Delaware: Living-Trust Trustee Deed Requirements

Requirements one by one

The trust instrument remains the first authority check

Under 12 Del. C. § 3324, a trustee may use trust-conferred powers and, unless
the trust limits them, Chapter 33 powers without court authorization. Section
3325 then expressly permits public or private sale for cash or credit,
exchange, partition, mortgage, in-kind distribution, and signing instruments
that facilitate those powers.

That statutory list does not override the document. Section 3303 permits the
governing instrument to expand, restrict, eliminate, or otherwise vary a
fiduciary's powers and duties, subject to the section's willful-misconduct
limits. The deed therefore needs both an available power and compliance with
the trust's conditions.

Two cotrustees and three cotrustees follow different defaults

HB 297 became 85 Del. Laws ch. 383 and took effect on July 23, 2026. Its
amendment to § 3323 applies to trusts whenever created. Unless the trust says
otherwise, both of two fiduciaries must exercise a power, while a majority of
three or more acts. A majority dissenter obtains the stated protection only by
delivering the dissent in writing.

Directed and divided authority is instrument-driven. Section 3313 applies when
the trust gives an adviser power to direct, consent to, or disapprove a sale or
other decision. Section 3313A separately permits exclusive allocation to one
cotrustee and tells the excluded trustee when it must follow a direction, has no
duty to act, or has no authority over the allocated power.

Ordinary statutory power does not require court preapproval

Section 3324 says the authorized powers may be exercised "without authorization
by the court." A conflict or breach is a different question. Under § 3581, a
court may compel or enjoin conduct, restore property, or—subject to § 3590's
third-party protection—void an act and trace property. Section 3588 recognizes
informed consent, release, or ratification, but not when induced by improper
conduct or given without the required knowledge.

Acknowledgment supplies the ordinary recordable-deed route

Title passes by deed under 25 Del. C. § 101. Section 121 supplies a sufficient
form containing a signature, seal, delivery language, and witness lines, but it
also preserves other valid deed forms. Section 131 is the practical safeguard:
an owner-signed and acknowledged instrument that purports to convey Delaware
land transfers the owner's interest according to its true intent even without
the owner's seal.

Sections 122 and 123 permit acknowledgment before an authorized officer and
require the certificate on or attached to the deed. Proof by one or more
subscribing witnesses is an alternative court route, not a rule that every
acknowledged deed must have a fixed number of witnesses.

The certification is useful but not a mandatory recorded companion

Section 3591 lets the trustee provide an acknowledged certification instead of
the full trust instrument. It may address the trust and execution date,
trustor, current trustees, powers, revocability, cotrustee signature authority,
taxpayer identification number, and manner of taking title. Any trustee may
sign, the certification must say no change makes its representations incorrect,
and dispositive terms may be omitted.

The recipient may demand the excerpts that designate the trustee and confer the
pending-transaction power. Section 3591 does not say every trustee deed must
attach or separately record a certification. The surveyed deed chapter likewise
states no universal certification-companion rule.

Record in the county where the land lies

Under 25 Del. C. § 151, the acknowledged or proved deed, certification of that
acknowledgment or proof, endorsements, and annexations go to the Recorder of
Deeds for the county containing the land after sealing and delivery. Section
152 limits a county recording's effect to land there, and § 153 gives the deed
priority from recording. Section 133 also requires the grantee's address on or
attached to the deed.

Purchaser protection depends on good faith and knowledge

Section 3590 protects a nonbeneficiary who in good faith and for value deals
with a trustee without knowledge that the trustee exceeds or improperly uses a
power. The person need not investigate the extent or propriety of the power
merely because the fiduciary status is known.

A certification adds a more specific reliance route. Under § 3591, a person
without knowledge of error may assume its facts without inquiry, and a
good-faith transaction may be enforced against trust property as if those facts
were correct. A bad-faith demand for the full instrument in addition to the
certification or permitted excerpts can produce damages, including attorney
fees.

What trips people up

The official compiled cotrustee section lagged the enacted law. The July 23,
2026 act now expressly distinguishes two fiduciaries, who must both act, from
three or more, who act by majority unless the trust changes the rule.

A statutory-form seal and witness lines are not the whole validity rule.
Section 131 validates the signed and acknowledged owner conveyance despite no
seal, and § 122 treats witness proof as an alternative to acknowledgment.

A certification does not create the power it describes. It can support
reliance, but the trust terms, current officeholders, directions, and § 3323
action rule still determine whether the trustee may make this conveyance.

Common questions

May one of two cotrustees sign alone? Not under the default effective July
23, 2026. Both must exercise the power unless the trust provides otherwise or
validly allocates the power.

Does the trustee need advance Court of Chancery approval? Not for an
ordinary exercise of a power supplied by the trust and §§ 3324-3325. Court
relief remains available for a breach, missing authority, or another dispute.

Must the purchaser receive the whole trust? No. Section 3591 permits an
acknowledged certification and allows the recipient to request the focused
trustee-and-power excerpts for the pending transaction.

Where is the deed recorded? With the Recorder of Deeds for each Delaware
county in which the conveyed land lies.

Statutes and sources

• 12 Del. C. §§ 3303, 3313, 3313A, 3324, and 3325 — trust control, adviser and excluded-cotrustee allocations, court-free power, sale, distribution, and instrument authority. https://delcode.delaware.gov/title12/c033/index.html (accessed 2026-08-13)
• 85 Del. Laws ch. 383, §§ 1 and 8 — current two-fiduciary unanimity, three-or-more majority, written dissent, and July 23, 2026 effectiveness for trusts whenever created. https://legis.delaware.gov/SessionLaws?volume=85&chapter=383 (accessed 2026-08-13)
• 12 Del. C. §§ 3581, 3588, 3590, and 3591 — breach remedies, consent and ratification, third-party protection, certification contents, excerpts, reliance, and improper-demand damages. https://delcode.delaware.gov/title12/c035/sc07/index.html (accessed 2026-08-13)
• 25 Del. C. §§ 101, 121-123, 131, and 133 — deed transfer, sufficient form, acknowledgment or proof, no-seal validation, and grantee address. https://delcode.delaware.gov/title25/c001/sc02/index.html (accessed 2026-08-13)
• 25 Del. C. §§ 151-153 — county recording, county-limited effect, and recording priority. https://delcode.delaware.gov/title25/c001/sc03/index.html (accessed 2026-08-13)