Changes in 2022 for TOD deeds

The 2022 changes are to mitigate the risk of improperly procured TOD deeds by changing execution requirements and requiring notice to heirs. The most immediately significant change is that two witnesses must now sign a California TOD deed. Both witnesses must be present at the same time and must either see the property owner sign the TOD deed or hear the owner acknowledge the signature.

California's newly enacted witness requirement complements the existing rule requiring TOD deeds to be signed, notarized and dated. Only the property owner's signature must be notarized. Notarization of witness signatures is unnecessary.

A California TOD deed must also be recorded with the county recorder of the county where the property is located. The amended statute requires recording within 60 days of a TOD deed's notarization date-a minor change from the prior version's recording deadline of 60 days after execution.

A major change to the TOD law is that a beneficiary now has a duty to provide notice of the TOD deed to the owner's heirs upon the owner's death. The notice-which the beneficiary serves with copies of the TOD deed and owner's death certificate-briefly explains the TOD deed's effects and informs heirs of their right to contest the transfer. Notice to heirs must be served. The beneficiary then records an affidavit verifying service of notice to the owner's heirs.

Sunset Date. California's legislation that originally authorized TOD deeds in 2016 contained a sunset provision automatically repealing the TOD statute on Jan. 1 -unless extended before that date. The legislature's recent revisions push back the statute's sunset date 10 years, or until Jan. 1, 2032. California TOD deeds executed before Jan. 1, 2032, will remain valid if the legislature allows the TOD statute to expire on Jan. 1, 2032.

Recording deadline for other Deeds and Liens. Other instruments affecting the real estate-such as liens or deeds-are only operative if recorded no later than 120 days after the beneficiary records the affidavit verifying notice to heirs.  The owner's date of death was the recording-date deadline under the prior version of the law. A lien not recorded in time does not survive the transfer, and an untimely recorded deed does not effectively convey the property.

Diana Wade is a Legal Document Assistant. She can be reached at (661) 821-0494 or [email protected]. Diana is not an attorney; she can only provide self-help services at your specific direction. Kern County LDA #185, ex 4/11/23.