10.10 Uniform Real Property Transfer on Death Act

• Library: Estate Planning in Virginia (Virginia CLE) (2022 Ed.)

10.10 UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT

10.1001 In General.

The Uniform Real Property Transfer on Death Act ¹⁸⁸¹ authorizes the creation of a transfer on death deed, which, when properly executed and recorded, passes title directly to named beneficiaries without probate upon the transferor's death. The uniform act was approved by the National Conference of Commissioners on Uniform State Laws in 2009. In applying the 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." ¹⁸⁸² While the uniform act would appear to be more applicable at the estate planning stage, it is appropriate to consider it during estate administration as well.

The article applies to a transfer on death deed made before, on, or after July 1, 2013 by a transferor dying on or after July 1, 2013. ¹⁸⁸³ A transfer on death deed is nontestamentary ¹⁸⁸⁴ and does not affect any method of transferring property otherwise permitted under the laws of the Commonwealth. ¹⁸⁸⁵ Property may be transferred to one or more beneficiaries by such a deed and is effective at the transferor's death. ¹⁸⁸⁶

10.1002 Requirements for a Transfer on Death Deed.

A transfer on death deed must:

1. Contain the essential elements and formalities of a properly recordable inter vivos deed or document to convey a cooperative interest created pursuant to the Virginia Real Estate Cooperative Act; ¹⁸⁸⁷

2. State that the transfer to the designated beneficiary is to occur at the transferor's death;

3. Be recorded before the transferor's death in the land records of the clerk's office of the circuit court in the jurisdiction where the property is located;

4. Comply with the requirements for recordation set forth in section 55.1-600 et seq. of the Virginia Code and be indexed by the clerk of court under the name of the transferor as grantor;

5. Be exempt from recordation tax as provided by section 58.1-811(J), unless the transfer is for consideration;

6. Be executed by all joint owners, if the property is jointly owned; and

7. Be considered a deed for purposes of complying with the requirements of section 17.1-223. ¹⁸⁸⁸

10.1003 Revocation.

A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision. ¹⁸⁸⁹ An instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument is (i) a transfer on death deed that revokes the transfer on death deed or part of the transfer on death deed expressly; (ii) a transfer on death deed that names a designated beneficiary that is inconsistent with the designated beneficiary in a prior transfer on death deed; (iii) an instrument of revocation that expressly revokes the transfer on death deed or part of the transfer on death deed; or (iv) an inter vivos deed that expressly revokes the transfer on death deed or part of the transfer on death deed. ¹⁸⁹⁰ The revoking instrument must be acknowledged by the transferor after the acknowledgment of the transfer on death deed being revoked and be recorded before the transferor's death in the land records of the clerk's office of the circuit court where the deed is recorded. ¹⁸⁹¹

If a transfer on death deed is made by more than one transferor: (i) revocation by a transferor does not affect the transfer on death deed as to the interest of another transferor; and (ii) a transfer on death deed of joint owners is revoked only if it is revoked by all of the living joint owners. ¹⁸⁹²

After a transfer on death deed is recorded, it can be revoked only by an effective revocatory instrument recorded prior to the death of the transferor. It may not be revoked by a revocatory act taken against or on the original or a copy of the recorded transfer on death deed. ¹⁸⁹³

Section 64.2-630 does...