Transfer-on-Death Deed

TRANSFER-ON-DEATH DEED

STATE OF WEST VIRGINIA

TABLE OF CONTENTS

1. Instructions and Important Information
2. Transfer-on-Death Deed Form
3. Acknowledgment
4. Revocation Form
5. Post-Death Recording Requirements
6. Guidance Notes
7. Sources and References

1. INSTRUCTIONS AND IMPORTANT INFORMATION {#1-instructions}

Key Legal Requirements

☐ The deed must contain the essential elements and formalities of a properly recordable inter vivos deed
☐ The deed must state that the transfer to the designated beneficiary occurs at the transferor's death
☐ The deed must be recorded before the transferor's death in the office of the Clerk of the County Commission where the property is located
☐ The deed must be acknowledged (notarized) consistent with West Virginia recording requirements
☐ No notice, delivery, acceptance, or consideration is required for effectiveness during the transferor's life

Important Notices

• This deed is revocable at any time during the transferor's lifetime (§ 36-12-10).
• This deed is nontestamentary and does not create any present interest in the beneficiary during life.
• The beneficiary acquires no interest in the property until the transferor's death.
• The beneficiary takes the property subject to all existing conveyances, encumbrances, mortgages, liens, and other interests.
• This deed is exempt from the real estate excise tax at the time of recording.
• The 2023 amendment permits TOD deeds to specify that beneficiaries take as joint tenants with right of survivorship.

2. TRANSFER-ON-DEATH DEED FORM {#2-deed-form}

TRANSFER-ON-DEATH DEED

Exempt from excise tax on real estate transfers at time of recording

Return After Recording To:
[________________________________]
[________________________________]
[________________________________]

Prepared By:
[________________________________]
[________________________________]

TRANSFER-ON-DEATH DEED

I (We), [TRANSFEROR FULL LEGAL NAME(S)] ("Transferor(s)"), of [________________________________] (address), County of [________________________________], State of West Virginia, being the owner(s) of the real property described below, hereby make this Transfer-on-Death Deed pursuant to W. Va. Code §§ 36-12-1 to 36-12-17 (Uniform Real Property Transfer on Death Act).

Property Description

The real property subject to this Transfer-on-Death Deed is located in the County of [________________________________], State of West Virginia, and is legally described as follows:

[________________________________]
[________________________________]
[________________________________]
[________________________________]

Common Address (if applicable): [________________________________]

Tax Map and Parcel Number: [________________________________]

Beneficiary Designation

THE FOLLOWING BENEFICIARY DESIGNATION IS EFFECTIVE ONLY UPON THE DEATH OF THE TRANSFEROR(S) AND ONLY IF THIS DEED IS RECORDED BEFORE THE TRANSFEROR'S DEATH.

I (We) designate the following beneficiary(ies) to receive the described property upon my (our) death:

Primary Beneficiary(ies):

Tenancy Among Multiple Beneficiaries:

☐ Tenants in common in equal undivided shares (default)
☐ Joint tenants with right of survivorship (per 2023 amendment)

Alternate/Successor Beneficiary(ies) (if any primary beneficiary does not survive transferor):

Ownership Status of Transferor(s)

☐ Sole owner
☐ Joint tenants with right of survivorship (TOD deed effective only upon death of last surviving joint tenant)
☐ Tenants in common (each tenant may execute a separate TOD deed for their interest)

Reservation of Rights

The Transferor(s) reserve(s) all rights during his/her/their lifetime, including but not limited to:

• The right to revoke this deed at any time
• The right to sell, encumber, lease, or otherwise dispose of the property
• The right to exclusive possession, use, and benefit of the property
• All other rights incident to ownership of the property

This deed does not transfer any present interest to the beneficiary(ies). No legal or equitable interest passes to the beneficiary(ies) until the death of the Transferor(s).

Execution

IN WITNESS WHEREOF, the undersigned Transferor(s) have executed this Transfer-on-Death Deed on this [____] day of [________________], 20[____].

_________________________________________
[TRANSFEROR NAME - Print]
Signature


_________________________________________
[TRANSFEROR NAME - Print]
Signature

3. ACKNOWLEDGMENT {#3-acknowledgment}

STATE OF WEST VIRGINIA
COUNTY OF [________________________________]

On this [____] day of [________________], 20[____], before me, the undersigned notary public, personally appeared [________________________________], known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same for the purposes therein contained.

_________________________________________
Notary Public
My Commission Expires: [__/__/____]

[NOTARY SEAL]

4. REVOCATION FORM {#4-revocation}

REVOCATION OF TRANSFER-ON-DEATH DEED

I (We), [TRANSFEROR FULL LEGAL NAME(S)], hereby revoke the Transfer-on-Death Deed recorded on [__/__/____], in Deed Book [________________________________], Page [________________________________], in the office of the Clerk of the County Commission of [________________________________] County, West Virginia, which designated [BENEFICIARY NAME(S)] as beneficiary(ies) of the following real property:

[________________________________]
[________________________________]
[________________________________]

This revocation is made pursuant to W. Va. Code § 36-12-11.

Executed this [____] day of [________________], 20[____].

_________________________________________
[TRANSFEROR NAME - Print]
Signature

ACKNOWLEDGMENT

STATE OF WEST VIRGINIA
COUNTY OF [________________________________]

On this [____] day of [________________], 20[____], before me personally appeared [________________________________], known to me to be the person(s) who executed the foregoing instrument, and acknowledged that he/she/they executed the same.

_________________________________________
Notary Public
My Commission Expires: [__/__/____]

[NOTARY SEAL]

5. POST-DEATH RECORDING REQUIREMENTS {#5-post-death}

After the transferor's death, the beneficiary should take the following steps:

☐ Obtain a certified copy of the transferor's death certificate
☐ Record the certified death certificate with the Clerk of the County Commission in the county where the property is located
☐ Record an affidavit of survivorship confirming the beneficiary survived the transferor
☐ If property was held in joint tenancy, record documentation of all joint tenants' deaths if the beneficiary is claiming under the TOD deed
☐ Update property tax records with the county assessor
☐ Consult a title company or attorney to confirm clear title

6. GUIDANCE NOTES {#6-guidance}

2023 Amendment (HB 3499)

The 2023 amendment to West Virginia's TOD deed statute (effective June 8, 2023) made two important changes:

1. Revocation by inter vivos transfer: Clarified that an inter vivos deed conveying the same property revokes the TOD deed.
2. Joint tenancy among beneficiaries: Permitted TOD deeds to specify that multiple beneficiaries take as joint tenants with right of survivorship.

Excise Tax Exemption

TOD deeds are exempt from the excise tax on the privilege of transferring real estate at the time of recording. The recording is deemed to occur at the transferor's death for certain recording and creditor purposes.

Creditor Claims

Beneficiaries take the property subject to all existing encumbrances. Creditors of the transferor may assert claims against the transferred property. Consult an attorney regarding the interaction with West Virginia's probate creditor claim procedures.

Joint Tenancy Property

If the property is held in joint tenancy, the TOD deed is effective only upon the death of the last surviving joint tenant. Surviving joint tenants take by right of survivorship before the TOD designation takes effect.

Medicaid/DHHR Claims

The West Virginia Department of Health and Human Resources may assert estate recovery claims against property transferred by a TOD deed for Medicaid benefits received by the transferor.

Not a Community Property State

West Virginia is not a community property state. Married couples may hold property as joint tenants or tenants in common.

Tax Implications

• Beneficiaries generally receive a stepped-up basis at the transferor's death.
• West Virginia does not impose a state estate tax.
• Consult a tax professional regarding federal estate tax and capital gains implications.

7. SOURCES AND REFERENCES {#7-sources}

• W. Va. Code §§ 36-12-1 to 36-12-17 (Uniform Real Property Transfer on Death Act)
• W. Va. Code § 36-12-9 (Requirements for Valid TOD Deed)
• W. Va. Code § 36-12-10 (Revocability)
• W. Va. Code § 36-12-11 (Revocation Methods)
• W. Va. Code § 36-12-13 (Effect at Transferor's Death)
• HB 3499 (2023 Amendment)

This template is provided for informational purposes only and does not constitute legal advice. Consult a licensed West Virginia attorney before executing this deed.