Guides › Transfer-on-Death Deeds
Updated July 31, 2026. Quick answer: California authorizes revocable transfer-on-death deeds (Prob. Code §§5600–5696) — with a fact almost no article mentions: the entire statute sunsets January 1, 2032 unless the legislature extends it again. Deeds executed before a repeal would survive, but a plan that assumes the tool exists forever is leaning on a law with an expiration date that has already been pushed once.
The California specifics that matter
It applies to deaths on or after January 1, 2016, whenever the deed was recorded. Execution formalities are stricter than the early years — the statute has been amended over its life, so use the current statutory form rather than an old template, and record within the statutory window after signing. The 60-day post-death contest exposure and lender caution are the practical frictions: California title practice treats fresh TOD transfers carefully, which argues for recording the deed years early, while capacity is beyond question.
What it saves is bigger here than anywhere: California’s statutory fees run on the gross PROBATE estate, so a $800,000 house passing by deed avoids being the base for executor compensation under §10800 and the matching attorney schedule — the full California probate cost picture. Every state: the verified table.
A $26,000 fee avoided by one recorded page – under a statute with a sunset date.
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The number that surprises people who bought a long time ago
Downsizing is the one home sale where the gain is usually large and the exclusion usually still covers it. A couple who bought in 1994 for $180,000 and sell at $760,000 with $46,000 of selling costs have a realized gain of about $534,000 before improvements. That is above the $500,000 joint cap — but decades of capital improvements are exactly what brings it back under, and most sellers have never added them up.
Improvements are the lever, and the records are the constraint
A new roof, an addition, a replaced HVAC system, new windows, a finished basement: these add to basis. Repainting and repairs do not. Thirty years of improvements on a family home routinely total six figures, and every dollar of it reduces the gain dollar for dollar. The practical problem is documentary, not legal — the seller who kept receipts pays less than the identical seller who did not.
Why downsizers should check the net investment income tax separately
A retiree with modest ordinary income can still be pushed over the 3.8 percent NIIT threshold by the sale itself, because taxable gain is net investment income. The thresholds are $250,000 on a joint return and $200,000 otherwise, written into Section 1411(b) as fixed figures with no indexing. A sale that produces $120,000 of taxable gain on top of $180,000 of other income crosses the joint threshold and picks up 3.8 percent on the part above it.
The move itself may change the tax
Downsizing usually means moving, and sometimes across a state line. Some states tax the gain the federal exclusion just removed. If the sale and the move are in the same year, the order of the two matters, and it is worth checking the destination state before signing.
Related
Methodology
- Exclusion caps, the 2-of-5 test, the nonqualified-use allocation, the reduced-exclusion fraction and the depreciation carve-out are taken from the text of 26 U.S.C. 121. The 3.8 percent rate and its thresholds are from 26 U.S.C. 1411. Both were read on 2026-07-30.
- Section 121 caps and Section 1411 thresholds are written in the statute as fixed dollar amounts with no indexing mechanism, so they are built in. Long-term capital gain brackets ARE indexed annually, so your rate is an input rather than a lookup.
- Figures were computed by two independently written engines that agree to the cent, and the calculator on this page reproduces both exactly.
- Federal only. State treatment varies and some states do not follow the federal exclusion.
Educational estimate, not tax advice, and not a filed return. Federal only. Confirm anything that changes a filing decision with a CPA or tax attorney.
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