A transfer on death deed in Delaware lets you name a beneficiary who will receive your real estate automatically when you die, without probate, while you keep full ownership and control during your life. Delaware adopted the Uniform Real Property Transfer on Death Act under Title 25, Chapter 2 of the Delaware Code, and it applies to any owner who dies on or after December 4, 2025. Before this change, Delaware owners had to rely on life estate deeds, joint tenancy, or trusts to keep real estate out of probate.
The practical draw is money. Delaware charges a fee of roughly two percent on assets that pass through probate, so routing your home around the probate estate can save your heirs a real sum.
What the Deed Does While You Are Alive
Nothing, essentially. The statute classifies a TOD deed as nontestamentary and gives the beneficiary no interest in the property until your death. You can sell the house, refinance it, take out a home equity line, or record a different TOD deed naming someone else. Your beneficiary cannot object, cannot record anything against the property, and cannot be pursued by their own creditors over your house.
The statute also spells out, unusually clearly, what recording the deed does not do during your lifetime:
- It gives the beneficiary no legal or equitable interest in the property.
- It does not limit your right to sell, refinance, or otherwise deal with the property.
- It does not expose the property to claims from the beneficiary’s creditors.
- It does not affect your eligibility or the beneficiary’s eligibility for any form of public assistance.
- It does not affect the rights of your own creditors, even if they know about the deed.
Requirements for a Valid Deed
Delaware’s statute sets four requirements. Miss any one of them and the property does not pass.
- Standard recordable deed format. The document needs a legal description of the property, the names of the owner and beneficiary, and notarization of every required signature.
- Two witnesses. At least one witness cannot be a named beneficiary.
- Death-transfer language. The deed must state that the transfer to the designated beneficiary occurs at the owner’s death.
- Recording before death. File it at the recorder of deeds office in the county where the property is located. A signed TOD deed sitting in a drawer does nothing.
The witness requirement is the trap. Ordinary Delaware deeds do not require witnesses, so a notary-only TOD deed feels complete but fails. Two witnesses, at least one disinterested, are not optional.
How to Change or Revoke the Deed
Every TOD deed in Delaware is revocable, and the statute makes this absolute: even if the deed itself says it is irrevocable, you can still revoke it. That is a meaningful contrast with a life estate deed, where giving away the remainder interest is generally permanent.
To revoke, you record a new instrument before you die. Three types work:
- A new TOD deed. It can expressly revoke the earlier deed, or simply name a different beneficiary and revoke by inconsistency.
- A standalone revocation instrument. A document whose only job is to expressly revoke the prior TOD deed.
- An inter vivos deed. An ordinary lifetime deed conveying the property to someone else, so long as it expressly revokes the TOD deed.
Whichever route you take, the revocation must be acknowledged (notarized) after the original TOD deed was acknowledged, witnessed by two individuals, and recorded before your death. You cannot revoke by tearing up the deed or crossing out the beneficiary’s name.
If more than one owner signs a single TOD deed, one owner’s revocation affects only that owner’s portion. Cancelling the entire deed takes all living joint owners.
Recording Fees and Transfer Tax
File the deed at the recorder of deeds office in New Castle, Kent, or Sussex County, depending on where the property sits. Most counties accept filings in person or by mail. Recording fees are charged per page; Sussex County, for example, charges $9.00 per page.
TOD deeds are exempt from Delaware’s realty transfer tax. The tax code specifically excludes any transfer on death deed authorized under Chapter 2 of Title 25 from the definition of a taxable document. You pay the recording fee and nothing more, avoiding the 2.5% transfer tax that normally applies to property conveyances.
Tax Treatment for Your Beneficiary
Because the property passes at your death rather than during your life, the beneficiary generally receives a stepped-up tax basis equal to the fair market value on the date of death. If you bought your home for $150,000 and it is worth $400,000 when you die, your beneficiary’s basis is $400,000. A sale shortly after death produces little or no capital gains tax.
Recording the deed does not trigger federal gift tax because the beneficiary receives no interest until your death. There is no Form 709 to file for the deed itself. The property’s value is included in your gross estate for federal estate tax purposes, but the basic exclusion amount is $15,000,000 for 2026, so federal estate tax is not a concern for most property owners.
What About Medicaid
The statute says recording a TOD deed does not affect public assistance eligibility, and that is true of the recording itself. But it does not remove the property from your name. Delaware Medicaid’s five-year look-back applies to transfers of assets for less than fair market value, and because a TOD deed transfers nothing during your life, it should not trigger a look-back penalty. The flip side is that the house remains yours and counts as an available asset when Medicaid evaluates eligibility.
Delaware’s Medicaid estate recovery program reaches only the probate estate. Property that passes by TOD deed goes to the named beneficiary outside probate and is generally not reachable by recovery. Anyone weighing long-term care costs should get advice specific to their situation before choosing between a TOD deed and other tools.
When Another Tool Might Fit Better
A TOD deed is not the only way to keep Delaware real estate out of probate, and it is not always the best fit.
Life Estate Deed
A life estate deed splits ownership: you keep the right to use the property for life, and the remainderman receives the future interest immediately upon recording. That immediacy is the trade-off. You generally cannot sell or refinance without the remainderman’s cooperation, and creating the deed is a taxable gift of the remainder interest — a Form 709 filing is required if the remainder value exceeds the $19,000 annual gift tax exclusion. A life estate deed may still make sense if you want the transfer to be essentially permanent, for instance to start the Medicaid five-year clock on a property you are willing to give up control over.
Joint Tenancy With Right of Survivorship
Adding someone to the deed as a joint tenant with right of survivorship gives them full ownership at your death without probate. It also gives them an immediate ownership interest during your life: they can force a partition sale, their creditors can reach their share, and you cannot sell or refinance without them. If your goal is to pass the property at death while keeping full control now, a TOD deed is the cleaner tool.
Revocable Living Trust
A revocable trust holds title to the property during your life, with you as trustee, and distributes it at your death outside probate. Trusts allow conditions, staggered distributions, and provisions for minor beneficiaries that a TOD deed cannot handle. They cost more to set up, and the property has to be formally re-titled into the trust. An unrecorded TOD deed accomplishes nothing, and a trust where the deed was never transferred accomplishes the same nothing.
Quick Comparison
- Revocability: A TOD deed is always revocable. A life estate deed generally requires the remainderman’s consent to undo.
- Control during life: A TOD deed leaves your control intact. A life estate deed requires the remainderman’s agreement for most transactions.
- Gift tax filing: A TOD deed triggers none. A life estate deed requires Form 709 if the remainder exceeds $19,000.
- Transfer tax: A TOD deed is exempt. Other conveyances may owe the 2.5% tax unless a family exemption applies (spouses; parent and child or child’s spouse; siblings, half-siblings, or step-siblings).
- Witnesses: A TOD deed requires two. A standard deed requires only notarization.
Preparing and Filing the Deed
The deed needs the same elements as any recordable Delaware deed: the names and addresses of the owner and beneficiary, a legal description of the property (typically in metes and bounds format copied from the most recent recorded deed), the tax parcel identification number, and language stating that the transfer occurs at the owner’s death. Every signature must be notarized, and two witnesses must sign, with at least one witness who is not a named beneficiary. Delaware law also requires the grantee’s address to appear on or be attached to any deed left for recording.
Before filing, check that every name matches the owner’s identification and the beneficiary’s legal name, and that the legal description matches the existing deed exactly. Recording offices reject filings that miss formatting requirements, and errors in the legal description can cloud title for years.
File the completed deed at the recorder of deeds office in the county where the property sits. It must be recorded before your death — there is no grace period. Keep the recorded original with your other estate planning documents, and make sure your beneficiary knows the deed exists and where to find it.