West Virginia Transfer on Death Deed

A West Virginia transfer on death deed lets you name who gets your real estate when you die, without sending it through probate. You sign and record the deed now, keep full control of the property for the rest of your life, and it passes to the person you named at your death. West Virginia adopted this tool in the Uniform Real Property Transfer on Death Act, W. Va. Code 36-12-1 through 36-12-17.

A "beneficiary deed" is the same document. Some form sites use that label, but the West Virginia statute calls it a transfer on death deed, often shortened to a TOD deed. This guide explains how one works, how to record and revoke it, and the limits to know before you rely on one.

This page pairs with the West Virginia guide to avoiding probate. For the wider picture of how a home moves after a death, and for accounts and other assets, start at the West Virginia probate overview.

What a TOD Deed Does

A transfer on death deed names a beneficiary who takes your real property when you die. While you are alive, the deed does nothing to the property. You still own it, and you can sell it, refinance it, or change your mind. When you die, the property passes to the named beneficiary outside probate.

West Virginia law authorizes this directly. W. Va. Code 36-12-5 says an individual may transfer property to one or more beneficiaries effective at the transferor's death by a transfer on death deed. The deed is nontestamentary under W. Va. Code 36-12-7, which means it works on its own and does not run through your will.

Feature	How it works in West Virginia
What it transfers	Real property (a house, land, a condo)
When it takes effect	At the owner's death, not before
Probate	The property passes outside probate
Owner's control during life	Full. You can sell, mortgage, or revoke
Revocable	Yes, always, even if the deed says otherwise
Where it records	Clerk of the county commission, land records

You Keep Full Control During Your Life

This is the part people worry about most. Recording a TOD deed hands no control to the beneficiary while you are alive.

W. Va. Code 36-12-12 is clear on this. During your life, a transfer on death deed does not affect your rights or the rights of any other owner, including the right to transfer or encumber the property. It creates no legal or equitable interest for the beneficiary, and it does not expose the property to the beneficiary's own creditors. The beneficiary has no claim, no say, and no ownership until you die.

In plain terms: you can still sell the home, borrow against it, give it away, or sign a new TOD deed naming someone else. The beneficiary cannot stop you. They learn what they will receive only at your death, and only if the deed is still in place.

The capacity you need to sign or revoke a TOD deed is the same as the capacity to make a will, under W. Va. Code 36-12-8. If you can make a valid West Virginia will, you can make a TOD deed. The West Virginia will requirements guide covers that standard.

How to Record a TOD Deed in West Virginia

A TOD deed only works if it is recorded before you die. W. Va. Code 36-12-9 sets the requirements. The deed must contain the elements and formalities of a properly recordable inter vivos deed, must state that the transfer to the beneficiary happens at your death, and must be recorded before your death in the office of the clerk of the county commission in the county where the property is located.

That recording office matters. West Virginia keeps deeds and land records with the clerk of the county commission, not a circuit court clerk and not a register of deeds. Record the TOD deed in the same land records where your current deed sits.

The steps:

Pull your current recorded deed and copy the exact legal description from it, not just the street address.
Name your beneficiary, and name an alternate if you want a backup.
State in the deed that the transfer takes effect at your death.
Sign and acknowledge the deed before a notary, the same as any West Virginia deed.
Record it with the clerk of the county commission for the county where the property is, in that office's land records, before your death.
Keep a copy with your papers and tell the beneficiary the deed exists.

A deed you sign but never record does nothing. A deed recorded the day before you die can still work. A deed recorded after you die does not work at all.

West Virginia does not print a fill-in-the-blank TOD deed form the way some states do. The statute sets the rules the deed must meet, but no state office hands you a ready template, so getting the legal description and the death-transfer language right is on you or the person who drafts it. You do not need to notify or deliver the deed to the beneficiary, and no payment from the beneficiary is required, under W. Va. Code 36-12-10. Recording the deed also does not trigger West Virginia's real estate excise tax, because no property interest passes when you record it (W. Va. Code 36-12-9).

How to Revoke a TOD Deed

A transfer on death deed is always revocable. W. Va. Code 36-12-6 makes the deed revocable even if the deed or another document says it cannot be revoked. You cannot lock yourself in.

Revocation has a set method under W. Va. Code 36-12-11. You revoke by recording one of these before you die:

a new TOD deed that revokes the old one, either expressly or because it names a different beneficiary,
a separate revocation instrument that expressly revokes the deed, or
an inter vivos deed that conveys the property to someone else.

The revoking instrument must be acknowledged after you acknowledged the deed you are revoking, and it must be recorded before your death. The statute says you cannot revoke a recorded TOD deed by a physical act on the document. Tearing it up or crossing it out does nothing. If two or more owners made the deed together, one owner's revocation does not undo it for the others, and a deed made by joint owners is revoked only when all living joint owners revoke it.

Because your will does not control a TOD deed, changing your will does not change the deed. If your plans shift, record a new deed or a recorded revocation.

What the Beneficiary Takes at Your Death

W. Va. Code 36-12-13 sets what happens when you die.

The beneficiary takes the property subject to liens. The statute says the beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests on it at your death, and takes it without any covenant or warranty of title. A mortgage does not disappear. If a loan sits on the house, the beneficiary inherits the house and the loan.

The beneficiary has to outlive you. The transfer is contingent on the beneficiary surviving you. If your only named beneficiary dies first, that gift lapses. When you name more than one beneficiary and one of them dies first, that share passes to the surviving beneficiaries in proportion.

Two or more beneficiaries share as tenants in common. Concurrent beneficiaries take equal, undivided shares as tenants in common unless the deed says they take as joint tenants with the right of survivorship.

A beneficiary who does not want the property can turn it down through a disclaimer under W. Va. Code 36-12-14.

The Limits You Need to Know

A TOD deed is a clean tool, but it does not erase debts or beat every other rule.

It does not wipe out the debt on the property. As W. Va. Code 36-12-13 spells out, mortgages and liens ride along to the beneficiary. Passing outside probate does not clear what is owed against the house, and it does not by itself put the property beyond a valid claim tied to it.

Weigh Medicaid estate recovery. West Virginia limits Medicaid estate recovery to the probate estate, so real property that passes by a recorded TOD deed generally falls outside recovery because it never enters probate. That protection is not absolute: narrow exceptions exist, and program rules can change. Anyone who has received, or may receive, long-term-care Medicaid should confirm the current treatment with an elder law attorney before relying on a TOD deed to shield a home.

It only moves the named property. A TOD deed covers the real property described in it. It does not handle bank accounts, vehicles, or personal belongings. Those need their own beneficiary designations or pass through the estate. See the West Virginia guide to avoiding probate for the other tools.

It does not cost the beneficiary the step-up in basis. Even though the home skips probate, it still passes at your death, so the beneficiary takes it with a basis stepped up to its date-of-death value under federal law (IRC Section 1014). That can erase most capital gains tax on a later sale, which matters if the beneficiary plans on selling the inherited property.

It can collide with other plans. A TOD deed naming one child while the will splits the estate among several can create conflict or an unintended result. So can a TOD deed on a home you later move into a trust. Line the deed up with the rest of your plan.

When a TOD Deed Fits, and When It Does Not

A TOD deed often fits when:

you own a home in your sole name and want one person to receive it,
you want to skip probate on the house without setting up a trust,
you want to keep full control and the freedom to change your mind, and
the title is clean and the plan is simple.

Look at other options when:

the property has co-owners and survivorship language may already handle it,
several people should share the home in shifting proportions,
Medicaid, creditor, blended-family, or tax questions are in play,
the home is already in or headed for a living trust, or
you want one plan to cover real estate, accounts, and belongings together.

In those cases, compare paths in the guide to avoiding probate in West Virginia and weigh a West Virginia revocable living trust.

Quick Checklist

Confirm you own the property in a form a TOD deed can transfer.
Pull your current recorded deed for the exact legal description.
Name a beneficiary and, ideally, an alternate.
State that the transfer takes effect at your death, and sign before a notary.
Record the deed with the clerk of the county commission where the property is, before your death.
Keep a copy and tell the beneficiary it exists.
Remember the property still carries any mortgage or lien.
Revisit the deed when your plans, your family, or your property change.

A West Virginia TOD deed is a real legal document with real effects. Have a West Virginia attorney review the deed before you rely on it. A drafting slip you never catch can quietly defeat the transfer at death, and that risk runs highest around Medicaid, liens, co-owners, or a blended family. The cost of getting the deed right is small next to the cost of fixing a bad transfer after a death.

Common Questions

Does West Virginia have a transfer on death deed?

Yes. West Virginia adopted the Uniform Real Property Transfer on Death Act, W. Va. Code 36-12-1 through 36-12-17. It lets you record a revocable beneficiary deed that passes your real estate to a named person at your death, outside probate. You must record it before you die with the clerk of the county commission where the property sits.

Where do I record a transfer on death deed in West Virginia?

You record it in the land records at the office of the clerk of the county commission in the county where the property is located, and you must record it before your death. West Virginia keeps deeds and land records with the county commission clerk, not a circuit court clerk or a register of deeds (W. Va. Code 36-12-9).

Can I revoke a West Virginia TOD deed?

Yes, always. A West Virginia TOD deed stays revocable even if it says otherwise (W. Va. Code 36-12-6). You revoke it by recording a new TOD deed, a separate revocation instrument, or a deed conveying the property to someone else, signed after the deed you are revoking and recorded before your death. You cannot revoke it by tearing up your copy (W. Va. Code 36-12-11).

Does a TOD deed avoid probate for my whole estate?

No. A TOD deed only moves the real property described in it. Bank accounts, vehicles, and personal belongings need their own beneficiary designations or pass through the estate. A TOD deed is one tool, not a full plan.

Does the beneficiary get the house free of the mortgage?

No. Under W. Va. Code 36-12-13, the beneficiary takes the property subject to every mortgage, lien, and other interest on it at your death. The loan stays with the house, so the person who inherits it also inherits the debt against it.

This guide is general information about West Virginia estates. It is not legal advice. Confirm anything that affects your situation with the clerk of the county commission or a licensed West Virginia attorney.

Sources:

Title: W. Va. Code Chapter 36, Article 12, Uniform Real Property Transfer on Death Act. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12/
Title: W. Va. Code 36-12-5, Transfer on death deed authorized. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-5/
Title: W. Va. Code 36-12-6, Transfer on death deed revocable. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-6/
Title: W. Va. Code 36-12-8, Capacity of transferor. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-8/
Title: W. Va. Code 36-12-9, Requirements. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-9/
Title: W. Va. Code 36-12-11, Revocation by instrument authorized; revocation by act not permitted. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-11/
Title: W. Va. Code 36-12-12, Effect of transfer on death deed during transferor's life. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-12/
Title: W. Va. Code 36-12-13, Effect of transfer on death deed at transferor's death. Publisher: West Virginia Legislature. Publication Date: Not listed. URL: https://code.wvlegislature.gov/36-12-13/

It is not legal advice.