This form is used by a residential property owner when they have recorded a revocable transfer of death (TOD) deed designating a beneficiary who will take title to the property on their death, to revoke the transfer on death (TOD) deed.
A fee owner has rights of disposition
Although the term “property” means, in most situations, a physical or tangible thing, property may be more broadly defined by the rights which arise out of the object.
Thus, property may be referred to as a bundle of rights.
The bundle of rights includes the right of:
- possession;
- control;
- exclusion;
- enjoyment; and
- disposition.
Further, property is anything which may be owned. In turn, ownership is the right to possess the property owned and use it to the exclusion of others. [See RPI e-book Legal Aspects of Real Estate, Chapter 3]
The ownership interests a person may hold in real estate are called estates. Four types of estates exist in real estate:
- fee estates;
- life estates;
- leasehold estates; and
- estates at will.
Editor’s note — In practice, these estates are separated into three categories: fee estates, life estates and leasehold estates. Estates at will are considered part of the leasehold estates category. Leasehold estates are controlled by landlord/tenant law.
A person who holds a fee estate interest in real estate is a fee owner. A fee owner has the right to sell, possess and control their property indefinitely. A fee owner’s possession is exclusive and absolute. Thus, the owner has the right to deny others permission to cross their boundaries.
A fee owner may occupy, sell, lease or encumber their parcel of real estate, give it away or pass it on to anyone they choose on their death. [See RPI e-book Real Estate Principles, Chapter 33]
The right of disposition in ownership grants owners the ability to transfer ownership of their property, fully or partially, to another party.
A revocable transfer on death (TOD) deed may be recorded to transfer an interest in real estate upon the death of the owner. [See RPI Form 411]
The owner transferring ownership on their death is referred to as the transferor. The transferor will identify by name the beneficiary in the TOD deed. The beneficiary will receive the transfer upon the transferor’s death. More than one beneficiary may be named. [See RPI Form 411]
After a revocable TOD deed is executed and recorded, the transferor may revoke the revocable TOD deed at any time. [Calif. Probate Code §5630]
To revoke a previously executed and recorded TOD deed, the transferor needs to execute and record the statutory revocation of revocable TOD deed in the same manner as they recorded the original TOD deed. [See RPI Form 411-1]
No consent, agreement or notice of the revocation needs to be made on behalf of the beneficiary. [Prob C §5632]
New witness requirement
To be effective, a TOD deed needs to be signed by the transferor and dated and acknowledged before a notary public. [Prob C §5624]
As of January 2022, the deed also needs to be signed by two witnesses. The chosen witnesses both need to be present at the same time. The witnesses may observe the signing of the deed as it takes place. Alternatively, the witnesses may be present together after the signature is completed as long as the transferor confirms they signed the deed. [Prob C §5624]
Generally, any competent person may act as a witness to a TOD deed. Interested witnesses, or those who may be personally affected by the outcome of the transfer, may also be used as witnesses. [Prob C §§5625(a), 5625(b)]
However, when the beneficiary of the TOD deed is used as a witness, it creates a presumption that the TOD deed was created by duress, menace, fraud or undue influence. Thus, it creates a greater risk of legal trouble, and thus ought to be avoided as a matter of best practices. [Prob C §5625(c)]
Recording and executing the TOD deed
A TOD deed needs to be recorded within 60 days of the date it was acknowledged before a notary. Otherwise, the deed becomes ineffective. [Prob C §5626(a)]
When a TOD deed is recorded more than once on the same property, the later executed deed replaces the original. When this second version of the TOD deed is executed and recorded, it automatically revokes — supersedes — the earlier executed deed. [Prob C §5628]
During the transferor’s life, executing and recording a TOD deed does not:
- affect the transferor’s ownership rights;
- subject the property to the beneficiary’s creditors;
- transfer or convey any right, title or interest in the property; or
- constitute a change of ownership for property taxes. [Prob C §§5650; Prob C 5656]
On the transferor’s death, a TOD deed transfers all of the transferor’s interest in their property in accordance with the deed without covenant or warranty of title. The beneficiary needs to survive the transferor. When the beneficiary does not survive the transferor, their interest in the property lapses. [Prob C §5652]
When there is more than one beneficiary named in the TOD deed, the beneficiaries take title to the property as tenants in common in equal shares. When one of the beneficiaries’ shares of the property lapses or fails for any reason, their share is equally transferred to the other beneficiaries. [Prob C §5652]
Any errors or ambiguities in describing the property or naming the beneficiary does not invalidate a TOD deed as long as the transferor’s intention may be established by a court. [Prob C §5659]
Analyzing the revocation of the TOD deed
A residential property owner uses the Revocation of Revocable TOD Deed published by RPI when they have recorded a revocable TOD deed designating a beneficiary who will take title to the property on their death. The form allows the property owner to revoke the TOD deed. [See RPI Form 411-1]
The revocation of revocable TOD deed contains the following sections:
- Property Description: the transferor provides the legal description of the property affected by the revocation. [See RPI Form 411-1 §1]
- Revocation: the transferor agrees to a statement which revokes any previously executed and recorded TOD deed transferring the described property. [See RPI Form 411-1 §2]
- Signature: the transferor signs, prints and dates the form. [See RPI Form 411-1]
The form is then notarized by a notary public in the county in which the property is located. The revocation form needs to be recorded before the transferor’s death to be effective. [See RPI Form 411-1]
Form navigation page updated 05-2022.
Form last revised 2022.
Form-of-the-Week: Transfer on Death Deeds — Revocable Transfer and Revocation — Forms 411 and 411-1
Article: Revocable transfer on death deed may be used as non-probate transfer of property
Article: Inheriting debt: taking title subject to a mortgage
Book: Real Estate Principles, Chapter 33: Fee vs. leasehold
Book: Legal Aspects of Real Estate, Chapter 3: The real estate exists
Word-of-the-Week: Bundle of Rights
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