Transfer-on-Death Deed Requirements in Delaware

At a glance

Delaware now allows a transfer-on-death deed under 25 Del. C. Chapter 2, the Uniform Real Property Transfer on Death Act. The new chapter applies when the owner dies on or after December 4, 2025. Delaware did not adopt the usual no-witness Uniform Act rule: its deed requires a notary and two witnesses. § 202 limits the transferor and beneficiary to individuals and defines the covered property as an interest in Delaware real property transferable at death.

Requirements one by one

How to sign it

Under § 209, the deed must contain the elements of a recordable lifetime deed, including “notarization of all signatures required under this section.” It must also be “witnessed by 2 individuals,” and at least one witness must not be a beneficiary. The deed must say that the transfer occurs at the owner's death.

The beneficiary does not sign or accept during the owner's life. § 210 makes the deed effective without notice, delivery, acceptance, or consideration.

Recording

Section 209(4) requires recording before the owner's death in the recorder of deeds' office for the county where the property lies. If land crosses a county line, record in each county. There is no separate number of days after signing, but an unrecorded deed has no effect after death.

Revocation

Under §§ 206 and 211, the deed is revocable despite a contrary term, and the owner may record a later inconsistent TOD deed, an express revocation, or an inter vivos deed that expressly revokes the TOD deed. The revoking instrument must be acknowledged after the original deed, witnessed by two individuals, and recorded before death. A will does not satisfy those recorded-instrument requirements.

Beneficiary survival and what passes

Under § 213, a beneficiary must survive the owner or the gift lapses. Multiple beneficiaries take equal undivided shares without a right of survivorship, and a lapsed share shifts proportionally to the surviving beneficiaries. A surviving joint owner's own right of survivorship comes first; the TOD deed works for joint ownership only if the person who made it is the last surviving joint owner.

The beneficiary receives only the title the owner had. The property passes without a title warranty and remains subject to mortgages, liens, contracts, encumbrances, and other interests existing at death.

Creditor and Medicaid reach

During life, § 212 says the deed creates no beneficiary interest and does not change the owner's creditor rights or public-assistance eligibility. After death, § 215 lets the estate reach the transferred property if the probate estate cannot pay allowed claims or the spouse's or child's statutory allowance. The enforcement proceeding must begin within eight months after death.

Delaware's Medicaid statute is broader still. Section 5001 defines the recovery estate to include “all real property,” and §§ 5002-5003 authorize a lien against qualifying long-term-care recipients' real property and recovery from the estate or sale of liened property, subject to the statute's family-occupancy protections. A TOD deed is not a blanket Medicaid-recovery shield.

What trips people up

• Both witness and notary formalities matter. Delaware requires two witnesses plus notarization of all required signatures; one witness must not be a beneficiary.
• Revocation also needs two witnesses. Tearing up the deed or changing a will does not revoke a recorded TOD deed. Record a compliant revoking instrument before death.
• Do not choose a made-up co-ownership option. The statute's default for several beneficiaries is equal undivided shares with no right of survivorship.
• The Act is new. The applicable date is December 4, 2025, so older Delaware estate planning materials that say TOD deeds are unavailable are stale.

Common questions

Can one witness also be the beneficiary? Yes, but only one. Section 209 requires at least one of the two witnesses to be someone other than a beneficiary.

Does my beneficiary need to sign or know about the deed? No. Section 210 requires no notice, delivery, acceptance, or consideration during your life.

Can my will change the beneficiary later? No. Use a witnessed, acknowledged, and recorded revocation or later TOD deed under § 211.

Does the deed protect the home from debts or Medicaid? No. Existing liens remain, the estate has an eight-month route to enforce unpaid claims against the property, and Delaware's Medicaid law reaches all real property in its recovery-estate definition and lien process.

Statutes and sources

• 25 Del. C. §§ 201-221 (Uniform Real Property Transfer on Death Act, including definitions, applicability, execution, revocation, effect, and creditor liability) — https://delcode.delaware.gov/title25/c002/index.html (accessed 2026-07-12)
• 25 Del. C. §§ 5001-5003 (Medicaid estate definition, real-property lien, and estate recovery) — https://delcode.delaware.gov/title25/c050/index.html (accessed 2026-07-12)