In California, a Transfer on Death (TOD) deed can seem like an attractive option for estate planning. It allows property owners to name beneficiaries to their real estate, enabling the property to bypass the probate process upon their death. However, while TOD deeds offer certain conveniences, they may not be the best choice for everyone. In this blog post, we'll explore some key reasons why you might want to reconsider using a TOD deed in California, including what happens if a beneficiary predeceases you.
1. Lack of Flexibility:
TOD deeds are rigid in nature. Once a property is transferred, the beneficiary has no obligation to respect any verbal or written wishes you may have had regarding the property. This inflexibility can be problematic, especially if your circumstances or relationships change after the deed is created.
2. Potential for Family Conflict:
A TOD deed can inadvertently lead to family disputes. If not all family members are included as beneficiaries, or if the distribution appears unequal, it can create feelings of resentment or lead to legal challenges, disrupting family harmony.
3. No Protection from Creditors for Beneficiaries:
Unlike a trust, a TOD deed does not offer protection to your beneficiaries from creditors. Your property can still be subject to claims from your beneficiary’s creditors, which might put the beneficiary in a difficult financial position, potentially leading to the loss of the property.
4. Ineligibility for Medi-Cal Recovery Exemptions:
In California, properties transferred through a TOD deed are not exempt from Medi-Cal recovery claims. If you received Medi-Cal benefits, especially for long-term care, the state could place a claim against your estate, including the property transferred via the TOD deed.
5. No Provision for Incapacity:
A TOD deed does not address what happens if you become incapacitated. Without a comprehensive estate plan, including a powers of attorney document, there may be no legal authority for someone to manage your property if you're unable to do so yourself.
6. Complications if a Beneficiary Predeceases You:
If a beneficiary named on a TOD deed dies before you, the deed does not automatically account for this scenario. This could lead to the property reverting to your estate and going through probate, contrary to the purpose of the TOD deed. It also raises questions about whether the deceased beneficiary's heirs have any claim to the property.
7. Oversimplification of Estate Planning:
While a TOD deed might seem like a simple solution, it can oversimplify the complexities of estate planning. It doesn't account for various scenarios, such as the beneficiary predeceasing you or the need to update the deed if your intentions change.
While a Transfer on Death deed in California offers a straightforward way to transfer property, it's important to consider its limitations and potential complications. Every estate plan should be tailored to individual needs and circumstances. Consulting with a qualified estate planning attorney can help you understand the best options for your situation and ensure that your estate is managed and distributed according to your wishes.
If you, a friend, or family member need help establishing or restating an estate plan, please reach out to our Intake Department at 760-448-2220 or at https://www.geigerlawoffice.com/contact.cfm. We have offices in San Diego (Carlsbad) and Orange Counties (Laguna Niguel), but we assist can families throughout California as well.
Brenda Geiger is the CEO and Managing Attorney of Geiger Law Office, P.C. and has been working as a trusts and estates attorney for over 20 years. She opened Geiger Law Office, P.C. in 2007 and has helped over 4,000 families create estate plans to protect their loved ones. Brenda has authored several books on Trusts, Elder Law and Business Law topics and is an active member of theh North County San Diego Bar Association and the North County Estate Planning Counsel. Brenda attended the University of San Diego for both undergrad and law school. In her spare time she enjoys spending time with her husband and two children traveling and watching soccer.
