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
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           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
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            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