A Delaware transfer on death deed lets you name someone to inherit your real estate automatically when you die, with no probate involved. The tool is authorized by Delaware’s Uniform Real Property Transfer on Death Act at Title 25, Chapter 2 of the Delaware Code, which took effect in 2025 after the General Assembly unanimously passed House Bill 147. To use it, you fill out a TOD deed form, sign it in front of two witnesses and a notary, and record it at the Recorder of Deeds in the county where the property sits. Until you die, nothing about your ownership changes.
What the Deed Does While You’re Alive
A recorded TOD deed gives your named beneficiary no rights during your lifetime. Under 25 Del. C. § 212, the deed does not give the beneficiary any legal or equitable interest in the property, does not limit your right to sell, mortgage, or otherwise transfer it, does not expose the property to the beneficiary’s creditors, and does not affect your eligibility for public assistance, including Medicaid.
That last point matters if you’re planning around long-term care. Unlike an outright gift, recording a TOD deed will not disqualify you from Medicaid or trigger a look-back penalty. The beneficiary holds nothing more than an expectation. You can revoke the deed, sell the property, or refinance it without their knowledge or consent.
What to Gather Before You Start
You need a few things in front of you before the form makes sense:
- Your current recorded deed. The Recorder of Deeds will not accept a TOD deed without the property’s complete legal description (metes and bounds, lot and block, or similar survey language), the parcel number, and the deed book and page number or instrument number from the last conveyance.
- Full legal names and current addresses for every owner on the deed. If the property is jointly owned, each owner who wants to participate must be listed.
- Full legal name and address of each beneficiary. County forms also include a space for an alternate beneficiary if your primary beneficiary dies before you.
- Two witnesses. At least one witness cannot be a beneficiary named in the deed. On county forms, neither witness can be a relative of the owner or of any named beneficiary, and the notary is barred from being a relative or beneficiary as well.
Each of Delaware’s three counties (New Castle, Kent, and Sussex) publishes its own TOD deed form through the Recorder of Deeds office. New Castle County offers a fillable form on its website with built-in instructions and a FAQ. You can also get forms at the recorder’s office in person.
Filling Out the Form
The county-issued forms follow the same basic structure. Using New Castle County’s version as a reference:
- Part A, owner information. Enter the full legal name, street address, city, state, and zip code for each owner signing the deed.
- Part B, beneficiary information. Enter the beneficiary’s full legal name and address. Fill in the alternate beneficiary section if you want a backup. You can name multiple beneficiaries to receive concurrent shares.
- Part C, property description. Attach the full legal description of the property as an exhibit. Fill in the parcel number, the county, the street address, and the deed book and page number or instrument number from your most recent recorded deed. Copy the legal description exactly from your existing deed; small discrepancies can create title problems later.
- Part D, signatures. Each owner signs, dates, and prints their name. Do not sign until you are in front of your witnesses and notary.
The deed must contain a statement that the transfer takes effect at the owner’s death. County forms include that language automatically. If you draft your own deed instead of using the county form, the statement is required by statute.
Signing, Witnessing, and Notarization
This is where Delaware TOD deeds most often fail. Under 25 Del. C. § 209, the deed must be both witnessed by two individuals and notarized. All three (two witnesses plus a notary) must be present when you sign.
At least one witness cannot be a named beneficiary. On the county forms, neither witness may be a relative of the owner or of any beneficiary, and the same rule applies to the notary. Each witness signs the deed, prints their name and address, and affirms that you appeared to be of sound mind and acted without coercion. The notary then acknowledges your signature, applies the official seal, and notes the commission expiration date. If there are multiple owners, every owner must sign in front of the witnesses and notary.
A deed that is signed but not properly witnessed is not valid. It will accomplish nothing when you die.
Recording the Deed
A signed, witnessed, and notarized TOD deed still has no legal effect until you record it. Recording must happen at the Recorder of Deeds office in the county where the property is located, and it must happen before you die. If the property spans more than one county, record it in each. An unrecorded deed is void; the property will pass through probate as if the deed never existed.
Where to Record
- New Castle County: Office of the Recorder of Deeds, 800 N. French Street, Wilmington.
- Kent County: Recorder of Deeds, Kent County Administrative Complex, Dover.
- Sussex County: Recorder of Deeds, Georgetown.
Recording Fees
Every county charges a $30 state document fee. The per-page and additional fees vary:
- New Castle County: $30 state document fee, $5 technology fee, $13 per page, and $3 for each parcel description listed in the deed.
- Kent County: $36 document fee (which includes the $30 state fee, a $1 county fee, and a $5 technology fee), $10 per page, and $5 per tax parcel.
- Sussex County: $30 document surcharge, $1 maintenance fee, and $9 per page.
For a typical two-page TOD deed covering one parcel, expect to pay roughly $50 to $65 depending on the county. Fees are due at recording. Documents that don’t meet formatting requirements may incur a non-compliance fee; Sussex County charges $30 for non-conforming documents.
No Realty Transfer Tax
A TOD deed is explicitly excluded from Delaware’s realty transfer tax. Under 30 Del. C. § 5401, a TOD deed authorized under Chapter 2 of Title 25 is not a taxable “document.” You also do not need to file Form 5402 (the Realty Transfer Tax Return), a transfer-tax affidavit, or any other form that would normally accompany a deed.
Changing or Revoking the Deed Later
You can cancel a TOD deed at any point during your lifetime. Delaware law provides three methods:
- Record a new TOD deed for the same property that either expressly revokes the earlier one or names a different beneficiary, creating an inconsistency that overrides the prior deed.
- Record a standalone instrument of revocation. Each county provides a revocation form; Sussex County, for instance, publishes one on its website.
- Convey the property during your lifetime by an inter vivos deed that expressly revokes the TOD deed.
Whichever method you use, the revocation must be acknowledged by you after the date the original TOD deed was acknowledged, witnessed by two individuals, and recorded in the same county as the original, all before you die. A revocation that isn’t recorded before death has no effect.
A will cannot revoke a TOD deed. The statute classifies TOD deeds as nontestamentary, so they operate outside the probate system. If your will says one thing and your recorded TOD deed says another, the TOD deed controls. Physically destroying the original document does nothing either; once recorded, only a properly executed and recorded revocation can undo it.
If multiple owners signed the TOD deed together, one owner’s revocation affects only that owner’s interest. To fully revoke a joint TOD deed, all living joint owners must sign the revocation.
Joint Ownership Caveat
How a TOD deed interacts with joint ownership depends on the type of ownership. If you and another person own the property as joint tenants with right of survivorship, the surviving joint tenant automatically receives the deceased tenant’s share by operation of law, and that survivorship right takes priority. A TOD deed made by joint tenants together typically names a beneficiary who receives the property only after all joint tenants have died. If one joint tenant creates a TOD deed individually, that deed takes effect only if the creator is the last surviving owner. If the creator dies first, the surviving joint tenant takes the property and the TOD deed has no effect.
Check your current recorded deed to see how you hold title (joint tenancy, tenancy in common, or tenancy by the entirety) before you assume a TOD deed will work as you expect.
What Happens When You Die
At the owner’s death, the property transfers to the designated beneficiary outside of probate. The beneficiary still has paperwork to file. Under 25 Del. C. § 218, a statutory form gives notice of the transferor’s death, and the beneficiary must file a copy of the death certificate with the Recorder of Deeds.
The beneficiary’s interest is contingent on surviving you. If a named beneficiary dies before you, that share lapses; it does not pass to the deceased beneficiary’s heirs. If you named multiple beneficiaries to receive concurrent shares, a lapsed share is redistributed proportionally among the survivors. If you named only one beneficiary and they predecease you, the TOD deed has no effect and the property passes through your estate. Naming an alternate beneficiary on the form prevents that outcome.
The beneficiary takes the property subject to every mortgage, lien, encumbrance, and other interest attached at your death. A TOD deed transfers ownership; it does not wipe out debts secured by the property. If you still owe $150,000 on a mortgage when you die, the beneficiary inherits the property with that mortgage still attached.
Creditors, Mortgages, and Taxes
A TOD deed keeps property out of probate but does not necessarily keep it away from your creditors. Under 25 Del. C. § 215, if your probate estate lacks enough assets to cover allowed claims or statutory allowances to a surviving spouse or child, those claimants can reach property that transferred through a TOD deed. If you transferred multiple properties by TOD deed, the liability is split among them in proportion to their net values at death.
On mortgages, federal law protects the beneficiary from an immediate demand for full payment. The Garn-St. Germain Depository Institutions Act prohibits lenders from enforcing a due-on-sale clause when property transfers to a relative as a result of the borrower’s death. The beneficiary can stay in the home and continue paying on the existing loan. This protection applies to residential properties with fewer than five dwelling units.
For federal income tax purposes, property that passes through a TOD deed qualifies for a stepped-up basis, just like property inherited through a will or trust. The beneficiary’s cost basis resets to the fair market value on the date of death, which eliminates capital gains tax on any appreciation during your lifetime. If the beneficiary sells shortly after inheriting, there is little or no taxable gain.
Medicaid estate recovery is a separate issue. While the TOD deed does not affect your Medicaid eligibility while you are alive, federal law requires states to recover certain Medicaid payments from deceased recipients’ estates, particularly for long-term care services provided to people 55 and older. Delaware recovers costs beyond the federal minimum. Whether property transferred by TOD deed is reachable for Medicaid recovery depends on how broadly the state defines “estate” for recovery purposes, and this is an area where consulting an elder law attorney is worthwhile before you record the deed.