Starting in January 2016, California is beginning an experiment in estate planning and real estate. Until now, a revocable living trust was the only way for most homeowners to avoid the long and expensive court process of probate after death. Other assets could be passed to your heirs outside probate without a trust, but not real estate. That’s because the law has required the probate court to oversee the distribution of assets whenever someone dies, if that person owned real estate with a gross value of $50,000 or more. Now, another option is available: a transfer-on-death deed.
The California transfer-on-death deed (http://saclaw.org/wp-content/uploads/form-TOD-deed.pdf) does exactly one thing: it names a beneficiary for your real estate, so that probate won’t be required after your death. The Legislature has adopted this new deed for five years, in order to study whether it is useful and effective as intended. So does that mean you don’t need a trust? Well, that depends.
If you want to provide for any minor children, you’ll still want a trust so that you can make sure that the assets are handled properly for them. If you want to leave your assets to your adult kids, only a trust will ensure that your grandchildren aren’t left out if something happens to one of your children. If you hold your property in joint tenancy with someone else, transferring your interest to a trust will allow you to leave that part of the property to someone other than the current co-owner. None of these things can be accomplished with a transfer-on-death deed.
That said, if your only significant asset is your home, and you have only one beneficiary in mind, the new deed will work for you . . . as long as you can be sure that your beneficiary won’t be in a car accident, develop an unexpected and fatal illness, or predecease you for any other reason. If that happens, your estate will wind up in probate court after all; there’s no way to include a backup plan in this transfer-on-death deed. By contrast, a complete estate plan is all about planning for contingencies.
As noted previously, probate takes time (currently 12-20 months on average, in California) and a lot of money (mostly for court costs and the probate attorney). The bigger your estate is, the more it will cost to go through probate. During the process, your assets are frozen; if you have surviving family, they can request a living allowance from the court, but that takes time and money, too. More to the point, the court makes all the decisions. Is that really what you had in mind?
According to Benjamin Franklin, “in this world, nothing is certain but death and taxes.” Making an estate plan isn’t as much fun as, say, planning a trip to the Bahamas. In the long run, though, it can save your heirs enough time to enable them to go on that trip – and make sure they’ll be able to pay for it, too.