
               deed is not explicitly required, AB 250 leaves the  
               possibility that an executed deed, pocketed for  
               further reflection, may be recorded without the  
               knowledge, consent, or intent of the transferor.  This  
               could still be true, even with the 60-day recordation  
               requirement in the bill.

               Under existing law, a transferor may actually create a  
               valid transfer that is not contingent on the  
               transferor's death, which is then delivered but not  
               recorded until after death.  Under AB 250, a revocable  
               TOD deed of the same property later executed and  
               recorded would trump the earlier, valid deed that had  
               been delivered but not recorded.  AB 250 does not  
               require delivery of the deed to the RTOD deed  
               beneficiary.  Once more, this is fodder for  
               litigation. 

               A deed takes effect only when delivered. (Civil Code  
               Sec. 1054.)  Delivery depends on the intention that  
               title will pass irrevocably even though the right of  
               possession and enjoyment may be postponed to a future  
               time.  It is a question of fact, and evidence of the  
               circumstances and of the acts and declarations of the  
               grantor ? Delivery may be actual (physical delivery)  
               or constructive.  A deed may be deemed constructively  
               delivered to the grantee: (a) when by agreement of the  
               parties it is understood to be delivered and the  
               grantee is entitled to immediate delivery; (b) when it  
               is delivered by the grantor to a stranger for the  
               benefit of the grantee and the grantee's assent is  
               shown or may be presumed. (Witkin, 12 Summary of  
               California Law, 10th Ed. Sec. 291. Citations omitted.)

               AB 250 requires neither delivery of the deed by the  
                                                                       




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               transferor nor acceptance of the deed by the  
               beneficiary.  And as described in previous examples  
               given, an executed RTOD deed (especially one that has  
               been recorded) could be easily filed away in a filing  
               cabinet by a transferor and then unintentionally  
               revoked by the recordation of a new RTOD deed, because  
               the transferor simply forgot that he or she had  
               already executed one.

               SHOULD NOT DELIVERY OF THE DEED BE REQUIRED?



            b.    Third party may sign the RTOD deed

                Proposed Sec. 5624(b) provides that a RTOD deed may be  
               signed and dated in a transferor's name by a person  
               other than the transferor at the transferor's  
               direction and in the transferor's presence, but shall  
               be acknowledged by the transferor.  AB 250 provides a  
               statutory form of the RTOD deed and the RTOD deed with  
               life estate.  A sample of each deed is provided in  
               this analysis.

               It is not difficult to imagine a scenario where a  
               person may be persuaded by a friend or caregiver to  
               have the friend fill out the form and attempt to sign  
               and date it at the transferor's "direction" in the  
               presence of the transferor and the notary.  This is  
               similar to the attestation of a will by two witnesses  
               in the presence of the testator.  The difference is  
               that in this case one of the witnesses would be  
               actually signing and dating the instrument and not  
               just witnessing the execution of the instrument by the  
               transferor.  

               There are also problems with use of the statutory  
               form.  First, there is no place on the statutory form  
               for the real transferor to acknowledge the act.   
               Second, the acknowledgement of notary language would  
               not permit the friend to sign the RTOD deed, even at  
               the transferor's direction.  Third, even if the notary  
               public were to acknowledge the friend's signature as  
               having been "authorized" by the transferor in the  
               presence of the notary, another beneficiary  
                                                                       




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               questioning the validity of the RTOD deed at  
               transferor's death (such as transferor's husband or  
               heir) would undoubtedly go to court and litigate the  
               transfer, especially if the property is a very  
               expensive piece of real estate.

               IS NOT THIS PROVISION FRAUGHT WITH POSSIBILITIES FOR  
               ABUSE?

               In fact, for years the courts have been handling  
               thousands of contest cases involving fraudulent  
               transfers, challenges to validity of testamentary  
               instruments, voidable and void instruments, and trust  
               or estate administration questions.

               WOULD THE CREATION OF THE RTOD DEED BY THIS BILL CAUSE  
               MORE LITIGATION RATHER THAN SIMPLIFY THE TRANSFER OF  
               REAL PROPERTY?

            c.    Revocable TOD deed with life estate

                Last year, the bill contained one statutory form for  
               the revocable TOD deed, providing an option in the  
               form for a transferor to transfer a life estate to a  
               life tenant and the remainder interest to another  
               beneficiary.  Concerns were raised by opponents of the  
               bill regarding the likelihood that users of the  
               statutory form would not be sophisticated enough to  
               understand what those terms mean, and could therefore  
               make mistakes.

               The bill before the committee today shows two  
               statutory forms, one the "Simple Revocable TOD Deed"  
               and the other the "Revocable TOD Deed With Life  
               Estate."  The revocable TOD deed with life estate form  
               shows a line to be filled in for "Life Tenant" and  
               several lines for "Remainder Beneficiaries."  On the  
               back of the form, the first question is "What does the  
               TOD Deed do?" and the answer states: "When you die,  
               the identified property will transfer to the "life  
               tenant" for the duration of that person's life.  After  
               that person's death, the property will transfer to  
               your "remainder beneficiary(ies)."  Probate is not  
               required for a transfer under this deed.  The deed has  
               no effect until you die.  You can revoke it at any  
                                                                       




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               time."

               Even though the bill now treats the two deeds  
               separately, still there is little explanation to a  
               layperson of the terms a "life tenant" and "remainder  
               beneficiary" in the statutory forms such that a person  
               who wishes to go with "simple and inexpensive" and  
               thus uses the form will likely still have to consult  
               with a lawyer for advice.

               The Trusts and Estates Section of the State Bar of  
               California is also concerned about misunderstandings  
               that potential transferors may have about the terms  
               used in the statutory form.  They point out that most  
               users of the form will not understand the legal  
               consequences of a revocable TOD deed with life estate,  
               and the potential conflict between the life and  
               remainder interests which could result in a lawsuit  
               between the life tenant and the remainder person.   
               They insist that an individual who desires to create a  
               life estate in a RTOD deed instead of a trust should  
               have it professionally drafted to address the issues  
               that could arise under it.

               IF A PERSON IS TO AVOID LITIGATION, SHOULD HE OR SHE  
               AVOID USING A REVOCABLE TOD DEED, ESPECIALLY THE  
               STATUTORY FORM?

            d.    Property transferred via RTOD deed would not carry  
            warranty of title

                Under the bill, property that is transferred via a  
               revocable TOD deed is transferred without warranty of  
               title, and therefore probably not insurable. (Proposed  
               Sec. 5652(d).) Will this present a problem for the  
               beneficiary?  Will title companies accept the  
               revocable TOD deed as a valid and insurable title?  
               Will it cost the beneficiary more to obtain title  
               insurance when the property is to be sold?  Will the  
               beneficiary be able to get title insurance at all,  
               with or without an exclusion, and at what cost?
               The California Land Title Association (CLTA) states  
               that they participated in several meetings of the CLRC  
               on the subject of the revocable TOD deed over the  
               course of a year.  The CLTA, while extolling CLRC's  
                                                                       




          AB 250 (DeVore)
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               hard work in analyzing the subject in depth and in  
               trying to address all possible problems associated  
               with the transfer of real property in a way that  
               effectuates the transferor's intent and avoids  
               litigation, nevertheless concluded that the TOD deed  
               "has developed into a complex and convoluted process  
               that will result in unwary consumers being confused  
               and caught up in unnecessary litigation," (Letter  
               dated April 10, 2008).  

               The CLTA explains their opposition thus:

                 Title companies rely upon the documents recorded in  
                 the county recorder's office to determine the status  
                 of title for real property.  All title defects,  
                 liens and encumbrances excluded from coverage are  
                 listed in the preliminary report, usually triggering  
                 the seller, buyer, and lender to address these title  
                 problems through the escrow process.

                 CLTA fully expects that if AB 250 is enacted, some  
                 transferors will execute more than one TOD deed over  
                 the course of their life as their circumstances  
                 change.  Divorces, the death of spouses, estranged  
                 children or addition of children through marriage,  
                 etc., are just a few of the examples that come to  
                 mind.  Each of these changes could trigger the  
                 execution and recordation of a new TOD deed to  
                 effectuate a different transfer.

                 Thus, a "stacking" of these deeds in the public  
                 records (or in file cabinets and recorded later)  
                 would create ambiguity and uncertainty as to the  
                 status of title and intent of the original  
                 transferor.  If there is ambiguity, out of an  
                 abundance of caution the title company involved in a  
                 transaction would likely resort to the use of  
                 quitclaim deeds to resolve ambiguities, thus  
                 rendering many - if not all - of the TOD deeds  
                 essentially useless. 

               Echoing CLTA's remarks is the California Escrow  
               Association (CEA).  The CEA believes that the TOD  
               process contemplated in AB 250 would lead to confusion  
               rather than clarity in the title transfer process.   
                                                                       




          AB 250 (DeVore)
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               "Escrow officers are on the front lines in terms of  
               closing real estate transactions.  They are in  
               constant contact with the title officers who must be  
               confident that property ownership is sufficiently  
               certain to issue title policies in these transactions.  
                Simply put, we are concerned that unsophisticated  
               parties will record multiple transfer on death deeds,  
               without understanding the legal significance of what  
               they are doing, resulting in great confusion when they  
               subsequently die." (Letter dated June 12, 2008.)

            e.    Revocable TOD deed is not a change in ownership

                Under this bill, execution and recordation of a  
               revocable TOD deed is not a change in ownership that  
               would trigger a documentary transfer tax or filing of  
               a preliminary change of ownership report.  However, on  
               the death of a transferor, the transfer would be  
               considered a change in ownership.  Many people may  
               think that by transferring their property through a  
               RTOD deed, they would be able to escape capital gains  
               taxes, gift taxes, and estate taxes.

               SHOULD THESE ISSUES BE ADDRESSED BY THE BILL?

          6.    Revocable TOD deed:  Revocation  

            Under AB 250, a transferor who has testamentary capacity  
            may revoke a revocable transfer on death deed at any time  
            (Proposed Sec. 5630.).  The bill also provides that a  
            revocable TOD deed remains revocable until death.  
            (Proposed Sec. 5614(a)(3).)

            It is not clear if the revocable TOD deed becomes  
            irrevocable when the transferor becomes incapacitated.   
            How can a TOD deed remain revocable until death when it  
            can no longer be revoked due to incapacity?

            SHOULD THIS BE CLARIFIED?

            The CLRC in fact recognized that of the nine revocable  
            deed jurisdictions it studied, none addresses the  
            capacity issue.  The CLRC states that the legal capacity  
            to make a will is a lower standard than the legal  
            capacity to make a real property transfer (or to revoke  
                                                                       




          AB 250 (DeVore)
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            one?).  "Presumably in those [nine] jurisdictions the  
            standard will be the higher standard of contractual  
            capacity, not the less demanding standard of testamentary  
            capacity, that prevails." Yet, the CLRC used  
            "testamentary capacity" as the standard in drafting AB  
            250.

            According to the CLRC, the rationale for using  
            testamentary capacity rather than contractual capacity is  
            this: "if a will is challenged for lack of testamentary  
            capacity, that issue is resolved in a probate proceeding,  
            before transfer actually happens.  A TOD deed passes  
            directly to the beneficiary, hence any challenge to the  
            transfer could only be retroactive, in a post-death  
            challenge.  The revocable TOD deed is like a will,  
            because it is a donative transfer that takes effect on  
            death and is revocable until then.  For that reason,  
            testamentary capacity should be sufficient to enable  
            execution of a revocable TOD deed.  The possibility of  
            fraud, duress, or undue influence is controlled by  
            execution formalities and the availability of a  
            post-death challenge."

            Proposed Sec. 5632 (a) requires that an instrument  
            revoking a revocable TOD deed be executed and recorded  
            before the transferor's death "in the same manner as  
            execution and recordation of a revocable transfer on  
            death deed."

            An executed RTOD deed is not effective until the deed is  
            recorded, within 60 days of the execution of the deed.   
            This is expressly provided in proposed Section 5626(a).   
            In this context, the instrument of revocation should be  
            notarized and recorded within 60 days also, otherwise it  
            should not be effective.

            IS THIS THE AUTHOR'S INTENT? 
            IF SO, SHOULD NOT THE BILL EXPRESSLY SO PROVIDE?

            If a transferor executed and recorded a RTOD deed, then  
            later, while still with capacity, executed a valid will  
            that contained a provision revoking that RTOD deed and  
            then disposed of the same property, but the will was not  
            recorded (wills are not usually recorded; they are lodged  
            with the court at transferor's death and then probated),  
                                                                       




          AB 250 (DeVore)
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            would the RTOD deed be deemed revoked or would it be the  
            operative instrument as to that property?

            SHOULD THESE REVOCATION PROVISIONS BE FURTHER REVISED?

            The CJA contends that AB 250 does not sufficiently  
            address the process of revocation of a RTOD deed.  They  
            point out that a will is ineffective upon revocation, and  
            a revocation must be notarized and recorded, presumably  
            in the county where the property lies, not the one in  
            which the transferor resides.  "Revocation then becomes  
            dependent on time, distance, office hours, and the  
            precise memory of the transferor.  AB 250 ignores these  
            revocation factors and leaves unclear whether a  
            revocation may be filed outside the chain of title, or if  
            it is, then whether it is effective."

            The vague revocation rules will likely provide fertile  
            ground for litigation.  Here is yet another example.   
            Grandpa executes and records a RTOD deed, giving the  
            property to grandson.  A year later, he revokes the first  
            RTOD deed and executes and delivers a deed to  
            granddaughter, making her a joint tenant with right of  
            survivorship.  Granddaughter immediately records the new  
            deed, but Grandpa has failed to record a revocation of  
            the RTOD deed.  Following Grandpa's intent, the  
            granddaughter should prevail but her deed is likely  
            without legal effect because Grandpa failed to record the  
            revocation in a timely manner.  Even if the revocation is  
            recorded later, the granddaughter 's deed may still be  
            invalid unless the recording of the revocation relates  
            back to the execution.



          7.    Creditors:  beneficiary is personally liable for  
          transferor's debts 

             Under AB 250 a creditor of the transferor who has an  
            encumbrance or lien of record against the property  
            transferred by a RTOD 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  
                                                                       




          AB 250 (DeVore)
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            unrecorded.

            A beneficiary is personally liable to a creditor for the  
            unsecured debts of the transferor, to the extent provided  
            under the bill.  Because the goal of the RTOD deed is to  
            transfer property directly and thus avoid probate, the  
            only mechanism for collecting on outstanding liabilities  
            of the estate of transferor would be a civil action  
            against the RTOD deed beneficiary to restore or return  
            the property so it may be liquidated and distributed to  
            creditors. 

            The California Association of Public Administrators,  
            Public Guardians, and Public Conservators opposes AB 250  
            because it would jeopardize their ability to recover  
            their costs for administering the estate of a deceased. 

               [The] TOD deed transfers title to the grantor's  
               property to a beneficiary at the moment of death  
               like a joint tenancy interest, without any probate  
               procedure or court oversight.  However, unlike joint  
               tenancy (a true non-probate transfer) the  
               beneficiary is still liable to the creditors of the  
               dead grantor.  If no administration is opened, the  
               creditors can sue the beneficiary for what is owed  
               to them for one year after the date of death.  If a  
               probate is opened, the personal representative [the  
               PA] can sue to recover only the shortage owed to the  
               creditors.  If the suit is not opened within three  
               years of the date of death, it can never be opened.   
               This revocable, semi-joint tenancy,  
               nearly-non-probate transfer will create a lot of  
               confusion concerning decedent probate procedures,  
               creditor's rights, heir's rights, beneficiary's  
               liabilities and personal representative's obligation  
               to sue to recover assets that aren't exactly assets.

            What the Public Administrators (PAs) are concerned about  
            is that under AB 250, a personal representative has the  
            right to ask or sue the beneficiary only for enough to  
            cover the shortage in what is owed to creditors.  The PA  
            could be forced to bring a lawsuit under other sections  
            of the Probate Code (Sec. 9653, for example), and to ask  
            for extraordinary fees for the lawsuit.  But even if they  
            did, payment would come from the estate, not the  
                                                                       




          AB 250 (DeVore)
          Page 20 of ?



            beneficiary who caused the lawsuit because he or she  
            would not pay the liability.  PAs would be left with  
            filing fees and legal fees with no assets to pay for  
            them.  "The whole structure is one that could encourage  
            many fraudulent transfers for numerous abusive reasons."
            SHOULD NOT THIS BILL BE HELD UNTIL THE RISK OF FRAUDULENT  
            TRANSFERS IS ELIMINATED?

            This group has recommended several major changes to AB  
            250 that are likely to result in the CLRC wanting to  
            revisit the elements of the bill. 

          8.    The statutory forms

             AB 250 would require a revocable TOD deed to be in a  
            standardized, uniform form in the state.  Thus, in the  
            bill are three forms: a revocable TOD deed, a revocable  
            TOD deed with life estate, and a revocation form that is  
            usable for revoking either of the two deeds.  Sample  
            forms are attached to this analysis.

          9.    Sunset date in 2014, CLRC report in 2013

             This bill would sunset on January 1, 2014, unless another  
            act extends the statute or makes it permanent.  The CLRC  
            would be required to report to the Legislature on or  
            before January 1, 2013, on various items, including  
            whether the revocable TOD deed is subject to misuse or  
            misunderstanding and whether it should be continued.

          10.  Arguments from supporters

             The author states that all of the concerns about  
            potential abusers of senior citizens using a revocable  
            TOD deed to perpetrate fraud are equally applicable to  
            the other forms of real property transfer under current  
            law.  Because the deed would be recorded, he states, the  
            fraudulent deed would be in the public record and would  
            be subject to discovery by others way before the  
            transferor's death.

            An attorney who works for Area Agency on Aging (I) states  
            that he strongly believes that when enacted, AB 250 will  
            help avoid some of the most prevalent elder financial  
            abuse (trust mills).  In addition, she states, "it will  
                                                                       




          AB 250 (DeVore)
          Page 21 of ?



            help countless seniors and other low-income California  
            residents leave their modest estates (often consisting  
            only of a home) to heirs without the expense of probate  
            or living trust."

            Finally, a letter from a member of the Board of  
            Equalization states the bill would make it easier for  
            property to transfer from the decedent to their designee.  
             Current law adds unneeded expense to what should be a  
            simpler process, she stated.




          11.  Final comments

             In fairness, several amendments to the bill have been  
            made to accommodate some of the concerns expressed both  
            in last year's analysis and by opponents of AB 250.  In  
            addition a sunset date has been added to ensure the  
            statute would become inoperative automatically should a  
            spate of abuses occur over the next several years.   
            Still, the opponents came back with unabated concerns  
            that the rules for the execution and revocation of a  
            revocable TOD  deed under AB 250 are not ready for  
            release to the unwary, the unsophisticated, vulnerable  
            population it is supposed to serve. 

            As the CLRC itself said, clarity is especially important  
            with regards to transfers of real property.   
            Relationships between people change, as people die,  
            become estranged, are institutionalized, get married,  
            divorced, part ways, rendering an earlier decision to  
            gift the real property inappropriate or ill-advised.  The  
            one-size-fits all approach of the revocable transfer on  
            death deed may be its biggest weakness.  "Historically a  
            'quick and easy' conveyancing instrument such as a  
            quitclaim deed is often the instrument of choice of a  
            perpetrator of fraud who preys on seniors and  
            unsophisticated consumers.  Because it is easy to use,  
            cheap to record and does not require the use of an  
            attorney or other third party intermediary, it  
            facilitates fraud.  The ease and simplicity of use  
            associated with the revocable TOD deed suggest that it  
            may lend itself to similar abuse."
                                                                       




          AB 250 (DeVore)
          Page 22 of ?




          12.   Attachments  :  Sample forms of the Revocable TOD Deeds  
            and Revocation (see pages 19-24 of this analysis).


          Support:   Michelle Steele, Board of Equalization; Sarah  
                  Shena, Area I Agency on Aging; David Mandel,  
                  California Senior Legal Hotline; Lambda Letters  
                  Project; Howard Jarvis Taxpayers Association; Mary  
                  Pat Toups, South Orange County Senior Centers

          Oppose:   California Land Title Association; California  
                  Escrow Association; California Association of  
                  Public Administrators, Public guardians, and Public  
                  Conservators; California Judges Association









                                      HISTORY
             
          Source:  California Law Revision Commission (Sponsor)

          Pending related legislation:  None Known

          Previous Legislation:  AB 12 (DeVore) Ch. 422, Stats. 2005.  
          See Background.

          Prior Vote: Assembly Judiciary Committee (Ayes 10, Noes 0)
                    Assembly Appropriations Committee (Ayes 17, Noes  
          0)
                    Assembly Floor (Ayes 79, Noes 0)
          
                                 **************





                                                                       




          AB 250 (DeVore)
          Page 23 of ?



          Recording Requested By:
          When Recorded Mail This Deed To
          Name:
          Address:
           Assessor's Parcel Number:  
          ____________________________________________________________ 
          ______________
                          Space Above For Recorder's Use
                 SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED
                     (California Probate Code Section 5642)

          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 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
                                                                       




          AB 250 (DeVore)
          Page 24 of ?




          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 (     date   ) 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 whose name is  
          subscribed to the within instrument and acknowledged to me  
          that he/she/ executed the same in his/her/ authorized  
          capacity, and that by his/her/ signature on the instrument  
          the person, or the entity upon behalf of which the person  
          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) 
          
          ____________________________________________________________ 
          __________________________

                  COMMON QUESTIONS ABOUT THE USE OF THIS FORM
                                                                       




          AB 250 (DeVore)
          Page 25 of ?




          WHAT DOES THE TOD DEED DO?
          When you die, your beneficiary will become owner of the  
          property described in the TOD deed. Probate is not  
          required. 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 before your death or it 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 affects 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 about whether the deed is revoked, you can also  
          complete and RECORD a revocation form.
          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  
                                                                       




          AB 250 (DeVore)
          Page 26 of ?



          family member, friend, a 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  21110-21111.
          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. If you wish to avoid gift and estate taxes you should  
          consult a tax professional for advice.
          HOW DOES THE TOD DEED AFFECT PROPERTY TAXES?
                                                                       




          AB 250 (DeVore)
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          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.



































                                                                       




          AB 250 (DeVore)
          Page 28 of ?



          Recording Requested By:
          When Recorded Mail This Deed To
          Name:
          Address:
           Assessor's Parcel  
          Number:_____________________________________________________ 
          _____________________  
                         Space Above For Recorder's Use
            REVOCABLE TRANSFER ON DEATH (TOD) DEED WITH LIFE ESTATE
                     (California Probate Code Section 5643)

          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 create a life estate in a named life  
          tenant, with a remainder interest in the named remainder  
          beneficiaries. When you die, the identified property will  
          transfer to the "life tenant" for the duration of that  
          person's life. After that person's death, the property will  
          transfer to your "remainder beneficiary(ies)." This is a  
          complex arrangement that may cause disputes between the  
          life tenant and remainder beneficiaries. You should consult  
          an attorney before choosing to use this form.

          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 or other legal  
          description of the property affected by this deed:
          ____________________________________________________________ 
          __________________________

          LIFE TENANT: Print the NAME of the life tenant:  
          _______________________________________________________
                                                                       




          AB 250 (DeVore)
          Page 29 of ?




          REMAINDER 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 on  
          my death, as follows: a life estate to the person named as  
          life tenant, with a remainder to the person(s) named as  
          remainder beneficiary(ies). 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 (     date   ) 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 whose name is  
          subscribed to the within instrument and acknowledged to me  
          that he/she/ executed the same in his/her/ authorized  
          capacity, and that by his/her/ signature on the instrument  
          the person, or the entity upon behalf of which the person  
          acted, executed the instrument. 

          I certify under PENALTY OF PERJURY under the laws of the  
                                                                       




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          State of California that the foregoing paragraph is true  
          and correct.

          WITNESS my hand and official seal. 


          Signature ___________________________ (Seal) 

          ____________________________________________________________ 
          ____________

                  COMMON QUESTIONS ABOUT THE USE OF THIS FORM

          WHAT DOES THE TOD DEED DO?
          When you die, the identified property will transfer to the  
          "life tenant" for the duration of that person's life.   
          After that person's death, the property will transfer to  
          your "remainder beneficiary(ies)."  Probate is not required  
          for a transfer under this deed. The 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 before your death or it 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 affects 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.
                                                                       




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          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 about whether the deed is revoked, you can also  
          complete and RECORD a revocation form.
          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, a 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 REMAINDER BENEFICIARY? 
          Your remainder 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.'' You MAY NOT name more than one life  
          tenant.
          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  21110-21111.
          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  
                                                                       




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          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. If you wish to avoid gift and estate taxes you should  
          consult a tax professional for advice.
          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.