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How to Protect Your Home from Probate

When purchasing real property in California, the buyer is asked, “How do you want to own your home?” How you own your California home determines how it will transfer on your death. In other words, will the post-death transfer be in or out of probate court?

Real property in your name only requires transfer to heirs in probate court. Probate is a set of California laws that determine who inherits and how. A petition is filed in court to receive an order on who inherits. Probate is time-consuming, expensive, and a matter of public record.

You have two options to avoid probate a revocable transfer on death deed (TODD) or a trust.


Trusts are similar to wills. But a will does not avoid probate. In your trust, you state who inherits and under what conditions. You also identify who will transfer your home to your heirs. This person is known as a successor trustee.

For a trust to avoid probate, your trust must own the real property. This is done by a deed from you to you as trustee of your trust. The deed is recorded with the recorder in the county where your home is located.

After your death, your successor trustee must notify the county recorder. Notification is by affidavit death of a trustee. The affidavit establishes the successor trustee identified in the trust as the person authorized to act on behalf of the trust. The successor trustee then sells or transfers the real property to the trust’s beneficiaries by deed.

Revocable Transfer on Death Deed (TODD)

This is a relatively new legal document. This deed transfers the home owned by one person on death to another person named on the deed. While alive, the owner maintains control of their home, property taxes remain the same, and the TODD can be revoked at any time.

A TODD is for a narrow set of circumstances. There should be no co-owner. The deed does not allow alternative distribution if the intended heir dies before the owner. The new owner needs to be able to keep the property for three years. Title companies are reluctant to insure a property inherited by a TODD for a period of three years. This hinders the heir’s ability to sell or use the house for collateral.

Real property in a person’s name only requires transfer to heirs in probate court. The best way for an individual to own their home is as trustee of their trust. Trusts are similar to wills. But a will does not avoid probate. A trust avoids probate and states who inherits and under what conditions. A transfer on death deed is a good choice under a limited set of circumstances. It is economical and easy to understand.