A big part of estate planning revolves around trying to avoid probate. Why is this important? There are several reasons. First, the court requires the estate to pay the deceased person’s taxes and debts first. Of course, the person can do nothing to stop this from happening, because he or she is already dead. Only after that does the court follow the instructions in the will and distribute the person’s property to his or her heirs. Certain options can help you keep real estate properties out of probate. California’s transfer on death deed may enable homeowners to keep at least some of their assets safe from the sticky fingers of the law.
How do Transfer on Death Deeds Work?
A transfer on death (TOD) deed creates an automatic transfer of ownership upon your death. This can keep real property out of probate. The California Assembly Bill 139 of 2016 made TOD deeds legal. The TOD deed is a legal document that states that, when you die, instead of your house being part of your estate (“estate” means the property that you leave to your heirs in your will), your house automatically becomes the property of the family member (the “beneficiary”) you specify in the TOD deed. Single or widowed individuals may seem ideal candidates for TOD deeds.
You must be thinking that this sounds like a cheap and easy estate planning tool. On the surface it may appear so, however, all is not as perfect as it would seem. There are many downsides to a Transfer on Death deeds; and, as mentioned above, people are discovering one of them is getting title insurance!
Title Insurance Problems With Transfer on Death Deed
When you inherit a real estate property in California, you also inherit its title insurance. This is true as long as you can prove you inherited it. You must provide documentation such as a will or TOD deed as proof. Failure to provide properly prepared and notarized documents may create a costly, time-consuming situation.
Unfortunately, a beneficiary who inherits real property by way of a transfer on death deed becomes personally liable for the decedent’s debts. Because of this, title companies are reluctant to issue a subsequent policy of title insurance for real property transferred through a Transfer on Death deed. This becomes problematic for a beneficiary who may want to sell the real property. This waiting window extends for three years. As a result, a beneficiary may not be able to sell real property inherited by way of a Transfer on Death Deed until this three year period ends.
If a person cannot get a title insurance policy, they will not want to purchase the property. Most title companies have shown an unwavering lack of willingness to issue title insurance during this three year period. As a result, the real property becomes unmarketable for the three years following the decedent’s death. Unfortunately, title insurance problems with transfer on death deeds is not going away.
A TOD deed can be an inexpensive alternative to a will, but it will only help your family member inherit your house easily if it is prepared correctly and the beneficiary has no intentions of selling the property. There are definitely better estate planning options. However, if you are certain of your intent to create a Transfer on Death Deed, a registered legal document assistant (LDA) can help you prepare your TOD deed or other estate planning documents for a lower price than you would have to pay for a lawyer. Contact A People’s Choice about estate planning document preparation services or call us at 800-747-2780.
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