Transfer on Death (TOD) Deed vs living trust/will. Which one is valid?

[My7]

What is the name of your state? California

My mother has a living trust/will set up where my son may purchase her home at a discount upon her death. Since then she has becoming terminally ill and has decided she wants to outright give my son her home. She may not have the time to update her living trust/will as her attorney cannot see her for a few more weeks. It was mentioned she could do a Transfer On Death Do (TOD). My question is will the TOD Trump the living will or will the will take priority over the TOD?

 

[adjusterjack]

The TOD deed trumps the will because the property passes to the beneficiary immediately upon the death of the owner and is no longer part of the estate addressed by the will.

Make sure you check out the statutory resource to make sure it gets executed and recorded properly:

http://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=PROB&division=5.&title=&part=4.&chapter=2.&article=&goUp=Y
One more thing that might complicate matters. If the property is already deeded to the revocable living trust I think the property will have to be conveyed out of the trust back to your mother before she can execute the TOD deed.

her attorney cannot see her for a few more weeks

An attorney who can't make time for a terminally ill client is an ahole who should be fired and replaced. I suggest you, or your mother, call him in the AM and not take no for an answer.

 

[My7]

Yes the property is in a trust. We will let the attorney know it's an emergency and hopefully they will respond faster

 

[Zigner]

If the property is in a revocable trust, it's probably better and easier to simply amend the trust. If the trust is not revocable (ie: irrevocable), then what you are trying to accomplish cannot be done.

 

[Taxing Matters]

If the property is in a revocable trust, it's probably better and easier to simply amend the trust. If the trust is not revocable (ie: irrevocable), then what you are trying to accomplish cannot be done.

If the trust is irrevocable then it might be possible to do it. Though the trust is not revocable, there may still be a power reserved to the grantor to change beneficiaries or other things in the trust. The exact wording of any reserved power of the grantor would be important.

While the property is in trust, a transfer on death deed cannot be done.

 

[Zigner]

If the trust is irrevocable then it might be possible to do it. Though the trust is not revocable, there may still be a power reserved to the grantor to change beneficiaries or other things in the trust. The exact wording of any reserved power of the grantor would be important.

While the property is in trust, a transfer on death deed cannot be done.

Thanks for the clarification