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Law

CA Senate Bill 315

Notary Law Update: CA Senate Bill 315

State: California

Summary:
Senate Bill 315 makes changes to California’s revocable transfer on death deeds statute.

Signed:  September 22, 2021

Effective:  January 01, 2022

Chapter: 215

Affects:
Amends Sections 5600, 5608, 5624, 5626, 5632, 5642, 5644, 5652, 5660, 5674, 5682, 5690, and 5694 of, adds Sections 5605, 5615, 5618, 5625, 5658, 5659, 5677, 5678, 5681, and 5698 to, repeals Section 5676 of, and repeals and adds Section 5610 of, the Probate Code.

Changes:
  1. Allows a “beneficiary” to a transfer on death deed to be a natural person, trust, or legal entity.
  2. Defines “subscribing witness” as a person who signs a revocable transfer on death deed as a witness, as provided in Probate Code Section 5624.
  3. Modifies the definition of “real property” for purposes of a transfer on death deed.
  4. Clarifies that any person generally competent to be a witness may act as a witness to a revocable transfer on death deed.
  5. Clarifies that a revocable transfer on death deed is not invalid because it is signed by an interested witness.
  6. Provides that if a beneficiary of a revocable transfer on death deed is also a subscribing witness, there is a presumption that the witness procured the revocable transfer on death deed by duress, menace, fraud, or undue influence, and further provides this presumption is a presumption affecting the burden of proof but does not apply where the witness is named as beneficiary solely in a fiduciary capacity.
  7. Clarifies in the transfer on death deed form instructions that the signatures of the two subscribing witnesses who witness the principal’s signing or acknowledgment of a transfer on death deed do not require acknowledgment before a Notary.
  8. Sunsets the transfer on death deed statute January 1, 2032, unless it is extended.
Analysis:

A transfer on death deed conveys property to a beneficiary upon the grantor’s death outside of a will or a trust. It must be signed, witnessed, and acknowledged before a Notary during the transferor’s lifetime, and must be recorded on or before 60 days after the date it was acknowledged. In Senate Bill 315, the two witnesses who must witness the grantor sign the transfer on death deed are now called “subscribing witnesses,” not to be confused with the same term used in the California Civil and Government Codes to describe a person who witnesses a person sign or acknowledge signing a document and then instead of the signer takes the document to a Notary. In fact, the instructions to the statutory transfer on death deed have been amended to clarify that the signatures of these subscribing witnesses do not require acknowledgment before a Notary. Senate Bill 315 also clarifies that a transfer on death deed that is witnessed by an individual who is interested in the signing of the deed is not necessarily invalid. There is a presumption, however, that the transferor’s signature was obtain by menace, fraud, or undue influence, except when the witness in named as a beneficiary only in a fiduciary capacity.

Read the text of Senate Bill 315.

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