Does a Deed Override a Will in California?

Families run into this after a death. Mom’s will leaves the house to all three kids, and then someone finds a recorded deed from 2019 naming one of them. The will isn’t wrong. It has nothing to say about a house Mom no longer owned. This page explains which deeds beat a will, what a life estate does to everyone involved, and what a deed with a retained life estate means for property taxes and income tax.

Does a deed override a will in California?

Yes, in almost every case. A will works only on property the person still owns at death, and Probate Code § 6101 limits it to the testator’s separate property and the testator’s half of the community property. A properly signed, delivered, and recorded deed moves title during life, or at death by its own terms, so the property never enters the will’s reach.

Under Civ. Code § 1054, a grant takes effect and vests the interest only upon delivery by the grantor. Once that happens, the will comes into play only for property that remained in the decedent’s name. The same idea applies to bank accounts and life insurance that pass by beneficiary designation (Prob. Code § 5000).

Which deeds beat a will?

Any deed that gives someone else the property at or before death does. The table shows the common ones.

Deed or title	Who gets the house	Does the will matter?
Joint tenancy (Civ. Code § 683)	The surviving joint tenant, automatically.	No. The survivor takes the decedent’s share by the title.
Community property with right of survivorship (Civ. Code § 682.1)	The surviving spouse, without administration.	No.
Revocable transfer on death (TOD) deed (Prob. Code § 5600 and following)	The named beneficiary, if the beneficiary survives the owner.	No, if the deed was recorded in time.
Deed into a living trust	Whoever the trust names.	No. The house isn’t in the probate estate.
Deed reserving a life estate	The remainderman named in the deed, when the life estate ends.	No. The owner gave away the remainder while alive.
Ordinary grant or gift deed	The grantee, immediately.	No.

Our page on joint tenancy versus a trust covers the survivorship rules in more depth, and the basics of deeds and property transfer explains what a deed has to say to work.

How a transfer on death deed works

A TOD deed gives the house to a named beneficiary at death without probate. It applies to a parcel with one to four residential units, or a residential condo, and excludes agricultural land over 40 acres (Prob. Code § 5610). It’s not effective unless it’s recorded within 60 days after the date a notary acknowledged it (Prob. Code § 5626(a)).

The owner can revoke it at any time (Prob. Code § 5630), but the revocation has to be executed and recorded the same way as the deed, and the beneficiary doesn’t have to agree (Prob. Code § 5632). A new will, by itself, isn’t that recorded instrument. The beneficiary’s interest is contingent on outliving the owner (Prob. Code § 5652(a)). One planning note: this part of the Probate Code is scheduled to be repealed on January 1, 2032 unless the Legislature extends it, though a deed signed before then stays valid (Prob. Code § 5600(c)).

For a side-by-side of the TOD deed and a life estate, see life estate versus transfer on death deed and our overview of the transfer on death deed in California.

When can a will beat a deed?

When the deed doesn’t work. A deed that was never delivered doesn’t vest title (Civ. Code § 1054), and a TOD deed recorded more than 60 days after notarization isn’t effective (Prob. Code § 5626(a)). In those cases the house is still in the decedent’s name, and the will governs it.

A deed can also be attacked on the grounds that the owner lacked capacity or was pressured into signing. That’s a court fight over the deed itself, and it needs a litigator. I don’t handle contests, and families in one should hire litigation counsel promptly. What I can do is tell you what the documents say and what your options look like before anyone files.

One more trap applies to a deed that was signed but never recorded. Under Civ. Code § 1214, an unrecorded conveyance is void against a later good-faith buyer or lender who records first. Recording protects the person the deed favors.

What is a life estate?

A life estate is the right to own and use a property for your lifetime. Civil Code § 761 lists estates for life as one of the recognized types of estate in real property. The owner who signs a deed giving the house to a child “reserving a life estate” keeps the right to live there and use it until death, and the child gets what’s left, called the remainder.

The person holding the life estate is the life tenant. The person who takes the house when the life estate ends is the remainderman. They’re the two sides of one arrangement. People who search “life estate vs life tenancy” are usually asking about the same thing: the life estate is the interest, and the life tenant is the person who holds it. “Life tenancy” in casual use nearly always means a life estate.

What rights and duties does a remainderman have?

A remainderman owns a real, present interest in the future, and the life tenant can’t damage it. Civil Code § 818 lets a life estate owner use the property like a fee owner, except that the life tenant “must do no act to the injury of the inheritance.” Code Civ. Proc. § 732 backs that up: a tenant for life who commits waste is liable to any person aggrieved, and a court may award triple damages.

In practice the remainderman’s position looks like this:

• No right to move in, collect rent, or force a sale while the life tenant is alive.
• A right to sue if the life tenant lets the house deteriorate or strips it.
• The remainder can generally be sold or transferred, but the buyer takes it subject to the life estate, so the market for it’s thin.
• The life tenant generally carries the day-to-day costs of living there, including property taxes, insurance, and ordinary upkeep, while major capital costs are usually shared according to the interests. California’s Legal Estates Principal and Income Law (Civ. Code §§ 731 to 731.15) is the statute on dividing receipts and expenses between the interests. The deed or a separate agreement can change the split, so have yours read.

The life tenant also has a sale problem. To sell the whole house, the remainderman must sign the deed as well, because the life tenant doesn’t own the remainder. That’s why a house with a life estate rarely sells quickly.

Can a life estate be revoked or undone?

Not by the owner alone. Once the deed is delivered and recorded, the remainder belongs to the remainderman (Civ. Code § 1054). The owner can get the house back only if the remainderman signs a deed returning it, or if a court sets the deed aside for a defect such as incapacity, undue influence, or a delivery problem. Compare that with a TOD deed, which the owner can revoke alone at any time (Prob. Code § 5630), or a revocable trust, which the owner can amend.

That difference matters most to families who want to keep control. If the child divorces, dies first, files bankruptcy, or gets sued, the remainder goes along with that child’s problem. That risk is a large reason I usually steer clients toward a trust, a subject covered in adding a child to a deed versus a trust.

What does a retained life estate do to property tax and income tax?

Property tax. Proposition 13 reassesses a home when there’s a “change in ownership,” defined as a transfer of a present interest substantially equal in value to the fee interest (Rev. & Tax. Code § 60). A deed to a child that reserves a life estate hands over only a future interest at first. When the life estate ends, the vesting of the remainder is a change in ownership unless an exclusion applies (Rev. & Tax. Code § 61(g)).

The main exclusion is the parent-child exclusion after Proposition 19. It applies only when the home was the parent’s principal residence and becomes the child’s principal residence within one year, the child files for the homeowners’ exemption, and a claim is filed with the assessor (Rev. & Tax. Code § 63.2). For transfers from February 16, 2025 through February 15, 2027, the child’s new taxable value is capped at the old taxable value plus $1,044,586 of additional value. A child who rents the house out, or a sibling who inherits a second property, doesn’t get the exclusion. Our page on Prop 19 and an inherited house covers the mechanics.

Income tax. A retained life estate has a benefit that surprises people. Under 26 U.S.C. § 2036(a)(1), the value of property you transferred but kept the possession or enjoyment of for life is included in your gross estate. Property included in the gross estate takes a basis equal to its fair market value at death (26 U.S.C. § 1014(a) and (b)(9)). So the child gets the step-up in basis, which wipes out the built-in capital gain if the child sells. An outright gift with no retained interest generally passes the parent’s old basis to the child, so the child would owe tax on the parent’s gain. Our note on step-up in basis explains the concept.

Inclusion in the gross estate matters for estate tax only above the federal exemption, which is $15,000,000 per person in 2026, and California has no estate or inheritance tax. For most Ventura County families the inclusion costs nothing and the step-up saves real money. This deserves a look with your CPA before you rely on it, because gift tax reporting and the value of the retained interest can change the answer.

A Ventura County example

Margaret owns a three-bedroom house in Camarillo. She bought it in 1988 for $185,000, and it’s now worth about $1,050,000. Her will leaves everything equally to her three children. In 2019 she signed and recorded a deed giving the house to her son Daniel, reserving a life estate for herself. The house has a taxable value of about $220,000, an illustrative figure.

Margaret dies in 2026. Her daughters expect a one-third share, but the house isn’t in her probate estate, so the will doesn’t reach it. When the life estate ends, Daniel becomes the owner. If Daniel makes the house his principal residence within a year and files the homeowners’ exemption and the assessor’s claim, the transfer is excluded from reassessment. Because the $1,050,000 value is below $220,000 plus $1,044,586, his new taxable value stays at roughly the old $220,000 plus annual increases. Without that claim, the house would be reassessed to market value.

For income tax, the house is in Margaret’s gross estate under § 2036, so Daniel’s basis is the date of death value. If he sells for $1,050,000 there’s no gain to report. Margaret’s daughters, meanwhile, get whatever the will leaves them from other assets, and nothing from the house. If they believe the 2019 deed was the product of pressure, they need a litigator, and they should move quickly on any deadline. If Margaret left other assets that need probate, that case would be heard in Ventura County at the Juvenile Justice Center, 4353 E. Vineyard Ave., Oxnard, usually in Courtroom J6. The house wouldn’t be part of it.

The better plan for Margaret would have been a trust that gave all three children equal shares, with the house still in her control. The planning cost is small next to a family split, and our fees page shows the flat prices.

Frequently asked questions

Does a deed override a will?

Yes, when the deed is valid and delivered. A will controls only property the person still owned at death. Once a deed has transferred title, the property is outside the will.

Does a transfer on death deed override a will?

Yes. A recorded TOD deed passes the house to the named beneficiary at death, and the will doesn’t control it. The exception is a deed recorded more than 60 days after notarization, which isn’t effective.

Does joint tenancy override a will?

Yes. When one joint tenant dies, the survivor takes the decedent’s share by the title, and the will can’t redirect it. That’s why an owner who adds a child to the deed for convenience can accidentally disinherit the other children.

Can a life estate be revoked?

Not by the owner alone. A recorded deed that gave the remainder to someone else can be undone only by the remainderman’s signed deed back, or by a court that sets the deed aside. A revocable transfer on death deed, by contrast, can be revoked at any time.

What is the difference between a life estate and a life tenancy?

Nothing that matters in practice. A life estate is the ownership interest that lasts for someone’s lifetime, and a life tenant is the person who holds it. People use “life tenancy” to mean the same arrangement.

Can a remainderman sell the house during the life tenant’s life?

The remainderman can generally sell the remainder interest, but the buyer takes it subject to the life tenant’s right to live there. The remainderman can’t sell the whole house or force the life tenant out without the life tenant’s signature.

Does a life estate avoid probate?

Yes. When the life tenant dies, the remainder passes under the deed, and the house doesn’t go through probate. The remainderman generally records a death certificate to clear the life estate off title.

Do I need a lawyer to check whether a deed or a will controls?

If a recorded deed and a will seem to conflict, read both before you decide anything. I can review them. Then I can tell you who holds title and what your options are. If the family is heading toward a contest, that part of the work belongs with a litigator.

If you already have a recorded deed and a will that point in different directions, start with the deed. It usually decides the question. It’s also the easier document to fix while the owner is alive. See the probate screener if you need to work out whether a house will land in probate.