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Introduced Version House Bill 2488 History

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hb2488 intr
H. B. 2488


          (By Delegates Ferro, Reynolds, Storch and
                          R. Walters)
          [Introduced February 15, 2013; referred to the
          Committee on the Judiciary then Finance.]



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, it has been completely underscored.
          
          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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