In 2024, Virginia enacted Senate Bill 471 (SB471) / House Bill 336 (HB336), which clarifies the authority of agents operating under a power of attorney concerning Transfer on Death (TOD) deeds. This legislation specifies that an agent does not have the authority to create, modify, or revoke a TOD deed on behalf of the property owner unless the power of attorney explicitly grants the agent the power to create or change beneficiary designations. This ensures that such significant decisions regarding the disposition of real property upon the owner's death remain under the direct control of the property owner, unless they have expressly delegated this authority to their agent.
A Transfer on Death deed allows property owners to designate beneficiaries who will inherit their real estate upon their death, bypassing the probate process. Prior to this legislation, there was ambiguity regarding whether agents with general powers over real estate could alter TOD deeds. The legislative reform addresses this by amending § 64.2-1625 of the Code of Virginia, stating that an agent must be specifically granted the power to create or change beneficiary designations to have authority over TOD deeds:
§ 64.2-1625. Real property.
. . .
B. An agent under a power of attorney acting under the authority of this section shall not have the authority to create, change, or revoke a transfer on death deed on behalf of the owner of property unless such agent is granted the power to create or change a beneficiary designation as required by subdivision A 4 of § 64.2-1622. This subsection shall not be construed to prohibit such agent from exercising any authority under subsection A, even if the effect of exercising such authority may be to revoke a transfer on death deed.
Notably, the law also clarifies that while an agent cannot directly modify a TOD deed without explicit permission, they may still perform other actions that might indirectly affect a TOD deed, such as selling the property, as long as these actions are within the scope of their granted powers.
This legislative update underscores the importance for individuals to carefully review and specify the powers granted in their power of attorney documents, especially concerning estate planning tools like TOD deeds.
Further Reading:
Hani Sarji
New York lawyer who cares about people, is fascinated by technology, and is writing his next book, Estate of Confusion: New York.
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