Revocable Living Trust Creation Requirements in Delaware

At a glance

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).