West Virginia: Transfer-on-Death Deed Requirements
The short answer
Yes. West Virginia adopted the Uniform Real Property Transfer on Death Act. An individual signs a deed containing the elements of a recordable lifetime deed, states that the transfer occurs at death, and records it with the county commission clerk before death. The ordinary route is acknowledgment before a notary or other authorized officer; no subscribing witnesses are needed when the deed is acknowledged.
Ask Ezel about your situation
This is the general rule in West Virginia. Ezel applies current West Virginia law to your specific facts and answers with citations to the statutes.
| Governing law | Uniform Real Property Transfer on Death Act, W. Va. Code §§ 36-12-1 to 36-12-17 (effective June 5, 2014), as amended in 2023 |
|---|---|
| TOD deed available? | Yes — an individual may use a revocable TOD deed for an interest in West Virginia real property (W. Va. Code §§ 36-12-2(6), (8), 36-12-5 to 36-12-7) |
| How to sign it | Individual transferor signs with will-making capacity. The deed must have the formalities of a recordable inter vivos deed; the ordinary route is acknowledgment before a notary or other authorized officer, with no subscribing witnesses. West Virginia recording law alternatively permits proof by two witnesses before the county clerk (W. Va. Code §§ 36-12-8, 36-12-9(1), 39-1-2) |
| Recording requirement | State that the transfer occurs at death and record before the transferor dies with the county commission clerk where the property is located; no fixed signing-to-recording deadline (W. Va. Code § 36-12-9) |
| Revoking it | Always revocable. Record before death a later-acknowledged inconsistent TOD deed, express revocation, or later inter vivos deed conveying the same property, whether or not it expressly revokes. Physical cancellation does not work; all living joint-owner transferors must revoke their joint deed (W. Va. Code § 36-12-11, as amended in 2023) |
| Eligible property & owner | An individual may transfer an interest in West Virginia real property that is transferable at death. A tenant in common transfers only that owner's interest; a joint owner's deed yields to surviving joint owners and works for the last survivor (W. Va. Code §§ 36-12-2(4), (6), (8), 36-12-5, 36-12-13(c)-(d)) |
| Beneficiary survival & effect | A sole beneficiary must survive or the gift lapses. Multiple beneficiaries default to equal undivided tenancy-in-common shares unless the deed specifies otherwise and may take with survivorship if the deed expressly creates joint tenancy; a failed share goes proportionately to the others. The beneficiary takes subject to liens and encumbrances and without title warranty (W. Va. Code § 36-12-13) |
| Creditor & Medicaid reach | During life the deed does not affect the owner's secured, unsecured, or future creditors. At death the beneficiary takes subject to existing mortgages, liens, and other interests; the TOD Act does not create a separate beneficiary-liability rule for unsecured estate claims. Medicaid § 9-5-11c authorizes recovery against the recipient's estate, and current state policy identifies recoverable assets as property passing under probate law, so property passing by a valid TOD deed generally falls outside Medicaid estate recovery (W. Va. Code §§ 36-12-12(3), 36-12-13(b), 9-5-11c) |
Compare this rule across all 50 states + DC →
West Virginia adopted the Uniform Real Property Transfer on Death Act, W. Va. Code
§§ 36-12-1 to 36-12-17, in 2014. It lets an individual name one or more beneficiaries
for West Virginia real property while retaining ownership and control during life.
How to sign it
The owner must sign a deed containing the essential elements and formalities of a properly
recordable lifetime deed and must have the capacity required to make a will. The deed must
say that the transfer occurs at the owner's death.
The ordinary execution route is to acknowledge the signature before a notary or another
officer authorized to take acknowledgments. W. Va. Code § 39-1-2 lets the clerk record a
signed deed when the signer acknowledges it; no subscribing witnesses are needed on that
route. The same section alternatively permits proof by two witnesses before the county
clerk. The beneficiary does not sign, accept, or receive the deed during the owner's life,
and no consideration is required under § 36-12-10.
Recording requirement
Under W. Va. Code § 36-12-9, the deed must be recorded before the transferor dies in the
office of the clerk of the county commission for the county where the property is located.
An acknowledged deed left unrecorded at death is ineffective.
West Virginia sets no separate deadline measured from signing or acknowledgment. The hard
deadline is the transferor's death.
Revoking it
The deed remains revocable even if it says otherwise. Current W. Va. Code § 36-12-11,
amended in 2023, recognizes three recorded methods:
- a later TOD deed that revokes the earlier deed expressly or by inconsistency;
- an express revocation instrument; or
- a later inter vivos deed conveying the same property, even without express revocation.
The later instrument must be acknowledged after the original deed and recorded before death
in the county where the original deed is recorded. Writing on, tearing, or destroying the
recorded deed does not revoke it. A will is not one of the statute's recorded revocation
methods. If joint owners made the deed, all living joint owners must revoke the joint deed.
Eligible property and owners
The transferor must be an individual, and the property must be an interest in real
property located in West Virginia that is transferable at death. A tenant in common can
transfer only that owner's share.
A TOD deed does not defeat an existing right of survivorship. If another joint owner
survives, § 36-12-13(c) gives the property to the surviving joint owner or owners. The
TOD deed works when the transferor is the last surviving joint owner.
Beneficiary survival and what passes
For a sole beneficiary, current § 36-12-13 requires survival of the transferor; otherwise
the gift lapses. For multiple beneficiaries, the defaults are equal undivided shares as
tenants in common unless the deed specifies otherwise. A deed may expressly provide for
joint tenancy with right of survivorship, a choice added by the 2023 amendment. If one
co-beneficiary's share lapses or otherwise fails, it passes proportionately to the others.
The beneficiary takes subject to the mortgages, liens, contracts, encumbrances, and other
interests affecting the property at death. The transfer carries no covenant or warranty of
title, even if the deed says otherwise.
Creditor and Medicaid reach
During life, W. Va. Code § 36-12-12 says the TOD deed does not affect the rights of the
owner's secured, unsecured, or future creditors. The owner remains free to sell, mortgage,
or otherwise encumber the property, and the beneficiary has no present interest.
At death, § 36-12-13(b) makes the beneficiary take subject to existing mortgages, liens,
and other property interests. Unlike some states' versions of the uniform act, West
Virginia's TOD article does not create a separate rule making the beneficiary personally
liable for the transferor's unsecured probate claims merely because of the TOD transfer.
Medicaid recovery is also estate-based. Current W. Va. Code § 9-5-11c(a) authorizes the
Department of Human Services to file a claim or lien against the Medicaid recipient's
estate. The Bureau for Medical Services' current recovery manual, § 900.5, identifies the recovery
floor as property passing to heirs under state probate law by will or intestacy. Because a
valid TOD deed transfers the property outside probate, the TOD property generally falls
outside that Medicaid recovery estate. Existing liens, lifetime institutional liens,
fraudulent-transfer law, and case-specific facts can change the practical result.
What trips people up
- Signing and acknowledging without recording is not enough. The deed must reach the
correct county records before death. - A will is not a recorded revocation instrument. Use one of § 36-12-11's methods.
- A later ordinary deed now clearly revokes. Since the 2023 amendment, conveying the same
property by a later recorded inter vivos deed revokes the TOD deed without magic words. - Survivorship title comes first. A surviving joint owner takes before the TOD beneficiary.
- Probate avoidance is not lien avoidance. The beneficiary takes subject to mortgages,
liens, and other interests already attached to the property.
Common questions
Do I need witnesses? Not when the owner uses the ordinary acknowledgment route. Section
39-1-2 permits the clerk to record an acknowledged deed without subscribing witnesses; it
also offers proof by two witnesses before the clerk as an alternative recording route.
Does the beneficiary sign? No. Section 36-12-10 says notice, delivery, acceptance, and
consideration are unnecessary during the owner's life.
Can several beneficiaries receive survivorship title? Yes, if the deed expressly
specifies joint tenancy with right of survivorship. Otherwise the default is tenancy in
common, subject to any valid different shares stated in the deed.
Do the 2026 bills change the answer? No. SB 193 and SB 664 stopped in Senate Judiciary,
and the 2026 regular session adjourned sine die on March 14 without enacting either bill.
Statutes and sources
- W. Va. Code §§ 36-12-1 to 36-12-17 (Uniform Real Property Transfer on Death Act) — http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=SB3%20ENR.htm&yr=2014&sesstype=RS&i=3 (accessed 2026-07-11)
- 2023 HB 3499 (current revocation and beneficiary-effect amendments) — https://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=hb3499%20enr.htm&yr=2023&sesstype=RS&i=3499 (accessed 2026-07-11)
- W. Va. Code § 39-1-2 (acknowledgment or two-witness proof for recording) — http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=hb3428%20intr.htm&yr=2025&sesstype=RS&i=3428 (accessed 2026-07-11)
- W. Va. Code § 9-5-11c (Medicaid recovery against recipient's estate) — https://www.wvlegislature.gov/bill_status/bills_text.cfm?billdoc=hb4274%20enr.htm&yr=2024&sesstype=RS&i=4274 (accessed 2026-07-11)
- Bureau for Medical Services, Chapter 900 (current estate-recovery policy) — https://bms.wv.gov/sites/default/files/2025-07/BMS%20Chapter_900_Estate_RecoveryRevised12.6.24.pdf (accessed 2026-07-11)
- 2026 legislative calendar (March 14 adjournment) — https://www.wvlegislature.gov/Bulletin_Board/calendar/calendar_2026.cfm (accessed 2026-07-11)
Source links
Every statute quoted above, linked, with the date we checked it.
Get the answer for your situation
You just read how West Virginia handles this in general. Ezel applies current West Virginia law to your facts and answers your specific question, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.