Delaware: Transfer-on-Death Deed Requirements
The short answer
Yes. Delaware's Uniform Real Property Transfer on Death Act has applied since December 4, 2025. The owner must sign a notarized deed before two witnesses—at least one witness cannot be a beneficiary—and record it with the county recorder of deeds before death; the deed remains revocable and gives the beneficiary no present interest.
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This is the general rule in Delaware. Ezel applies current Delaware law to your specific facts and answers with citations to the statutes.
| Governing law | Delaware Uniform Real Property Transfer on Death Act, 25 Del. C. §§ 201-221 (85 Del. Laws ch. 212; applicable to deeds made before, on, or after Dec. 4, 2025, when the transferor dies on or after that date) |
|---|---|
| TOD deed available? | Yes — a statutory revocable transfer-on-death deed for Delaware real property (25 Del. C. §§ 203, 205) |
| How to sign it | Transferor signs; every required signature must be notarized; 2 witnesses required, with at least 1 witness not a beneficiary. Beneficiary need not receive, accept, or know of the deed during life (25 Del. C. §§ 209-210) |
| Recording requirement | Must be recorded before the transferor's death with the recorder of deeds in each county where the property is located; no fixed signing-to-recording deadline beyond record-before-death (25 Del. C. § 209(4)) |
| Revoking it | Revocable until death by a later TOD deed, an express revocation, or an inter vivos deed that expressly revokes; revoking instrument must be acknowledged, witnessed by 2, and recorded before death. A will cannot revoke it (25 Del. C. §§ 206, 211) |
| Eligible property & owner | An individual owner may transfer an interest in Delaware real property to 1 or more individual beneficiaries. A surviving joint owner's right of survivorship controls; the TOD deed works if the transferor is the last surviving joint owner (25 Del. C. §§ 202, 205, 213(c)) |
| Beneficiary survival & effect | Beneficiary must survive the transferor or the gift lapses; multiple beneficiaries take equal undivided shares with no right of survivorship, and a lapsed share shifts proportionally to the survivors. Property passes without warranty and subject to existing mortgages, liens, and other interests (25 Del. C. § 213) |
| Creditor & Medicaid reach | During life, the deed does not affect the owner's creditors or public-assistance eligibility (§ 212). After death, the estate may reach TOD property if the probate estate is insufficient, but must sue within 8 months (§ 215). Delaware Medicaid can recover from all real property in its statutory 'estate' and from property subject to a lifetime lien (25 Del. C. §§ 5001-5003) |
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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)
Source links
Every statute quoted above, linked, with the date we checked it.
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