West Virginia Transfer on Death Deed

Introduction

Key Things to Know

1. 1

   A West Virginia transfer on death deed is a deed you record during your lifetime that passes a named piece of real property to your chosen beneficiary automatically at your death, without probate (W. Va. Code 36-12-1 and following, authorized by 36-12-5).

2. 2

   The deed is revocable, so it leaves your ownership untouched while you live. You may sell, mortgage, or revoke it at will, and the beneficiary holds no interest until you die (W. Va. Code 36-12-6, 36-12-12).

3. 3

   Being a recordable inter vivos deed, it must carry the usual elements and formalities: you sign it and have your signature acknowledged. West Virginia asks for no witnesses (W. Va. Code 36-12-9).

4. 4

   No day count is imposed, but the deed does nothing unless it is recorded, before you die, in the office of the clerk of the county commission where the property is located (W. Va. Code 36-12-9(3)). Getting it on record during your life is what makes it work.

5. 5

   The deed must state that the beneficiary takes at your death, and West Virginia gives it a tax break the neighboring states do not: it is exempt from the excise tax on transferring real estate, because no interest passes to the beneficiary at the time of recording (W. Va. Code 36-12-9).

6. 6

   You revoke it by recording a later transfer on death deed, a revocation instrument, or a deed conveying the property, all before your death; neither a will nor a revocatory act on the paper will undo it (W. Va. Code 36-12-11).

7. 7

   The beneficiary takes the property still bearing every mortgage, lien, and claim on it at your death, so the deed on its own clears none of the debt secured against the land.

West Virginia Requirements for Transfer on Death Deed

• Use a Properly Recordable Deed Form

  A West Virginia transfer on death deed must contain the essential elements and formalities of a properly recordable inter vivos deed and must state that the transfer to the beneficiary occurs at the owner death (W. Va. Code 36-12-9).

• Legal Description and Parcel Number

  The full legal description of the property from the current recorded deed, plus the street address and the tax map and parcel number. A street address alone is not enough to record the deed with the clerk of the county commission.

• Name the Beneficiary and a Contingent Beneficiary

  The full legal name of the beneficiary who will receive the property at the owner death, and a contingent beneficiary if the first does not survive the owner. W. Va. Code 36-12-5 allows one or more beneficiaries or contingent beneficiaries, so naming a backup keeps the property out of probate if the first beneficiary dies first.

• Notarize the Signature

  The owner must sign the deed and have the signature acknowledged, because the deed needs the formalities of a properly recordable deed (W. Va. Code 36-12-9). West Virginia does not require witnesses.

• Exempt From Real Estate Excise Tax

  A transfer on death deed is exempt from the excise tax on the privilege of transferring real estate, because no interest in the property passes to the beneficiary when the deed is recorded and the deed stays revocable until the owner death (W. Va. Code 36-12-9).

• Record With the County Commission Clerk Before Death

  The deed must be recorded before the owner dies in the office of the clerk of the county commission where the property is located (W. Va. Code 36-12-9(3)). West Virginia sets no fixed number of days, so record promptly after signing.

• Revoke Only by Recorded Instrument

  The deed is revocable during the owner life by recording a later transfer on death deed, an instrument of revocation, or a deed conveying the property (W. Va. Code 36-12-11). A will cannot revoke a West Virginia transfer on death deed.

• Property Passes Subject to Existing Liens

  The beneficiary takes the property subject to any mortgages, liens, and claims that exist at the owner death. The deed passes only the property it describes and does not clear debts secured by the property.