The Transfer on Death Deed Comes to West Virginia
This guide provides an overview of the recent Uniform Real Property Transfer on Death Act passed in West Virginia, and what it means for you.
What is a Transfer on Death Deed?A transfer on death deed allows you to pass real property (e.g., your home and the property on which it is located and any other land you may own) outside of the probate process. A transfer on death deed does not take effect until your death, or upon the death of the last surviving transferor.
How is a Transfer on Death Deed Different from a Life Estate?A life estate is a reservation of an interest in a piece of real property that you transfer to someone else who holds the "remainder interest." Because you transfer an interest to the holder of the remainder interest, that person must consent to any sale, mortgage, lien, etc., of the property. Additionally, if you were to sell the property, the holder of the remainder interest would be legally entitled to a portion of the sale. Conversely, a transfer on death deed does NOT transfer a current interest in the real property. In fact, it remains revocable for the rest of the grantor's life without notice to the beneficiary being necessary. You remain free to sell or mortgage the property without the need of the beneficiary's approval.
How is a Transfer on Death Deed Useful for Medicaid Planning?A transfer on death deed in West Virginia will NOT affect your eligibility for any public benefits (in 2014). What this means is that you can execute a transfer on death deed and it will not be subject to Medicaid's five (5) year lookback period or transfer penalty. Furthermore, a transfer on death deed allows your home to pass outside of the probate process, making it unreachable to Medicaid estate recovery.
How Do I Execute a Transfer on Death Deed?In West Virginia, a transfer on death deed must comply with all the formalities of an inter vivos deed AND the requirements outlined in the new law. Several states that have adopted the Uniform Real Property Transfer on Death Act provide statutory forms to execute a transfer on death deed. West Virginia, however, has chosen not to include a statutory form in the new law. Therefore, in order to ensure that your transfer on death deed will be effective, you should consult with a local attorney who is familiar with the new law.