Earlier this year, the West Virginia legislature voted to join with 13 other states and adopt the Uniform Real Property Transfer on Death Act (URPTODA). The law is found at 36-12-1 et seq in the Code of West Virginia, and went into effect on June 5, 2014. This act allows owners of real property in the state to control the distribution of what is often their most significant asset, their real estate, by executing and recording a transfer on death deed (TODD).
Transfer on death deeds are nontestamentary, which means ownership of the property passes to the beneficiary without the need for designation in a will or a requirement for probate (36-12-7). Still, sensible estate planning dictates that the will and the TODD should not contain conflicting information.
West Virginia’s version of the URPTODA sets out the specific requirements for lawful transfer on death deeds:
- The capacity required to make or revoke a transfer on death deed is the same as the capacity required to make a will (36-12-8, 41-1-2).
- The transferor must be least eighteen years old; and
- Be mentally competent
- It must contain the essential elements and formalities of a properly recordable inter vivos deed, such as warranty or quitclaim deed (36-12-9(1))
- It must state that the transfer to the designated beneficiary is to occur at the transferor’s death (36-12-9(2))
- It must be recorded before the transferor’s death in the office of the clerk of the county commission in the county where the property is located (36-12-9(2)).
During the owner’s life, the beneficiary has no present rights in title. Instead, the owner/transferor retains absolute control over and ownership of the property, include the ability to sell or transfer it to someone else, and to modify or revoke the intended transfer on death (36-12-12).
When the owner dies, the beneficiary gains rights to the property according to 36-12-13. Note, however, that the beneficiary must be alive at the time of the transferor’s death or the interest returns to the estate (36-12-13(a)(2)). To guard against this possibility, consider adding one or more contingent beneficiaries (36-12-2(2)). The beneficiary takes title subject to all obligations (contracts, easements, etc.) associated with the property when the transferor dies (36-12-13(b)).
Revocation is an important feature of transfer on death deeds because it allows the owner/transferor to easily respond to a change in circumstances. The transferor’s option to revoke is the reason that TODDs do not require consideration or notice (36-12-10). At 36-12-11, the statute outlines the three methods available for changing or revoking a recorded transfer on death deed, by executing and recording:
- a new TODD;
- a revocation form; or
- an inter vivos deed that expressly revokes all or part of the TODD
Beneficiaries who do not wish to accept the property also have an option. They may disclaim the property by following the process set out in the Uniform Disclaimer of Property Interests Act, found at 42-6-1et seq. (36-12-14).
With the new transfer on death deeds, real property owners in West Virginia have a convenient, flexible tool for managing one aspect of a comprehensive estate plan. TODDs may not be appropriate for everyone, though. Since each situation is unique, contact an attorney with specific questions or for complex circumstances.
Related West Virginia Transfer on Death Documents: