My Mom has 24 Oil and Gas rights within Jackson County WVa.. I have talked to the County Assessor to collect Tax Records, I have a copy of the deed last completed in 1995 by my mother. Her wishes are to transfer to me (son) to avoid dealing with Probate cross state lines (Mom is in Texas and I am in Colorado).
I have the Sales Listing Form that Jackson County Clerk advise me to submit along with the property listing details. Reading in this forum there seems to be something missing legally. Do I need to have a lawyer actually draw up a new Deed or some letter that is signed by my Mom and notarized to go along with the Sales Listing Form? Do I need an O&G Lawyer or can any lawyer provide this service?
Looking for any clarifying guidance from the group
@srtvmi77 I know a few families that used Appalachian Mineral Company out of Morgantown, WV. Petroleum Mineral advisors who can assist you with ownership transfers and WV oil and gas attorneys.
The sales listing form is required with the recording of a deed. So, you need a deed. It is not necessary for every individual to hire an attorney to draft a deed, but when you’re really new at this, it would be advisable.
WV allows Transfer on Death deeds (similar to a life estate), where the deed is updated to include transfer on death language. This allows for the avoidance of probate, property will transfer immediately upon the death of the owner to the person(s) listed on the new deed, and can avoid issues with Medicaid planning. This method also allows for stepped up basis when inherited. I did this with my parents’ property and regularly advise clients to seek a real estate attorney to execute the proper deed recording.
We did the TOD (transfer On Death) affidavit as described above for a property that I inherited from a family member a few years ago. She had an attorney record a TOD affidavit and that was it. Once she passed, all of her interests immediately passed to me. You’ll still need to record a new affidavit establishing you as the new owner once that happens, especially if she is already receiving royalties because they will need prof of ownership change. Doing this completely bypassed probate.
Where do I get the TOD affidavit form? Can it be done without a lawyer? Must it be filed in WV where the mineral rights exist? Just want to thank you for the information. We are getting old and want to keep this 120 year so far in the family. Ed Williams
Found that yesterday – it’s also called a ladybird deed that is allowed in only 5 states. Thanks for the feedback
Subsequent research and support from some AI driven web research, I found that a Quitclaim deed, a notice of exemption (for the inside family transfer and taxes), and a listing that is recommended to match the tax records of the properties needs to be attached to both the Quitclaim deed and the Sales listing. The Quitclaim Deed is either notarized or two witnesses to validate the signature of the Grantor (My Mom in this case). A couple of legal sites helped with the WVA Law references that among other things requires the creator of the deed to be listed and drives the witness or notary requirement. They also recommended a lawyer review the Quitclaim deed to meet the WVA requirements. Note: The address of the creator of the Quitclaim deed will usually be used as the address where the final recorded transfer deed will be sent.
I appreciate all of the replies and the referral.
We used an estate attorney since we were in the middle of estate planning anyway but you don’t have to use an attorney. You just need to have the correct form with the property description then have it motorized and filed in the county clerks office where the property resides. Google how to do it and you’ll find better instructions because I’m not a legal expert or an attorney, just a land owner that’s gone through it.
The most beneficial part of doing the transfer this way aside from bypassing probate is that the beneficiary gets step in basis at the time of death instead of prior. Hope this helps.
I am not familiar with laws in your areas but look into quit claim deed forms online to transfer each property individually with the county clerk for each property. You can get the descriptions from the deeds she currently has.
Do your research on the “5 year look back” to see if the transfer will avoid Probate and where the Probate would take place. Time consuming but can be done if you have to save legal fees.
Quit claim deeds basically state “ if I have an ownership, then you get it”. Some title companies are weary of QC deeds as are some O & G title attorneys.
Be cautious of AI responses. Many attorneys are getting into trouble using AI research. Besides, AI does not carry malpractice insurance.
The Transfer on Death deed is a better way to go because the transfer occurs at the time of passing WHICH ALSO PERMITS A STEP UP IN BASIS THUS AVOIDING TAXES. A QC deed passes title today which means you will need to determine the value as of today. This could also cause a taxable event as she is transferring the property but her basis was what the interests were worth when she took title. Lots of research needed to find that out.
Mineral interests are considered real estate and the transfer and recording requirements are governed by the law of the state where they are located.
Thanks for the feedback. Quitclaim deed was attorney reviewed and sent to WV for processing. No tax issue as it is a family internal transfer per the exclusion clause with the IRS. All AI research it to sift thru the muck and is double checked as I use it for work as well. All actions were researched in WV Law regarding transfers to include the actual format of the transfer plus the value today of the wells is not exorbitant. Value was calculated in concert with the very helpful county assessor. TOD was considered and not in the best wishes of my Mom to transfer now. Lesson here – talk to the county clerks and tax assessors for help and advice. Mine were very helpful – if it’s done right there jobs are easier.