California real estate is transferred using a document called a deed. A deed allows the current owners (grantors) to transfer property to new owners (grantees). Several different deeds may be used to transfer California real estate:
California recognizes three kinds of deed forms that are distinguished by the different warranties of title they provide (or don’t provide).
- California Warranty Deed Form – Transfers property with a full warranty of title that covers all title issues, including those that arose before the grantor acquired the property.
- California Grant Deed Form – Transfers property with a limited warranty of title that only covers the period when the grantor owned the property.
- California Quitclaim Deed Form – Transfers property without a warranty of title.
California also recognizes two types of deeds are used to avoid probate of California real estate.
- Life Estate Deed – Divides ownership into different time periods, with one or more owners that hold title for their lifetime (life tenants) and one or more others to inherit property on the death of the life tenants (remainder beneficiaries).
- California Transfer-on-Death Deed – Allows California property owners to name a designated beneficiary to inherit the property when the current owner dies.
Our Deed Generator can create any of these types of California deeds. Each deed produced by our software was designed by attorneys to meet the requirements of California law.
California Deed Requirements: Validity and Recording
Every state has validity and recording requirements that apply to deeds to real estate located in that state. Because these requirements differ from state to state, it is important that any deed to California real estate comply with the specifics of California law.
- The first page of the deed must have a 3.5-inch top margin and following pages must have at least a half-inch top, and all pages must have at least half-inch margins on the sides and bottom of the page. Cal. GC 27361.6.
- The deed must comply with California’s font size and page size requirements. GC 27361.
- The deed must be signed by each grantor, whose signature should be acknowledged by a notary public using the form of California all-purpose acknowledgment provided by Section 1189 of the California Civil Code.
- The title of the deed should appear on the first page, immediately below the space reserved for the recorder. GC 27324.
- If the parties are claiming an exemption from the California documentary transfer tax, the deed must include a statement of the exemption. Otherwise, the deed must include the amount of documentary transfer tax paid and the basis for its calculation. Rev. & Tax. Code § 11932.
- The deed must include a valid legal description that adequately describes the property.
- The deed should be recorded in the land records of the county where the property is located. At the time of recording, all recording fees must be paid in full. Recording fees can vary but are usually in the range of $15.00 for the first page and $3.00 for each additional page. GC 27361.
If the property qualifies for an exclusion that will prevent it from being reassessed for tax purposes, you should also file a tax reassessment exclusion claim with the county assessor. See our discussion of California property tax reassessment or contact the county assessor’s office for more information about exclusions from tax reassessment.
These requirements must be satisfied for all California deeds. The deeds created by our Deed Generator were designed by attorneys to meet these and other requirements.
A Note About California County Clerk-Recorder’s Offices
Many people mistakenly assume that if a county clerk-recorder’s office accepts a deed for recording, it must be valid. This is not the case. In fact, California law prohibits the recorder’s office from refusing to record an invalid document. California Government Code Section 27201(a) provides:
The county recorder shall not refuse to record any instrument, paper, or notice that is authorized or required by statute, court order, or local ordinance that relates to the recordation of any instrument, paper, or notice that relates to real property to be recorded on the basis of its lack of legal sufficiency.
In other words, the recorder’s office cannot refuse to accept a document that is legally insufficient. This means that the recorder’s acceptance of the document means nothing about whether it is a legally valid document. People fill-in-the-blank forms may think that they have created a valid deed, only to discover later that the document is legally insufficient.
Spousal Ownership of California Real Estate
California is one of nine U.S. states that applies community property law to real estate owned by a married couple. All property acquired by a married couple during the marriage is presumed to be community property unless:
- One spouse owned it before the marriage;
- One spouse acquired it after the marriage by gift or inheritance; or
- It represents the proceeds (profits, rents, etc.) on property in the first two categories.
Under these rules, most property acquired by married couples in California is considered to be community property. If the property is community property, each spouse has an ownership interest in the property, even if it is titled in only one spouse’s name. As a practical matter, this means that both spouses must sign the deed to the property, even if only one spouse is listed on the prior deed to the property.
California also provides special treatment for the marital home (homestead) occupied by a married couple. Under California law, both spouses may claim the marital home as their homestead. Homestead status can protect the property from creditor claims in some circumstances.
Forms of Co-Ownership of California Real Estate
Real estate may be owned by more than one person, trust, or business. California recognizes two primary forms of co-ownership that apply to all owners:
- Tenancy in Common – Tenancy in common is the default form of co-ownership in California. Unless the deed provides otherwise, the property will be presumed to be held as tenancy in common. On the death of an owner, his or her interest in the property passes to his or her probate estate.
- Joint Tenancy with Right of Survivorship – As the name suggests, joint tenancy with right of survivorship—sometimes abbreviated JTWROS—includes a right of survivorship. On the death of an owner, his or her interest passes to the surviving owners instead of passing to his or her probate estate.
Joint tenancy with right of survivorship requires the owners to be humans. Neither businesses nor trusts have “lifetimes” that would trigger the right of survivorship.
Married couples may own property as tenants in common or as joint tenants with right of survivorship, but community property classification has several advantages that often make it a better choice. If the couple intends for the property to pass to the surviving spouse at death, the couple may hold the property as community property with right of survivorship. Community property with right of survivorship is similar to joint tenants with right of survivorship, but it has the added benefit of allowing the property to retain its character as community property.
How to Transfer California Real Estate
The process usually involves four steps:
- Locate the most recent deed to the property. To prepare a new deed, you will need information from the deed that transferred the property to the current This information includes the exact names of the current owners and the legal description of the property. It is best to locate the prior deed before beginning a new one.
- Create a new deed. You will need to create a new deed that transfers the property from the current owner (grantor) to the new owner (grantee). Our Deed Generator uses an interview to collect information about the transfer and creates a customized deed based on the information provided in the interview. Our software can be used to create a quitclaim deed, grant deed, warranty deed, and transfer-on-death deed.
- Sign and notarize the deed. The deed must be signed and notarized by the current owner (grantor). In some cases, the grantor’s spouse may also need to sign the deed or related documents created by our Deed Generator.
- File the signed, notarized, original deed in the land records. You must record the signed, notarized, original deed in the records of the recorder of the county where the property is located. This may involve other documents, such as a preliminary change of ownership report. At the time of recording, you must pay any recording fees or documentary stamp taxes charged by the county recorder.
These steps are described in more detail in the customized instructions you will receive when you create a deed using our Deed Generator.