A Revocable Transfer on Death deed in California lets you name who inherits your home when you die, without sending the property through probate. To work, the deed has to be signed by you, signed by two witnesses at the same time, notarized, and recorded with the county recorder within 60 days of notarization. Miss any one of those steps and the deed is void. The tool is powerful for the right situation, but it comes with traps around spousal rights, inherited debts, and property tax reassessment that catch families off guard.
What Property Qualifies
Not every California property is eligible. The rules cover a residential parcel improved with one to four dwelling units, or a condominium unit in a common interest development. Agricultural land also qualifies if it is 40 acres or less. Anything larger, along with five-plus unit apartment buildings and commercial property, is out.1California Legislative Information. California Code PROB 5610
Eligibility is judged by conditions at the time you sign. For a mixed-use property, the count of residential units is what matters.
The Four Requirements for a Valid Deed
A valid TOD deed needs your signature, two witnesses, notarization, and timely recording. Skip one and it does nothing.
Signing and Witnesses
You (the “transferor”) sign and date the deed. Two witnesses must also sign, and both must be present at the same time. They need to see either the actual signing or your acknowledgment that the signature is yours.2California Legislative Information. California Code PROB 5624 The beneficiary does not sign and does not need to be told.
The witness rule is the most commonly overlooked step. The original TOD deed law did not require witnesses; a 2021 amendment added them to reduce fraud. A deed signed after January 1, 2022 without two witnesses is not effective.2California Legislative Information. California Code PROB 5624
Notarization
After signing, you must acknowledge the deed before a notary public. Any instrument recorded with a California county recorder requires notarization.3California Legislative Information. California Code GOV 27287 Only your signature is notarized. The witnesses’ signatures are not.
Recording Within 60 Days
The deed must be recorded with the county recorder in the county where the property sits, within 60 days of notarization. Miss that window and the deed has no effect. There is no grace period and no way to revive a late-recorded deed.4California Legislative Information. California Code PROB 5642 If the deadline passes, you have to start over with an entirely new deed. This is the single most common reason TOD deeds fail.
Using the Statutory Form
California prescribes a specific form. A valid deed must be “substantially” in the format set out in Probate Code 5642.4California Legislative Information. California Code PROB 5642 Custom language or big deviations from the form put the deed at risk. If you and a spouse or registered domestic partner both own the property, each of you completes a separate TOD deed.
Naming Your Beneficiaries
You can name one beneficiary or several. Multiple beneficiaries take as tenants in common in equal shares unless you specify a different split. If one of several beneficiaries dies before you, that share does not pass to their own children. It gets divided among the surviving beneficiaries.
If every named beneficiary dies before you do, the deed has no effect and the property passes under your will or through intestate succession. California’s anti-lapse statute, which can redirect a will’s gift to a deceased beneficiary’s descendants, does not apply to TOD deeds. Do not assume a beneficiary’s kids will step into their parent’s place. If your intended beneficiary dies, record a new deed.
Community Property and Spousal Issues
California is a community property state. Property acquired during a marriage or registered domestic partnership is generally owned equally by both spouses or partners.5California Legislative Information. California Code Family Code 760 If community property is involved, a TOD deed signed by only one spouse without the other’s written consent only reaches the signing spouse’s half. The other half is untouched.6California Legislative Information. California Code PROB 5020
Even for separate property, a surviving spouse who married you after the deed was signed may have a claim under California’s omitted spouse rule. That statute gives a surviving spouse a share of the estate when the decedent’s testamentary instruments were all executed before the marriage and the spouse was not otherwise provided for.7California Legislative Information. California Code Probate Code 21610 Whether a TOD deed counts as a “testamentary instrument” for this purpose is contested. The safe move is to update the deed after any marriage.
Revoking or Changing the Deed
You can revoke a TOD deed at any time before you die. The beneficiary has no say and does not need to be notified. There are three ways to do it:
- Record a revocation on the statutory form. It must be signed, notarized, and recorded with the county recorder before your death.
- Record a later TOD deed for the same property naming a different beneficiary. The newer deed supersedes the older one.
- Sell or transfer the property during your lifetime. Once you no longer own it, the TOD deed has nothing to act on.
Tearing up your copy of the deed does nothing. The recorded copy at the county controls, not the paper in your filing cabinet. An unrecorded revocation is equally useless. For the revocation to count, it has to be recorded before you die.
How It Interacts With a Will or Trust
When a properly recorded TOD deed and another instrument both try to transfer the same property, California resolves the conflict by which instrument was executed later. If both are revocable, the later-signed document controls.8California Legislative Information. California Code Probate Code 5660 A will signed after a TOD deed can override the deed. A TOD deed signed after a will can override the will. Timing is what matters, not the type of instrument.
If a TOD deed is invalid because the recording deadline was missed or the witness requirements were skipped, the property falls into the probate estate and passes under the will, or through intestate succession if there is no will.
Trusts complicate things. If you have already deeded the property into a revocable living trust, the trustee holds legal title, and a TOD deed you later record is likely ineffective because you no longer own the property individually. Going the other direction, if you record a TOD deed and then transfer the property into a trust, that trust transfer effectively revokes the deed. Using both a trust and a TOD deed for the same property is a recipe for litigation.
What the Beneficiary Does After You Die
A TOD deed does not transfer title automatically the moment you die. The beneficiary has paperwork to file. At a minimum, they need to record an affidavit confirming your death, along with a certified copy of the death certificate, in the county where the property sits. They also need to give notice to any heirs who might have a right to contest the deed.
The notice matters because interested parties have 120 days after they receive it to challenge the deed in court.9California Legislative Information. California Probate Code 5690-5698 – Contest of Revocable Transfer on Death Deed Until that window closes, the beneficiary’s title is not fully settled. Common grounds for contest include lack of mental capacity, undue influence, fraud, and failure to meet the statutory formalities.
Debts Follow the Property
Inheriting through a TOD deed does not mean walking away from the transferor’s unpaid bills. If no probate estate is opened, the beneficiary is personally liable for the transferor’s unsecured debts. If a probate estate is opened later, the beneficiary owes the estate a proportionate share of those debts.10California Legislative Information. California Code Probate Code 5677
The share is calculated by treating the TOD property as if it were a specific gift in the decedent’s will and applying probate debt-abatement rules. The property is valued at fair market value on the date of death, minus mortgages and liens.10California Legislative Information. California Code Probate Code 5677 Credit card balances, medical bills, and personal loans can all follow the property to the beneficiary. If the transferor has significant debts, that liability can eat a large share of what the beneficiary thought they were inheriting.
Mortgage, Property Tax, and Basis
Existing Mortgage
Many owners worry that a TOD deed will trigger the due-on-sale clause in their mortgage. Federal law addresses this directly. The Garn-St. Germain Act prohibits lenders from accelerating a residential mortgage on a property with four or fewer units when the transfer results from the borrower’s death and goes to a relative, spouse, or child, or passes by devise or descent.11Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions The beneficiary can keep making the existing payments without being forced to refinance. The loan itself stays with the property, so the beneficiary inherits the home and the balance together.
Reassessment Under Proposition 19
Proposition 19, in effect since February 2021, changed how inherited homes are taxed. Before Prop 19, a parent could pass a primary residence and up to $1 million in other real property to a child without triggering a reassessment to current market value. Now the exclusion applies only if the child uses the inherited property as their own primary residence and files for the homeowners’ exemption within one year of the transfer.12California State Board of Equalization. Proposition 19 Fact Sheet
Even when the child moves in, there is a value cap. The excluded amount is the property’s existing taxable value plus an inflation-adjusted figure that started at $1 million and is $1,044,586 for transfers between February 16, 2025 and February 15, 2027.12California State Board of Equalization. Proposition 19 Fact Sheet Anything above the cap gets added to the taxable value, and the tax bill rises. If the child does not use the home as a primary residence, the property is fully reassessed. In areas where values have climbed, that can add thousands of dollars a year in property tax. A TOD deed does not sidestep Prop 19. The same rules apply whether the property passes by TOD deed, trust, or will.
Stepped-Up Basis
Property received through a TOD deed qualifies for a stepped-up basis under federal tax law, the same as any other inherited property.13Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent The beneficiary’s cost basis resets to fair market value on the date of death. If they later sell, capital gains are calculated from that stepped-up value, not from what the transferor originally paid. For a home bought decades ago, that can erase hundreds of thousands of dollars in taxable gain.
The 2032 Sunset
The TOD deed statute is not permanent. Unless the legislature extends it again, the law repeals itself on January 1, 2032. A deed properly executed and recorded before that date stays valid after the sunset, and you can still revoke it afterward using a signed, notarized instrument in the statutory form.14California Legislative Information. California Code Probate Code 5600 What the sunset would end is the ability to create new TOD deeds. If this tool fits your situation, use it well before 2032 rather than betting on another extension.