With the West Virginia Legislature's recent passing of the Uniform Real Property Transfer on Death Act, West Virginia has joined 13 other states, including Ohio, in authorizing a transfer-on-death deed.
Formerly known as Senate Bill 3 and House Bill 4011, this new law can be found in Chapter 36, Article 12 of the West Virginia Code.
Through the use of this new deed, an owner of real property can transfer his/her property to a beneficiary, said transfer to take effect only upon the owner's death. Because the deed has a transfer-on-death beneficiary, there is no need to probate the owner's estate to transfer the property to the beneficiary.
The transfer-on-death deed is a game-changer for West Virginia residents and West Virginia Medicaid applicants. The law states that the transfer-on-death deed will not affect the transferor's or beneficiary's eligibility to receive any form of public assistance.
This is because the transfer-on-death deed does not convey any interest in the real property to the transferee until the death of the transferor; therefore, there are no gifting implications for Medicaid purposes that are triggered through the use of this deed. The transfer-on-death deed provides protection for your home from Medicaid Estate Recovery because it makes the home a non-probate asset.
The other highly attractive feature of the transfer-on-death deed is the power that the owner retains the right to revoke the transfer-on-death deed as well as the right to transfer or encumber the property without needing the consent of the transferee.
In other words, the owner can change his or her mind and remove and/or change the transfer-on-death designation without the consent of the beneficiary. This provides the owner with additional flexibility to adapt to an unforeseen change in circumstances. This differs from a life-estate deed in that a life-estate deed cannot be changed without the consent of the beneficiaries.
The transfer-on-death deed must contain certain elements and follow the formalities of a properly recordable inter vivos trust. The deed must be properly executed and notarized, it must state that the transfer is to take effect at the transferor's death and the deed must be recorded before the transferor's death in the county in which the property lies.
The deed does not have to be delivered or accepted by the beneficiary during the testator's life in order to be valid, nor does there need to be consideration.
With the passing of this new law, we recommend that you review your estate plan to determine if a transfer-on-death deed is appropriate for you.
Jeffrey J. Rokisky is an elder law attorney with offices in Wheeling, Weirton, Elkins, Clarksburg and Robinson Township. To submit a question for publication, email it to rrokisky@ rokiskylaw.com