Delaware: Revocable Living Trust Creation Requirements

Requirements one by one

Delaware's statutory framework

Title 12, Chapters 33 and 35 govern fiduciaries and trusts but do not provide
a Uniform Trust Code creation checklist. Under 12 Del. C. § 3301, a governing
instrument includes a trust agreement or declaration, court order, or other
instrument that creates or defines fiduciary duties. The cited chapters state
no general adult capacity, manifested-intent, trust-property minimum,
definite-beneficiary, same-person-role, or revocability-default rule for an
ordinary living trust.

Execution when another person's interest depends on survival

Section 3545 supplies Delaware's central form rule. When someone other than
the trustor acquires or loses an interest whose possession or enjoyment
depends on surviving the trustor, creation is void unless one of two routes is
used:

• the trustor signs—or directs another person in the trustor's presence to
  subscribe the trustor's name—and at least one disinterested person or two
  credible persons witness in writing in the trustor's presence; or
• a disinterested trustee executes the writing, whether or not anyone else
  signs.

A typical living trust directing property to another person after the
trustor's death fits that survivorship pattern. “Disinterested” means the
person has no beneficial interest that the creation, modification, or
revocation would materially increase or decrease. A notary or similar official
may serve as the witness when disinterested or credible, even if signing only
in a notarial capacity. Counterparts are permitted unless expressly prohibited,
but they remain subject to the witness requirements.

Section 3545(c) says a writing outside that survivorship-interest category is
valid if executed the same way, without eliminating other creation,
modification, or revocation means otherwise permitted by law. Section 3550
permits electronic execution under Delaware's UETA only if the document is
otherwise validly executed; electronic form does not erase § 3545's witness or
disinterested-trustee route.

Revocation and amendment

The cited chapters state no general rule making every trust revocable or
irrevocable. A trust meant to be revocable should reserve that power in its
terms. When a modification or revocation acquires or divests another person's
survivorship-contingent interest, § 3545 applies the same execution routes.
The section does not itself require delivery to the trustee.

Property, certification, and recording

The cited statutes state no universal nominal funding amount. Under 25 Del.
C. § 101, real-estate title transfers by deed. Under 25 Del. C. §§ 151 and 153,
county recording is separate and the deed gains priority when recorded.
The trust instrument or a schedule does not replace that deed.

Section 3591 permits—not requires—a trustee to provide an acknowledged
certification instead of the complete trust instrument to a nonbeneficiary.
It may state the trust's existence, trustor and trustee identities, trustee
powers, revocability and powerholder, signing authority, and how title may be
taken. A good-faith recipient without knowledge of an error may rely on it and
enforce the transaction against trust property as if the representations were
correct. Certification is not court registration and does not itself transfer
a home.

What trips people up

The two § 3545 execution routes are alternatives. The statute does not demand
both the trustor's and trustee's signatures. But a trustor-signed instrument
within subsection (a) still needs the required written witnessing, and an
interested trustee cannot substitute under the trustee-only route.

Common questions

Is notarization mandatory for the trust instrument?

Section 3545 does not impose a separate universal notarization requirement.
A notary may count as the required witness if the notary is disinterested or
credible, including when the notary signs only in a notarial capacity.

May the trust be signed electronically?

Yes, if it is otherwise validly executed. Section 3550 places the covered
documents within UETA, but the applicable § 3545 witness or trustee-execution
requirements still must be met.

Must the trust be registered with a court?

The cited creation provisions require no court registration. A certification
is optional, and a deed transferring real estate follows its separate county
recording rules.

Statutes and sources

• 12 Del. C. § 3301 — application and governing-instrument definition.
  Official current
  text
  (accessed 2026-07-30).
• 12 Del. C. § 3545 — creation, modification, and revocation execution;
  witnesses, disinterested trustee, notary, counterparts, and preserved other
  means. Official current
  text
  (accessed 2026-07-30).
• 12 Del. C. § 3550 — otherwise-valid electronic execution. Official
  current text
  (accessed 2026-07-30).
• 12 Del. C. § 3591 — optional acknowledged certification and reliance.
  Official current
  text
  (accessed 2026-07-30).
• 25 Del. C. §§ 101, 151, and 153 — deed transfer, county recording, and
  priority. Deed rule
  and recording rules
  (accessed 2026-07-30).