What Types of Deeds Are Recognized in West Virginia?
A deed is a signed document that transfers real estate to a new owner.1 West Virginia law recognizes several forms of deeds. The three most common deeds for transferring real estate during the owner’s life are general warranty deeds, special warranty deeds, and quitclaim deeds.
The right deed form depends on the parties’ goals and the warranty of title (if any) the parties want the deed to provide. Warranty of title is the current owner’s guarantee that the property comes with a clear title. A property’s title is clear if there are no title defects—or ownership issues that reduce the property’s value or marketability.
A West Virginia quitclaim deed form provides no warranty of title.2 The new owner receives whatever property interest the current owner has the legal power to transfer. The current owner does not promise a valid, defect-free title. Property owners typically use quitclaim deeds when transferring real estate for no payment—such as when a property is a gift to a family member or is transferred to a living trust.
Special Warranty Deed
A West Virginia special warranty deed form—sometimes called a limited warranty deed—provides limited warranty of title.3 The current owner guarantees a clear title, but the guarantee only covers the current owner’s ownership period. A special warranty deed’s warranty does not cover a title defect caused by something that happened before the current owner took title.4
General Warranty Deed
A West Virginia general warranty deed form—often called just a warranty deed—provides complete warranty of title.5 The current owner guarantees the deed transfers a good title that is entirely free of defects. The guarantee extends to the property’s entire chain of title. The current owner also agrees to be legally responsible if an unknown title defect arises in the future.
Note: Title defects cloud a property’s title and can cause major financial loss. A title defect can result from an error in an earlier deed, an unmentioned tax lien, a conflicting deed in favor of a third party, and many other possible issues. Title insurance is an insurance policy designed to reduce the financial risk of title defects. A title insurance company charges a one-time premium and, in return, agrees to cover financial loss resulting from unknown title defects.6 A buyer, a seller warranting a property’s title, or a mortgage lender could reduce risk by buying title insurance.
What Types of Estate Planning Deeds Are Used in West Virginia?
West Virginia accepts other types of deeds designed for use in estate planning. Estate planning deeds focus less on warranty of title and more on efficiently transferring real estate when the owner dies. A West Virginia property owner might use any of the following deeds to transfer real estate outside probate.
- Transfer-on-death deed. A West Virginia transfer-on-death deed form—or TOD deed—transfers real estate directly to a named beneficiary when the owner dies.7 TOD deeds have the major advantage of not restricting the owner’s property rights while the owner is alive. For instance, the owner keeps the right to sell the real estate or revoke the TOD deed.8
- Life estate deed. A West Virginia life estate deed form creates a lifetime interest in real estate—a life estate—and a remainder interest that starts when the life estate holder dies.9 A property owner can avoid probate by holding a life estate and giving a beneficiary the remainder interest. The downside of life estate deeds is that they limit the owner’s right to sell or mortgage the property during life and are not revocable. West Virginia life estate deeds have lost popularity since the legislature began allowing TOD deeds in 2014.
- Survivorship deed. In West Virginia, survivorship deed is an informal term for a deed that transfers property to two or more co-owners as joint tenants with right of survivorship (discussed below). A sole owner of West Virginia real estate can avoid probate by recording a deed that gives title to the owner and another person—such as the owner’s spouse or child—as joint tenants with right of survivorship.10 A West Virginia survivorship deed can also be a quitclaim, warranty, or special warranty deed.
What Are the Ways in Which Multiple Owners Can Jointly Own West Virginia Real Estate?
West Virginia recognizes three main ways for two or more persons to co-own real estate. A deed transferring real estate to more than one new owner should say which co-ownership form the new owners intend to use. These are the most common forms:
- Tenancy in common. Tenancy in common—also called co-tenancy—is the usual form of co-ownership if a deed does not give another form.11 The co-owners—called tenants in common—own distinct, partial property rights. Each tenant in common can transfer his or her partial rights by deed or using a will. The rights of a deceased tenant in common pass through probate unless he or she uses a TOD deed or other plan to avoid it.
- Joint tenancy with right of survivorship. Owners who co-own real estate as joint tenants with right of survivorship hold the property’s complete title together—rather than in separate parts. Survivorship means a surviving joint tenant automatically receives a deceased owner’s interest—avoiding probate.12 A deed must clearly express the intent to create a right of survivorship. Joint tenancy with right of survivorship is a popular way for married couples to co-own West Virginia real estate.
- Tenancy by the entirety. West Virginia does not allow tenancy by the entirety.13 In states that do, tenancy by the entirety has a right of survivorship and is possible only for married spouses.
Two or more persons can co-own West Virginia real estate by owning the property through a revocable living trust. They start by creating a written trust agreement that identifies the trust’s beneficiaries and names a trustee to hold legal title to the trust’s assets.14 One or more beneficiaries can also act as trustee—as long as the same person is never the trust’s only trustee and only beneficiary.
What Are the Rules for Spousal Ownership of West Virginia Real Estate?
West Virginia statutes establish rights and duties—including inheritance rights—that affect real estate ownership by married individuals. A West Virginia property owner who is married or will be getting married should consider the issues below when titling real estate or developing an estate plan.
Notice of Real Estate Transfer to Owner’s Spouse
West Virginia no longer recognizes the common law rights of dower and curtesy—which traditionally gave one spouse rights in the other spouse’s property15 However, a unique West Virginia law requires notice to a non-owner spouse if the other spouse transfers real estate that would have been subject to dower rights (if dower rights still existed).16 The transferring spouse must provide the notice before the deed or within 30 days after.
The simplest way to prove that a non-owner spouse received notice is for the non-owner spouse to sign the deed.17 For that reason, West Virginia attorneys and title insurers often recommend that both spouses sign a deed transferring real estate owned solely by one spouse.
Note: The spousal notice requirement—if not met—does not create a lien or claim on the property in favor of the non-owner spouse.18 The consequence of noncompliance is that—if the couple divorces within five years after the deed—the property’s value is included within the “marital property” divided in the divorce proceedings.19
Does a Sole Owner Need Spousal Consent to Transfer a West Virginia Homestead?
Many states require both spouses to sign a deed affecting the family’s homestead—even if only one spouse holds title.20 West Virginia has no such requirement.
A Surviving Spouse’s Inheritance Rights in West Virginia Real Estate
Like most states, West Virginia makes sure that surviving spouses get a large part of a deceased spouse’s estate—including real estate. A surviving spouse’s inheritance rights can affect how a property owner titles real estate and structures an estate plan. Inheritance rights depend on whether the deceased spouse leaves a will. These are among the ways a surviving spouse receives rights to a deceased spouse’s property:
- Spousal intestate share. A surviving spouse’s intestate share is the portion of a deceased spouse’s estate that the surviving spouse receives when no will is present. A surviving spouse’s intestate share in West Virginia ranges from the entire estate to one half of the estate. The amount depends on whether the spouses have children from other relationships.21
- Spousal elective share. A spousal elective share is a surviving spouse’s guaranteed interest in a deceased spouse’s estate.22 A surviving spouse can choose whether to receive the elective share or the share provided under the deceased spouse’s will. The amount of the elective share ranges from 3 to 50 percent of the augmented estate—which includes probate assets and some non-probate assets (like assets with TOD designations). The exact percentage depends on how long the couple was married and is subject to a $25,000 minimum.
Where Are Deeds Filed in West Virginia?
Each of West Virginia’s counties has an elected clerk of the county commission—commonly called the county clerk—who maintains the county land records.23 A person who wants to record a deed files the deed for recording with the county clerk for the county where the real estate is located. A recorded deed becomes a public record making data about the transfer accessible to creditors and later buyers of the property.24
Electronic Recording in West Virginia
The West Virginia state congress passed the Uniform Real Property Recording Act, which took effect in May 2020.25 The act lets county clerks accept deeds and other real estate documents for recording electronically.26 A deed in an acceptable digital format with an electronic signature meets the requirement that deeds be in writing and signed by the property owner.27
Not all West Virginia counties have adopted e-recording. Counties with e-recording must still accept deeds in paper format.28
What Is the Cost to File a West Virginia Deed?
The basic recording fee for a West Virginia deed is $27.00—a $25.00 deed recording fee and a $2.00 preservation fee.29 Clerks charge an extra $1.00 fee for each page beyond the first 5. Anyone who submits a deed that exceeds 19 pages must pay a $1.00 preservation fee for every 10 pages.
West Virginia also charges a flat fee of $20.00 for recording a deed that transfers property for payment, or consideration.30 So, the fee required to record a deed increases by $20.00 if the new owner bought the property.
County clerks may charge a “reasonable fee” for deeds filed electronically.31
Does West Virginia Charge a Transfer Tax for Real Estate Transfers?
West Virginia charges a transfer tax—called an excise tax on the privilege of transferring real property—when recording most deeds.32 The tax amount is based on the property’s value. The base rate is $1.65 for each $500.00 in value. Counties may increase the rate, so it is often higher.
Declaration of Consideration or Value
West Virginia deeds must include a declaration of consideration or value if a deed is not exempt from transfer tax.33 The declaration tells either the amount paid or the actual market value. The current owner, the new owner, or another responsible party signs the declaration—which ordinarily appears at the end of the deed.
Transfer tax is due when presenting a deed for recording. The person transferring real estate (the grantor) is the first person responsible for payment. The new owner (the grantee) must pay if he or she accepts a deed before the tax is paid.34
Deeds Exempt from West Virginia’s Transfer Tax
West Virginia’s transfer tax law lists recorded documents that are specifically exempt from transfer tax.35 Common exemptions include:
- Deeds transferring property with a value of $100 or less;
- Testamentary or inter vivos trusts;
- Deeds made due to mergers of corporations, LLCs, partnerships, limited partnerships, or trusts;
- Deeds made due to conversions to limited liability companies from corporations, partnerships, limited partnerships, or trusts;
- Deeds from a subsidiary corporation to its parent corporation for no payment other than the cancellation or surrender of the subsidiary’s stock;
- Deeds between husband and wife;
- Deeds between parent and child without payment;
- Deeds between grandparent and grandchild without payment;
- Deeds without payment between a property owner and his or her agent for any purpose; and
- Quitclaim or corrective deeds without payment.
Also, transfer-on-death deeds and deeds relating to divorce decrees or separation agreements are exempt from transfer tax under other West Virginia laws.36
Attorney Practice Note: Although the transfer tax law is not entirely clear, West Virginia state regulations and Tax Department publications suggest transfers of real estate to living trusts for no payment are exempt from transfer tax under37
Does West Virginia Require Any Additional Forms When Recording a Deed?
West Virginia law requires the person requesting recording to submit a signed sales listing form to the county clerk.38 The State Tax Commission publishes the form online as Sales Listing Form (STC 12:39). The state uses the information in the form to calculate property taxes.
Another form, called a Return of Income Tax Withholding for Nonresident Sale of Real Property (Form Rev. 09-02), is necessary only when a deed transfers West Virginia real estate sold by a nonresident owner. The form relates to tax withholding for a nonresident’s gains from a sale of West Virginia real estate. The person responsible for the real estate closing completes the form.
- W.Va. Code § 36-1-1.
- W.Va. Code § 36-3-7.
- W.Va. Code § 36-4-3.
- See W.Va. Code § 36-4-7.
- W.Va. Code § 36-4-2.
- W.Va. Code § 33-1-10(f)(4).
- W.Va. Code § 36-12-5.
- W.Va. Code § 36-12-12(1).
- See W.Va. Code § 36-1-9.
- W.Va. Code § 36-1-20a.
- W.Va. Code § 36-1-19.
- W.Va. Code § 36-1-20(a).
- Wartenburg v. Wartenburg, 100 S.E.2d 562 (W. Va. 1957).
- W.Va. Code § 44D-4-402; W.Va. Code § 44D-4-407.
- W.Va. Code § 43-1-1.
- W.Va. Code § 43-1-2(b).
- See W.Va. Code § 43-1-2(c)(1).
- W.Va. Code § 43-1-2(e).
- W.Va. Code § 43-1-2(d); see also W.Va. Code § 48-1-233.
- See, e.g., Fla. Const., Art. X, § 4(c); Tex. Family Code § 5.001.
- W.Va. Code § 42-1-3.
- See W.Va. Code §§ 42-3-1, et seq.
- W.Va. Code § 39-1-11.
- W.Va. Code § 40-1-9.
- See W.Va. Code §§ 39A-4-1, et seq.
- W.Va. Code § 39A-4-4(b)(2).
- W.Va. Code §§ 39A-4-3(a)-(b).
- W.Va. Code § 39A-4-4(b)(4).
- W.Va. Code § 59-1-10(a)(1); W.Va. Code § 5A-8-15(h).
- W.Va. Code § 11-22-2(a).
- W.Va. Code § 59-1-10(a)(7).
- W.Va. Code § 11-22-2(a).
- W.Va. Code § 11-22-6.
- W.Va. Code § 11-22-2(b).
- W.Va. Code § 11-22-1(4).
- W.Va. Code § 48-7-109; W.Va. Code § 36-12-9(3).
- W.Va. Code § 11-22-1(4). See 110 CSR 22-184.108.40.206; W.Va. Tax Expenditure Study, at p. 117 (State Tax. Dept., Research Div., Jan. 2021).
- W.Va. Code § 11-22-6.