Transfer-on-Death Deed Requirements in West Virginia

At a glance

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)