HB2488 H JUD AM 2-19
The Committee on the Judiciary moves to amend the bill on page
two, line five, following the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following
"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, and §36-12-17, all to read as follows:
ARTICLE 12. UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT.
§36-12-1. Short Title.
_____This article may be cited as the "Uniform Real Property
Transfer on Death Act."
_____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
_____(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
_____(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
_____(8) "Transferor" means an individual who makes a transfer on
_____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.
_____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.
_____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
_____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
§36-12-11. Revocation by instrument authorized; revocation by act
_____(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
_____(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
_____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
_____(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
_____(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
_____(d) A transfer on death deed transfers property without
covenant or warranty of title even if the deed contains a contrary
_____A beneficiary may disclaim all or part of the beneficiary's
interest as provided by article six, chapter forty-two of this
§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. 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.
§36-12-17. 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)."