A transfer on death (TOD) deed is like a regular deed you might use to transfer your Virginia real estate, but with a crucial difference: It doesn't take effect until your death. At your death, the real estate goes automatically to the person you named to inherit it (your "beneficiary"), without the need for probate court proceedings. (Va. Code Ann. §§ 64.2-621 and following.)
You must sign the deed and get your signature notarized, and then record (file) the deed with the circuit court clerk's office before your death. Otherwise, it won't be valid.
The beneficiary's rights. The person you name in the deed to inherit the property doesn't have any legal right to it until your death—or, if you own the property as a "joint tenant" with someone else, until the last surviving owner dies. (More on this below.) The beneficiary doesn't sign the deed, but it's a good idea to let the beneficiary know you've recorded it. Otherwise, he or she might not know about it, even after your death.
Earlier wills or TOD deeds. If you have made a will or previous TOD deed that leaves the property to someone, your new TOD deed will override it.
Your rights. You keep complete ownership of, and control over, the real estate while you're alive. You pay the taxes on it, and it's not protected from your creditors. You can sell it, give it away, or mortgage it. Because you're not making a gift of the property, there's no federal gift tax.
Medicaid. Creating a TOD deed won't affect whether or not you are eligible for Medicaid. Because you own the property and are not actually giving it away during your lifetime, a TOD deed won't help you "spend down" your assets to help you qualify for Medicaid. Beware, though, that if you do end up receiving Medicaid benefits—for example, to pay for nursing home care—your home might be liable for reimbursement of Medicaid expenditures. If you have questions, consult a local attorney.
Other creditor claims. Even though your TOD deed transfers your property outside of probate, if your probate property isn't enough to satisfy certain creditor claims and statutory allowances (such as certain amounts your spouse and children are entitled to at your death, set out by law), the property transferred by your TOD deed might be subject to these claims.
Revoking the deed. If you later change your mind about whom you want to inherit the property, you are not locked in. You have two options: (1) sign and record a revocation or (2) record another TOD deed, leaving the property to someone else. You cannot use your will to revoke or override a TOD deed.
Revocation by divorce. If you named your spouse as a beneficiary on your TOD deed and later get divorced, that beneficiary designation is automatically revoked.
How ownership is transferred. To get title to the property after your death, the beneficiary must sometimes take a few administrative steps. Your beneficiary can check with the county circuit court clerk's office for details. No probate is necessary.
If you own the property with someone else, how to proceed depends on how you and the other co-owners hold title to the property. If you don't know how you hold title, start by looking at the deed that transferred the property to you. It might say, for example, "to Ellen Bauman and Edward M. Bauman, as joint tenants," or "to Jonathan G. Costa and Sandra L. White, as tenants in common."
There are three common ways to co-own property in Virginia:
Joint tenancy (also called "joint tenancy with right of survivorship"). If you co-own real estate as joint tenants with right of survivorship, when one co-owner dies, that co-owner's share of the property will automatically go to the surviving co-owner(s).
When you make a TOD deed together with the other joint tenant(s), you are naming someone to receive the property after all of the joint tenants have died.
Example: Claire and Kendra co-own their home as joint tenants. They make a TOD deed together and name Oscar as the beneficiary. When Claire dies, Claire's half of the home goes to Kendra, who becomes the sole owner of the entire home. When Kendra dies, the home goes to Oscar under the TOD deed.
In Virginia, if you own your property as a joint tenant, you cannot make a TOD deed alone. For it to be effective, you must make the deed with all of the joint owners.
Tenancy in common. If your deed doesn't state how you own the property, you and your co-owners are presumed to own it as tenants in common, unless you've agreed otherwise in writing. If you own your property as a tenant in common, you should create a TOD deed on your own (without the other tenants in common). That TOD deed will transfer only your share of the property to the TOD beneficiary when you die.
Example: Raymond and Jack, who are brothers, own a house together as tenants in common. Raymond signs a TOD deed that leaves his half-interest to his daughter. At Raymond's death, his daughter will become a tenant in common with Jack.
Your co-owners are free to make their own TOD deeds to transfer their individual shares of the property, and they may name the same beneficiary as you, or they may choose different beneficiaries.
Tenancy by the entirety. This form of co-ownership is available only to married couples; when one spouse dies, the survivor automatically owns the entire property. If you and your spouse hold real estate as tenants by the entirety, you both must sign the deed, which will take effect only after both spouses have died. If you sign a TOD deed alone, it will have no effect. For purposes of the TOD deed, a tenancy by the entirety works similarly to a joint tenancy.
Revoking a jointly made deed. If you sign a TOD deed with a co-owner, the effect of revocation depends on how you co-own the property and who does the revoking.
If you co-own the property as joint tenants, your co-owner will automatically own the entire property upon your death (and vice versa). So:
If you co-own the property as tenants in common, you should not make a TOD deed with your co-owner in the first place (see above).
Note on trust property. If you hold real estate in a trust, you probably won't need to use a TOD deed, because trust property doesn't need to go through probate anyway. If for some reason you want to use a TOD deed instead, you'll probably need to transfer the property out of the trust first. Talk to a lawyer about your estate plan.
You can name anyone you please to inherit your real estate—a person, more than one person, or an organization such as a favorite charity. But if you want to name more than one person, or a minor, there are some issues you should consider.
More than one beneficiary. Before you name multiple beneficiaries on your transfer on death deed, make sure you consider 1) how the co-beneficiaries will hold title to the property after you die, 2) what will happen if one of the co-beneficiaries dies before you do, and 3) how the beneficiaries will feel about co-owning the property.
As to the first issue, when you make WillMaker's transfer on death deed for Virginia, your property will transfer to your beneficiaries in equal shares with no right of survivorship. This is the default under Virginia law. In other words, your beneficiaries will own your property as tenants in common and each beneficiary will be free to leave his or her share to someone else or to sell that share of the property.
Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. After you die, they will own the property as tenants in common. Tim leaves his one-third share of the property to his son Cameron in his will. Stephanie sells her one-third share of the property to Anya. After Tim dies, Cameron, Anya, and Rebekah own the property.
As to the second issue, if one or more of the beneficiaries dies before you do, their share or shares of the property will be transferred to the surviving beneficiaries.
Example: You name Tim, Stephanie, and Rebekah as your TOD beneficiaries. Tim dies before you do. Stephanie and Rebekah would each inherit half the property. They would own it as tenants in common, and are each free to sell or leave their half of the property to someone else.
Finally, think carefully about how your beneficiaries will feel about owning the property together. Co-ownership is cumbersome and often causes tension. For example, one co-owner could force a sale of the property even if the other co-owners didn't want to sell.
Children under 18. Think twice about naming a child under age 18 as a beneficiary. A child can take title to the property, but an adult will need to manage it.
When making a TOD deed with WillMaker, you can name an adult "custodian" under the Virginia Uniform Transfers to Minors Act (UTMA) to manage the property. Under Virginia's UTMA, the beneficiary becomes the outright owner of the property at a specified age (either 18, 21, or 25).
You may have other options for naming an adult property manager, including:
For more information, see Naming a Minor Beneficiary for a Transfer on Death Deed. For help setting up a property management method, consult a qualified estate planning lawyer.
Alternate beneficiaries. If you wish, you can name an alternate (successor) beneficiary. This beneficiary will inherit the property if your first-choice beneficiary (or all of them, if you named more than one) die before you do.
The 120-hour rule. Your transfer-on-death deed will be subject to Virginia's 120-hour survival rule, which states that your beneficiary must survive you by 120 hours (or 5 days) to receive the property. The goal of this survivorship rule is to prevent your property from going to your beneficiary's beneficiaries—rather than to your own beneficiaries—if you and that beneficiary die close in time.
Example: Sarah uses a transfer-on-death deed to leave her house to her brother Juan. Her deed states that the deed is canceled if Juan does not survive her. If Sarah and Juan are in a car accident together and Sarah dies on June 10, and Juan dies on June 12, the 120-hour rule means that the deed will be canceled, and the house will go to Sarah's residuary estate. (If the 120-hour rule were not in place, Sarah's house would go to Juan's estate rather than her own.)
Your transfer on death deed must identify your property using the legal description of your property. You can find this legal description on the previous deed that transferred the property to you—look for it in the body of the deed or in an "attachment" or "exhibit" to the deed. Legal descriptions in Virginia can look very different, and might be full of legalese. Here are two examples:
If the legal description is too long to safely type out (they can even run several pages long), simply photocopy or scan and print it, and attach it to the transfer on death deed as "Exhibit A."
Accurate, plain-English legal information can help many people create useful legal documents. But general information is never a substitute for personalized advice from a knowledgeable lawyer. If you want professional advice about the best way to craft or use legal documents in your particular circumstances, consult an attorney licensed to practice in Virginia.