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How to Avoid Probate in Delaware
Pillar GuideDelaware42 min read

How to Avoid Probate in Delaware

Delaware's transfer on death deed took effect December 4, 2025. Here is what skips the Register of Wills, and what the estate can still reach.

By Settled Editorial

In Delaware, an asset skips the Register of Wills when a recorded deed, a certificate of title, or a beneficiary form already names the person who takes it. That covers real estate under a transfer on death deed recorded before the owner dies, a vehicle titled in TOD form, payable on death bank accounts, securities registered in beneficiary form, life insurance and retirement money with a living beneficiary named, and anything already retitled into a living trust.

Everything else goes to the Register of Wills of the county where the person died domiciled. Delaware has no separate probate court. 12 Del. C. § 2501 says that in performing the functions of the office, the Register of Wills of each county acts only as a Clerk of the Court of Chancery, and there are three of those offices, in New Castle, Kent and Sussex. 12 Del. C. § 1302(a) sends the will to the Register of the county of domicile, and § 1302(b) adds the sentence that shapes this whole page: to be effective to prove a transfer of any property or to nominate an executor, a will must be declared to be valid by admission to probate.

One date changes the Delaware answer. 85 Del. Laws, c. 212 created a statutory transfer on death deed for real estate, and 25 Del. C. § 203 applies that act to a transferor dying on or after December 4, 2025. Delaware guidance written before that date answers the biggest question a homeowner asks the other way. Use this page as a planning map. If someone has already died and you are settling the estate now, read the Delaware probate guide instead.

Start With What Delaware Probate Actually Costs

National pages sell a trust as the escape from a ruinous death tax. Delaware charges none. Title 30 of the Delaware Code prints the answer in its own chapter headings: Chapter 13 is Inheritance [Repealed] and Chapter 15 is Estate Tax [Repealed]. Every section from 30 Del. C. § 1501 through § 1507 now carries the same line in the Code: repealed by 81 Del. Laws, c. 52, § 1, effective Jan. 1, 2018. What is left is a final individual income tax return, a fiduciary return where the estate earns income, and the federal estate tax for estates above the federal exclusion.

The Delaware cost that matters is the county fee schedule, and it is built differently from most states. 12 Del. C. § 2510 gives the governing body of each county the power to set the fees its Register of Wills charges, and § 2511 makes each Register keep the current list posted for public inspection. Every schedule has three parts:

  • A petition fee to ask for letters. New Castle charges $5 per Representative. Kent's schedule prints $5.00/2 or $10.00 for more than 2.
  • A value-bracketed fee to grant the letters, starting at $25 in all three counties. The bands are not identical. New Castle's $25 band runs to under $50,000, while Kent's and Sussex's stop at $29,999, so a $40,000 personal estate pays $25 in New Castle and $50 in the other two.
  • A percentage closing cost on the net personal estate, charged when the final account passes. New Castle charges 1.75 percent plus a separate 0.25 percent technology cost, for an effective 2.00 percent. Kent charges 1.75 percent. Sussex charges 1.25 percent.

That third line is where the money sits, and it is why an estimate built from opening fees alone is useless here. On a $400,000 net personal estate the New Castle letters fee is $75 and the closing cost is roughly $8,000.

Read the words net personal estate twice, because they decide which step on this page saves money. The closing cost is charged on personal property that passed through the estate. Moving the house out with a transfer on death deed does not move that number, since real estate was never in it. Moving the bank and brokerage accounts out with beneficiary forms moves it directly. The deed buys speed, privacy and a clean title handoff for the house. The account forms buy the percentage back.

Delaware publishes no percentage for the person who runs the estate either. 12 Del. C. § 2305(a) hands the question to the Court of Chancery, whose Rule 192 allows commissions and attorneys' fees in a reasonable amount and lists eleven things the Court may weigh. Anyone quoting you a flat Delaware executor percentage is quoting another state.

Recording is the cheap side of the ledger. Sussex charges a $30.00 document surcharge plus a $1.00 maintenance fee plus $9.00 per page, so a one-page deed costs $40. New Castle charges a $30.00 state document fee plus a $5.00 technology fee plus $13.00 per page and $3.00 for each parcel description listed, so a one-page deed describing one parcel runs $51. Kent prices this instrument on its own line at $88.00 for the first 5 pages plus $10.00 for each additional page, which is worth knowing before you budget from a neighbor's number.

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The Transfer On Death Deed Is Delaware's Newest Tool

25 Del. C. §§ 201 through 221 is the Uniform Real Property Transfer on Death Act. Section 205 authorizes it in one sentence: an individual may transfer property to 1 or more beneficiaries effective at the transferor's death by a transfer on death deed. Section 206 makes it revocable even if the deed or another instrument says otherwise. Section 207 makes it nontestamentary. Section 208 sets the capacity to make or revoke one at the same level as the capacity to make a will.

Here is what the rest of the act asks of you.

  • Meet all four requirements in § 209. The deed must carry the essential elements and formalities of a properly recordable inter vivos deed, including notarization of every signature the section requires. It must be witnessed by 2 individuals, at least 1 of whom is not a beneficiary. It must state that the transfer to the designated beneficiary occurs at the transferor's death. And it must be recorded before the transferor's death in the office of the recorder of deeds of the county where the property is located. A signed deed in a drawer moves nothing.
  • Leave the beneficiary out of it. Section 210 makes the deed effective without notice or delivery to the designated beneficiary, without acceptance, and without consideration.
  • Nothing changes while you live. Section 212 says the deed does not affect any interest or right of the transferor, including the right to sell or mortgage the property; does not affect a transferee or a creditor even where either has notice of the deed; does not affect the transferor's or the beneficiary's eligibility for any form of public assistance; creates no legal or equitable interest in the beneficiary; and does not expose the property to claims of the beneficiary's creditors.
  • Revoke it on paper, recorded. Section 211(a) accepts only a later transfer on death deed, an express instrument of revocation, or an inter vivos deed that expressly revokes it. Whichever you use must be acknowledged after the acknowledgment of the deed being revoked, witnessed by 2 individuals, and recorded before you die. Section 211(c) rules out revocation by a revocatory act on the deed itself. Where several owners signed, § 211(b) revokes a joint owners' deed only where all the living joint owners revoke it.
  • Name an alternate. Section 213(a)(2) makes the beneficiary's interest contingent on surviving the transferor, and the interest of a designated beneficiary who fails to survive lapses. Where two or more beneficiaries were named to take concurrent interests, § 213(a)(4) sends a lapsed share to the others in proportion to their remaining interests. Naming a second beneficiary or an alternate is what keeps the deed working.
  • Concurrent beneficiaries take without survivorship. Section 213(a)(3) transfers concurrent interests in equal and undivided shares with no right of survivorship. Two children who inherit this way hold as tenants in common, and the first of them to die leaves a share that travels through that child's own estate.
  • The debt travels with the land. Section 213(b) passes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens and other interests to which it is subject at the transferor's death, and deems the deed recorded at the death for priority purposes. Section 213(d) transfers without covenant or warranty of title even where the deed promises one.
  • A joint owner comes second in line. Section 213(c) gives the property to the surviving joint owners with right of survivorship where the transferor is a joint owner who is survived, and makes the deed effective only where the transferor was the last surviving joint owner.
  • Chancery hears the fights. Section 219 gives the Court of Chancery jurisdiction over challenges to the validity or the revocation of the deed.

Two money details sit outside Title 25 and both favor the reader. 30 Del. C. § 5401(1)a. excludes from the definition of a taxable Document any will or any transfer on death deed authorized under Chapter 2 of Title 25, so no realty transfer tax is due on the death transfer. 30 Del. C. § 5402(g) then removes the paperwork: the deed does not require a transfer-tax affidavit under § 5409, a real estate tax return declaration of estimated income tax form, or any other form otherwise required under the realty transfer tax chapter or enacted by a county or municipality, in order to be recorded.

After the death, 25 Del. C. § 218 gives the beneficiary a light path. A Register of Wills may adopt a notice form, the beneficiary may present the transferor's death certificate for filing, and the Office of Vital Statistics must give the beneficiary a certified copy of that certificate. Where a probate estate is opened, the property is still inventoried under 12 Del. C. § 1905. Where none is opened, no inventory form is filed. Section 218(f) is the safety net: failure to file any of it does not invalidate an otherwise valid deed.

The execution and recording steps are worked through on a Delaware transfer on death deed, and a beneficiary who plans to list the house afterward should read selling inherited property in Delaware.

Joint Ownership Has To Say So

Two names on a Delaware deed do not create survivorship on their own. 25 Del. C. § 701 says no estate in joint tenancy in lands, tenements or hereditaments shall be held or claimed by or under any grant, devise or conveyance made to persons other than executors or trustees, unless the premises are expressly granted, devised or conveyed to those persons to be held as joint tenants and not as tenants in common. Silence leaves a tenancy in common. The exception runs the other way for a grant to executors or trustees in that capacity.

When a survivorship owner does die, nobody opens a case, but somebody does file a paper. 12 Del. C. § 1905(e) requires the personal representative or the surviving joint tenant to complete and file an affidavit with the Register of Wills of the county where the real property is located within 3 months after the death, with a general description of the real estate and the name of the surviving owner. The same subsection spares an out-of-state family the usual proof: no certified or exemplified copy from the decedent's home jurisdiction is needed to take the decedent off the title.

Delaware's simultaneous-death rules are the 1945 uniform act. 12 Del. C. § 701 disposes of each person's property as if each had survived where there is not sufficient evidence they died otherwise than simultaneously, and § 703 splits property held by two joint tenants or tenants by the entirety one half as if one had survived and one half as if the other had. The chapter turns on whether the order of the deaths can be proved rather than on a fixed survival period.

Joint ownership costs nothing to create and carries three prices. It hands a living co-owner present ownership. It exposes the property to that co-owner's creditors, whose liens attach to that owner's interest and follow it into the proceeds of any partition sale under 25 Del. C. § 732. And it outranks a transfer on death deed on the same property, because 25 Del. C. § 213(c)(1) gives the property to the surviving joint owners where the transferor is a joint owner who is survived. Use it on purpose.

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Payable On Death Bank Accounts

Delaware writes the bank rule as a trust account rather than as a payable on death act, and the wording carries two limits nothing else on this page has. 5 Del. C. § 924(a)(3) defines a trust account to include an account established by a depositor as trustee for another (the so-called Totten trust) and an account payable on request to the depositor during life and, on the depositor's death, to a beneficiary (the so-called payable-on-death account). Then it caps the names: no more than 1 beneficiary per trust account and no more than 2 depositors, in each case unless the banking organization's own agreements, rules or regulations provide otherwise. Ask the bank before you assume you can list three children on one account.

Four rules decide whether the account does what you meant.

  • Change it by withdrawal or by a writing to the bank. Section 924(b)(1) lets any depositor revoke, terminate or modify the trust during life through withdrawals, through charges against the account, or by a writing other than a will received by the bank while the depositor lives.
  • A will cannot touch it. Section 924(b)(2) says the account cannot be revoked, terminated or modified in whole or in part by any depositor by will or other similar testamentary disposition.
  • Survival decides the title. Section 924(b)(4) vests title in the beneficiary free of the trust where the beneficiary survives the depositor, and § 924(b)(3) returns the funds to the depositor free of the trust where the depositor outlives the beneficiary.
  • A tie goes to the depositor. Section 924(b)(5) conclusively presumes the depositor was the survivor where the order of the two deaths cannot be determined, and title vests in the depositor's estate.

A beneficiary under 18 is paid to a parent or to the duly appointed guardian of the beneficiary's property under § 924(c), and § 924(d) releases a bank that pays before it is served with a restraining order, injunction or other court process. Separately, 5 Del. C. § 923 lets a bank pay a deposit made in the names of 2 or more persons, deliverable or payable to either or to the survivor, to any of them or to the survivor in due course of business. And 5 Del. C. § 922 lets banks, trust companies, savings banks and savings societies pay out deposits of decedents without letters of administration when and as provided by 12 Del. C. §§ 2306 and 2307.

Adding a beneficiary to a solely owned account is free, takes a few minutes at the counter, and is the cheapest single step on this page.

Securities Registered In Beneficiary Form

12 Del. C. ch. 8 is the Uniform TOD Security Registration Act, and it covers securities only. It is not the source of the real-property deed above, and reading it as one is the oldest Delaware mistake in this area.

Section 802 limits who may use it: only registrations showing sole ownership by 1 individual, or multiple ownership by 2 or more with right of survivorship rather than as tenants in common. Section 805 accepts the words transfer on death, the abbreviation TOD, the words pay on death or the abbreviation POD after the owner's name, and lets an uncertificated security or a security account carry the designation without naming beneficiaries where the registering entity keeps those names. Section 806 gives the designation no effect on ownership until the owner's death, and lets the sole owner or all then surviving owners cancel or change it without the beneficiary's consent.

Section 807 does the work at death. Ownership passes to the beneficiaries who survive all owners, and until the security is divided, multiple surviving beneficiaries hold as tenants in common. Where no beneficiary survives, the security belongs to the estate of the deceased sole owner or of the last owner to die.

Two limits belong in any plan built on this chapter. Section 808(a) says a registering entity is not required to offer or to accept a request for beneficiary registration, so the answer can simply be no and you will not learn that until you ask. And § 809(b) preserves the rights of creditors of security owners against beneficiaries and other transferees under other Delaware laws.

Vehicles

21 Del. C. § 2304(a) lets a motor vehicle be titled in transfer-on-death form by putting a designation of a beneficiary in the certificate of title, subject to the rights of all lien holders whether the lien was created before, at the same time as, or after the TOD interest. A trust may be the beneficiary. Section 2304(b) sets the wording, the name of the sole owner (or the names of owners holding as tenants in common, tenants by the entirety or joint tenants with right of survivorship) followed in substance by the words transfer on death to the named beneficiary, with TOD accepted as the abbreviation.

Section 2304(c) gives the beneficiary no interest until the death of the owner or of the last surviving multiple owner, and lets the designation be changed at any time without the beneficiary's consent by filing an application for a subsequent certificate of title. Section 2304(d) vests ownership in the surviving beneficiary at the death, subject to the liens, and sends the vehicle to the estate where no beneficiary survives. Section 2304(e) makes the certificate nontestamentary.

The paperwork is the Division of Motor Vehicles Form MV2025, Transfer on Death Application, which states on its face that the form must accompany the title when adding TOD, and that where a lienholder holds the title you must request the title from the lienholder. Titles and the trip to the DMV are covered on Delaware vehicle title transfers.

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Life Insurance, Retirement Money And Other Death Benefits

12 Del. C. § 1901(c) is short and it settles more assets than any other sentence in the chapter. Where a person, trust or corporation other than the decedent or the estate's personal representative is designated under an insurance policy or contract, pension, bonus, stock option or other employee benefit or incentive plan to receive property or a death benefit on or after the death, that property is not included in the inventory as chargeable to the personal representative, and that beneficiary is entitled to it as against the claim of any personal representative, creditor, legatee or next of kin of the decedent. Subsection (d) applies the rule to decedents dying after June 30, 1969.

That sentence is why a life insurance policy, a 401(k) and an IRA stay outside a Delaware estate. It is also why a stale form does so much damage, because the statute honors the designation on file rather than the intention behind it. 12 Del. C. § 704 adds the tie-breaker, distributing the proceeds as if the insured had survived the beneficiary where the order of their deaths cannot be established.

The Revocable Living Trust

A funded revocable trust still does two things no beneficiary form does. It handles incapacity without a guardianship, and it holds property in more than one state under one instrument.

Delaware sets its own execution bar at 12 Del. C. § 3545(a). Where a person other than the trustor acquires or is divested of an interest whose enjoyment depends on surviving the trustor, the creation, modification or revocation is void unless it is either in a writing executed by the trustor and witnessed in writing in the trustor's presence by at least 1 disinterested person or 2 credible persons, or in a writing executed by a trustee who is a disinterested person. A disinterested person is one with no beneficial interest that the change would materially increase or decrease, and a notary public may serve as that witness whether the notary signs as a witness or only in a notarial capacity.

Then comes the step people skip. A trust moves only the property retitled into it. A deed to the trustee has to be recorded with the recorder of deeds, an account has to be reregistered in the trust's name, and a beneficiary form that names an individual keeps pointing at that individual whatever the trust says. An unfunded trust routes nothing and still costs what you paid for it.

12 Del. C. § 3546(a) bars a proceeding to contest whether a revocable trust was validly created after the first of four events to occur. Two of them do the work: 120 days after the trustee notified the contestant in writing of the trust's existence, of the trustee's name and address, of whether that person is a beneficiary and of the time this section allows, and 2 years after the trustor's death. Section 3546(b) then lets a trustee distribute after the death of a trustor whose trust was revocable, without liability, unless the trustee has actual knowledge of a pending contest or is notified of a possible one and it starts within 30 days. Section 3546(c) makes a beneficiary of a trust later held invalid return what was distributed.

One Delaware detail rewards a plan that already has a trust. 12 Del. C. § 2306(a) names the trustee of a trust created by the decedent among the people who may swear the small estate affidavit, so the trust and the affidavit route work together rather than competing. Start with a Delaware revocable living trust, and see the documents around it on Delaware estate planning.

Online Accounts

Delaware fiduciaries have had statutory access to online accounts since 79 Del. Laws, c. 416 was approved on August 12, 2014. 12 Del. C. § 5004(a) lets a fiduciary exercise control over any and all rights in the digital assets and digital accounts of an account holder, to the extent applicable state or federal law and any end user license agreement permit. Section 5004(b) then voids a provision in an end user license agreement that limits that access, as against the strong public policy of this State, unless the account holder agreed to the provision by an affirmative act separate from assenting to the rest of the agreement, and § 5004(c) blocks a choice-of-law clause used to get around that. Leave a written record of what exists and who holds it. See Delaware digital assets after death.

What Does Not Avoid Probate

Four beliefs cost Delaware families the most.

A will. A will routes an estate into the Register of Wills rather than around it. 12 Del. C. § 1302(b) is direct: to be effective to prove a transfer of any property or to nominate an executor, a will must be declared to be valid by admission to probate. Read Delaware will requirements for what makes one valid, and Delaware intestate succession for who inherits without one.

A divorce, as far as the forms go. 12 Del. C. § 209 revokes dispositions to a former spouse made by a will, along with a power of appointment conferred on that spouse and a nomination of that spouse as executor, trustee, guardian or other fiduciary, unless the will expressly provides otherwise. Nonprobate paperwork answers to its own statutes: 25 Del. C. § 211 for the deed, 5 Del. C. § 924(b)(1) for the bank account, 12 Del. C. § 806 for the security. Redo each of them by hand.

The small estate affidavit, used as a plan. 12 Del. C. § 2306 is an after-the-fact shortcut. It lets a qualifying person take the decedent's personal estate and distribute it under the will, or under Chapter 5 where there is none, without letters and without probate of a will, on a sworn affidavit attesting to seven conditions: no petition for a personal representative pending or granted, 30 days elapsed since the death, personal estate other than the property described in § 1901(b) and (c) and other than jointly owned property not exceeding $50,000, all known debts paid or provided for, the surviving spouse's § 2308 allowance settled, no Delaware real estate owned by the decedent solely or as tenants in common, and the affidavit furnished to whoever owes the money or holds the property. The ceiling moved recently. 85 Del. Laws, c. 281, approved June 10, 2026, struck $30,000 from the section and wrote in $50,000, and the county pages have not all been republished, so a counter may still quote the older figure. Condition six is the one that decides real cases, because it disqualifies rather than subtracts. A $12,000 Delaware lot plus $20,000 in the bank is not a $32,000 small estate. It is a full administration. The Delaware small estate route walks through it.

A tenancy in common. 25 Del. C. § 701 makes this the Delaware default, and 12 Del. C. § 2306(a)(6) makes it fatal to the affidavit route. A one-third interest in a family property inherited years ago is enough to force a full case on an estate that owns nothing else.

Where Delaware Pulls Nonprobate Property Back

No tool on this page is absolute, and Delaware writes the exceptions into the statutes themselves.

Creditors and the family allowance reach a transfer on death deed for 8 months. 25 Del. C. § 215(a) lets the estate enforce liability against property transferred at the death by a transfer on death deed, to the extent the probate estate is not enough for an allowed claim or for a statutory allowance to a surviving spouse or child. Subsection (b) apportions that liability among several such properties by their net values at the death. Subsection (c) requires the proceeding to be commenced not later than 8 months after the death, which is the same period 12 Del. C. § 2102(a) gives creditors of the estate itself. The allowance in question is the surviving spouse's $7,500 under 12 Del. C. § 2308(a), demanded in writing within 9 months of the death or 6 months of the grant of letters, whichever is shorter.

The elective share is measured on the federal gross estate, so it sees nearly everything. 12 Del. C. § 901(a) gives the surviving spouse of a person domiciled here the right to elect one third of the elective estate, less the value of everything the decedent already transferred to that spouse. Section 902(a) defines the elective estate as the decedent's gross estate for federal estate tax purposes, whether or not a federal return is filed, less the deductions allowable under Internal Revenue Code §§ 2053 and 2054. A transfer on death deed, a payable on death account, life insurance and a revocable trust all sit inside a federal gross estate, so they all sit inside the measure. Section 906(a) puts the petition in the Court of Chancery within 6 months of the grant of letters. Where the liability lands is a separate question with a friendlier answer: § 908(b) limits the contributing estate to the part of the elective estate the decedent owned solely at death, and expressly excludes jointly owned survivorship property, insurance proceeds payable to a beneficiary other than the estate, and property held in trust. Read Delaware surviving spouse rights before assuming any of it.

A recorded Medicaid lien outlives the transfer. 25 Del. C. § 5002(a) creates a lien against the real property of a person aged 55 or older who receives services in a long-term care facility paid for by the Department, before that person's death, after notice and an opportunity for a hearing to establish that the person cannot reasonably be expected to return home. Subsection (b) blocks the lien while a spouse, a child under 21 or a blind or permanently and totally disabled child, or a qualifying sibling with an equity interest, is lawfully residing in the home, and subsection (e) dissolves it if the person is discharged and returns home. Subsection (c) attaches it on recording at the Recorder of Deeds. 25 Del. C. § 5003 then has the Department seek recovery from the individual's estate or upon sale of property subject to a lien, only after the death of the individual and of a surviving spouse who was residing in the home on a continuous basis, and, in the case of a lien on the individual's home, only where there is no surviving blind or disabled child who lived there, no nondisabled child or sibling who lived there and provided the care that kept the individual out of a facility, and no minor child who lived there and has not reached majority. Set that beside 25 Del. C. § 213(b), which passes the property to the beneficiary subject to every lien on it at the death, and the shape is clear: the deed changes who owns the house, not what is recorded against it. Anyone who has received or may need Delaware long-term care assistance should speak with a Delaware elder law attorney before retitling anything.

Everything else keeps its ordinary remedies. 12 Del. C. § 809(b) preserves the rights of creditors against the beneficiaries of a security registered in beneficiary form, and 25 Del. C. § 204 says the transfer on death act does not affect any method of transferring property otherwise permitted under Delaware law.

A Delaware Checklist

  1. Record a transfer on death deed for the house and any other Delaware real estate, with 2 witnesses of whom at least 1 is not a beneficiary, notarized, stating that the transfer occurs at your death, and recorded with the recorder of deeds while you are alive. (25 Del. C. § 209.)
  2. Name a second beneficiary or an alternate on that deed, because the interest of a beneficiary who fails to survive you lapses under § 213(a)(2), and § 213(a)(4) redistributes a lapsed share only among beneficiaries named to take concurrently.
  3. Pull the recorded deed on every co-owned Delaware property and confirm it says the owners hold as joint tenants and not as tenants in common. (25 Del. C. § 701.)
  4. Add or refresh a beneficiary on every bank account, asking first how many names that bank will accept on one trust account. (5 Del. C. § 924.)
  5. Ask each brokerage whether it offers beneficiary registration at all, name a backup, and remember that surviving co-beneficiaries take as tenants in common. (12 Del. C. §§ 807, 808.)
  6. Put each vehicle in transfer-on-death form on the certificate of title using Form MV2025, and get the title from the lienholder first where one holds it. (21 Del. C. § 2304.)
  7. Review every beneficiary designation on insurance, pensions and retirement accounts after a marriage, divorce, birth or death, because 12 Del. C. § 1901(c) honors the form on file.
  8. Where a trust earns its place, fund it, and confirm the signing met 12 Del. C. § 3545(a) rather than a form book from another state.
  9. Name an agent who can act if you cannot, and check the powers that agent is given over the trust and the beneficiary forms. See Delaware power of attorney.
  10. Keep the will consistent with every deed and form, because in Delaware the recorded deed and the bank's form beat the will. (25 Del. C. §§ 211(a) and 216, 5 Del. C. § 924(b)(2).)

When To Call A Delaware Attorney

Most of this list is paperwork you can handle with the bank, the broker, the Division of Motor Vehicles and the recorder of deeds. Call a licensed Delaware attorney when:

  • Delaware long-term care assistance is on the table, because a lien recorded under 25 Del. C. § 5002 outlives the transfer
  • the estate holds property in more than one county or more than one state, since each recorder records its own instrument
  • a blended family means the deed, the beneficiary forms and the will point at different people
  • a co-owned deed never said joint tenancy and one owner has already died
  • a spouse may elect against the estate, because 12 Del. C. § 902 measures the elective estate on the federal gross estate
  • a trust exists and nobody can say which property was ever retitled into it
  • someone has already died and you are choosing between the § 2306 affidavit and a full administration

Frequently Asked Questions

Does Delaware have a transfer on death deed?

Yes, and it is new. 85 Del. Laws, c. 212 enacted the Uniform Real Property Transfer on Death Act at 25 Del. C. §§ 201 through 221, and 25 Del. C. § 205 lets an individual transfer Delaware real property to one or more beneficiaries effective at death by recording a transfer on death deed. Section 203 fixes the reach of the act: it applies to a deed made before, on or after December 4, 2025, by a transferor dying on or after December 4, 2025. Delaware pages written before that date answer this question the other way, and that answer is now out of date.

What does a Delaware transfer on death deed have to say and do?

25 Del. C. § 209 lists four requirements and the deed fails without all four. It must carry the essential elements and formalities of a properly recordable inter vivos deed, including notarization of every signature the section requires. It must be witnessed by 2 individuals, at least 1 of whom is not a beneficiary. It must state that the transfer to the designated beneficiary occurs at the transferor's death. And it must be recorded before the transferor's death in the office of the recorder of deeds of the county where the property sits. Section 210 keeps the beneficiary out of the transaction while the owner lives: no notice, no delivery, no acceptance and no consideration.

Do two names on a Delaware deed create survivorship?

Not by themselves. 25 Del. C. § 701 says no estate in joint tenancy in lands, tenements or hereditaments shall be held or claimed under any grant, devise or conveyance made to persons other than executors or trustees, unless the premises are expressly granted, devised or conveyed to those persons to be held as joint tenants and not as tenants in common. Silence leaves a tenancy in common, and the deceased owner's share passes through the estate. Pull the recorded deed and read the granting language before treating any co-owned Delaware property as automatic.

Can a Delaware will revoke a transfer on death deed?

No. 25 Del. C. § 211(a) revokes a recorded transfer on death deed only by a later recorded instrument, which must be a new transfer on death deed, an express instrument of revocation, or an inter vivos deed that expressly revokes it, acknowledged after the acknowledgment of the deed being revoked, witnessed by 2 individuals, and recorded before the transferor dies. Section 211(c) adds that once the deed is recorded it cannot be revoked by a revocatory act on the deed itself, so tearing up your copy changes nothing. The statutory form at § 216 states the same rule to the reader: the deed controls over a contrary instruction in a will.

Can creditors reach property that passed by a Delaware transfer on death deed?

Yes, on a clock. 25 Del. C. § 215(a) lets the estate enforce liability against property transferred by a transfer on death deed to the extent the probate estate is not enough to satisfy an allowed claim or a statutory allowance to a surviving spouse or child. Where more than one property passed this way, § 215(b) apportions the liability among them in proportion to their net values at death. Section 215(c) then closes the window: a proceeding to enforce that liability must be commenced not later than 8 months after the transferor's death. Section 213(b) is a separate rule with no clock at all, because the beneficiary always takes subject to the mortgages, liens and other interests on the property at the transferor's death.

Does a Delaware divorce cancel beneficiary designations?

It reaches the will, not the forms. 12 Del. C. § 209 says that if a testator is divorced or the marriage annulled after executing a will, the divorce revokes any disposition of property to the former spouse, any general or special power of appointment conferred on the former spouse, and any nomination of the former spouse as executor, trustee, guardian or other fiduciary, unless the will expressly provides otherwise. Nonprobate paperwork answers to its own statutes. A transfer on death deed takes a recorded revocation under 25 Del. C. § 211, a bank trust account takes a writing delivered to the bank under 5 Del. C. § 924(b)(1), and a security registered in beneficiary form is cancelled with the registering entity under 12 Del. C. § 806.

Can you put a Delaware vehicle in transfer on death form?

Yes. 21 Del. C. § 2304(a) lets a motor vehicle be titled in transfer-on-death form by putting a beneficiary designation in the certificate of title, subject to the rights of every lien holder whether the lien was created before, at the same time as, or after the TOD interest, and a trust may be the beneficiary. Section 2304(b) sets the wording, the owner's name followed in substance by the words transfer on death to the named beneficiary, with TOD accepted as the abbreviation. Section 2304(c) gives the beneficiary no interest until the owner dies and lets the owner change the designation at any time without the beneficiary's consent by filing an application for a subsequent certificate of title. The Division of Motor Vehicles publishes Form MV2025, Transfer on Death Application, which must accompany the title.

Related Guides

This page describes Delaware law broadly rather than advising on one property or one family. The transfer on death act is less than a year old and the small estate ceiling changed in June 2026, so confirm any date or dollar amount with the recorder of deeds where the property sits, the Register of Wills for that county, or a licensed Delaware attorney before you sign or record anything.

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Information current as of September 10, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Delaware can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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