Tuesday, November 17, 2015
IN MY OPINION (Column)
‘Lawyer Tax’ on Real Estate Removed, for Now
By JON COUPAL
Finally, those leaving property to their heirs will be able to avoid the expense of hiring an attorney. There is no need to make the inheritance of real estate so costly that it becomes a hardship on homeowners, especially low income families and seniors.
Currently, for a single person to pass on property to designated heirs requires a will or trust. A will, of course, must be administered through a Probate Court, a process that can be both costly and time-consuming. Trusts—for those who seek to avoid probate—usually require legal advice from an attorney and should be updated periodically.
For homeowners on a fixed income, both methods can be prohibitively expensive. (Married individuals can avoid probate when passing property on to the surviving spouse by holding title to their home as community property with right of survivorship or joint tenants with right of survivorship.)
However, when Assembly Bill 139 takes effect on January 1, individuals will be able to avoid the costly red tape by simply filing a revocable transfer-on-death deed.
A “TOD deed” allows transfer of real property to an heir without a probate proceeding. And the best news is that the process for creating a TOD Deed is easy enough so that homeowners can avoid having to pay a lawyer in probate or for setting up a trust. Under AB 139, the property owner will be able to execute a revocable TOD deed, have it notarized and record it with the county.
Getting AB 139 enacted wasn’t easy. Although this TOD deeds are common in other states, powerful political interests representing estate lawyers had stopped this simple reform in California for many years. If there is anything wrong with AB 139, it is that it will expire, unless extended, in five years. At that point, we can expect the same political interests to once again flex their muscles to prevent it from becoming a permanent tool for homeowners.
However, for the immediate future, homeowners and their heirs are freed from the “lawyer tax.” The system has been reformed to benefit average folks.
Howard Jarvis Taxpayers Association fought hard for this legislation and will do its part to explain to all homeowners, not just our own members, how to execute a TOD deed. Come January, we will post important information about TOD deeds on our website at www.hjta.org. It’s the least we can do for the folks most politicians don’t care about—average California homeowners.
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