Introduced Version
Senate Bill 159 History
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Committee Substitute (1)
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 159
(By Senators Tucker, Chafin, Nohe, Palumbo,
Sypolt and Wells)
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[Introduced February 14, 2013; referred to the Committee on the
Judiciary .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §36-12-1, §36-12-2,
§36-12-3, §36-12-4, §36-12-5, §36-12-6, §36-12-7, §36-12-8,
§36-12-9, §36-12-10, §36-12-11, §36-12-12, §36-12-13,
§36-12-14, §36-12-15, §36-12-16, §36-12-17, §36-12-18 and
§36-12-19, all relating to creating the Real Property Transfer
on Death Act; authorizing the transfer of real property
effective at the time of a transferor's death; providing for
applicability and nonexclusivity of this method of
transferring real property; providing that a transfer on death
deed is revocable and nontestamentary; establishing the
capacity of transferor; setting forth requirements; providing
that notice, delivery, acceptance and consideration are not
required; setting forth the effect of transfer on death deed
during a transferor's life; providing disclaimers; providing for liberal construction; providing optional forms; providing
for uniformity of application and construction; setting forth
the article's relation to Electronic Signatures in Global and
National Commerce Act; and defining terms.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §36-12-1, §36-12-2,
§36-12-3, §36-12-4, §36-12-5, §36-12-6, §36-12-7, §36-12-8,
§36-12-9, §36-12-10, §36-12-11, §36-12-12, §36-12-13, §36-12-14,
§36-12-15, §36-12-16, §36-12-17, §36-12-18 and §36-12-19, all to
read as follows:
ARTICLE 12. REAL PROPERTY TRANSFER ON DEATH ACT.
§36-12-1. Short Title.
This article may be cited as the "Real Property Transfer on
Death Act."
§36-12-2. Definitions.
In this article:
(1) "Beneficiary" means a person who receives property under
a transfer on death deed.
(2) "Contingent beneficiary" means a person designated in a
transfer on death deed to receive property only if a different
person fails to survive the transferor.
(3) "Designated beneficiary" means a person designated to receive property in a transfer on death deed. The term includes
contingent beneficiaries.
(4) "Joint owner" means an individual who owns property
concurrently with one or more other individuals with a right of
survivorship. The term includes a joint tenant, owner of community
property with a right of survivorship, and tenant by the entirety.
The term does not include a tenant in common or owner of community
property without a right of survivorship.
(5) "Person" means an individual, corporation, business trust,
estate, trust, partnership, limited liability company, association,
joint venture, public corporation, government or governmental
subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(6) "Property" means an interest in real property located in
this state which is transferable on the death of the owner.
(7) "Transfer on death deed" means a deed authorized under
this article.
(8) "Transferor" means an individual who makes a transfer on
death deed.
§36-12-3. Applicability.
This article applies to a transfer on death deed made before,
on or after the effective date of this article, by a transferor
dying on or after the effective date of this article.
§36-12-4. Nonexclusivity.
This article does not affect any method of transferring
property otherwise permitted under the law of this state.
§36-12-5. Transfer on death deed authorized.
An individual may transfer property to one or more
beneficiaries or contingent beneficiaries effective at the
transferor's death by a transfer on death deed.
§36-12-6. Transfer on death deed revocable.
A transfer on death deed is revocable even if the deed or
another instrument contains a contrary provision.
§36-12-7. Transfer on death deed nontestamentary.
A transfer on death deed is nontestamentary.
§36-12-8. Capacity of transferor.
The capacity required to make or revoke a transfer on death
deed is the same as the capacity required to make a will.
§36-12-9. Requirements.
A transfer on death deed:
(1) Except as otherwise provided in subdivision (2) of this
section must contain the essential elements and formalities of a
properly recordable inter vivos deed;
(2) Must state that the transfer to the designated beneficiary
is to occur at the transferor's death; and
(3) Must be recorded before the transferor's death in the
public records in the office of the clerk of the county commission of the county where the property is located.
§36-12-10. Notice, delivery, acceptance and consideration not
required.
A transfer on death deed is effective without:
(1) Notice or delivery to or acceptance by the designated
beneficiary during the transferor's life; or
(2) Consideration.
§36-12-11. Revocation by instrument authorized; revocation by act
not permitted.
(a) Subject to subsection (b) of this section, an instrument
is effective to revoke a recorded transfer on death deed, or any
part of it, only if the instrument:
(1) Is one of the following:
(A) A transfer on death deed that revokes the deed or part of
the deed expressly or by inconsistency;
(B) An instrument of revocation that expressly revokes the
deed or part of the deed; or
(C) An inter vivos deed that expressly revokes the transfer on
death deed or part of the deed; and
(2) Is acknowledged by the transferor after the acknowledgment
of the deed being revoked and recorded before the transferor's
death in the public records in the office of the clerk of the
county commission of the county where the deed is recorded.
(b) If a transfer on death deed is made by more than one
transferor:
(1) Revocation by a transferor does not affect the deed as to
the interest of another transferor; and
(2) A deed of joint owners is revoked only if it is revoked by
all of the living joint owners.
(c) After a transfer on death deed is recorded it may not be
revoked by a revocatory act on the deed.
(d) This section does not limit the effect of an inter vivos
transfer of the property.
§36-12-12. Effect of transfer on death deed during transferor's
life.
During a transferor's life, a transfer on death deed does not:
(1) Affect an interest or right of the transferor or any other
owner, including the right to transfer or encumber the property;
(2) Affect an interest or right of a transferee, even if the
transferee has actual or constructive notice of the deed;
(3) Affect an interest or right of a secured or unsecured
creditor or future creditor of the transferor even if the creditor
has actual or constructive notice of the deed;
(4) Affect the transferor's or designated beneficiary's
eligibility for any form of public assistance;
(5) Create a legal or equitable interest in favor of the
designated beneficiary; or
(6) Subject the property to claims or process of a creditor of
the designated beneficiary.
§36-12-13. Effect of transfer on death deed at transferor's death.
(a) Except as otherwise provided in the transfer on death deed
in this article, section six, article one of this code, chapter
forty-one of this code, section three, article three, chapter
forty-one of this code, article three, chapter forty-two of this
code, section two, article four, chapter forty-two of this code or
article five, chapter forty-two of this code, on the death of the
transferor the following rules apply to property that is the
subject of a transfer on death deed and owned by the transferor at
death:
(1) Subject to subdivision (2) of this subsection, the
interest in the property is transferred to the designated
beneficiary in accordance with the deed.
(2) The interest of a designated beneficiary is contingent on
the designated beneficiary surviving the transferor. The interest
of a designated beneficiary that fails to survive the transferor
lapses.
(3) Subject to subdivision (4) of this subsection, concurrent
interests are transferred to the beneficiaries in equal and
undivided shares with no right of survivorship.
(4) If the transferor has identified two or more designated
beneficiaries to receive concurrent interests in the property, the share of one which lapses or fails for any reason is transferred to
the other, or to the others in proportion to the interest of each
in the remaining part of the property held concurrently.
(b) Subject to article two, chapter thirty-nine and chapter
thirty-eight of this code, a beneficiary takes the property subject
to all conveyances, encumbrances, assignments, contracts,
mortgages, liens, and other interests to which the property is
subject at the transferor's death. For purposes of this subsection,
article two, chapter thirty-nine and chapter thirty-eight of this
code, the recording of the transfer on death deed is deemed to have
occurred at the transferor's death.
(c) If a transferor is a joint owner and is:
(1) Survived by one or more other joint owners, the property
that is the subject of a transfer on death deed belongs to the
surviving joint owner or owners with right of survivorship; or
(2) The last surviving joint owner, the transfer on death deed
is effective.
(d) A transfer on death deed transfers property without
covenant or warranty of title even if the deed contains a contrary
provision.
§36-12-14. Disclaimer.
A beneficiary may disclaim all or part of the beneficiary's
interest as provided by article six, chapter forty-two of this
code.
§36-12-15. Prior transfer on death liberally construed.
(a) Any transfer on death deed properly recorded in an office
of the clerk of a county commission before the effective date of
this article containing language that shows a clear intent to
designate a transfer on death beneficiary shall be liberally
construed to do so.
(b) Any survivorship clause in a deed properly recorded before
the effective date of this article in an office of the clerk of a
county commission that attempts to create a right of survivorship
tenancy, which survivorship tenancy otherwise fails, but otherwise
is an effective deed, and shows a clear intent to designate a
beneficiary to receive the property upon death of one or more
cotenants by survivorship shall be liberally construed to be an
effective transfer on death deed governed by this article.
§36-12-16. Optional form of transfer on death deed.
The following form may be used to create a transfer on death
deed. The other sections of this article govern the effect of this
or any other instrument used to create a transfer on death deed:
(Front of form)
REVOCABLE TRANSFER ON DEATH DEED
NOTICE TO OWNER
You should carefully read all information on the other side of
this form. You May Want to Consult a Lawyer Before Using This Form.
This form must be recorded before your death, or it will not be effective.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
___________________________ ______________________________
Printed name Mailing address
___________________________ ______________________________
Printed name Mailing address
Legal description of the property:
____________________________________________________________
PRIMARY BENEFICIARY
I designate the following beneficiary if the beneficiary
survives me.
____________________ ________________________
Printed name Mailing address, if available
ALTERNATE BENEFICIARY - Optional
If my primary beneficiary does not survive me, I designate the
following alternate beneficiary if that beneficiary survives me.
____________________ ________________________
Printed name Mailing address, if available
TRANSFER ON DEATH
At my death, I transfer my interest in the described property
to the beneficiaries as designated above.
Before my death, I have the right to revoke this deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
WITNESS the following signature(s):
_______________________________
_______________________________
ACKNOWLEDGMENT
STATE OF ______________________,
COUNTY OF ______________________, ss:
I, _________________________________, Notary Public in and for
the County and State aforesaid, do hereby certify that
________________________ and ____________________________, whose
names are signed to the foregoing writing bearing the _____ day of
____, 2_____, have this day acknowledged the same before me in my
said County and State.
Given under my hand (and notarial seal) this ____ day of
___________, 2_______.
My commission expires ______________________________.
_________________________________
Notary Public
(Back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
What does the Transfer on Death (TOD) deed do? When you die,
this deed transfers the described property, subject to any liens or mortgages (or other encumbrances) on the property at your death.
Probate is not required. The TOD deed has no effect until you die.
You can revoke it at any time. You are also free to transfer the
property to someone else during your lifetime. If you do not own
any interest in the property when you die, this deed will have no
effect.
How do I make a TOD deed? Complete this form. Have it
acknowledged before a notary public or other individual authorized
by law to take acknowledgments. Record the form in each county
where any part of the property is located. The form has no effect
unless it is acknowledged and recorded before your death.
Is the "legal description" of the property necessary? Yes.
How do I find the "legal description" of the property? This
information may be on the deed you received when you became an
owner of the property. This information may also be available in
the office of the clerk of the county commission for the county
where the property is located. If you are not absolutely sure,
consult a lawyer.
Can I change my mind before I record the TOD deed? Yes. If
you have not yet recorded the deed and want to change your mind,
simply tear up or otherwise destroy the deed.
How do I "record" the TOD deed? Take the completed and
acknowledged form to the office of the clerk of the county
commission of the county where the property is located. Follow the instructions given by the county clerk to make the form part of the
official property records. If the property is in more than one
county, you should record the deed in each county.
Can I later revoke the TOD deed if I change my mind? Yes. You
can revoke the TOD deed. No one, including the beneficiaries, can
prevent you from revoking the deed.
How do I revoke the TOD deed after it is recorded? There are
three ways to revoke a recorded TOD deed: (1) Complete and
acknowledge a revocation form, and record it in each county where
the property is located; (2) complete and acknowledge a new TOD
deed that disposes of the same property, and record it in each
county where the property is located; and (3) transfer the property
to someone else during your lifetime by a recorded deed that
expressly revokes the TOD deed. You may not revoke the TOD deed by
will.
I am being pressured to complete this form. What should I do?
Do not complete this form under pressure. Seek help from a trusted
family member, friend or lawyer.
Do I need to tell the beneficiaries about the TOD deed? No,
but it is recommended. Secrecy can cause later complications and
might make it easier for others to commit fraud.
I have other questions about this form. What should I do?
This form is designed to fit some but not all situations. If you
have other questions, you are encouraged to consult a lawyer.
§36-12-17. Optional form of revocation.
The following form may be used to create an instrument of
revocation under this article. The other sections of this article
govern the effect of this or any other instrument used to revoke a
transfer on death deed.
(Front of form)
REVOCATION OF TRANSFER ON DEATH DEED
NOTICE TO OWNER
This revocation must be recorded before you die or it will not
be effective. This revocation is effective only as to the interests
in the property of owners who sign this revocation.
IDENTIFYING INFORMATION
Owner or Owners of Property Making This Revocation:
____________________ ________________________
Printed name Mailing address, if available
____________________ ________________________
Printed name Mailing address, if available
Legal description of the property:
____________________________________________________________
REVOCATION
I revoke all my previous transfers of this property by
transfer on death deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
WITNESS the following signature(s):
_______________________________
_______________________________
ACKNOWLEDGMENT
STATE OF ______________________,
COUNTY OF ______________________, ss:
I, _________________________________, Notary Public in and for
the County and State aforesaid, do hereby certify that
________________________ and ____________________________, whose
names are signed to the foregoing writing bearing the _____ day of
____, 2_____, have this day acknowledged the same before me in my
said County and State.
Given under my hand (and notarial seal) this ____ day of
___________, 2_______.
My commission expires ______________________________.
_________________________________
Notary Public
(Back of form)
COMMON QUESTIONS ABOUT THE USE OF THIS FORM
How do I use this form to revoke a Transfer on Death (TOD)
deed? Complete this form. Have it acknowledged before a notary public or other individual authorized to take acknowledgments.
Record the form in the public records in the office of the clerk of
the county commission of each county where the property is located.
The form must be acknowledged and recorded before your death or it
has no effect.
How do I find the "legal description" of the property? This
information may be on the TOD deed. It may also be available in the
office of the clerk of the county commission for the county where
the property is located. If you are not absolutely sure, consult a
lawyer.
How do I "record" the form? Take the completed and
acknowledged form to the office of the clerk of the county
commission of the county where the property is located. Follow the
instructions given by the county clerk to make the form part of the
official property records. If the property is located in more than
one county, you should record the form in each of those counties.
I am being pressured to complete this form. What should I do?
Do not complete this form under pressure. Seek help from a trusted
family member, friend or lawyer.
I have other questions about this form. What should I do? This
form is designed to fit some but not all situations. If you have
other questions, consult a lawyer.
§36-12-18. Uniformity of application and construction.
In applying and construing this uniform act, consideration
must be given to the need to promote uniformity of the law with
respect to its subject matter among the states that enact it.
§36-12-19. Relation to Electronic Signatures in Global and
National Commerce Act.
This article modifies, limits and supersedes the federal
Electronic Signatures in Global and National Commerce Act, 15
U.S.C. §7001, et seq., but does not modify, limit or supersede
Section 101(c) of that act, 15 U.S.C. §7001(c) or authorize
electronic delivery of any of the notices described in Section
103(b) of that act, 15 U.S.C. §7003(b).
NOTE: The bill creates the Real Property Transfer on Death
Act. The bill enables an owner of real property to pass the
property simply and directly to a beneficiary upon the owner's
death without probate. The bill permits real property to be
transferred by operation of law by means of a recorded transfer on
death deed. The bill permits, on an owner's death, the property to
pass to the beneficiary, much like the survivorship feature of
joint tenancy. The bill also provides that the owner retains full
power to transfer or encumber the property or to revoke the
transfer on death deed. Thirteen states have enacted legislation
authorizing a transfer on death deed: Missouri, Kansas, Ohio, New
Mexico, Arizona, Nevada, Colorado, Arkansas, Wisconsin, Montana,
Oklahoma, Minnesota and Indiana.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
This bill was recommended for introduction and passage during
the Regular Session of the Legislature by the Commission on
Interstate Cooperation.
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