Transfer on Death Deed | Cal. Prob. 5624, Tex. Est. 114

A TOD deed is a non-testamentary instrument. It is a deed in form, but it conveys nothing until the owner dies. During your life the named beneficiary holds a bare expectancy and not a property interest, which has consequences most people underestimate: the beneficiary cannot sell, mortgage, or move into the home, their creditors cannot attach it, and a divorce court cannot divide it. You keep every incident of ownership, including the right to sell, refinance, rent, or record a new deed naming someone else, without the beneficiary's consent and without telling them. Cal. Prob. Code §5650 and Tex. Est. Code §114.101 say this in nearly identical language.

That is what separates it from the alternatives people consider first. A quitclaim deed to your children today hands over the house immediately, triggers a reportable gift, and drops the property into your child's creditor pool. A life estate deed freezes you in place, because the remaindermen must sign before you can sell. A revocable living trust drafted to Uniform Trust Code standards does all of this and more, and it earns its keep once you own several properties. A beneficiary deed covers one asset in one state. It appoints no guardian, reaches no bank account, and does nothing if you become incapacitated rather than dying.

The modern framework starts with the Uniform Real Property Transfer on Death Act, approved by the Uniform Law Commission in 2009 and now the backbone of roughly twenty state statutes. Counting the earlier non-uniform laws in Missouri, Arizona, and Ohio, about thirty two American jurisdictions let real property pass by beneficiary designation at death. Georgia joined on July 1, 2024, New York on July 19, 2024 with N.Y. Real Property Law §424. All of these statutes share three rules: the deed stays revocable whatever it says, the beneficiary takes nothing during the transferor's life, and the instrument is void unless recorded before death.

Execution formalities are where the states diverge, and where home-made deeds fail. California demands the transferor's signature, two witnesses present at the same time, and a notarial acknowledgment under Cal. Prob. Code §5624, a rule introduced by SB 315 for deeds executed on or after January 1, 2022. The same reform gives the recorder sixty days from notarization under §5626 and carries a sunset of January 1, 2032 under §5600(c). Texas is the mirror image: Tex. Est. Code §114.055 asks only for the formalities of a recordable deed, an express statement that transfer occurs at death, and recording in the county where the land sits, with no witnesses. Texas also deleted its own statutory forms in 2019 when the Legislature repealed Subchapter D of Chapter 114, which is why so many circulating Texas forms still cite provisions that no longer exist. The Legislature publishes the current text in the Texas Estates Code chapter governing transfer on death deeds.

Federal law sits underneath all of it. Because you keep the power to revoke, the property is included in your gross estate under IRC §2038, which is precisely why the beneficiary receives a stepped-up basis under IRC §1014, and the Garn-St Germain Depository Institutions Act at 12 U.S.C. §1701j-3(d) stops a lender from calling the loan when a home passes at death to an occupying relative.

The classic case is a homeowner whose estate is essentially one house. Probate on a single parcel is slow and public, and a beneficiary deed removes that parcel while leaving the rest of the plan intact. Parents leaving the family home to adult children use it constantly, and so do unmarried partners, since a partner has no intestate right to the house and would otherwise watch it pass to the deceased owner's siblings. Owners in a second marriage use it to route a pre-marital home to children from the first marriage, though community property and elective share rules can override the designation, so a spouse's written consent belongs in the file rather than in a conversation.

It also solves a timing problem. A TOD deed can be signed in an afternoon, which matters after a serious diagnosis when funding a trust would take weeks. Most clients sign it alongside a last will and testament naming an executor and guardians that handles everything the deed does not.

Two edge cases deserve attention. Naming a minor produces a title a minor cannot convey, which forces a guardianship petition, so the designation should run to a custodian under the state's transfers to minors act. And a beneficiary receiving SSI or Medicaid can lose eligibility the day title vests, because a house they do not occupy counts as a resource.

• The legal description sinks more deeds than any other clause. A street address is not a legal description, and a recorder will either reject the document or accept it and leave your beneficiary with a broken chain of title. The form prompts you for the lot and block or metes and bounds language from your existing deed, plus the assessor parcel number.
• The operative transfer language states expressly that the conveyance takes effect at death and not before. Tex. Est. Code §114.055(2) makes this an element of validity, and California builds the same statement into the statutory form at Cal. Prob. Code §5642, so the wording tracks the statute instead of paraphrasing it.
• The beneficiary designation allows multiple takers, sets their shares, and names alternates. Without an alternate, a beneficiary who predeceases you causes a lapse and the house falls back into probate. The clause also fixes whether a deceased beneficiary's share goes to their descendants or to the survivors.
• The revocation clause confirms that the deed supersedes any earlier TOD deed on the same parcel and remains revocable regardless of any contrary promise. Tex. Est. Code §114.057(c) provides that a will cannot revoke a transfer on death deed, a trap that produces litigation every year.
• The execution block adapts to the state: the two subscribing witness lines California requires under §5624, the witnesses New York requires under §424, or the notary-only acknowledgment used in Texas.
• The recording instructions are formatted for the county clerk, with the requesting party block, the mail-to address, and space for the recorder's stamp. Parcels straddling two counties need a separate recording in each, as do many other real estate contracts and property transfer documents.

California is the most procedural of the large states. The deed must be signed, dated, witnessed by two people present at the same time, and acknowledged before a notary under Cal. Prob. Code §5624, then recorded within sixty days of notarization under §5626. After death the beneficiary serves a statutory notice on the transferor's heirs under §5681, and those heirs have 120 days from that notice to challenge the transfer. A contest filed with a lis pendens within 120 days of the recorded affidavit of death under §5694 can unwind the transfer against everyone but a good faith purchaser. California limits Medi-Cal estate recovery to the probate estate, so a house passing by TOD deed sits outside a recovery claim for deaths on or after January 1, 2017.

Texas is permissive on execution and unforgiving on timing. No witnesses, no waiting period, but Tex. Est. Code §114.055(3) voids the deed unless it reaches the county deed records before the transferor dies. A deed found in a drawer after the funeral is worthless. Revocation happens by recording a revocation instrument or a later deed, and a divorce decree recorded before death cuts out an ex-spouse under §114.057. Beneficiaries should also watch §114.106(e), which exposes the property to estate claims for two years after death.

New York is the newest entrant. N.Y. Real Property Law §424 took effect on July 19, 2024 and requires two witnesses plus a notarial acknowledgment, with the same capacity standard used for wills. Recording must happen before death in the county where the property lies, and the beneficiary is neither notified nor asked to consent.

Florida has no TOD deed. The Legislature never adopted the uniform act, and a document bearing that title accomplishes nothing on Florida land while the house still goes through probate. Florida practitioners use the enhanced life estate deed, known as a lady bird deed. Michigan sits in the same position.

Illinois works through the Real Property Transfer on Death Instrument Act, at 755 ILCS 27, rewritten to cover all real property rather than residential property alone, and executed with the formalities Illinois requires for a will. Naming conventions matter elsewhere too: Arizona and Missouri call it a beneficiary deed, and Ohio uses a transfer on death designation affidavit under Ohio Rev. Code §5302.22.

You begin by selecting the state where the property sits, and that single answer rewrites the rest of the form. Choose California and the document adds two subscribing witness lines, the sixty day recording warning, and the statutory common questions pages from §5642. Choose Texas and those pages disappear, replaced by a notary-only acknowledgment. Choose Florida and the form tells you to stop, because the deed has no effect there.

Next you identify yourself exactly as your name appears on the deed that brought you into title, since a mismatch in the chain is the most common recording rejection. You then paste the legal description and parcel number and confirm how you hold title, because a joint tenancy with right of survivorship overrides the beneficiary designation until you are the last surviving owner. The beneficiary section takes names, addresses, shares, and alternates. From there the form assembles your state's execution block, produces a signing checklist, and generates the recording cover sheet. Nothing you sign has any effect until it is recorded.

The mistake that ends in litigation is failure to record. Owners sign the deed, file it with their will, and die believing the house is handled, when California and Texas both treat an unrecorded instrument as a nullity. The second is trying to revoke through a later will, which the statutes expressly forbid in Texas and which fails in most uniform act states. The third is a stale beneficiary: a designation naming a spouse who has since become an ex-spouse, or a sibling who died four years ago, is enforced as written unless a statute happens to cut it. Divorce is the usual trigger, so review the deed alongside any divorce and separation agreements you sign.

The rest are mechanical. People describe the property by street address. They name a minor and create a guardianship. They forget that the beneficiary takes subject to every mortgage and tax lien, because the deed transfers title without warranty under Tex. Est. Code §114.103(d). And they assume the deed handles the whole estate, when bank accounts, vehicles, and personal effects still need a will or a small estate affidavit built to statutory language.