West Virginia Code 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, if the instrument:
Terms Used In West Virginia Code 36-12-11
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Inter vivos: Transfer of property from one living person to another living person.
- Joint tenancy: A form of property ownership in which two or more parties hold an undivided interest in the same property that was conveyed under the same instrument at the same time. A joint tenant can sell his (her) interest but not dispose of it by will. Upon the death of a joint tenant, his (her) undivided interest is distributed among the surviving joint tenants.
- Right of survivorship: The ownership rights that result in the acquisition of title to property by reason of having survived other co-owners.
(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) As to property that was described in a transfer on death deed made by a transferor and previously recorded, an inter vivos deed made by the same transferor that conveys the same real estate, or part thereof, whether or not the inter vivos deed 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 revocation by a transferor does not affect the deed as to the interest of another transferor; and 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.
36-12-13. Effect of transfer on death deed at transferor’s death
(a) Except as otherwise provided in the transfer on death deed in this article, § 41-1-6 of this code, § 41-3-3 of this code, §42-3-1, et seq. of this code, §42-§ 4-2 of this code, or §42-5-1, et seq. 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, when there is only one beneficiary designated, is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor, when there is only one beneficiary designated, lapses.
(3) Subject to subdivision (4) of this subsection, concurrent interests are transferred to the beneficiaries in equal and undivided shares, unless the deed specifies otherwise, as tenants in common or with right of survivorship if the deed specifies joint tenancy with 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 as tenants in common or with right of survivorship if the deed specifies joint tenancy with the right of survivorship.
(b) Subject to §39-2-1, et seq., and §38-1-1, et seq. 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, §39-2-1, et seq, and §38-1-1, et seq. 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 with other joint owners with right of survivorship 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) If a transferor is an owner with other owners as tenants in common, the transfer on death deed is only effective as to the interest in the property which was held by the transferor.
(e) A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.
(f) The amendments to this section, enacted during the 2023 regular session of the Legislature, shall apply only to transfer on death deeds recorded after the effective date of this section.