California Legislature—2015–16 Regular Session

Assembly Bill No. 139

Introduced by Assembly Member Gatto

January 9, 2015

An act to amend Sections 2337 and 2040 of the Family Code, to amend Sections 250, 267, 279, 2580, 5000, 5302, 13111, 13206, and 13562 of, to amend and renumber Sections 5600, 5601, 5602, 5603, and 5604 of, to add Section 69 to, to add the heading of Chapter 3 (commencing with Section 5040) to Part 1 of Division 5 of, to add and repeal Part 4 (commencing with Section 5600) of Division 5 of, and to repeal the heading of Part 4 (commencing with Section 5600) of Division 5 of, the Probate Code, relating to nonprobate transfers.

LEGISLATIVE COUNSEL’S DIGEST

AB 139, as introduced, Gatto. Nonprobate transfers: revocable transfer upon death deeds.

(1) Existing law provides that a person may pass real property to a beneficiary at death by various methods including by will, intestate succession, trust, and titling the property in joint tenancy, among others.

This bill would, until January 1, 2021, create the revocable transfer on death deed (revocable TOD deed), as defined, which would transfer real property on the death of its owner without a probate proceeding. The bill would require that a person have testamentary capacity to make or revoke the deed and would require that the deed be in a statutory form provided for this purpose. The revocable TOD deed must be signed, dated, acknowledged, and recorded, as specified, to be effective. The bill would provide, among other things, that the deed, during the owner’s life, does not affect his or her ownership rights and, specifically, is part of the owner’s estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owner’s death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would also make conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.

(2) Existing law provides that a person who feloniously and intentionally kills a decedent is not entitled to specified property, interests, or benefits, including any gifts of personal property made in view of impending death.

This bill would specify that a person who feloniously and intentionally kills a decedent is not entitled generally to property and interests that are transferred outside of probate, including real property transferred by a revocable TOD deed.

(3) Existing law establishes simplified procedures for dealing with a decedent’s estate valued under $150,000, including authorizing the successor of the decedent to collect and distribute property due the decedent without letters of administration or awaiting probate of a will. Existing law provides that a beneficiary who receives real or personal property under these circumstances, as specified, may be liable to the estate if probate proceedings are subsequently commenced. Existing law provides, in this context, that a spouse has liability for the debts of a deceased spouse if the decedent’s property is in the control of the surviving spouse. Existing law permits a court judgment to enforce liability in these instances only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.

This bill would delete the reference to court judgment and provide instead that the personal representative of the estate is permitted to enforce liability only to the extent necessary to protect the heirs, devisees, and creditors of the decedent.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2337 of the Family Code is amended to
read:

2337.  

(a) In a proceeding for dissolution of marriage, the court,
upon noticed motion, may sever and grant an early and separate
trial on the issue of the dissolution of the status of the marriage
apart from other issues.

(b) A preliminary declaration of disclosure with a completed
schedule of assets and debts shall be served on the nonmoving
party with the noticed motion unless it has been served previously,
or unless the parties stipulate in writing to defer service of the
preliminary declaration of disclosure until a later time.

(c) The court may impose upon a party any of the following
conditions on granting a severance of the issue of the dissolution
of the status of the marriage, and in case of that party’s death, an
order of any of the following conditions continues to be binding
upon that party’s estate:

(1) The party shall indemnify and hold the other party harmless
from any taxes, reassessments, interest, and penalties payable by
the other party in connection with the division of the community
estate that would not have been payable if the parties were still
married at the time the division was made.

(2) Until judgment has been entered on all remaining issues and
has become final, the party shall maintain all existing health and
medical insurance coverage for the other party and any minor
children as named dependents, so long as the party is eligible to
do so. If at any time during this period the party is not eligible to
maintain that coverage, the party shall, at the party’s sole expense,
provide and maintain health and medical insurance coverage that
is comparable to the existing health and medical insurance coverage
to the extent it is available. To the extent that coverage is not
available, the party shall be responsible to pay, and shall
demonstrate to the court’s satisfaction the ability to pay, for the
health and medical care for the other party and the minor children,
to the extent that care would have been covered by the existing
insurance coverage but for the dissolution of marital status, and
shall otherwise indemnify and hold the other party harmless from
any adverse consequences resulting from the loss or reduction of
the existing coverage. For purposes of this subdivision, “health
and medical insurance coverage” includes any coverage for which
the parties are eligible under any group or individual health or
other medical plan, fund, policy, or program.

(3) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other
party harmless from any adverse consequences to the other party
if the bifurcation results in a termination of the other party’s right
to a probate homestead in the residence in which the other party
resides at the time the severance is granted.

(4) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other
party harmless from any adverse consequences to the other party
if the bifurcation results in the loss of the rights of the other party
to a probate family allowance as the surviving spouse of the party.

(5) Until judgment has been entered on all remaining issues and
has become final, the party shall indemnify and hold the other
party harmless from any adverse consequences to the other party
if the bifurcation results in the loss of the other party’s rights with
respect to any retirement, survivor, or deferred compensation
benefits under any plan, fund, or arrangement, or to any elections
or options associated therewith, to the extent that the other party
would have been entitled to those benefits or elections as the spouse
or surviving spouse of the party.

(6) The party shall indemnify and hold the other party harmless
from any adverse consequences if the bifurcation results in the
loss of rights to social security benefits or elections to the extent
the other party would have been entitled to those benefits or
elections as the surviving spouse of the party.

(7) (A) The court may make an order pursuant to paragraph (3)
of subdivision (b) of Section begin delete 5600 end delete begin insert 5040 end insert of the Probate Code, if
appropriate, that a party maintain a beneficiary designation for a
nonprobate transfer, as described in Section 5000 of the Probate
Code, for a spouse or domestic partner for up to one-half of or,
upon a showing of good cause, for all of a nonprobate transfer
asset until judgment has been entered with respect to the
community ownership of that asset, and until the other party’s
interest therein has been distributed to him or her.

(B) Except upon a showing of good cause, this paragraph does
not apply to any of the following:

(i) A nonprobate transfer described in Section 5000 of the
Probate Code that was not created by either party or that was
acquired by either party by gift, descent, or devise.

(ii) An irrevocable trust.

(iii) A trust of which neither party is the grantor.

(iv) Powers of appointment under a trust instrument that was
not created by either party or of which neither party is a grantor.

(v) The execution and filing of a disclaimer pursuant to Part 8
(commencing with Section 260) of Division 2 of the Probate Code.

(vi) The appointment of a party as a trustee.

(8) In order to preserve the ability of the party to defer the
distribution of the Individual Retirement Account or annuity (IRA)
established under Section 408 or 408A of the Internal Revenue
Code of 1986, as amended, (IRC) upon the death of the other party,
the court may require that one-half, or all upon a showing of good
cause, of the community interest in any IRA, by or for the benefit
of the party, be assigned and transferred to the other party pursuant
to Section 408(d)(6) of the Internal Revenue Code. This paragraph
does not limit the power granted pursuant to subdivision (g).

(9) Upon a showing that circumstances exist that would place
a substantial burden of enforcement upon either party’s community
property rights or would eliminate the ability of the surviving party
to enforce his or her community property rights if the other party
died before the division and distribution or compliance with any
court-ordered payment of any community property interest therein,
including, but not limited to, a situation in which preemption under
federal law applies to an asset of a party, or purchase by a bona
fide purchaser has occurred, the court may order a specific security
interest designed to reduce or eliminate the likelihood that a
postmortem enforcement proceeding would be ineffective or
unduly burdensome to the surviving party. For this purpose, those
orders may include, but are not limited to, any of the following:

(A) An order that the party provide an undertaking.

(B) An order to provide a security interest by Qualified Domestic
Relations Order from that party’s share of a retirement plan or
plans.

(C) An order for the creation of a trust as defined in paragraph
(2) of subdivision (a) of Section 82 of the Probate Code.

(D) An order for other arrangements as may be reasonably
necessary and feasible to provide appropriate security in the event
of the party’s death before judgment has been entered with respect
to the community ownership of that asset, and until the other
party’s interest therein has been distributed to him or her.

(E) If a retirement plan is not subject to an enforceable court
order for the payment of spousal survivor benefits to the other
party, an interim order requiring the party to pay or cause to be
paid, and to post adequate security for the payment of, any survivor
benefit that would have been payable to the other party on the
death of the party but for the judgment granting a dissolution of
the status of the marriage, pending entry of judgment on all
remaining issues.

(10) Any other condition the court determines is just and
equitable.

(d) Prior to, or simultaneously with, entry of judgment granting
dissolution of the status of the marriage, all of the following shall
occur:

(1) The party’s retirement or pension plan shall be joined as a
party to the proceeding for dissolution, unless joinder is precluded
or made unnecessary by Title 1 of the federal Employee Retirement
Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as
amended (ERISA), or any other applicable law.

(2) To preserve the claims of each spouse in all retirement plan
benefits upon entry of judgment granting a dissolution of the status
of the marriage, the court shall enter one of the following in
connection with the judgment for each retirement plan in which
either party is a participant:

(A) An order pursuant to Section 2610 disposing of each party’s
interest in retirement plan benefits, including survivor and death
benefits.

(B) An interim order preserving the nonemployee party’s right
to retirement plan benefits, including survivor and death benefits,
pending entry of judgment on all remaining issues.

(C) An attachment to the judgment granting a dissolution of the
status of the marriage, as follows:

EACH PARTY (insert names and addresses) IS
PROVISIONALLY AWARDED WITHOUT PREJUDICE
AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT
DOMESTIC RELATIONS ORDER, A SEPARATE
INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS
ACCRUED OR TO BE ACCRUED UNDER THE PLAN
(name each plan individually) AS A RESULT OF
EMPLOYMENT OF THE OTHER PARTY DURING THE
MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR
TO THE DATE OF SEPARATION. IN ADDITION,
PENDING FURTHER NOTICE, THE PLAN SHALL, AS
ALLOWED BY LAW, OR IN THE CASE OF A
GOVERNMENTAL PLAN, AS ALLOWED BY THE
TERMS OF THE PLAN, CONTINUE TO TREAT THE
PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR
PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS
AVAILABLE UNDER THE PLAN TO THE EXTENT
NECESSARY TO PROVIDE FOR PAYMENT OF AN
AMOUNT EQUAL TO THAT SEPARATE INTEREST OR
FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME
OF THE DEATH OF THE PARTICIPANT, THERE IS NO
OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR
BENEFIT.

(e) The moving party shall promptly serve a copy of any order,
interim order, or attachment entered pursuant to paragraph (2) of
subdivision (d), and a copy of the judgment granting a dissolution
of the status of the marriage, on the retirement or pension plan
administrator.

(f) A judgment granting a dissolution of the status of the
marriage shall expressly reserve jurisdiction for later determination
of all other pending issues.

(g) If the party dies after the entry of judgment granting a
dissolution of marriage, any obligation imposed by this section
shall be enforceable against any asset, including the proceeds
thereof, against which these obligations would have been
enforceable prior to the person’s death.

SEC. 2.  

Section 2040 of the Family Code is amended to read:

2040.  

(a) In addition to the contents required by Section 412.20
of the Code of Civil Procedure, the summons shall contain a
temporary restraining order:

(1) Restraining both parties from removing the minor child or
children of the parties, if any, from the state without the prior
written consent of the other party or an order of the court.

(2) Restraining both parties from transferring, encumbering,
hypothecating, concealing, or in any way disposing of any property,
real or personal, whether community, quasi-community, or
separate, without the written consent of the other party or an order
of the court, except in the usual course of business or for the
necessities of life, and requiring each party to notify the other party
of any proposed extraordinary expenditures at least five business
days before incurring those expenditures and to account to the
court for all extraordinary expenditures made after service of the
summons on that party.

Notwithstanding the foregoing, nothing in the restraining order
shall preclude a party from using community property,
quasi-community property, or the party’s own separate property
to pay reasonable attorney’s fees and costs in order to retain legal
counsel in the proceeding. A party who uses community property
or quasi-community property to pay his or her attorney’s retainer
for fees and costs under this provision shall account to the
community for the use of the property. A party who uses other
property that is subsequently determined to be the separate property
of the other party to pay his or her attorney’s retainer for fees and
costs under this provision shall account to the other party for the
use of the property.

(3) Restraining both parties from cashing, borrowing against,
canceling, transferring, disposing of, or changing the beneficiaries
of any insurance or other coverage, including life, health,
automobile, and disability, held for the benefit of the parties and
their child or children for whom support may be ordered.

(4) Restraining both parties from creating a nonprobate transfer
or modifying a nonprobate transfer in a manner that affects the
disposition of property subject to the transfer, without the written
consent of the other party or an order of the court.

(b) Nothing in this section restrains any of the following:

(1) Creation, modification, or revocation of a will.

(2) Revocation of a nonprobate transfer, including a revocable
trust, pursuant to the instrument, provided that notice of the change
is filed and served on the other party before the change takes effect.

(3) Elimination of a right of survivorship to property, provided
that notice of the change is filed and served on the other party
before the change takes effect.

(4) Creation of an unfunded revocable or irrevocable trust.

(5) Execution and filing of a disclaimer pursuant to Part 8
(commencing with Section 260) of Division 2 of the Probate Code.

(c) In all actions filed on and after January 1, 1995, the summons
shall contain the following notice:

“WARNING: California law provides that, for purposes of
division of property upon dissolution of marriage or legal
separation, property acquired by the parties during marriage in
joint form is presumed to be community property. If either party
to this action should die before the jointly held community property
is divided, the language of how title is held in the deed (i.e., joint
tenancy, tenants in common, or community property) will be
controlling and not the community property presumption. You
should consult your attorney if you want the community property
presumption to be written into the recorded title to the property.”

(d) For the purposes of this section:

(1) “Nonprobate transfer” means an instrument, other than a
will, that makes a transfer of property on death, including a
revocable trust, pay on death account in a financial institution,
Totten trust, transfer on death registration of personal property,
begin insert revocable transfer on death deed, end insert or other instrument of a type
described in Section 5000 of the Probate Code.

(2) “Nonprobate transfer” does not include a provision for the
transfer of property on death in an insurance policy or other
coverage held for the benefit of the parties and their child or
children for whom support may be ordered, to the extent that the
provision is subject to paragraph (3) of subdivision (a).

(e) The restraining order included in the summons shall include
descriptions of the notices required by paragraphs (2) and (3) of
subdivision (b).

SEC. 3.  

Section 69 is added to the Probate Code, to read:

69.  

“Revocable transfer on death deed” or “revocable TOD
deed” means a revocable transfer on death deed as described in
Section 5614.

SEC. 4.  

Section 250 of the Probate Code is amended to read:

250.  

(a) A person who feloniously and intentionally kills the
decedent is not entitled to any of the following:

(1) Any property, interest, or benefit under a will of the
decedent, or a trust created by or for the benefit of the decedent
or in which the decedent has an interest, including any general or
special power of appointment conferred by the will or trust on the
killer and any nomination of the killer as executor, trustee,
guardian, or conservator or custodian made by the will or trust.

(2) Any property of the decedent by intestate succession.

(3) Any of the decedent’s quasi-community property the killer
would otherwise acquire under Section 101 or 102 upon the death
of the decedent.

(4) Any property of the decedent under begin delete Part end delete begin insert Division end insert 5
(commencing with Section begin delete 5700) of Division 5. end delete begin insert 5000). end insert

(5) Any property of the decedent under Part 3 (commencing
with Section 6500) of Division 6.

(b) In the cases covered by subdivision (a):

(1) The property interest or benefit referred to in paragraph (1)
of subdivision (a) passes as if the killer had predeceased the
decedent and Section 21110 does not apply.

(2) Any property interest or benefit referred to in paragraph (1)
of subdivision (a) which passes under a power of appointment and
by reason of the death of the decedent passes as if the killer had
predeceased the decedent, and Section 673 begin insert does end insert not apply.

(3) Any nomination in a will or trust of the killer as executor,
trustee, guardian, conservator, or custodian which becomes
effective as a result of the death of the decedent shall be interpreted
as if the killer had predeceased the decedent.

SEC. 5.  

Section 267 of the Probate Code is amended to read:

267.  

(a) “Interest” includes the whole of any property, real or
personal, legal or equitable, or any fractional part, share, or
particular portion or specific assets thereof, or any estate in any
such property, or any power to appoint, consume, apply, or expend
property, or any other right, power, privilege, or immunity relating
to property.

(b) “Interest” includes, but is not limited to, an interest created
in any of the following manners:

(1) By intestate succession.

(2) Under a will.

(3) Under a trust.

(4) By succession to a disclaimed interest.

(5) By virtue of an election to take against a will.

(6) By creation of a power of appointment.

(7) By exercise or nonexercise of a power of appointment.

(8) By an inter vivos gift, whether outright or in trust.

(9) By surviving the death of a depositor of a Totten trust
account or P.O.D. account.

(10) Under an insurance or annuity contract.

(11) By surviving the death of another joint tenant.

(12) Under an employee benefit plan.

(13) Under an individual retirement account, annuity, or bond.

begin insert

(14) Under a transfer on death beneficiary designation in a
deed or other instrument.

end insert begin delete

(14)

end delete

begin insert (15) end insert  Any other interest created by begin delete any end delete begin insert a end insert testamentary or inter
vivos instrument or by operation of law.

SEC. 6.  

Section 279 of the Probate Code is amended to read:

279.  

(a) A disclaimer to be effective shall be filed within a
reasonable time after the person able to disclaim acquires
knowledge of the interest.

(b) In the case of any of the following interests, a disclaimer is
conclusively presumed to have been filed within a reasonable time
if it is filed within nine months after the death of the creator of the
interest or within nine months after the interest becomes
indefeasibly vested, whichever occurs later:

(1) An interest created under a will.

(2) An interest created by intestate succession.

(3) An interest created pursuant to the exercise or nonexercise
of a testamentary power of appointment.

(4) An interest created by surviving the death of a depositor of
a Totten trust account or P.O.D. account.

(5) An interest created under a life insurance or annuity contract.

(6) An interest created by surviving the death of another joint
tenant.

(7) An interest created under an employee benefit plan.

(8) An interest created under an individual retirement account,
annuity, or bond.

begin insert

(9) An interest created under a transfer on death beneficiary
designation in a deed or other instrument.

end insert

(c) In the case of an interest created by a living trust, an interest
created by the exercise of a presently exercisable power of
appointment, an outright inter vivos gift, a power of appointment,
or an interest created or increased by succession to a disclaimed
interest, a disclaimer is conclusively presumed to have been filed
within a reasonable time if it is filed within nine months after
whichever of the following times occurs latest:

(1) The time of the creation of the trust, the exercise of the power
of appointment, the making of the gift, the creation of the power
of appointment, or the disclaimer of the disclaimed property.

(2) The time the first knowledge of the interest is acquired by
the person able to disclaim.

(3) The time the interest becomes indefeasibly vested.

(d) In case of an interest not described in subdivision (b) or (c),
a disclaimer is conclusively presumed to have been filed within a
reasonable time if it is filed within nine months after whichever
of the following times occurs later:

(1) The time the first knowledge of the interest is acquired by
the person able to disclaim.

(2) The time the interest becomes indefeasibly vested.

(e) In the case of a future estate, a disclaimer is conclusively
presumed to have been filed within a reasonable time if it is filed
within whichever of the following times occurs later:

(1) Nine months after the time the interest becomes an estate in
possession.

(2) The time specified in subdivision (b), (c), or (d), whichever
is applicable.

(f) If the disclaimer is not filed within the time provided in
subdivision (b), (c), (d), or (e), the disclaimant has the burden of
establishing that the disclaimer was filed within a reasonable time
after the disclaimant acquired knowledge of the interest.

SEC. 7.  

Section 2580 of the Probate Code is amended to read:

2580.  

(a) The conservator or other interested person may file
a petition under this article for an order of the court authorizing
or requiring the conservator to take a proposed action for any one
or more of the following purposes:

(1) Benefiting the conservatee or the estate.

(2) Minimizing current or prospective taxes or expenses of
administration of the conservatorship estate or of the estate upon
the death of the conservatee.

(3) Providing gifts for any purposes, and to any charities,
relatives (including the other spouse or domestic partner), friends,
or other objects of bounty, as would be likely beneficiaries of gifts
from the conservatee.

(b) The action proposed in the petition may include, but is not
limited to, the following:

(1) Making gifts of principal or income, or both, of the estate,
outright or in trust.

(2) Conveying or releasing the conservatee’s contingent and
expectant interests in property, including marital property rights
and any right of survivorship incident to joint tenancy or tenancy
by the entirety.

(3) Exercising or releasing the conservatee’s powers as donee
of a power of appointment.

(4) Entering into contracts.

(5) Creating for the benefit of the conservatee or others,
revocable or irrevocable trusts of the property of the estate, which
trusts may extend beyond the conservatee’s disability or life. A
special needs trust for money paid pursuant to a compromise or
judgment for a conservatee may be established only under Chapter
4 (commencing with Section 3600) of Part 8, and not under this
article.

(6) Transferring to a trust created by the conservator or
conservatee any property unintentionally omitted from the trust.

(7) Exercising options of the conservatee to purchase or
exchange securities or other property.

(8) Exercising the rights of the conservatee to elect benefit or
payment options, to terminate, to change beneficiaries or
ownership, to assign rights, to borrow, or to receive cash value in
return for a surrender of rights under any of the following:

(A) Life insurance policies, plans, or benefits.

(B) Annuity policies, plans, or benefits.

(C) Mutual fund and other dividend investment plans.

(D) Retirement, profit sharing, and employee welfare plans and
benefits.

(9) Exercising the right of the conservatee to elect to take under
or against a will.

(10) Exercising the right of the conservatee to disclaim any
interest that may be disclaimed under Part 8 (commencing with
Section 260) of Division 2.

(11) Exercising the right of the conservatee (A) to revoke or
modify a revocable trust or (B) to surrender the right to revoke or
modify a revocable trust, but the court shall not authorize or require
the conservator to exercise the right to revoke or modify a
revocable trust if the instrument governing the trust (A) evidences
an intent to reserve the right of revocation or modification
exclusively to the conservatee, (B) provides expressly that a
conservator may not revoke or modify the trust, or (C) otherwise
evidences an intent that would be inconsistent with authorizing or
requiring the conservator to exercise the right to revoke or modify
the trust.

(12) Making an election referred to in Section 13502 or an
election and agreement referred to in Section 13503.

(13) Making a will.

begin insert

(14) Making or revoking a revocable transfer on death deed.

end insert

SEC. 8.  

Section 5000 of the Probate Code is amended to read:

5000.  

(a) A provision for a nonprobate transfer on death in an
insurance policy, contract of employment, bond, mortgage,
promissory note, certificated or uncertificated security, account
agreement, custodial agreement, deposit agreement, compensation
plan, pension plan, individual retirement plan, employee benefit
plan, trust, conveyance, deed of gift, begin insert revocable transfer on death
deed, end insert marital property agreement, or other written instrument of
a similar nature is not invalid because the instrument does not
comply with the requirements for execution of a will, and this code
does not invalidate the instrument.

(b) Included within subdivision (a) are the following:

(1) A written provision that begin delete money end delete begin insert moneys end insert or other benefits
due to, controlled by, or owned by a decedent before death shall
be paid after the decedent’s death to a person whom the decedent
designates either in the instrument or in a separate writing,
including a will, executed either before or at the same time as the
instrument, or later.

(2) A written provision that begin delete money end delete begin insert moneys end insert due or to become
due under the instrument shall cease to be payable in begin insert the end insert event of
the death of the promisee or the promisor before payment or
demand.

(3) A written provision that any property controlled by or owned
by the decedent before death that is the subject of the instrument
shall pass to a person whom the decedent designates either in the
instrument or in a separate writing, including a will, executed either
before or at the same time as the instrument, or later.

(c) Nothing in this section limits the rights of creditors under
any other law.

SEC. 9.  

Section 5302 of the Probate Code is amended to read:

5302.  

Subject to Section begin delete 5600: end delete begin insert 5040: end insert

(a) Sums remaining on deposit at the death of a party to a joint
account belong to the surviving party or parties as against the estate
of the decedent unless there is clear and convincing evidence of a
different intent. If there are two or more surviving parties, their
respective ownerships during lifetime are in proportion to their
previous ownership interests under Section 5301 augmented by
an equal share for each survivor of any interest the decedent may
have owned in the account immediately before the decedent’s
death; and the right of survivorship continues between the surviving
parties.

(b) If the account is a P.O.D. account:

(1) On death of one of two or more parties, the rights to any
sums remaining on deposit are governed by subdivision (a).

(2) On death of the sole party or of the survivor of two or more
parties, (A) any sums remaining on deposit belong to the P.O.D.
payee or payees if surviving, or to the survivor of them if one or
more die before the party, (B) if two or more P.O.D. payees
survive, any sums remaining on deposit belong to them in equal
and undivided shares unless the terms of the account or deposit
agreement expressly provide for different shares, and (C) if two
or more P.O.D. payees survive, there is no right of survivorship
in the event of death of a P.O.D. payee thereafter unless the terms
of the account or deposit agreement expressly provide for
survivorship between them.

(c) If the account is a Totten trust account:

(1) On death of one of two or more trustees, the rights to any
sums remaining on deposit are governed by subdivision (a).

(2) On death of the sole trustee or the survivor of two or more
trustees, (A) any sums remaining on deposit belong to the person
or persons named as beneficiaries, if surviving, or to the survivor
of them if one or more die before the trustee, unless there is clear
and convincing evidence of a different intent, (B) if two or more
beneficiaries survive, any sums remaining on deposit belong to
them in equal and undivided shares unless the terms of the account
or deposit agreement expressly provide for different shares, and
(C) if two or more beneficiaries survive, there is no right of
survivorship in event of death of any beneficiary thereafter unless
the terms of the account or deposit agreement expressly provide
for survivorship between them.

(d) In other cases, the death of any party to a begin delete multiple-party end delete
begin insert multiparty end insert account has no effect on beneficial ownership of the
account other than to transfer the rights of the decedent as part of
the decedent’s estate.

(e) A right of survivorship arising from the express terms of the
account or under this section, a beneficiary designation in a Totten
trust account, or a P.O.D. payee designation, cannot be changed
by will.

SEC. 10.  

The heading of Part 4 (commencing with Section
5600) of Division 5 of the Probate Code is repealed.

begin delete

 

PART 4.  NONPROBATE TRANSFER TO FORMER SPOUSE

 

end delete

SEC. 11.  

A heading is added as Chapter 3 (commencing with
Section 5040) to Part 1 of Division 5 of the Probate Code, immediately preceding Section 5040, to read:

 

Chapter  3. Nonprobate Transfer to Former Spouse

 

SEC. 12.  

Section 5600 of the Probate Code is amended and
renumbered to read:

begin delete 5600. end delete
begin insert 5040. end insert   

(a) Except as provided in subdivision (b), a nonprobate
transfer to the transferor’s former spouse, in an instrument executed
by the transferor before or during the marriage, fails if, at the time
of the transferor’s death, the former spouse is not the transferor’s
surviving spouse as defined in Section 78, as a result of the
dissolution or annulment of the marriage. A judgment of legal
separation that does not terminate the status of husband and wife
is not a dissolution for purposes of this section.

(b) Subdivision (a) does not cause a nonprobate transfer to fail
in any of the following cases:

(1) The nonprobate transfer is not subject to revocation by the
transferor at the time of the transferor’s death.

(2) There is clear and convincing evidence that the transferor
intended to preserve the nonprobate transfer to the former spouse.

(3) A court order that the nonprobate transfer be maintained on
behalf of the former spouse is in effect at the time of the
transferor’s death.

(c) Where a nonprobate transfer fails by operation of this section,
the instrument making the nonprobate transfer shall be treated as
it would if the former spouse failed to survive the transferor.

(d) Nothing in this section affects the rights of a subsequent
purchaser or encumbrancer for value in good faith who relies on
the apparent failure of a nonprobate transfer under this section or
who lacks knowledge of the failure of a nonprobate transfer under
this section.

(e) As used in this section, “nonprobate transfer” means a
provision, other than a provision of a life insurance policy, of either
of the following types:

(1) A provision of a type described in Section 5000.

(2) A provision in an instrument that operates on death, other
than a will, conferring a power of appointment or naming a trustee.

SEC. 13.  

Section 5601 of the Probate Code is amended and
renumbered to read:

begin delete 5601. end delete
begin insert 5042. end insert   

(a) Except as provided in subdivision (b), a joint tenancy
between the decedent and the decedent’s former spouse, created
before or during the marriage, is severed as to the decedent’s
interest if, at the time of the decedent’s death, the former spouse
is not the decedent’s surviving spouse as defined in Section 78, as
a result of the dissolution or annulment of the marriage. A judgment
of legal separation that does not terminate the status of husband
and wife is not a dissolution for purposes of this section.

(b) Subdivision (a) does not sever a joint tenancy in either of
the following cases:

(1) The joint tenancy is not subject to severance by the decedent
at the time of the decedent’s death.

(2) There is clear and convincing evidence that the decedent
intended to preserve the joint tenancy in favor of the former spouse.

(c) Nothing in this section affects the rights of a subsequent
purchaser or encumbrancer for value in good faith who relies on
an apparent severance under this section or who lacks knowledge
of a severance under this section.

(d) For purposes of this section, property held in “joint tenancy”
includes property held as community property with right of
survivorship, as described in Section 682.1 of the Civil Code.

SEC. 14.  

Section 5602 of the Probate Code is amended and
renumbered to read:

begin delete 5602. end delete
begin insert 5044. end insert   

(a) Nothing in this begin delete part end delete begin insert chapter end insert affects the rights of a
purchaser or encumbrancer of real property for value who in good
faith relies on an affidavit or a declaration under penalty of perjury
under the laws of this state that states all of the following:

(1) The name of the decedent.

(2) The date and place of the decedent’s death.

(3) A description of the real property transferred to the affiant
or declarant by an instrument making a nonprobate transfer or by
operation of joint tenancy survivorship.

(4) Either of the following, as appropriate:

(A) The affiant or declarant is the surviving spouse of the
decedent.

(B) The affiant or declarant is not the surviving spouse of the
decedent, but the rights of the affiant or declarant to the described
property are not affected by Section begin delete 5600 end delete begin insert 5040 end insert or begin delete 5601. end delete begin insert 5042. end insert

(b) A person relying on an affidavit or declaration made pursuant
to subdivision (a) has no duty to inquire into the truth of the matters
stated in the affidavit or declaration.

(c) An affidavit or declaration made pursuant to subdivision (a)
may be recorded.

SEC. 15.  

Section 5603 of the Probate Code is amended and
renumbered to read:

begin delete 5603. end delete
begin insert 5046. end insert   

Nothing in this begin delete part end delete begin insert chapter end insert is intended to limit the
court’s authority to order a party to a dissolution or annulment of
marriage to maintain the former spouse as a beneficiary on any
nonprobate transfer described in this begin delete part, end delete begin insert chapter, end insert or to preserve
a joint tenancy in favor of the former spouse.

SEC. 16.  

Section 5604 of the Probate Code is amended and
renumbered to read:

begin delete 5604. end delete
begin insert 5048. end insert   

(a) This begin delete part end delete begin insert chapter, formerly Part 4 (commencing with
Section 5600), end insert is operative on January 1, 2002.

(b) Except as provided in subdivision (c), this begin delete part end delete begin insert chapter end insert
applies to an instrument making a nonprobate transfer or creating
a joint tenancy whether executed before, on, or after the operative
date of this begin delete part. end delete begin insert chapter. end insert

(c) Sections begin delete 5600 end delete begin insert 5040 end insert and begin delete 5601 end delete begin insert 5042 end insert do not apply, and the
applicable law in effect before the operative date of this begin delete part end delete
begin insert chapter end insert applies, to an instrument making a nonprobate transfer or
creating a joint tenancy in either of the following circumstances:

(1) The person making the nonprobate transfer or creating the
joint tenancy dies before the operative date of this begin delete part. end delete begin insert chapter. end insert

(2) The dissolution of marriage or other event that terminates
the status of the nonprobate transfer beneficiary or joint tenant as
a surviving spouse occurs before the operative date of this begin delete part end delete
begin insert chapter end insert .

SEC. 17.  

Part 4 (commencing with Section 5600) is added to
Division 5 of the Probate Code, to read:

 

PART 4.  REVOCABLE TRANSFER ON DEATH DEED

 

Chapter  1. General Provisions

 

Article 1.  Preliminary Provisions

 

5600.  

(a) This part applies to a revocable transfer on death
deed made by a transferor who dies on or after January 1, 2016,
whether the deed was executed or recorded before, on, or after
January 1, 2016.

(b) Nothing in this part invalidates an otherwise valid transfer
under Section 5602.

(c) This part shall remain in effect only until January 1, 2021,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2021, deletes or extends that date. The
repeal of this part pursuant to this subdivision shall not affect the
validity or effect of a revocable transfer on death deed that is
executed before January 1, 2021, and shall not affect the authority
of the transferor to revoke a transfer on death deed by recording
a signed and notarized instrument that is substantially in the form
specified in Section 5644.

5602.  

(a) This part does not preclude use of any other method
of conveying real property that is permitted by law and that has
the effect of postponing enjoyment of the property until the death
of the owner.

(b) This part does not invalidate a deed of real property,
otherwise effective to convey title to the property, that is not
recorded until after the death of the owner.

5604.  

(a) Except as provided in subdivision (b), nothing in
this part affects the application to a revocable transfer on death
deed of any other statute governing a nonprobate transfer on death,
including, but not limited to, any of the following provisions that
by its terms or intent would apply to a nonprobate transfer on death:

(1) Division 2 (commencing with Section 100).

(2) Part 1 (commencing with Section 5000) of this division.

(3) Division 10 (commencing with Section 20100).

(4) Division 11 (commencing with Section 21101).

(b) Notwithstanding subdivision (a), a provision of another
statute governing a nonprobate transfer on death does not apply
to a revocable transfer on death deed to the extent this part provides
a contrary rule.

 

Article 2.  Definitions

 

5606.  

Unless the provision or context otherwise requires, the
definitions in this article govern the construction of this part.

5608.  

“Beneficiary” means a person named in a revocable
transfer on death deed as transferee of the property.

5610.  

“Real property” means the fee or an interest in real
property. The term includes, but is not limited to, any of the
following interests in real property:

(a) A leasehold.

(b) An interest in a common interest development within the
meaning of Section 6534 of the Civil Code.

(c) An easement, license, permit, or other right in property, to
the extent the right is both of the following:

(1) A recordable interest in property.

(2) Transferable on death of the owner of the right.

5612.  

“Recorded” has the meaning provided in Section 1170
of the Civil Code.

5614.  

(a) “Revocable transfer on death deed” means an
instrument created pursuant to this part that does all of the
following:

(1) Makes a donative transfer of real property to a named
beneficiary.

(2) Operates on the transferor’s death.

(3) Remains revocable until the transferor’s death.

(b) A revocable transfer on death deed may also be known as
a “revocable TOD deed.”

5616.  

“Transferor” means an owner of real property who makes
a revocable transfer on death deed of the property.

 

Chapter  2. Execution and Revocation

 

Article 1.  Execution

 

5620.  

An owner of real property who has testamentary capacity
may make a revocable transfer on death deed of the property.

5622.  

(a) The transferor shall identify the beneficiary by name
in a revocable transfer on death deed.

(b) The transferor may name more than one beneficiary. If there
is more than one beneficiary, they take the property as tenants in
common, in equal shares.

(c) The transferor may name as beneficiary the trustee of a trust
even if the trust is revocable.

5624.  

A revocable transfer on death deed is not effective unless
the transferor signs and dates the deed and acknowledges the deed
before a notary public.

5626.  

(a) A revocable transfer on death deed is not effective
unless the deed is recorded on or before 60 days after the date it
was executed.

(b) The transferor is not required to deliver a revocable transfer
on death deed to the beneficiary during the transferor’s life.

(c) The beneficiary is not required to accept a revocable transfer
on death deed from the transferor during the transferor’s life.

5628.  

(a) If a revocable transfer on death deed is recorded for
the same property for which another revocable transfer on death
deed is recorded, the later executed deed is the operative instrument
and its recordation revokes the earlier executed deed.

(b) Revocation of a revocable transfer on death deed does not
revive an instrument earlier revoked by recordation of that deed.

 

Article 2.  Revocation

 

5630.  

A transferor who has testamentary capacity may revoke
a revocable transfer on death deed at any time.

5632.  

(a) An instrument revoking a revocable transfer on death
deed shall be executed and recorded before the transferor’s death
in the same manner as execution and recordation of a revocable
transfer on death deed.

(b) Joinder, consent, or agreement of, or notice to, the
beneficiary is not required for revocation of a revocable transfer
on death deed.

 

Article 3.  Statutory Forms

 

5642.  

A revocable transfer on death deed shall be in the form
provided in this section.

(a) The face of the form shall be in substantially the following
form:

 

SIMPLE REVOCABLE TRANSFER ON DEATH (TOD) DEED (California Probate Code Section 5642)
Recording Requested By:
When Recorded Mail This Deed To
Name:
Address:
Assessor’s Parcel Number:       Space Above For Recorder’s Use
This document is exempt from documentary transfer tax under Rev. & Tax. Code § 11930. This document is exempt from preliminary change of ownership report under Rev. & Tax. Code § 480.3.
IMPORTANT NOTICE: THIS DEED MUST BE RECORDED ON OR BEFORE 60 DAYS AFTER THE DATE IT IS SIGNED
Use this deed to transfer the property described below directly to your named beneficiaries when you die. YOU SHOULD CAREFULLY READ ALL OF THE INFORMATION ON THE OTHER SIDE OF THIS FORM. You may wish to consult an attorney before using this deed. It may have results that you do not want. Provide only the information asked for in the form. DO NOT INSERT ANY OTHER INFORMATION OR INSTRUCTIONS. This form MUST be RECORDED on or before 60 days after the date it is signed or it will not be effective.
PROPERTY DESCRIPTION
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this deed:
BENEFICIARY(IES)
Print the NAME(S) of the person(s) who will receive the property on your death (DO NOT use general terms like “my children”):
TRANSFER ON DEATH
I transfer all of my interest in the described property to the named beneficiary(ies) on my death. I may revoke this deed. When recorded, this deed revokes any TOD deed that I made before signing this deed.
Sign and print your name below:
		Date
NOTE: This deed only transfers MY ownership share of the property. The deed does NOT transfer the share of any co-owner of the property. Any co-owner who wants to name a TOD beneficiary must complete and RECORD a SEPARATE deed.
ACKNOWLEDGMENT OF NOTARY
State of California		)
County of		)
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ___________________________ (Seal)

 

(b) The reverse side of a form executed under this section shall
be in substantially the following form:

 

COMMON QUESTIONS ABOUT THE USE OF THIS FORM

WHAT DOES THE TOD DEED DO? When you die, the identified property will transfer to your named beneficiary without probate. The TOD deed has no effect until you die. You can revoke it at any time.

HOW DO I USE THE TOD DEED? Complete this form. Have it notarized. RECORD the form in the county where the property is located. The form MUST be recorded on or before 60 days after the date you sign it or the deed has no effect.

HOW DO I “RECORD” THE FORM? Take the completed and notarized form to the county recorder for the county in which the property is located. Follow the instructions given by the county recorder to make the form part of the official property records.

WHAT IF I SHARE OWNERSHIP OF THE PROPERTY? This form only transfers YOUR share of the property. If a co-owner also wants to name a TOD beneficiary, that co-owner must complete and RECORD a separate form.

CAN I REVOKE THE TOD DEED IF I CHANGE MY MIND? Yes. You may revoke the TOD deed at any time. No one, including your beneficiary, can prevent you from revoking the deed.

HOW DO I REVOKE THE TOD DEED? There are three ways to revoke a recorded TOD deed: (1) Complete, notarize, and RECORD a revocation form. (2) Create and RECORD a new TOD deed, trust, or other estate planning document that disposes of the same property. (3) Sell or give away the property before your death and RECORD the deed. A TOD deed can only affect property that you own when you die.

IF I CREATE A NEW TOD DEED, TRUST, OR OTHER ESTATE PLANNING DOCUMENT THAT DISPOSES OF THE SAME PROPERTY, DOES THAT AUTOMATICALLY REVOKE A RECORDED TOD DEED? No. If you want the new document to revoke a recorded TOD deed, the new document MUST be signed and dated after the deed you wish to revoke and it MUST be RECORDED. To avoid any doubt you may wish to RECORD a TOD deed revocation form before creating the new instrument.

I AM BEING PRESSURED TO COMPLETE THIS FORM. WHAT SHOULD I DO? Do NOT complete this form unless you freely choose to do so. If you are being pressured to dispose of your property in a way that you do not want, you may want to alert a family member, friend, the district attorney, or a senior service agency.

DO I NEED TO TELL MY BENEFICIARY ABOUT THE TOD DEED? No. But, secrecy can cause later complications and might make it easier for others to commit fraud.

WHAT DOES MY BENEFICIARY NEED TO DO WHEN I DIE? Your beneficiary must RECORD evidence of your death (Prob. Code § 210), and file a change in ownership notice (Rev. & Tax. Code § 480). If you received Medi-Cal benefits, your beneficiary must notify the State Department of Health Care Services of your death and provide a copy of your death certificate (Prob. Code § 215).

WHAT IF I NAME MORE THAN ONE BENEFICIARY? Your beneficiaries will become co-owners in equal shares. If you want a different result, you should not use this form. You MUST name your beneficiaries individually. You MAY NOT use general terms to describe beneficiaries, such as “my children.”

WHAT IF A BENEFICIARY DIES BEFORE I DO? You should probably create and RECORD a new deed. Otherwise, the property will transfer according to the general rules on failed gifts, which may not meet your needs. See Prob. Code §§ 21110-21111.

WHAT IS THE EFFECT OF A TOD DEED ON PROPERTY THAT I OWN AS JOINT TENANCY OR COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP? If you are the first joint tenant or spouse to die, the deed is VOID and has no effect. The property transfers to your joint tenant or surviving spouse and not according to this deed. If you are the last joint tenant or spouse to die, the deed takes effect and controls the ownership of your property when you die. If you do not want these results, do not use this form. The deed does NOT transfer the share of a co-owner of the property. Any co-owner who wants to name a TOD beneficiary must complete and RECORD a SEPARATE deed.

CAN I ADD OTHER CONDITIONS ON THE FORM? No. If you do, your beneficiary may need to go to court to clear title.

IS PROPERTY TRANSFERRED BY THE TOD DEED SUBJECT TO MY DEBTS? Yes.

DOES THE TOD DEED HELP ME TO AVOID GIFT AND ESTATE TAXES? No.

HOW DOES THE TOD DEED AFFECT PROPERTY TAXES? The TOD deed has no effect on your property taxes until your death. At that time, property tax law applies as it would to any other change of ownership.

DOES THE TOD DEED AFFECT MY ELIGIBILITY FOR MEDI-CAL? No.

AFTER MY DEATH, WILL MY HOME BE LIABLE FOR REIMBURSEMENT OF THE STATE FOR MEDI-CAL EXPENDITURES? If your estate is subject to reimbursement, any property transferred by a TOD deed will also be subject to reimbursement.

 

5644.  

A transferor may revoke a revocable transfer on death
deed by an instrument in substantially the following form:

 

Revocation of Revocable Transfer on Death (TOD) Deed

(California Probate Code Section 5600)

Recording Requested By:

When Recorded Mail This Deed To

Name:

Address:

Assessor’s Parcel Number:         Space Above For Recorder’s Use

This deed revocation is exempt from documentary transfer tax under Rev. & Tax. Code §11930. This deed revocation is exempt from preliminary change of ownership report under Rev. & Tax. Code § 480.3.

 

 

IMPORTANT NOTICE: THIS FORM MUST BE RECORDED TO BE EFFECTIVE
This revocation form MUST be RECORDED before your death or it will not be effective. This revocation form only affects a transfer on death deed that YOU made. A transfer on death deed made by a co-owner of your property is not affected by this revocation form. A co-owner who wants to revoke a transfer on death deed that he/she made must complete and RECORD a SEPARATE revocation form.
PROPERTY DESCRIPTION
Print the address and parcel number (found on your property tax bill) or other legal description of the property affected by this revocation:
REVOCATION
I revoke any TOD deed to transfer the described property that I executed before executing this form.
SIGNATURE AND DATE
Sign and print your name below:
	Date
ACKNOWLEDGMENT OF NOTARY
State of California	)
County of	)
On ___________________________ before me, (here insert name and title of the officer), personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ___________________________ (Seal)

 

 

Chapter  3. Effect

 

Article 1.  General Provisions

 

5650.  

During the transferor’s life, execution and recordation
of a revocable transfer on death deed:

(a) Does not affect the ownership rights of the transferor, and
the transferor or the transferor’s agent or other fiduciary may
convey, assign, contract, encumber, or otherwise deal with the
property, and the property is subject to process of the transferor’s
creditors, as if no revocable transfer on death deed were executed
or recorded.

(b) Does not create any legal or equitable right in the beneficiary,
and the property is not subject to process of the beneficiary’s
creditors.

(c) Does not transfer or convey any right, title, or interest in the
property.

5652.  

(a) A revocable transfer on death deed transfers all of
the transferor’s interest in the property to the beneficiary on the
transferor’s death.

(b) A revocable transfer on death deed may condition the
beneficiary’s right to the property on an intervening life estate, but
may not create a future interest in a beneficiary.

(c) Property is transferred by a revocable transfer on death deed
subject to any limitation on the transferor’s interest that is of record
at the transferor’s death including, but not limited to, a lien,
encumbrance, easement, lease, or other instrument affecting the
transferor’s interest, whether recorded before or after recordation
of the revocable transfer on death deed. The holder of rights under
that instrument may enforce those rights against the property
notwithstanding its transfer by the revocable transfer on death
deed.

(d) A revocable transfer on death deed transfers the property
without covenant or warranty of title.

5654.  

(a) For the purpose of determination of eligibility for
health care under Chapter 7 (commencing with Section 14000) or
Chapter 8 (commencing with Section 14200) of Part 3 of Division
9 of the Welfare and Institutions Code, execution and recordation
of a revocable transfer on death deed is not a lifetime transfer of
the property.

(b) For the purpose of a claim of the State Department of Health
Care Services under Section 14009.5 of the Welfare and Institutions
Code, property transferred by a revocable transfer on death deed
is a part of the estate of the decedent, and the beneficiary is a
recipient of the property by distribution or survival.

5656.  

For the purpose of application of the property taxation
and documentary transfer tax provisions of the Revenue and
Taxation Code:

(a) Execution and recordation of, or revocation of, a revocable
transfer on death deed of real property is not a change in ownership
of the property and does not require declaration or payment of a
documentary transfer tax or filing of a preliminary change of
ownership report.

(b) Transfer of real property on the death of the transferor by a
revocable transfer on death deed is a change in ownership of the
property.

 

Article 2.  Other Instruments and Forms of Tenure

 

5660.  

If a revocable transfer on death deed recorded on or
before 60 days after the date it was executed and another instrument
both purport to dispose of the same property:

(a) If the other instrument is not recorded before the transferor’s
death, the revocable transfer on death deed is the operative
instrument.

(b) If the other instrument is recorded before the transferor’s
death and makes a revocable disposition of the property, the later
executed of the revocable transfer on death deed or the other
instrument is the operative instrument.

(c) If the other instrument is recorded before the transferor’s
death and makes an irrevocable disposition of the property, the
other instrument and not the revocable transfer on death deed is
the operative instrument.

5664.  

If, at the time of the transferor’s death, title to the
property described in the revocable transfer on death deed is held
in joint tenancy or as community property with right of
survivorship, the revocable transfer on death deed is void. The
transferor’s interest in the property is governed by the right of
survivorship and not by the revocable transfer on death deed.

5666.  

(a) Chapter 2 (commencing with Section 5010) of Part
1 applies to a revocable transfer on death deed of community
property.

(b) For the purpose of application of Chapter 2 (commencing
with Section 5010) of Part 1 to a revocable transfer on death deed
of community property, written consent to the deed, revocation of
written consent to the deed, or modification of the deed, is
ineffective unless recorded within the time required by that chapter
for execution or service of the written consent, revocation, or
modification.

5668.  

A revocable transfer on death deed of community
property with right of survivorship is subject to Section 5666,
relating to a revocable transfer on death deed of community
property.

 

Article 3.  Creditors

 

5670.  

Notwithstanding any other statute governing priorities
among creditors, a creditor of the transferor whose right is
evidenced at the time of the transferor’s death by an encumbrance
or lien of record on property transferred by a revocable transfer
on death deed has priority against the property over a creditor of
the beneficiary, regardless of whether the beneficiary’s obligation
was created before or after the transferor’s death and regardless
of whether the obligation is secured or unsecured, voluntary or
involuntary, recorded or unrecorded.

5672.  

Each beneficiary is personally liable to the extent
provided in Section 5674 for the unsecured debts of the transferor.
Any such debt may be enforced against the beneficiary in the same
manner as it could have been enforced against the transferor if the
transferor had not died. In any action based on the debt, the
beneficiary may assert any defense, cross-complaint, or setoff that
would have been available to the transferor if the transferor had
not died. Nothing in this section permits enforcement of a claim
that is barred under Part 4 (commencing with Section 9000) of
Division 7. Section 366.2 of the Code of Civil Procedure applies
in an action under this section.

5674.  

(a) A beneficiary is not liable under Section 5672 if
proceedings for the administration of the transferor’s estate are
commenced and the beneficiary satisfies the requirements of
Section 5676.

(b) The aggregate of the personal liability of a beneficiary under
Section 5672 shall not exceed the sum of the following:

(1) The fair market value at the time of the transferor’s death
of the property received by the beneficiary pursuant to the
revocable transfer on death deed, less the amount of any liens and
encumbrances on the property at that time.

(2) The net income the beneficiary received from the property.

(3) If the property has been disposed of, interest on the fair
market value of the property from the date of disposition at the
rate payable on a money judgment. For the purposes of this
paragraph, “fair market value of the property” has the same
meaning as defined in paragraph (2) of subdivision (a) of Section
5676.

5676.  

(a) Subject to subdivisions (b), (c), and (d), if
proceedings for the administration of the transferor’s estate are
commenced, each beneficiary is liable for:

(1) The restitution to the transferor’s estate of the property the
beneficiary received pursuant to the revocable transfer on death
deed if the beneficiary still has the property, together with (A) the
net income the beneficiary received from the property and (B) if
the beneficiary encumbered the property after the transferor’s
death, the amount necessary to satisfy the balance of the
encumbrance as of the date the property is restored to the estate.

(2) The restitution to the transferor’s estate of the fair market
value of the property if the beneficiary no longer has the property,
together with (A) the net income the beneficiary received from the
property prior to disposing of it and (B) interest from the date of
disposition at the rate payable on a money judgment on the fair
market value of the property. For the purposes of this paragraph,
the “fair market value of the property” is the fair market value,
determined as of the time of the disposition of the property, of the
property the beneficiary received pursuant to the revocable transfer
on death deed, less the amount of any liens and encumbrances on
the property at the time of the transferor’s death.

(b) Subject to subdivision (c), if proceedings for the
administration of the transferor’s estate are commenced and a
beneficiary made a significant improvement to the property
received by the beneficiary pursuant to the revocable transfer on
death deed, the beneficiary is liable for whichever of the following
the transferor’s estate elects:

(1) The restitution of the property, as improved, to the estate of
the transferor upon the condition that the estate reimburse the
beneficiary for (A) the amount by which the improvement increases
the fair market value of the property restored, determined as of the
time of restitution, and (B) the amount paid by the beneficiary for
principal and interest on any liens or encumbrances that were on
the property at the time of the transferor’s death.

(2) The restoration to the transferor’s estate of the fair market
value of the property, determined as of the time of the transferor’s
death, less the amount of any liens and encumbrances on the
property at that time, together with interest on the net amount at
the rate payable on a money judgment running from the time of
the transferor’s death.

(c) The property and amount required to be restored to the estate
under this section shall be reduced by any property or amount paid
by the beneficiary to satisfy a liability under Section 5672.

(d) An action to enforce the liability under this section may be
brought only by the personal representative of the estate of the
transferor. Whether or not the personal representative brings an
action under this section, the personal representative may enforce
the liability only to the extent of the beneficiary’s liability under
Section 5672. The reasonable cost of proceeding under this section
shall be reimbursed as an extraordinary service under Sections
10801 and 10811. Action under this section is optional. A personal
representative is never required to act under this section.

(e) An action to enforce the liability under this section is forever
barred three years after the transferor’s death. The three-year period
specified in this subdivision is not tolled for any reason. Nothing
in this subdivision affects the requirements of Section 215, any
law that may toll the limitations period for the commencement of
a Medi-Cal estate recovery action, or the time for commencement
of an action by the Department of Health Care Services under
Section 14009.5 of the Welfare and Institutions Code.

 

Chapter  4. Effectuation of Transfer

 

5680.  

(a) The beneficiary may establish the fact of the
transferor’s death under the procedure provided in Chapter 2
(commencing with Section 210) of Part 4 of Division 2. For the
purpose of this subdivision, the beneficiary is a person empowered
by statute to act on behalf of the transferor or the transferor’s estate
within the meaning of Section 103526 of the Health and Safety
Code.

(b) For the purpose of filing the change in ownership statement
required by Section 480 of the Revenue and Taxation Code, the
beneficiary is a transferee of real property by reason of death.

(c) For the purpose of giving the notice to the Director of Health
Care Services provided for in Section 215, the beneficiary is a
beneficiary of the transferor.

(d) The beneficiary is liable to the transferor’s estate for prorated
estate and generation-skipping transfer taxes to the extent provided
in Division 10 (commencing with Section 20100).

5682.  

If both of the following conditions are satisfied, a person
dealing with a beneficiary of a revocable transfer on death deed
of real property shall have the same rights and protections as the
person would have if the beneficiary had been named as a
distributee of the property in an order for distribution of the
transferor’s estate that had become final:

(a) The person acted in good faith and for a valuable
consideration.

(b) An affidavit of death was recorded for the property under
Chapter 2 (commencing with Section 210) of Part 4 of Division
2.

 

Chapter  5. Contest

 

5690.  

(a) The transferor’s personal representative or an
interested person may, under Part 19 (commencing with Section
850) of Division 2, contest the validity of a transfer of property
by a revocable transfer on death deed.

(b) The proper county for a contest proceeding is the proper
county for proceedings concerning administration of the
transferor’s estate, whether or not proceedings concerning
administration of the transferor’s estate have been commenced at
the time of the contest.

(c) On commencement of a contest proceeding, the contestant
may record a lis pendens in the county in which the revocable
transfer on death deed is recorded.

5692.  

(a) A contest proceeding pursuant to Section 5690 shall
not be commenced before the transferor’s death.

(b) A contest proceeding shall be commenced within the earlier
of the following times:

(1) Three years after the transferor’s death.

(2) One year after the beneficiary establishes the fact of the
transferor’s death under the procedure provided in Chapter 2
(commencing with Section 210) of Part 4 of Division 2.

5694.  

If the court in a contest proceeding determines that a
transfer of property by a revocable transfer on death deed is invalid,
the court shall order the following relief:

(a) If the proceeding was commenced and a lis pendens was
recorded within 120 days after the transferor’s death, the court
shall void the deed and order transfer of the property to the person
entitled to it.

(b) If the proceeding was not commenced and a lis pendens was
not recorded within 120 days after the transferor’s death, the court
shall grant appropriate relief but the court order shall not affect
the rights in the property of a purchaser or encumbrancer for value
and in good faith acquired before commencement of the proceeding
and recordation of a lis pendens.

5696.  

Nothing in this chapter limits the ability of a conservator
or guardian of a transferor or prospective transferor, or another
interested person, to petition the court for invalidation of a
revocable transfer on death deed recorded by the transferor or
prospective transferor on the basis of fraud, undue influence,
duress, mistake, or other invalidating cause.

SEC. 18.  

Section 13111 of the Probate Code is amended to
read:

13111.  

(a) Subject to the provisions of this section, if
proceedings for the administration of the decedent’s estate are
commenced in this state, or if the decedent’s personal
representative has consented to the payment, transfer, or delivery
of the decedent’s property under this chapter and the personal
representative later requests that the property be restored to the
estate, each person to whom payment, delivery, or transfer of the
decedent’s property is made under this chapter is liable for:

(1) The restitution of the property to the estate if the person still
has the property, together with (A) the net income the person
received from the property and (B) if the person encumbered the
property after it was delivered or transferred to the person, the
amount necessary to satisfy the balance of the encumbrance as of
the date the property is restored to the estate.

(2) The restitution to the estate of the fair market value of the
property if the person no longer has the property, together with
(A) the net income the person received from the property and (B)
interest on the fair market value of the property from the date of
disposition at the rate payable on a money judgment. For the
purposes of this subdivision, the “fair market value of the property”
is the fair market value, determined as of the time of the disposition
of the property, of the property paid, delivered, or transferred to
the person under this chapter, less any liens and encumbrances on
the property at that time.

(b) Subject to subdivision (c) and subject to any additional
liability the person has under Sections 13109 to 13112, inclusive,
if the person fraudulently secured the payment, delivery, or transfer
of the decedent’s property under this chapter, the person is liable
under this section for restitution to the decedent’s estate of three
times the fair market value of the property. For the purposes of
this subdivision, the “fair market value of the property” is the fair
market value, determined as of the time the person liable under
this subdivision presents the affidavit or declaration under this
chapter, of the property paid, delivered, or transferred to the person
under this chapter, less the amount of any liens and encumbrances
on the property at that time.

(c) The property and amount required to be restored to the estate
under this section shall be reduced by any property or amount paid
by the person to satisfy a liability under Section 13109 or 13110.

(d) An action to enforce the liability under this section may be
brought only by the personal representative of the estate of the
decedent. begin delete In an action to enforce the liability end delete begin insert Whether or not the
personal representative brings an action end insert under this section, the
begin delete court’s judgment end delete begin insert personal representative end insert may enforce the liability
only to the extent necessary to protect the interests of the heirs,
devisees, and creditors of the decedent.

(e) An action to enforce the liability under this section is forever
barred three years after presentation of the affidavit or declaration
under this chapter to the holder of the decedent’s property, or three
years after the discovery of the fraud, whichever is later. The
three-year period specified in this subdivision is not tolled for any
reason.

(f) In the case of a nondomiciliary decedent, restitution under
this section shall be made to the estate in an ancillary
administration proceeding.

SEC. 19.  

Section 13206 of the Probate Code is amended to
read:

13206.  

(a) Subject to subdivisions (b), (c), (d), and (e), if
proceedings for the administration of the decedent’s estate are
commenced, or if the decedent’s personal representative has
consented to use of the procedure provided by this chapter and the
personal representative later requests that the property be restored
to the estate, each person who is designated as a successor of the
decedent in a certified copy of an affidavit issued under Section
13202 is liable for:

(1) The restitution to the decedent’s estate of the property the
person took under the certified copy of the affidavit if the person
still has the property, together with (A) the net income the person
received from the property and (B) if the person encumbered the
property after the certified copy of the affidavit was issued, the
amount necessary to satisfy the balance of the encumbrance as of
the date the property is restored to the estate.

(2) The restitution to the decedent’s estate of the fair market
value of the property if the person no longer has the property,
together with (A) the net income the person received from the
property prior to disposing of it and (B) interest from the date of
disposition at the rate payable on a money judgment on the fair
market value of the property. For the purposes of this paragraph,
the “fair market value of the property” is the fair market value,
determined as of the time of the disposition of the property, of the
property the person took under the certified copy of the affidavit,
less the amount of any liens and encumbrances on the property at
the time the certified copy of the affidavit was issued.

(b) Subject to subdivision (d), if the person fraudulently executed
or filed the affidavit under this chapter, the person is liable under
this section for restitution to the decedent’s estate of three times
the fair market value of the property. For the purposes of this
subdivision, the “fair market value of the property” is the fair
market value, determined as of the time the certified copy of the
affidavit was issued, of the property the person took under the
certified copy of the affidavit, less the amount of any liens and
encumbrances on the property at that time.

(c) Subject to subdivision (d), if proceedings for the
administration of the decedent’s estate are commenced and a person
designated as a successor of the decedent in a certified copy of an
affidavit issued under Section 13202 made a significant
improvement to the property taken by the person under the certified
copy of the affidavit in the good faith belief that the person was
the successor of the decedent to that property, the person is liable
for whichever of the following the decedent’s estate elects:

(1) The restitution of the property, as improved, to the estate of
the decedent upon the condition that the estate reimburse the person
making restitution for (A) the amount by which the improvement
increases the fair market value of the property restored, determined
as of the time of restitution, and (B) the amount paid by the person
for principal and interest on any liens or encumbrances that were
on the property at the time the certified copy of the affidavit was
issued.

(2) The restoration to the decedent’s estate of the fair market
value of the property, determined as of the time of the issuance of
the certified copy of the affidavit under Section 13202, less the
amount of any liens and encumbrances on the property at that time,
together with interest on the net amount at the rate payable on a
money judgment running from the date of the issuance of the
certified copy of the affidavit.

(d) The property and amount required to be restored to the estate
under this section shall be reduced by any property or amount paid
by the person to satisfy a liability under Section 13204 or 13205.

(e) An action to enforce the liability under this section may be
brought only by the personal representative of the estate of the
decedent. begin delete In an action to enforce the liability end delete begin insert Whether or not the
personal representative brings an action end insert under this section, the
begin delete court’s judgment end delete begin insert personal representative end insert may enforce the liability
only to the extent necessary to protect the interests of the heirs,
devisees, and creditors of the decedent.

(f) An action to enforce the liability under this section is forever
barred three years after the certified copy of the affidavit is issued
under Section 13202, or three years after the discovery of the fraud,
whichever is later. The three-year period specified in this
subdivision is not tolled for any reason.

SEC. 20.  

Section 13562 of the Probate Code is amended to
read:

13562.  

(a) Subject to subdivisions (b), (c), and (d), if
proceedings for the administration of the decedent’s estate are
commenced, the surviving spouse is liable for:

(1) The restitution to the decedent’s estate of the decedent’s
property if the surviving spouse still has the decedent’s property,
together with (A) the net income the surviving spouse received
from the decedent’s property and (B) if the surviving spouse
encumbered the decedent’s property after the date of death, the
amount necessary to satisfy the balance of the encumbrance as of
the date the decedent’s property is restored to the estate.

(2) The restitution to the decedent’s estate of the fair market
value of the decedent’s property if the surviving spouse no longer
has the decedent’s property, together with (A) the net income the
surviving spouse received from the decedent’s property prior to
disposing of it and (B) interest from the date of disposition at the
rate payable on a money judgment on the fair market value of the
decedent’s property. For the purposes of this paragraph, the “fair
market value of the decedent’s property” is the fair market value
of the decedent’s property, determined as of the time of the
disposition of the decedent’s property, less the amount of any liens
and encumbrances on the decedent’s property at the time of the
decedent’s death.

(b) Subject to subdivision (c), if proceedings for the
administration of the decedent’s estate are commenced and the
surviving spouse made a significant improvement to the decedent’s
property in the good faith belief that the surviving spouse was the
successor of the decedent to the decedent’s property, the surviving
spouse is liable for whichever of the following the decedent’s
estate elects:

(1) The restitution of the decedent’s property, as improved, to
the estate of the decedent upon the condition that the estate
reimburse the surviving spouse for (A) the amount by which the
improvement increases the fair market value of the decedent’s
property restored, valued as of the time of restitution, and (B) the
amount paid by the surviving spouse for principal and interest on
any liens or encumbrances that were on the decedent’s property
at the time of the decedent’s death.

(2) The restoration to the decedent’s estate of the fair market
value of the decedent’s property, valued as of the time of the
decedent’s death, excluding the amount of any liens and
encumbrances on the decedent’s property at that time, together
with interest on the net amount at the rate payable on a money
judgment running from the date of the decedent’s death.

(c) The property and amount required to be restored to the estate
under this section shall be reduced by any property or amount paid
by the surviving spouse to satisfy a liability under Chapter 3
(commencing with Section 13550).

(d) An action to enforce the liability under this section may be
brought only by the personal representative of the estate of the
decedent. begin delete In an action to enforce the liability end delete begin insert Whether or not the
personal representative brings an action end insert under this section, the
begin delete court’s judgment end delete begin insert personal representative end insert may enforce the liability
only to the extent necessary to protect the interests of the heirs,
devisees, and creditors of the decedent.

(e) An action to enforce the liability under this section is forever
barred three years after the death of the decedent. The three-year
period specified in this subdivision is not tolled for any reason.

SEC. 21.  

(a) The California Law Revision Commission shall
study the effect of California’s revocable transfer on death deed
set forth in Part 4 (commencing with Section 5600) of Division 5
of the Probate Code and make recommendations in this regard.
The commission shall report all of its findings to the Legislature
on or before January 1, 2020.

(b) In the study required by subdivision (a), the commission
shall address all of the following:

(1) Whether the revocable transfer on death deed is working
effectively.

(2) Whether the revocable transfer on death deed should be
continued.

(3) Whether the revocable transfer on death deed is subject to
misuse or misunderstanding.

(4) What changes should be made to the revocable transfer on
death deed or the law associated with the deed to improve its
effectiveness and to avoid misuse or misunderstanding.

(5) Whether the revocable transfer on death deed has been used
to perpetuate financial abuse on property owners and, if so, how
the law associated with the deed should be changed to minimize
this abuse.

(c) (1) The report required by subdivision (a) shall comply with
Section 9795 of the Government Code.

(2) Pursuant to Section 10231.5 of the Government Code, this
section is repealed on January 1, 2024.