Virginia: Transfer-on-Death Deed Requirements

Virginia lets you use a transfer on death deed (TOD deed) to leave real estate to
someone without probate. Virginia adopted the national Uniform Real Property Transfer on
Death Act in 2013, so the rules are well settled. You record a deed now that names a
beneficiary; nothing happens while you are alive — you keep full ownership and control — and
when you die, the property passes automatically to the person you named. Done right, it is
one of the simplest and cheapest ways to keep a home out of probate.

The one rule that matters more than any other: the deed must be recorded before you die.
A signed, notarized TOD deed sitting in a drawer does nothing.

Requirements one by one

Who can make one, and mental capacity

Any individual owner may make a TOD deed (§ 64.2-624). The mental capacity required is
the same as the capacity to make a will (§ 64.2-627) — a lower bar than the capacity
to make a contract. The beneficiary does not have to know about the deed, agree to it, or do
anything during your life; no delivery, acceptance, or payment is needed.

Signing and notarizing it

A TOD deed must have "the essential elements and formalities of a properly recordable inter
vivos deed" (§ 64.2-628(1)). In practice that means you sign the deed and acknowledge
it before a notary. Virginia does not require witnesses — the optional statutory form
the Legislature published (§ 64.2-635) shows a single transferor signature and a notary
acknowledgment, with no witness lines. If the property is owned by more than one person as
joint owners, all of them must sign the deed for it to be effective (§ 64.2-628(6)).

Recording before death — the make-or-break step

The deed "shall be recorded before the transferor's death in the land records of the clerk's
office of the circuit court in the jurisdiction where the property is located"
(§ 64.2-628(3)). This is the single most important requirement and the most common way a
TOD deed fails. Unlike California, Virginia sets no deadline measured from signing — you
can record it years later — but it must be on record before you die. Recording is what makes
the future transfer operative; a deed recorded only after death is void. If you made the
deed without payment, it is exempt from recordation tax under § 64.2-628(5) and
§ 58.1-811(J) — note that exemption on the face of the deed.

Virginia uses an independent-cities system: property may sit in a county or in an
independent city, each with its own circuit court clerk. Record in the right jurisdiction.

Revoking it

You can revoke a TOD deed any time before death (§ 64.2-625), but only in a specific
way. Under § 64.2-630, revocation is effective only through a recorded instrument —
one of: a later TOD deed, an express instrument of revocation, or (since a 2025 amendment) an
ordinary "inter vivos" deed that conveys the property to someone else so you no longer own it
when you die. You cannot revoke a recorded TOD deed by tearing it up or by a provision in
your will. If joint owners made the deed, it is revoked only if all the living joint
owners revoke it.

What the beneficiary gets

At your death the property vests in the beneficiary — but with strings (§ 64.2-632):

• The beneficiary must survive you; if the beneficiary dies first, the gift lapses.
• If you name two or more beneficiaries, they take equal, undivided shares with no
  survivorship between them; if one predeceases you, that share is divided among the
  others.
• A divorce or annulment automatically cancels a transfer you made to a former spouse,
  unless the deed says otherwise.
• The beneficiary takes the home subject to every mortgage, lien, and encumbrance on it
  at your death, and the deed carries no warranty of title. The debts do not disappear.

Creditors and your estate

A TOD deed avoids probate; it does not put the property beyond your creditors. Under
§ 64.2-634, after your death the property is reachable for your creditor claims, the
costs of administering your estate, funeral expenses, and the statutory family, exempt-
property, and homestead allowances — but only to the extent your probate estate is not
enough to cover them. Anyone pursuing the property this way must act within one year of
your death.

What trips people up

• Your will cannot revoke or override a recorded TOD deed. Because revocation must be a
  recorded instrument (§ 64.2-630), a later will leaving the same house to someone else does
  not change who gets it — the recorded TOD deed controls. To change the beneficiary, record
  a new TOD deed or a revocation.
• If you co-own with right of survivorship, survivorship wins. When a joint owner or a
  spouse holding as tenants by the entirety dies, the property passes to the surviving
  co-owner first; a TOD deed by one joint owner only takes effect if that owner is the last
  to die (§ 64.2-632(C)). All joint owners must sign the deed for it to work at all.
• Record it now, not "eventually." There is no penalty for recording early and no
  deadline that forces you to — so there is no reason to wait. A deed found unrecorded after
  death is worthless.

Common questions

Does a TOD deed give my beneficiary any rights while I'm alive? No. Until you die, the
beneficiary has no interest in the property. You can sell it, mortgage it, rent it, or revoke
the deed without their knowledge or consent.

Can I name more than one person, or a backup? Yes. You can name several beneficiaries
(they take equal shares) and an alternate who inherits if your first choice dies before you.
The statutory form in § 64.2-635 has spaces for both.

Will the deed protect the house from my debts or Medicaid? Not from your own debts — after
death the property can be reached for your creditor claims and family allowances if your
estate is too small to cover them (§ 64.2-634). Medicaid estate recovery is a separate,
technical question; ask an elder-law attorney before relying on a TOD deed for that purpose.

Do I need a lawyer or witnesses? No witnesses are required — just your signature and a
notary. Many people use the statutory form, but because a mistake surfaces only after death,
when it cannot be fixed, having a Virginia attorney prepare or review the deed is worth it.

Statutes and sources

• Va. Code § 64.2-624 (a transfer on death deed is authorized) — https://law.lis.virginia.gov/vacode/64.2-624/ (accessed 2026-07-11)
• Va. Code § 64.2-627 (capacity is the same as to make a will) — https://law.lis.virginia.gov/vacode/64.2-627/ (accessed 2026-07-11)
• Va. Code § 64.2-628 (requirements: recordable-deed formalities; record before death; joint owners must all sign; recordation-tax exemption) — https://law.lis.virginia.gov/vacode/64.2-628/ (accessed 2026-07-11)
• Va. Code § 64.2-630 (revocation only by recorded instrument; 2025 amendment adding conveyance-away) — https://law.lis.virginia.gov/vacode/64.2-630/ (accessed 2026-07-11)
• Va. Code § 64.2-632 (effect at death: survival, equal shares, divorce revocation, subject to liens) — https://law.lis.virginia.gov/vacode/64.2-632/ (accessed 2026-07-11)
• Va. Code § 64.2-634 (liability for creditor claims and statutory allowances; one-year deadline) — https://law.lis.virginia.gov/vacode/64.2-634/ (accessed 2026-07-11)
• Va. Code § 64.2-635 (optional statutory form; record-before-death caption) — https://law.lis.virginia.gov/vacode/64.2-635/ (accessed 2026-07-11)