California Transfer on Death Deeds: How They Work and Their Limits
A California revocable transfer on death deed is a recorded document that names who gets your home when you die. It does nothing while you are alive — you still own the property, can sell it, refinance it, or change your mind — and at your death the property passes to the named beneficiary without a probate case. The deed is governed by Probate Code sections 5600 and following. It is limited to certain residential property, and it comes with signing formalities and after-death duties that are easy to get wrong.
Which property qualifies
The statute defines eligible real property narrowly (section 5610): a parcel improved with one to four residential dwelling units, or a residential unit in a condominium or other common interest development. A 2024 amendment added certain stock cooperative interests. Agricultural land larger than 40 acres is excluded, so a farm parcel qualifies only if it is 40 acres or less and improved with a residence.
The person signing must be an owner with the capacity to contract (section 5620), and the beneficiary must be identified by name (section 5622) — “my children” is not enough. The statutory form contemplates naming a trust as beneficiary, with the trust and trustee identified.
The form and the signing rules
The deed must be substantially in the statutory form in Probate Code section 5642. The form includes a page of “common questions” that does not have to be recorded. Use the form as written; editing the operative language invites a dispute later.
Since legislation that took effect January 1, 2022 (SB 315), the signing rules are stricter than when the deed was introduced in 2016. Under section 5624, the deed is not effective unless all three are done:
- The transferor signs and dates it;
- Two witnesses, both present at the same time, sign after watching the transferor sign or hearing the transferor acknowledge the signature; and
- The transferor’s signature is acknowledged before a notary.
If a beneficiary serves as a witness, the law presumes the deed was procured by undue influence and puts the burden on the beneficiary to prove otherwise (section 5625). Do not let the person who inherits witness the deed.
Then it must be recorded with the county recorder within 60 days of the notarization (section 5626). A deed that sits in a drawer, or is recorded on day 61, has no effect at all. It does not have to be delivered to or accepted by the beneficiary during your lifetime.
Changing your mind
As long as you have capacity, you can revoke a TOD deed at any time, without the beneficiary’s consent or knowledge (sections 5630 and 5632). There are three ways:
- Sign and record a revocation form (the statute provides one, in section 5644) with the same formalities as the deed — two witnesses, notary, and recording within 60 days;
- Sign and record a new TOD deed for the same property; the later deed controls and revokes the earlier one (section 5628); or
- Transfer the property before death — sell it, give it away, or deed it into your trust — and record that transfer.
A TOD deed cannot be revoked by a will. If a will and a TOD deed say different things about the house, the deed generally wins, because the will only governs property that goes through probate. Between a TOD deed and another revocable instrument covering the same property, the one signed later controls (section 5660).
Joint tenancy and trusts
Two interactions trip people up. First, if the property is held in joint tenancy or as community property with right of survivorship when you die, the TOD deed is void and the surviving co-owner takes by survivorship (section 5664). The deed matters only if you are the last co-owner to die.
Second, if the property is already titled in your living trust, the trust controls it and a TOD deed is unnecessary and potentially confusing. Deeding property into a trust after signing a TOD deed revokes the deed. If you have a trust, fund it with the house rather than layering a TOD deed on top.
What the beneficiary must do after death
The transfer is not automatic in a practical sense. The beneficiary takes the property subject to every mortgage, lien, lease, and easement of record (section 5652), and has several jobs.
Record an affidavit of death with a certified death certificate to clear title (section 5680), file the change-in-ownership statement with the county assessor, and, if the owner ever received Medi-Cal, notify the Department of Health Care Services of the death.
Serve notice on the heirs. Under section 5681, the beneficiary must send the owner’s heirs — the people who would inherit if there were no will — a statutory notice with a copy of the deed and the death certificate, by mail to their last known address. The notice says the property is passing outside probate and warns that anyone who believes the deed is invalid has a limited time to challenge it. The beneficiary then records an affidavit confirming the notice was served (section 5682). Skipping the notice exposes the beneficiary to damages to an heir who was left out and leaves the title cloud described next in place.
The contest window
A TOD deed can be challenged after death on the same grounds as a will — lack of capacity, fraud, duress, undue influence, forgery — and the signing witnesses can be called to testify about the execution (sections 5690 through 5696). A contest cannot be filed before the owner dies, though a conservator can ask the court to invalidate a deed during the owner’s lifetime.
Timing matters. If a contest is filed and a lis pendens recorded within 120 days after the beneficiary records the affidavit of service, and the court finds the deed invalid, it voids the deed and orders the property back (section 5694). After that window a court can still grant relief, but it cannot disturb the rights of a buyer or lender who dealt with the beneficiary in good faith. A careful beneficiary completes the notice and affidavit promptly and waits out the window before selling or borrowing.
Creditors and Medi-Cal
Avoiding probate does not avoid the owner’s debts. The beneficiary is personally liable for the deceased owner’s unsecured debts, up to the fair market value of the property at death less liens and encumbrances (sections 5672 and 5674), subject to the one-year-from-death limit that applies to claims against a decedent. If a probate estate is opened, the beneficiary can avoid personal liability by restoring the property or its value to the estate.
On Medi-Cal estate recovery: for people who died on or after January 1, 2017, the state’s claim is limited to assets in the probate estate, and there is no recovery when a spouse, registered domestic partner, or minor or disabled child survives. Property passing under a TOD deed generally is not part of the probate estate. The beneficiary must still notify the Department of Health Care Services, and because this rule has changed before, confirm it at the time rather than treating it as permanent.
When a living trust is the better tool
A TOD deed does one thing well: it passes a single residence to a named adult, outside probate, at minimal cost. The courts’ own self-help guidance says it may be a good fit when the home is the main asset and little else needs to be distributed. It is a poor fit when the beneficiary is a minor or has a disability that affects benefits; when there are multiple properties or a property outside the statute; when you want a backup if a beneficiary dies first (a predeceased beneficiary’s share simply lapses, and the anti-lapse rule that saves gifts in a will does not apply); when you want someone to manage the property if you become incapacitated, which a TOD deed does not address; or when family friction makes a 120-day contest window, with the beneficiary personally handling the heir notices, an invitation to litigation. A revocable living trust handles all of these.
One more point: the TOD deed statute has a sunset. Section 5600 provides that it remains in effect only until January 1, 2032 unless extended, and as of this review no 2025 or 2026 bill extending it has been enacted. A deed validly signed before then stays effective, and the owner keeps the right to revoke it, but this tool exists at the Legislature’s pleasure.
For the broader picture on avoiding probate, see Does Every Estate Have to Go Through Probate in California?, and for how a trust compares, see Do You Need a Living Trust in California? The Basics.
Trying to decide between a transfer on death deed and a trust for your home? Ask a legal question.