West Virginia Transfer on Death Deed: Execution, Revocation, and Taxes

A West Virginia transfer on death deed lets you name someone to inherit your real property automatically when you die, keeping it out of probate while leaving you in full control during your lifetime. The rules live in Chapter 36, Article 12 of the West Virginia Code, which sets out how to create, record, and revoke one.¹

What the Deed Does While You’re Alive

Nothing, essentially. That’s the point. Unlike a regular deed that transfers ownership the moment it’s signed and recorded, a TOD deed sits dormant until you die. You keep the right to sell the property, mortgage it, lease it, or record a different TOD deed naming someone else. The beneficiary has no legal or equitable interest in the property, and the beneficiary’s creditors cannot touch it.²

The statute also confirms that recording a TOD deed does not affect the grantor’s or the beneficiary’s eligibility for public assistance during the grantor’s lifetime.² If you receive Supplemental Security Income or Medicaid, the deed does not count the property against you or the named beneficiary while you’re alive.

What Happens When You Die

Ownership passes to the named beneficiary by operation of law at the moment of death.¹ No probate proceeding is needed for the property. Even so, the beneficiary has to update the public record before selling or refinancing. In practice, that means filing an affidavit of confirmation together with a certified copy of the death certificate at the county clerk’s office where the property is located. Until that step is done, the property still reads under the deceased owner’s name on county land records.

The transfer is not a clean slate. The beneficiary receives the property subject to every mortgage, lien, and encumbrance that existed at the grantor’s death.³ If there is a $120,000 mortgage balance, the beneficiary inherits that debt along with the house.

Who Can Create One

The capacity requirement matches the capacity to make a will.⁴ Under West Virginia Code 41-1-2, you must be at least 18 and of sound mind.⁵ Sound mind means understanding what property you own, who you’re naming, and what the deed will do. A deed obtained through fraud, coercion, or undue influence can be voided, and those challenges typically come from other family members after death.

Choosing Beneficiaries

You can name one or more individuals, a trust, a nonprofit, or another entity, and you can list contingent beneficiaries who take if a primary beneficiary dies before you do.¹

Two or More Beneficiaries

When you name multiple beneficiaries, West Virginia defaults to equal and undivided shares as tenants in common unless the deed specifies joint tenancy with right of survivorship.³ The practical difference matters. With tenancy in common, each beneficiary’s share eventually passes to that person’s own heirs. With right of survivorship, a deceased beneficiary’s share goes to the surviving co-beneficiaries instead. State your preference in the deed rather than relying on the default.

If a Beneficiary Dies Before You Do

With multiple beneficiaries, a deceased beneficiary’s share passes to the surviving beneficiaries rather than falling into your estate.³ If you named only one beneficiary and that person predeceases you with no contingent listed, the deed fails and the property passes through your estate, which likely means probate. Naming a contingent beneficiary is the fix.

Naming a Minor

A minor can be a beneficiary, but a minor cannot legally manage real estate. A court-appointed guardian or custodian would need to handle the property until the child reaches adulthood. West Virginia’s Uniform Transfers to Minors Act lets you nominate a custodian in advance to receive property on behalf of a minor.⁶ Designating one in the deed avoids forcing the family into a separate court proceeding later.

How to Execute and Record It

The deed has to meet two sets of requirements: the standard formalities for any recordable West Virginia deed, plus specific language identifying it as a transfer that takes effect at death.⁷

On the formalities side, the deed must be in writing, clearly identify the grantor and beneficiary, and include a legal description of the property sufficient to distinguish it from every other parcel in the county. Vague descriptions cause trouble. Use the description from your current deed or county land records, including lot numbers or metes and bounds. The grantor must acknowledge the deed before a notary public, or have it proved by two witnesses, before the county clerk will accept it for recording.

On the TOD-specific side, the deed must state that the transfer to the named beneficiary occurs at the grantor’s death. And here is where people lose the property to probate anyway: the deed must be recorded with the county clerk in the county where the property sits before the grantor dies.⁷ An unrecorded deed is legally ineffective. It doesn’t matter how carefully it was drafted or notarized. If it’s sitting in a desk drawer when the grantor dies, the property passes as if the deed never existed.

Recording a TOD deed is exempt from West Virginia’s real estate transfer excise tax because no interest actually passes to the beneficiary at the time of recording.⁷ Recording fees vary by county. Confirm the amount and any required cover sheets with your county clerk before filing.

How to Revoke or Change the Deed

The deed stays revocable for as long as you’re alive. You can change your mind without telling the beneficiary. But the method matters, and the statute is strict.

West Virginia Code 36-12-11 allows revocation by exactly three instruments: a new TOD deed that expressly revokes the old one or is inconsistent with it, a standalone instrument of revocation that expressly cancels the prior deed, or a regular inter vivos deed that conveys the same property to someone else.⁸ Whichever route you take, the revoking instrument must be acknowledged by the grantor and recorded with the county clerk before your death.

Two things that do not work. First, destroying the deed. The statute is explicit that a recorded TOD deed cannot be revoked by a “revocatory act on the deed,” so tearing it up, crossing it out, or writing “void” across it accomplishes nothing.⁸ Second, a later will. Because a TOD deed operates outside probate, a will that says “I leave my house to someone else” has no effect on property already covered by a recorded TOD deed. To change the beneficiary, record a new instrument.

Mortgages and Creditor Claims

A TOD deed does not wipe out a mortgage. The beneficiary takes the property subject to all existing mortgages, liens, encumbrances, and other interests at the time of death.³

Federal law offers one important protection. The Garn-St. Germain Act prohibits lenders from exercising due-on-sale clauses when property transfers by devise, descent, or operation of law on the death of a borrower, or when it transfers to a relative as a result of the borrower’s death.⁹ The beneficiary can keep making payments on the existing mortgage rather than being forced to refinance at current rates. This protection applies to residential properties with fewer than five dwelling units.

Creditor claims are a separate issue. If the grantor’s estate lacks enough assets to cover outstanding debts, creditors may pursue claims against TOD-transferred property. The statute does not shield the property from the decedent’s creditors, so a beneficiary should expect to address existing obligations through payment, negotiation, or sale.

Tax Treatment

Recording the deed does not trigger federal gift tax. Because no ownership interest passes until the grantor dies, the IRS does not treat the deed as a completed gift at recording, and there is nothing to report on Form 709.

At death, the beneficiary receives a stepped-up basis equal to the property’s fair market value on the date of death.¹⁰ If the grantor bought the house for $80,000 and it’s worth $250,000 at death, the beneficiary’s basis becomes $250,000. A later sale at $255,000 produces capital gain of $5,000 rather than $170,000. The step-up works the same way whether the property passes through probate or through a TOD deed.

1
West Virginia Legislature. West Virginia Code 36-12-5 – Transfer on Death Deed Authorized
2
West Virginia Legislature. West Virginia Code 36-12-12 – Effect of Transfer on Death Deed During Transferors Life
3
West Virginia Legislature. West Virginia Code 36-12-13 – Effect of Transfer on Death Deed at Transferors Death
4
West Virginia Legislature. West Virginia Code 36-12-8 – Capacity of Transferor
5
West Virginia Legislature. West Virginia Code 41-1-2
6
West Virginia Legislature. West Virginia Code 36-7-3
7
West Virginia Legislature. West Virginia Code 36-12-9 – Requirements
8
West Virginia Legislature. West Virginia Code 36-12-11 – Revocation by Instrument Authorized; Revocation by Act Not Permitted
9
Office of the Law Revision Counsel. 12 USC 1701j-3 – Preemption of Due-on-Sale Prohibitions
10
Office of the Law Revision Counsel. 26 USC 1014 – Basis of Property Acquired From a Decedent