Question 1

What is a transfer on death deed under Delaware's Uniform Real Property Transfer on Death Act?

Accepted Answer

It is a deed you sign, have witnessed, and record while you are alive that names a beneficiary to receive your real property automatically at your death, without probate (25 Del. C. ch. 2). The statute calls it nontestamentary, meaning it works as a deed rather than as part of your will. While you live it creates no legal or equitable interest for the beneficiary, so you keep the right to sell, mortgage, or lease the property without asking anyone. It passes only the property the deed describes.

Question 2

What is the difference between a Delaware transfer on death deed and a will?

Accepted Answer

A Delaware will names who inherits, but the property still goes through probate before the Register of Wills. A transfer on death deed moves the specific property it describes straight to your beneficiary at death, outside probate. The will covers your whole estate; the deed covers one piece of real property. Where the two disagree about that property, the recorded deed controls, and a will cannot revoke it. Many Delaware owners use both, with the deed handling the house.

Question 3

Who has to witness a Delaware transfer on death deed?

Accepted Answer

Two individuals, and at least one of them must not be a beneficiary of the deed (25 Del. C. 209). Every signature the section requires must also be notarized. The optional statutory form at 25 Del. C. 216 has the witnesses swear that the owner appeared of sound mind and memory and free from undue influence or coercion, including by the witnesses themselves. Picking an independent witness who has nothing to gain is the safest way to satisfy the rule.

Question 4

Which office records a Delaware transfer on death deed?

Accepted Answer

The office of the recorder of deeds in the county where the property is located, which in Delaware means New Castle, Kent, or Sussex County (25 Del. C. 209). The recording must happen before you die; a deed found in a drawer afterwards is not effective. There is no deadline running from the date you sign, so you can record it any time during your life. If the property lies in more than one county, the statutory form directs you to record the deed in each of them.

Question 5

How do I revoke a Delaware transfer on death deed?

Accepted Answer

You record one of three instruments: a later transfer on death deed, an express instrument of revocation, or an inter vivos deed that expressly revokes the old one (25 Del. C. 211). Whichever you use must be acknowledged after the acknowledgment on the deed you are revoking, witnessed by two individuals, and recorded before your death in the county where the deed is recorded. There is an optional revocation form at 25 Del. C. 217. A revocatory act on the recorded deed itself, such as crossing it out, does not revoke it.

Question 6

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

Accepted Answer

Yes, in one situation. If your probate estate is not enough to satisfy an allowed claim against the estate or a statutory allowance to a surviving spouse or child, the estate may enforce that liability against the property the deed transferred (25 Del. C. 215). Where several properties passed this way, the liability is split in proportion to their net values at your death. Any proceeding to enforce it has to begin no later than eight months after you die. Your beneficiary also takes the property subject to any existing mortgage or lien.

Question 7

Does a Delaware transfer on death deed need a transfer tax affidavit?

Accepted Answer

No. A transfer on death deed authorized under 25 Del. C. ch. 2 does not require a transfer tax affidavit or a declaration of estimated income tax to be recorded with or accepted by a recorder of deeds for the deed to be effective (30 Del. C. 5402). That keeps the recording itself simple. Medicaid estate recovery is a separate question the act does not answer, so raise it with a Delaware attorney if it matters to your plan.

Question 8

What does my beneficiary have to do in Delaware after I die?

Accepted Answer

Very little, by design. A valid Delaware transfer on death deed transfers the real property immediately on your death, and a failure to file a notice form, a death certificate, or an inventory form does not invalidate it (25 Del. C. 218). A Register of Wills may offer a notice of death form, and a beneficiary may file your death certificate to establish the death; the Office of Vital Statistics must give a beneficiary a certified copy. If a probate estate is opened, the property still has to be inventoried. Challenges to the deed go to the Court of Chancery (25 Del. C. 219).

Delaware Transfer on Death Deed

Find out where you stand in Delaware

Introduction

Key Things to Know

Key decisions before you file

Customize your Transfer on Death Deed Template with DocDraft

Delaware Requirements for Transfer on Death Deed

Confirm the Act Applies to You

Use the Optional Statutory Form

Legal Description and Tax Parcel Number

Name an Individual Beneficiary and an Alternate

Two Witnesses, One Not a Beneficiary

Notarize Every Required Signature

Record With the Recorder of Deeds Before Death

Revoke Only by a Recorded Instrument

Does your Transfer on Death Deed need to be notarized in Delaware?

Frequently Asked Questions