BILL ANALYSIS Ó AB 699 Page 1 Date of Hearing: April 13, 2011 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair AB 699 (Wagner) - As Amended: March 25, 2011 Policy Committee: JudiciaryVote:9-1 Urgency: No State Mandated Local Program: No Reimbursable: SUMMARY This bill, until January 1, 2017, establishes a new, non-probate method for conveying real property upon death through a "revocable transfer upon death deed" (RTDD). Specifically, this bill: 1)Allows an interest in real property to be transferred on death by recording a RTDD signed and acknowledged by the record owner of the property and designating a beneficiary or beneficiaries. The deed transfers ownership of that property interest upon the death of the owner. 2)Provides an RTDD form in statute, and provides a statutory form for revocation of an RTDD. The RTDD form provides information to the transferor, including explaining how the RTDD works, how it is effectuated and some of its consequences. 3)Provides that property subject to RTDD is still part of transferor's estate for purposes of Medi-Cal eligibility and will be subject to Medi-Cal reimbursement claims. 4)Requires the California Law Revision Commission (CLRC) to study the impacts of RTDDs, as set forth above, and report its findings and recommendations to the Legislature by January 2016. FISCAL EFFECT 1)Absorbable costs for the CLRC's study and report. 2)Potential minor savings in probate court costs and backlogs. AB 699 Page 2 COMMENTS 1)Background and Purpose . AB 12 (DeVore)/Chapter 422 of 2005, directed the CLRC to study California's non-probate transfer provisions and determine whether California should enact a beneficiary deed--a deed which transfers real property outside of probate upon death of the transferor. In October 2006, the CLRC issued its recommendation that California adopt a revocable transfer on death deed, noting that while the deed has advantages and disadvantages, creation of such a deed would, on the whole, be beneficial in California. According to the author, the RTDD is necessary to "fill a major gap in estate planning instruments available to ordinary citizens, by providing a straightforward, inexpensive, and reliable means of passing real property directly to a beneficiary, to go along with the many options California citizens currently have to pass personal property to their loved ones outside of the long, complicated and expensive probate process. The bill is particularly intended for the benefit of senior citizens whose estate consists primarily - or even exclusively - of the family home, and unmarried homeowners who wish to leave their home to their partner, loved one, or family member upon death, but do not want to transfer a present ownership interest in the property. Existing law offers these individuals no good options..." The methods of transferring real property at death include transfer by will or intestate succession, trust, survivorship rights created by joint tenancy or community property, transfer with a reserved life estate, and a revocable transfer deed as recognized by Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570. Each method has its advantages and disadvantages. For example, a will generally requires probate, which is a time consuming and costly. A trust is expensive to create, particularly if the sole purpose is to convey one piece of property. Joint tenancy with right of survivorship creates immediate property interests in all the joint tenants. A current transfer, with a reserved life estate for the transferor, is nonrevocable, preventing the transferor from later changing his or her mind. A revocable deed under Tennant v. John Tennant Memorial Home (1914) 167 Cal. 570 has been used rarely and its legal consequences are not fully understood. AB 699 Page 3 Thirteen other states, including Colorado, New Mexico, Ohio and Wisconsin, statutorily recognize a RTDD. The CLRC's investigation revealed minor differences between states RTDDs and found that practitioners generally liked having the option of the RTDD. However, most of the statutes were too new to provide evidence of their effectiveness or of their susceptibility to misuse or abuse. For this reason, the bill requires the CLRC to perform a follow-up study, by January 2016, on the use of RTDDs and any recommendations for changes. 2)Opposition . The California Land Title Association (CTLA) and the California Escrow Association argue that RTDDs increase the opportunity for fraud and "will become the new form of easy, convenient, and cheap elder absuse." The opponents believe the RTDD is "complex and convoluted" and, when used by transferors without advice from legal counsel, could well create confusion and ambiguity that could cloud the property's title. 3)Prior Legislation . This bill is substantially similar to AB 724 (Devore) of 2009, which failed passage in Senate Appropriations, and AB 250 (DeVore) of 2007, which failed passage in the Senate Judiciary. Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081