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Delaware Revocable Living Trust
Support GuideDelaware28 min read

Delaware Revocable Living Trust

Delaware voids a trust signed without a witness. What 12 Del. C. § 3545 asks for, how funding works, and what a revocable trust here cannot do.

By Settled Editorial

A Delaware revocable living trust holds your property while you are alive and passes it to the people you name when you die, with no Register of Wills case for anything titled inside it. You stay in control and can change or undo it. It reaches only what you actually retitle, and Delaware adds a signing rule that voids the document outright when it is missed.

Every rule below was read section by section at the Delaware Code Online on September 10, 2026, and each section is cited where it appears. County fees were read the same day at the three county offices that set them.

This guide is for a Delaware resident deciding whether a revocable trust earns its cost. It is general information about Delaware law rather than advice about your situation, and a Delaware attorney should draft or review anything you sign.

Delaware's Trust Reputation Is About A Different Instrument

Most of what is published about Delaware trusts is written by trust companies for clients who do not live here. That material is accurate and it answers a different question.

Two statutes built the reputation. Subchapter VI of 12 Del. C. ch. 35, §§ 3570 through 3576, is the qualified dispositions law that draws asset-protection planning to Delaware, and 12 Del. C. § 3570(11)b. requires the trust instrument to be irrevocable. A trust you can undo cannot be one. Then 25 Del. C. § 503(a) says no interest in personal property held in trust is void under the common-law rule against perpetuities or any rule limiting the duration of noncharitable purpose trusts, while § 503(b) sets a 110-year rule for real property held in trust running from the later of the date the parcel enters the trust and the date the trust became irrevocable. That pairing is what a dynasty trust is built on. A third body of law, 12 Del. C. ch. 38, is the Delaware Statutory Trust Act, which is business-entity law and has nothing to do with a family plan.

None of that describes the document in this guide. A revocable living trust shields nothing from your own creditors, saves no tax, and lasts as long as its terms say.

What A Delaware Revocable Trust Actually Buys

It skips the Register of Wills for what is inside it. Delaware has no separate probate court, and an estate opens with the Register of Wills of the county of domicile. Property already titled to your trust is not part of that estate, so your successor trustee acts without letters.

The cost it avoids is a percentage of the estate. 12 Del. C. § 2510 lets the governing body of each county determine the fees its Register of Wills charges, and § 2511 makes each Register keep the list posted. All three schedules charge a closing cost on the net personal estate when the account is passed. New Castle County charges 1.75% plus a separate 0.25% technology cost, so 2.00% in total. Kent County charges 1.75% of net personal estate. Sussex County charges 1.25% of net for adjusting, setting and certifying accounts. On a $400,000 personal estate that spread is thousands of dollars, and it lands at the end rather than at the opening. Avoiding probate in Delaware walks the full fee model and the mechanisms that dodge it.

It is not a tax move here. Title 30 of the Delaware Code prints the answer in its own chapter headings. Chapter 13 reads Inheritance [Repealed], Chapter 14 reads Gift Tax [Repealed], and Chapter 15 reads Estate Tax [Repealed], with every section of chapter 15 carrying the line repealed by 81 Del. Laws, c. 52, § 1, effective Jan. 1, 2018. Delaware charges no estate tax and no inheritance tax with or without a trust.

Nothing gets filed with a court. 12 Del. C. § 3521 exempts trustees from filing accounts or inventories except where §§ 3522 through 3524 apply, and § 3522 says trustees of an inter vivos trust file none at all unless the governing instrument requires it, the Court of Chancery orders an accounting for cause shown, or the Court appointed the trustees and its order says otherwise.

Your document outranks the default rules. 12 Del. C. § 3303(a) says that notwithstanding any other provision of the Code or other law, the terms of a governing instrument may expand, restrict, eliminate or otherwise vary laws of general application to fiduciaries, trusts and trust administration, and then lists examples running from a beneficiary's right to be informed to the grounds for removing a fiduciary. Delaware hands the drafting a great deal of room, which is another way of saying the document is where your answers live.

The Signing Rule That Voids A Delaware Trust

12 Del. C. § 3545(a) is the sentence a form book from another state will not warn you about. Where a person other than the trustor acquires or is divested of an interest whose possession or enjoyment depends on surviving the trustor, the creation, modification or revocation of the trust is void unless one of two things is true.

  1. The change is in a writing executed by the trustor, or by some person subscribing the trustor's name in the trustor's presence and at the trustor's express direction, and witnessed in writing in the trustor's presence by at least 1 disinterested person or 2 credible persons.
  2. The change is in a writing executed by a trustee who is a disinterested person, whether or not anyone else, the trustor included, has signed it.

The section defines a disinterested person as one with no beneficial interest in the trust that the creation, modification or revocation would materially increase or decrease. It then says a notary public or similar official may serve as a witness where that official is a disinterested or credible person, whether the official signs as a witness or only in a notarial capacity. One notary who takes nothing under the trust satisfies the requirement. Two people who take nothing satisfy it as well, and cost an afternoon.

That word void does the same work § 202(b) does for a will. It is a condition of validity rather than a formality.

Three more subsections round out the picture.

  • A trust signed elsewhere is usually saved. § 3545(b) says a trust created by a writing is not void merely because of subsection (a) where the writing was validly executed under the law, at the time of execution, of the place serving as the initial place of administration, or of the initial situs where the trust is not yet administered.
  • Counterparts are allowed. Subject to the witness requirements, and unless the writing forbids it, the writing may be executed in counterparts.
  • You get a separate list for the small things. § 3545(d) lets a trust instrument that is revocable by its express terms during the trustor's lifetime point to a written statement or list disposing of tangible personal property that the instrument does not otherwise dispose of, other than money, evidences of indebtedness, documents of title, securities, and property used in a trade or business. The list must be handwritten by the trustor or signed by the trustor, must identify items and legatees with reasonable certainty, must not conflict with the trust, and where two lists conflict, a dated one controls. This is the same tool 12 Del. C. § 212 gives a will.

Trust paperwork can be signed electronically. A will cannot. 12 Del. C. § 3550(a)(1) puts a governing instrument or other document described in § 3545, other than a will or codicil, inside the Uniform Electronic Transactions Act at 6 Del. C. ch. 12A, and § 3550(a)(2) does the same for a trustee's resignation, removal, appointment or acceptance.

Revocability comes from the document, because Delaware sets no default. Chapter 35 carries no provision making a trust revocable or amendable where the instrument is silent, which is where a uniform trust code state would supply one. 12 Del. C. § 3591(a)(4) treats it as a fact the paperwork reports, listing revocability and the identity of anyone holding a power to revoke among the items a certification of trust states. If you are reading an old Delaware trust, look for the reserved power in the text before assuming it is there.

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Funding Is The Half That Gets Skipped

Funding means changing title so the trust owns the asset. A signed trust with nothing in it moves nothing, and the estate that follows is the estate you were trying to avoid.

Real estate

Sign and record a deed conveying the property to the trustee. Two Delaware rules decide what that costs and what the counter will look for.

The realty transfer tax does not apply. 30 Del. C. § 5402(a) charges a realty transfer tax of 3 percent of the value of the property represented by a document, dropping to 2.5 percent where the municipality or county has enacted the full 1.5 percent authorized by 22 Del. C. § 1601 or 9 Del. C. § 8102, apportioned equally between grantor and grantee. 30 Del. C. § 5401(1)j.1 then writes a conveyance to a trustee, nominee or straw party for the grantor as beneficial owner out of the definition of document, and j.3 does the same for a conveyance from a trustee back to the beneficial owner. No document, no tax.

Say why on the paperwork. 30 Del. C. § 5409 requires every document lodged with a Delaware Recorder of Deeds to set out the true, full and complete value as part of the document, or to be accompanied by an affidavit from a responsible person connected with the transaction showing that connection, stating the value, and stating the reason, if any, why the document is not subject to tax. Write the reason down rather than leaving the counter to infer it.

Recording is priced per county, and every schedule is additive. Each office charges a document fee before it counts a single page: $35 in New Castle, $36 in Kent, $31 in Sussex. Reading the per-page line alone understates the bill by that much.

CountyDocument feePage feeOne-page deed
New Castle$30 state, plus $5 technology$13 per page, plus $3 for each parcel description$51 with one parcel
Kent$36, covering $30 state, $1 county, $5 technology$10 per page including the first$46, plus $5 per tax parcel
Sussex$30 document surcharge, plus $1 maintenance$9 per page$40

Bank and brokerage accounts

Retitle the account into the trust's name. The bank will ask for proof, and 12 Del. C. § 3591(a) lets a trustee hand a person other than a beneficiary a certification of trust instead of the instrument. It states the trust's existence and execution date, the trustor and acting trustee, the trustee's powers, revocability and who may revoke, co-trustee signing authority, the taxpayer identification number, and how title to trust property may be taken.

Subsection (b) requires an acknowledged writing, so bring the notary. Subsection (c) requires a statement that the trust has not been revoked, modified or amended in a way that would make the certification incorrect. Subsection (d) keeps the dispositive terms out, so who gets what stays private. Subsection (e) lets the recipient ask for the excerpts appointing the trustee and conferring the power at issue. Subsections (f) and (g) protect a person who acts in good faith on the certification, and let that person enforce the transaction against the trust property as though the statements were correct. Subsection (h) is the one to know at a stubborn counter: a person demanding the trust instrument on top of a certification or excerpts is liable for damages, including attorneys' fees, if the court determines the person did not act in good faith.

Online accounts

Delaware wrote its own fiduciary digital-assets law in 2014 and named the settlor of a living trust in the definitions. 12 Del. C. § 5002(1) makes an account holder include a settlor of a trust that was revocable until the settlor's death or incapacity, and § 5002(11) makes a trustee a fiduciary under the chapter. 12 Del. C. § 5004(a) then lets a fiduciary exercise control over the account holder's digital assets and accounts except as a governing instrument or court order provides, and § 5004(b) voids a term of a service agreement that limits that access as against the strong public policy of the State unless the account holder agreed to it by an affirmative act separate from assenting to the rest of the agreement.

The mechanics reward a trust that is already funded. Under 12 Del. C. § 5005(c)(4) a trustee's written request to a custodian goes out with a certified copy of the trust instrument or a certification of trust under § 3591, and § 5005(d)(1) gives the custodian 60 days to comply before the trustee may ask the Court of Chancery for an order.

What to leave alone

Retirement plans and life insurance pass by beneficiary designation, and naming a trust on one of those forms changes how the money is taxed and paid out after a death. Ask a Delaware attorney or the plan administrator before you write a trust onto a retirement account. Payable-on-death bank accounts, securities registered in beneficiary form under 12 Del. C. ch. 8, and jointly held survivorship property already carry their own instructions.

The Pour-Over Will That Backs It Up

Every living trust ships with a companion will, and 12 Del. C. § 211 is what makes it work.

Subsection (a) lets a will devise or bequeath property to the trustee of a trust established or to be established, including a funded or unfunded life insurance trust, if the trust is identified in the will and its terms sit in a written instrument other than a will executed before, concurrently with or after the will, or in the will of someone who predeceased the testator. The size and character of the trust corpus do not matter, and the gift is not invalid because the trust is amendable or revocable or was amended after the will was signed or after the testator died.

Subsection (b) sends the property into the trust itself rather than into a testamentary trust, administered under the trust instrument including amendments made before or after death, unless the will says otherwise.

Subsection (c) carries the trap and also its escape hatch: unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse. Several states write that rule with no opt-out. Delaware lets the will provide for it, which is a drafting instruction rather than a comfort. Tear up a Delaware trust without looking at the will and the will may have nothing left to catch.

The will still has to be a valid Delaware will. 12 Del. C. § 202(a) requires a writing signed by the testator, or by some person subscribing the testator's name in the testator's presence and at the testator's express direction, attested and subscribed in the testator's presence by two or more credible witnesses, subject to the choice-of-law rule at § 1306. Then § 202(b): any will not complying with subsection (a) is void. Delaware writes no harmless-error rescue. Delaware will requirements covers execution, self-proving, and out-of-state wills, and the Delaware probate guide covers what happens when the pour-over will has real work to do. Where the trust was never funded and no will exists, Delaware intestate succession decides who inherits.

Incapacity, Which Is The Honest Argument For A Delaware Trust

A funded trust lets a successor trustee step in without a Court of Chancery guardianship over your property. That argument holds at any estate size, which is more than the probate-avoidance argument can say.

Two documents have to agree for it to work. Your financial power of attorney should say what the agent may do with the trust, because 12 Del. C. § 49A-201(b)(1) lets an agent under a personal power of attorney create, amend, revoke or terminate an inter vivos trust only where the power of attorney expressly grants that authority, and only where exercising it is not otherwise barred by another agreement or instrument the property is subject to. A Delaware power of attorney that grants broad general authority and says nothing about trusts does not reach yours. Delaware power of attorney covers the signing rules, which are stricter here than most people expect.

Where nobody planned, the alternative is a guardianship petition. Delaware guardianship planning walks that process and what it costs.

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After You Die

The trust becomes irrevocable and three rules matter to your successor trustee.

Creditors run on the estate's clock. 12 Del. C. § 3337 says that following the death of the trustor of a trust that was revocable immediately before death, claims that could have been brought against the trustor's estate are barred against the trust when and to the same extent they are barred against the estate by any applicable statute of limitations or repose, including one enacted elsewhere. 12 Del. C. § 2102(a) supplies the Delaware period: claims arising before or at death are barred unless presented within 8 months of the decedent's death, whether or not notice was published. Delaware creditor claims covers presentation and rejection.

Contests run on § 3546. A proceeding to contest whether a revocable trust or an amendment was validly created may not start later than the first of four events: 120 days after the trustee gave the contestant written notice of the trust's existence, the trustee's name and address, whether that person is a beneficiary, and the time allowed; 2 years after the trustor's death; the time for a petition for review of a will, where the trust was revocable at death and named in the trustor's last will; or the date the right was cut off by adjudication, consent or other limitation. Notice is presumed received 7 days after sending under § 3534, and no trustee carries liability for failing to send it. Sending it is what starts the shorter clock.

A successor trustee inherits protections. 12 Del. C. § 3544 says that absent contrary terms or a court order, and absent actual knowledge of a breach or facts that would make a reasonable person inquire, a successor trustee has no duty to examine a predecessor's accounts and records, no duty to confirm the validity of the governing instrument, no liability for failing to seek redress for a predecessor's acts, responsibility only for property actually delivered, and all the powers the instrument gave the original trustee.

Two more sections come up often. 12 Del. C. § 3542(a) lets a trustee terminate a trust whose administration costs would defeat or substantially impair its purpose, distributing the property among beneficiaries at the trustee's discretion after written notice to interested persons, with no court proceeding or approval required. A trustee who is a settlor or a beneficiary is shut out of that power, and so is one who can be removed and replaced by the settlors or beneficiaries under the arrangement the subsection describes. Subsection (b) gives interested persons 30 days to object in writing, and (d) lets the trustee proceed past an objection only after further notice and 6 months. 12 Del. C. § 3561(b) allows reasonable compensation where the trust instrument fixes none and does not say the trustee serves without pay. Under § 3561(a) and (b)(1)a. a qualified trustee, meaning one whose activities are supervised by the State Bank Commissioner, the FDIC or the Comptroller of the Currency, files its compensation schedule or formula with the Register in Chancery for every county. Delaware trust administration is the successor trustee's page.

What A Delaware Revocable Trust Does Not Do

It does not change your income tax. Under 26 U.S.C. § 676(a) the grantor is treated as the owner of any portion of a trust where the power to revest title in the grantor is exercisable by the grantor or a nonadverse party, or both. The income stays yours while you live.

It does not stop your creditors. 12 Del. C. § 3536(c) says that, except under subchapter VI, where the trustor is also a beneficiary a restraint on transfer does not prevent the trustor's creditors from satisfying claims out of the trustor's interest to the extent it is attributable to the trustor's contributions. 12 Del. C. § 3536(d)(3) adds the revocation power itself: a creditor reaches a beneficiary's interest where the beneficiary may revoke the trust in whole or in part during life and would then hold what was revoked.

One Delaware carve-out runs the other way. 12 Del. C. § 3334 addresses spouses who contribute property to one or more trusts revocable by either or both of them where the property was held as tenants by the entireties immediately before the contribution. In any action over whether a creditor of either or both spouses may recover from the trust, the creditor's sole remedy is an order directing the trustee to transfer the property back to both spouses as tenants by the entireties. Delaware married couples do not give up entireties treatment by funding a joint revocable trust with the house.

It does not defeat a spouse's elective share. 12 Del. C. § 901(a) gives a surviving spouse one third of the elective estate less all transfers to that spouse, and § 902(a) measures the elective estate against the decedent's gross estate for federal estate tax purposes whether or not a return is filed, so trust property inside the federal gross estate is counted. § 908(b) then limits the contributing estate the share is apportioned among to property the decedent owned solely at death and did not transfer to the spouse, excluding survivorship property, insurance payable to a beneficiary other than the estate, and any property held in trust. § 906(a) puts the election in the Court of Chancery, by petition filed within 6 months after the grant of letters and served on the personal representative, with the Court able to extend that time for cause shown before it runs out. That combination decides real money and belongs with a Delaware attorney.

It does not cost you the basis step-up. 26 U.S.C. § 1014(a)(1) sets the basis of property acquired from a decedent at fair market value on the date of death, and § 1014(b)(2) counts property the decedent transferred during life in trust to pay the income to or at the decedent's direction, with the right reserved at all times before death to revoke, as property acquired from the decedent. A revocable trust keeps the assets in the taxable estate, which is exactly why the step-up survives. Step-up in basis in Delaware covers the rest, including what a lifetime gift does instead.

Trust Or Transfer On Death Deed

For a Delaware family whose main asset is one house, this comparison is newer than most of the advice written about it.

85 Del. Laws, c. 212 enacted the Uniform Real Property Transfer on Death Act at 25 Del. C. ch. 2, and § 203 applies the chapter to a deed made before, on or after December 4, 2025 by a transferor dying on or after that date. Delaware guidance written before that act answers a homeowner's biggest question the other way, and 12 Del. C. ch. 8, the other Delaware transfer on death statute, registers securities rather than land.

25 Del. C. § 209 sets four requirements. The deed carries what the statute calls the essential elements and formalities of a properly recordable inter vivos deed, including notarization of every signature the section requires. It is witnessed by two individuals, at least one of whom is not a beneficiary. It states that the transfer to the designated beneficiary occurs at the transferor's death. And it is recorded before the transferor's death with the Recorder of Deeds in the county where the property sits. 30 Del. C. § 5401(1)a. keeps a transfer on death deed out of the realty transfer tax the same way j.1 keeps out a deed to your own trustee, and § 5402(g) says the deed needs neither a transfer-tax affidavit under § 5409 nor an estimated income tax declaration to be recorded. Kent County prices the instrument on its own line at $88 for the first five pages and $10 for each additional page.

25 Del. C. § 215 keeps the house within reach of the estate: where the probate estate cannot cover an allowed claim or a statutory allowance to a surviving spouse or child, the estate may enforce that liability against property transferred by the deed, apportioned among parcels by net value, in a proceeding started no later than 8 months after death. The Delaware transfer on death deed covers the chapter in full.

The trust earns its cost somewhere else. Choose it where you own real estate in more than one state and want one instrument covering all of it, where distributions should be staged over time rather than handed over at once, where a beneficiary has a disability or a creditor problem calling for managed money, or where planning for incapacity matters to you as much as planning for death.

Where the estate is small enough, neither instrument may be needed. 12 Del. C. § 2306 lets a decedent's personal estate be distributed without letters where no petition for a personal representative is pending or granted, 30 days have passed since the death, known debts are paid or provided for, and the personal estate other than property described in § 1901(b) and (c) and other than jointly owned property does not exceed $50,000. That figure moved up from $30,000 by 85 Del. Laws, c. 281, § 1, approved June 10, 2026, an act that struck the old number and wrote in the new one. The section names the trustee of a trust created by the decedent among the people who may use it, so an unfunded account can still be swept up without opening an estate. The Delaware small estate affidavit covers the form and the county practice on date of death.

A Delaware Funding Checklist

  1. Confirm the signing met 12 Del. C. § 3545(a). One disinterested witness, or two credible persons, or a disinterested trustee's signature. A notary who takes nothing under the trust counts.
  2. Read the instrument for the reserved power to revoke and who holds it, because Delaware supplies no default. (12 Del. C. §§ 3303(a) and 3591(a)(4).)
  3. Deed each parcel to the trustee, and record it with the Recorder of Deeds in the county where the land sits.
  4. State on the deed or its affidavit the value and the reason the document is not subject to realty transfer tax. (30 Del. C. §§ 5401(1)j.1 and 5409.)
  5. Budget the additive recording fee for your county. A one-page deed naming one parcel runs $51 in New Castle and $51 in Kent, and $40 in Sussex, which charges no parcel fee on a deed.
  6. Retitle bank and brokerage accounts, handing over an acknowledged certification of trust rather than the instrument. (12 Del. C. § 3591.)
  7. Give the trustee written direction over your online accounts, and keep the certification of trust ready for the custodian request. (12 Del. C. §§ 5002(1), 5004 and 5005(c)(4).)
  8. Leave retirement plans, life insurance, payable-on-death accounts and beneficiary-form securities on their own designations unless an attorney tells you otherwise.
  9. Sign the pour-over will with two credible witnesses, name the trust in it, and decide whether the will should override the lapse rule. (12 Del. C. §§ 202 and 211(c).)
  10. Grant your agent express authority over the trust if you want one, because general authority does not reach it. (12 Del. C. § 49A-201(b)(1).)
  11. Write down for your successor trustee which assets were retitled and which were not, and pair the trust with the rest of a Delaware plan.

Sources:

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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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