West Virginia Transfer on Death Deed Form

What is a West Virginia transfer-on-death (TOD) deed?

A West Virginia transfer-on-death deed—or TOD deed—is a recorded document that lets a real estate owner transfer the property to a named beneficiary when the owner dies.¹ A transfer-on-death deed works like a bank account with a TOD designation. The deed has essentially no legal effects until the owner’s death—allowing the owner to keep complete ownership and control over the property for life.²

The West Virginia Legislature authorized transfer-on-death deeds in 2014 when it passed the Uniform Real Property Transfer on Death Act.³ A little over half of US states allow transfer-on-death designations for real estate. State TOD laws are sometimes similar, but a TOD deed that transfers West Virginia real estate must be precisely tailored to West Virginia’s law.

Some states use the term beneficiary deed for deeds that achieve the same goal. Beneficiary deed is less common in West Virginia.

What is the purpose of a West Virginia TOD deed?

A TOD deed’s main benefit is that it transfers real estate outside of probate. The real estate passes directly to the beneficiary when the owner dies. It never becomes part of the owner’s probate estate, so a separate deed from the estate’s personal representative to the beneficiary is unnecessary.

West Virginia law recognizes other means of transferring real estate outside probate—such as living trusts or joint ownership with a right of survivorship. TOD deeds offer several benefits compared to other methods of avoiding probate:

• Simplicity. TOD deeds are relatively simple to create—particularly compared to living trusts. A TOD deed is nontestamentary—which means it need not meet the formal requirements for a will.⁴ For example, witness signatures are required for wills but not for TOD deeds.⁵
• Cost-effectiveness. Preparation and recording costs for TOD deeds are lower than for many other estate-planning tools. West Virginia TOD deeds are exempt from transfer tax.⁶
• Retained control. TOD deeds have no current impact on the owner’s control over or rights in the property.⁷ Another type of deed recognized in West Virginia—life estate deeds—also pass real estate outside of probate.⁸ However, a life estate holder gives up some rights to the property during life.
• Access to public assistance. TOD deeds do not affect whether an owner or beneficiary can get public assistance (like Medicaid).⁹

What is the benefit of avoiding probate?

Probate is well known as a confusing, expensive, and time-consuming process. Transferring real estate outside of probate makes the owner’s probate estate smaller and easier to deal with. A smaller estate may qualify for West Virginia’s streamlined small-estates probate process.

TOD deeds also let the beneficiary take formal title to the real estate sooner after the owner’s death and with less administrative cost. Real estate that goes through probate might not officially transfer to the owner’s heir for a year or more. Passing title from the estate may also require other costs, like filing fees and attorney’s fees.

What types of property can be transferred using a West Virginia TOD deed?

A property must meet three basic requirements to be transferable under a West Virginia TOD deed:¹⁰

1. It must be real estate. A TOD deed can only transfer an ownership interest in real estate. A TOD deed cannot transfer personal property, bank accounts, or any asset other than real estate. West Virginia has other statutes authorizing different methods of transferring other assets upon the owner’s death.¹¹
2. It must be in West Virginia. A West Virginia TOD deed can only transfer real estate physically located in West Virginia. A West Virginia resident who owns property in another state cannot use a West Virginia TOD deed for the out-of-state property.
3. It must be transferable on the owner’s death. A property owner can use a TOD deed only to transfer a real estate interest the owner has the right to transfer when the owner dies. A TOD deed cannot transfer a life estate or other property that was already transferred by the owner before his or her death.

What is the effect of a West Virginia TOD deed while the owner is alive?

A TOD deed is recorded in the land records while the owner is alive but does not legally take effect until the owner’s death. A West Virginia TOD deed’s legal effect on different parties’ rights while the owner remains living are as follows:

• Property owner’s rights. The property owner’s rights are not restricted by a TOD deed. The owner has the same right to sell, transfer, or mortgage the property after recording a TOD deed.¹²
• Beneficiary’s rights. A TOD deed does not create any legal rights in favor of the beneficiary while the owner is living.
• Transferee’s rights. A TOD deed does not affect the rights of a transferee to whom the owner transfers the property during life.¹³ An earlier recorded TOD deed does not affect the ownership of a buyer who buys the real estate from the owner. If the owner sells the property—and therefore no longer has the power to transfer it at death—a previously recorded TOD deed has no effect.¹⁴
• Creditors’ rights. Creditors’ rights are not increased or decreased by a TOD deed. The owner’s creditors have the same right to attach the property. On the other hand, the beneficiary’s creditors have no right to attach the property. A property protected by a homestead exemption is still protected after a TOD deed is recorded.
• Public assistance eligibility. A TOD deed makes no difference in whether the owner or beneficiary can get public assistance (like Medicaid).

Is a West Virginia TOD deed revocable?

A West Virginia TOD deed is always revocable, meaning it can always be undone, until the owner dies. An owner can revoke a recorded TOD deed even if the deed itself says it cannot be revoked.¹⁵

West Virginia’s TOD deed law lists three documents a property owner can use to revoke a recorded TOD deed.¹⁶Any of these three must be notarized and recorded after the TOD deed—but in the same county as the TOD deed—before the owner’s death:

1. Later TOD deed. Another TOD deed recorded after an existing TOD deed can revoke the earlier deed by either (a) expressly stating that the earlier deed is revoked or (b) transferring the property differently from the earlier deed.
2. Instrument of revocation. A property owner can revoke a recorded TOD deed by recording an instrument of revocation (a signed, notarized document that states the TOD deed is revoked).
3. Lifetime transfer. A property owner can revoke a recorded TOD deed by recording a later deed created during the owner’s life that clearly revokes the TOD deed.

Divorce revokes a TOD deed by operation of law. A TOD deed naming the owner’s spouse as beneficiary is becomes ineffective if the spouses later divorce.¹⁷ Revocation due to divorce does not occur if the TOD deed clearly states that it survives divorce.

Special rules for revoking a TOD deed signed by multiple owners

West Virginia TOD deeds signed by more than one property owner have their own revocation rules:¹⁸

• One owner’s revocation does not affect a TOD deed as to the other owner’s property interest.
• All living co-owners must join in revoking a TOD deed signed by joint tenants with right of survivorship.

If only one joint tenant records a TOD deed, the deed transfers the property at the owner’s death only if the joint tenant who signed the TOD deed is the last surviving joint tenant.

What is the effect of a West Virginia TOD deed when the owner dies?

The most significant effect of a TOD deed when the owner dies is that the property identified in the deed transfers to the beneficiary “in accordance with the deed.”¹⁹ Any lawful transfer terms listed in the TOD deed apply to the transfer. For example, a property owner who names multiple beneficiaries can say which co-ownership form the beneficiaries will use.

Real estate transferred by a TOD deed is not in the owner’s probate estate. If the owner’s will deals with the same real estate, the TOD deed takes precedence. However, a TOD deed does not remove the real estate from the owner’s taxable estate for federal estate tax purposes.

A West Virginia TOD deed transfers real estate with no warranty of title—even if the deed says otherwise. That means the beneficiary receives no guarantee about the validity of the transferred ownership rights.²⁰ The beneficiary takes title subject to any existing liens or other third-party interests affecting the property’s title at the owner’s death.²¹ Warranty of title (or lack thereof) is a defining feature of three other West Virginia deed forms—warranty deeds, special warranty deeds, and quitclaim deeds—effective during an owner’s life.²²

A TOD deed beneficiary has the right to disclaim real estate transferred by a TOD deed.²³ A beneficiary who disclaims property under a TOD deed chooses not to accept title to the property.

Can a West Virginia TOD deed leave property to multiple beneficiaries?

Yes, West Virginia law allows a property owner to name “one or more beneficiaries” in a TOD deed.²⁴ Multiple beneficiaries automatically receive equal, undivided shares in the property and take title with no right of survivorship²⁵A property owner can allow a different co-ownership form or transfer unequal shares to beneficiaries by expressing that intent in the TOD deed.²⁶

Can joint owners sign a West Virginia TOD deed?

Yes, co-owners of West Virginia real estate can sign a TOD deed. Co-owners who hold title as tenants in common—with separate, fractional interests in the real estate—can transfer their part-interests independently.

West Virginia has specific rules for co-owners who hold title as joint tenants with right of survivorship— which means a surviving owner automatically receives a deceased owner’s share.²⁷ West Virginia’s TOD law uses the term joint owners for joint tenants with right of survivorship.²⁸ These are the state’s rules for joint tenants with right of survivorship:

• Right of survivorship gets priority over TOD deed. The right of survivorship between joint owners takes precedence over a beneficiary’s rights under a TOD deed. A surviving joint owner automatically takes title to a deceased joint owner’s interest—even if the deceased joint owner recorded a TOD deed.²⁹
• TOD effective on death of last surviving joint owner. A TOD deed signed by two joint owners is effective if the deed is still in place when the last joint owner dies.³⁰ Two joint owners can record a West Virginia TOD deed that transfers real estate when the second owner dies. The surviving joint owner retains the right to revoke the TOD deed until his or her death.

Example: Ronald and Nancy are married and own their home as joint tenants with right of survivorship. Ronald and Nancy have one child together (Barry), and Nancy has a child from a previous marriage. Ronald and Nancy both sign and record a TOD deed naming Barry as beneficiary. Nancy becomes sole owner of the property after Ronald’s death. Nancy has the power to revoke the TOD deed so that both children inherit an interest in the property.

What happens if the beneficiary named in a West Virginia TOD deed dies before the owner?

A beneficiary must still be alive when the owner dies to receive property under a TOD deed.³¹ The transfer lapses—or fails—if the beneficiary does not survive the owner. Real estate subject to a lapsed transfer becomes part of the owner’s estate. The property goes through probate and is passed based on the owner’s will or the state’s rules for handing down property without a will.

Avoiding probate is a key goal of TOD deeds. A lapsed transfer, then, is usually seen as a bad result. With that in mind, a property owner creating a TOD deed should think about using one or more of the following methods to avoid lapse.

• Name a contingent beneficiary. A contingent beneficiary is an alternate beneficiary named in a TOD deed. A contingent beneficiary takes title to the property if—and only if—the primary beneficiary fails to outlive the property owner.³²
• Name multiple beneficiaries. A TOD deed that names more than one beneficiary is less likely to fail because a share that lapses is divided among the other beneficiaries.³³ In other words, a beneficiary who survives the owner receives the share of a beneficiary who does not.
• Include a backup plan in the TOD deed. West Virginia’s TOD statute lets property owners set the terms of a TOD deed within the deed itself. The lapse rule applies to a deceased beneficiary “except as otherwise provided in the transfer on death deed.”³⁴ A property owner can record a TOD deed that adds other provisions to avoid lapse.

Must the owner notify the beneficiaries of the West Virginia TOD deed?

A property owner need not let the beneficiary know about a TOD deed.³⁵ The beneficiary is not required to accept the deed during the owner’s life but does have a right to disclaim the transfer after the owner’s death.³⁶

It is generally a good idea to make the beneficiary and the future executor of the owner’s estate aware of a TOD deed. An unknown TOD deed may be overlooked in the estate administration process—which can lead to trouble with the paperwork, estate disputes, or future title problems.

Can a West Virginia TOD deed be used when the property is mortgaged?

An existing mortgage does not restrict an owner’s right to record a TOD deed in most cases. The Garn-St. Germain Depository Institutions Act of 1982—a federal statute governing the financial industry—protects owners’ right to record TOD deeds.

Mortgage agreements typically do not allow transfers without the lender’s consent. Due-on-sale clauses in the agreements make the entire loan balance immediately due if an unapproved transfer happens. Garn-St. Germain says a due-on-sale clause cannot be triggered by “a transfer to a relative resulting from the death of a borrower.”³⁷ The result is that most TOD deeds are protected.

The lender is also protected because recording a TOD deed does not affect creditors’ rights.³⁸ An existing mortgage survives the transfer to the beneficiary when the owner dies.³⁹ The beneficiary may need to make payment arrangements with the lender if the mortgage debt cannot be not paid using assets in the owner’s probate estate.

Must a West Virginia TOD deed be recorded?

A TOD deed must be recorded:

• In the county clerk’s office for the county where the property is located; and
• Before the property owner’s death.⁴⁰

Proper recording is required to make any TOD deed effective. A TOD deed signed and notarized—but not recorded—before the owner’s death fails to transfer the real estate. The property becomes part of the probate estate and is administered with other assets unless the owner uses another non-probate transfer strategy.

Can a West Virginia TOD deed be signed by an agent under a power of attorney?

The best practice is for a property owner to sign a TOD deed on his or her own behalf. However, an agent acting under power of attorney (POA) can sign a West Virginia TOD deed for the owner if certain conditions are met:

• Signed, written POA agreement. The owner must sign a written power-of-attorney agreement that allows the agent to sign a deed for the owner.⁴¹
• Authority for beneficiary designation. The POA agreement must say it gives the agent the power to create or change beneficiary choices for the owner.⁴²
• Recorded POA agreement. The POA agreement must be recorded in the county clerk’s office for the county where the property is located.⁴³ The POA agreement must be recorded before the TOD deed.
• Agent is not beneficiary. The TOD deed signed under a POA must not name as beneficiary the agent or anyone the agent legally has to support—unless the POA agreement says it allows the agent to do so.⁴⁴

West Virginia law requires a person signing a TOD deed to have the same mental ability required for a valid will.⁴⁵ A person creating a West Virginia will must be at least 18 years old and of sound mind.⁴⁶ A property owner who, for example, is in a coma or has a severe mental illness is unlikely to meet these requirements. A TOD deed created for an owner who is mentally incapacitated probably has no effect because the owner cannot create a valid will.

What are the requirements for a West Virginia TOD deed?

West Virginia’s TOD deed statute outlines requirements for TOD deeds but does not provide a suggested form. A West Virginia TOD deed must have all the “essential elements and formalities” for ordinary deeds.⁴⁷ In practical terms, that means a TOD deed must generally meet all West Virginia deed requirements—such as formatting standards, owner signature, and notarization. It must also meet the following requirements listed in the TOD deed law:

• Property owner name. A TOD deed must identify the current property owner who is creating the TOD deed.⁴⁸
• Property owner capacity. The owner signing a TOD deed must be at least 18 years old and of sound mind.⁴⁹ The owner must also be a living human being.⁵⁰ A corporation, LLC, or other entity cannot create a valid TOD deed.
• Property description. A valid legal description of the property must be given in the TOD deed.
• Beneficiary’s name. A TOD deed must identify one or more beneficiaries or contingent beneficiaries (if applicable) to receive the property on the owner’s death.⁵¹ A TOD deed’s beneficiary can be a human being or an entity like a corporation, LLC, or trust.⁵²
• Transfer on death. A TOD deed must state that the transfer to the beneficiary will occur at the property owner’s death.⁵³
• Recording. A TOD deed must be recorded (a) in the county clerk’s office for the county where the property is located and (b) before the property owner’s death.⁵⁴

A statement of consideration—or a payment amount provided in exchange for the transfer—is unnecessary in a West Virginia TOD deed.⁵⁵

1. W.Va. Code § 36-12-5.
2. W.Va. Code § 36-12-12(1).
3. W.Va. Code §§ 36-12-1, et seq.
4. W.Va. Code § 36-12-7.
5. See W.Va. Code § 41-1-3.
6. W.Va. Code § 36-12-9(3).
7. W.Va. Code § 36-12-12(1).
8. See W.Va. Code § 36-1-9.
9. W.Va. Code § 36-12-12(4).
10. W.Va. Code § 36-12-2(6).
11. See W.Va. Code § 36-10-2 (allowing TOD designation for securities).
12. W.Va. Code § 36-12-12(1).
13. W.Va. Code § 36-12-12(2).
14. See W.Va. Code § 36-12-11(d).
15. W.Va. Code § 36-12-6.
16. W.Va. Code § 36-12-11(a).
17. W.Va. Code § 36-12-13(a); W.Va. Code § 41-1-6.
18. W.Va. Code § 36-12-11(b).
19. W.Va. Code § 36-12-13(a)(1).
20. W.Va. Code § 36-12-13(d).
21. W.Va. Code § 36-12-13(b).
22. See W.Va. Code § 36-4-2.
23. W.Va. Code § 36-12-14.
24. W.Va. Code § 36-12-5.
25. W.Va. Code § 36-12-13(a)(3).
26. See W.Va. Code § 36-12-13(a) (“Except as otherwise provided in the transfer on death deed”).
27. W.Va. Code § 36-1-20(a).
28. W.Va. Code § 36-12-2(4).
29. W.Va. Code § 36-12-13(c)(1).
30. W.Va. Code § 36-12-13(c)(2).
31. W.Va. Code § 36-12-13(a)(2).
32. W.Va. Code § 36-12-2(2).
33. W.Va. Code § 36-12-13(a)(4).
34. W.Va. Code § 36-12-13(a).
35. W.Va. Code § 36-12-10(1).
36. W.Va. Code § 36-12-14.
37. 12 USC § 1701j-3(d)(5).
38. W.Va. Code § 36-12-12(3).
39. W.Va. Code § 36-12-13(a).
40. W.Va. Code § 36-12-9(3).
41. W.Va. Code § 36-1-2.
42. W.Va. Code § 39B-2-101(a)(4).
43. W.Va. Code § 39B-2-104(b).
44. W.Va. Code § 39B-2-101(b).
45. W.Va. Code § 36-12-8.
46. W.Va. Code § 41-1-2.
47. W.Va. Code § 36-12-9(1).
48. W.Va. Code § 36-12-5.
49. W.Va. Code § 36-12-8; W.Va. Code § 41-1-2.
50. W.Va. Code § 36-12-2(8).
51. W.Va. Code § 36-12-5.
52. W.Va. Code § 36-12-2(5).
53. W.Va. Code § 36-12-9(2).
54. W.Va. Code § 36-12-9(3).
55. W.Va. Code § 36-12-10(2).