West Virginia Transfer on Death Deeds

Everything you need to know about transfer on death (TOD) deeds in West Virginia.

A transfer on death (TOD) deed is like a regular deed you might use to transfer your West 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. (W. Va. Code §§ 36-12-1 and following.)

You must sign the deed and get your signature notarized, and then record (file) the deed with the clerk of the county commission before your death. Otherwise, it won't be valid.

How the TOD Deed Works

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. In some states, 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. In West Virginia, though, a TOD deed might protect your house from Medicaid estate recovery. This is because West Virginia does not make non-probate transfers (such as a house passed to someone using a TOD deed) available for Medicaid estate recovery. If you have questions, consult a local attorney.

Other creditor claims. Your beneficiary takes the property subject to the mortgages, liens, and other claims on your property that existed at your death.

Revoking the deed. If you later change your mind about who 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.

How ownership is transferred. To get title to the property after your death, the beneficiary must usually take a few administrative steps, such as recording a certified copy of the death certificate. Your beneficiary can call the county clerk's office for details. No probate is necessary.

Special Rules for Co-Owned Property

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 two common ways to co-own property in West 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). You can make a TOD deed together with the other joint tenant(s) or you can make one on your own, but it's important to understand the difference.

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.

If you make a TOD deed on your own, without the other joint tenants, the deed will be effective only if you are the last surviving owner of the property. If you die first, the surviving co-owner(s) will own the property, and the TOD deed won't have any effect.

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, it's best to 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.

If you're not sure how you co-own the property or whether or not your spouse has any rights to it, consult a lawyer. While the guidance here fits most situations, if you have a complicated situation or more complex aims, you should turn to a lawyer for a more tailored solution.

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 and/or with "right of survivorship," your co-owner will automatically own the entire property upon your death (and vice versa). So:

  • Revoking the deed by yourself has no effect unless you are the last surviving co-owner.
  • While you are both alive, you and your co-owner can revoke the deed together at any time.

If you co-own the property as tenants in common, we do not suggest making a TOD deed with your co-owner in the first place (see above). But if you did, here is how revocation would work:

  • Revoking the deed by yourself will affect only your interest in the property. The deed would no longer pass your share of the property, but it would still pass the co-owner's share of the property to the TOD beneficiary.
  • If you both revoke the deed, it will be entirely revoked.

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.

Naming Beneficiaries

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 West Virginia, your property will transfer to your beneficiaries in equal shares with no right of survivorship. This is the default under West 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 West Virginia Uniform Transfers to Minors Act (UTMA) to manage the property. Under West Virginia's UTMA, the beneficiary becomes the outright owner of the property at age 21.

You may have other options for naming an adult property manager, including:

  • using your will to name a property guardian who will take care of any property you leave to your own young children, including property transferred by this deed, and
  • setting up a trust for a child and naming the trust as the TOD beneficiary.

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.

Sample Legal Descriptions

Several kinds of legal descriptions are used in West Virginia. Just copy what's on the previous deed that transferred the property to you. Here are some examples:

  • "All of Lot No. 5 as the same is laid down and designated on the official sales map or plat of the Hillcrest Village Subdivision, a copy of which sales map or plat is recorded in the Office of the Clerk of the County Commission of Monongalia County, West Virginia, in Map Cabinet No. 469C."
  • "Beginning at a ½ inch steel pipe corner to beginning of Block C, at the edge of Trevilla Avenue; thence N. 52°, 13 E along the line the Sommerville Tract, 120 feet to a ½ inch steel pipe, corner; thence N. 40° W. …."
  • "A certain piece or parcel of land situated in the McComas District, Cabell County, West Virginia and being a portion of the property obtained by Victoria James, from Mary J. and Dilbert James, by deed dated January 29, 1924 and recorded in the Cabell County, West Virginia, deed records in Deed Book #323 Page #145 and being more particularly bounded and described as follows: BEGINNING at an apple tree at the corner of Glenna Lucas property on Reuben Branch Creek Bank, continuing in a straight line North to center of State Road #49/5 then west along state road to an iron pin, then in a straight line South …."

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."

lf You Need Legal Advice

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 West Virginia.