Key facts (checked Oct 11, 2026)
- Law: House Substitute 1 for HB 147 (153rd General Assembly), 85 Del. Laws c. 212, signed Sept. 5, 2025, effective Dec. 4, 2025 (session law).
- Code: 25 Del. C. ch. 2, §§201-221, the Uniform Real Property Transfer on Death Act (delcode.delaware.gov).
- Formalities: notarized, two witnesses (at least one not a beneficiary), recorded with the county Recorder of Deeds before death (§209).
- Beneficiary takes subject to mortgages and liens, with no warranty of title (§213).
- A TOD deed is excluded from Delaware realty transfer tax (30 Del. C. §5401, as amended by the same law).
What is a transfer-on-death deed in Delaware?
A transfer-on-death deed is a recorded deed that names who gets your Delaware real estate when you die, without probate. Nothing passes while you are alive: you keep full ownership, can sell or mortgage the house, and can change your mind. Delaware's version took effect December 4, 2025, under 25 Del. C. chapter 2.
The law is House Substitute 1 for House Bill 147, signed September 5, 2025, as 85 Del. Laws c. 212; the bill record lists the December 4, 2025 effective date. It applies to owners who die on or after that date, even if the deed was signed earlier (§203). The deed is revocable even if it says otherwise (§206), it is not a will (§207), and it gives the beneficiary no rights during your life (§212). Only individuals can make one or be named as beneficiaries (§§202, 205).
How do you make a valid TOD deed in Delaware?
You need the same mental capacity as for a will. The deed must be signed, notarized, witnessed by two people with at least one who is not a beneficiary, and recorded with the Recorder of Deeds in the county where the property sits, before you die. An unrecorded TOD deed does nothing.
Sources: §§208-210. No consideration, delivery or acceptance by the beneficiary is needed. The statute includes optional fill-in forms for the deed and for a revocation (§§216-217), and the county offices publish their own. Kent County's Recorder of Deeds lists the TOD deed recording cost at $88 for the first five pages and $10 per page after that, says every joint owner must sign, and offers fraud alerts when a TOD deed is replaced or revoked. New Castle County also has a TOD deed page and form; confirm its current fees directly. Fees checked Oct 11, 2026.
How is a TOD deed different from a will or probate?
A will only works through probate at the Register of Wills, which takes months and needs a personal representative. A TOD deed transfers the house directly at death. It controls even if your will says something different, and you cannot revoke it by will. Revoking it takes a new recorded document.
| Question | TOD deed | Will | No plan (intestate) |
|---|---|---|---|
| Probate needed for the house? | No | Yes | Yes |
| Who decides who gets it? | You, on the recorded deed | You, in the will | Delaware's intestacy rules |
| Can you change it? | Yes, with a recorded revocation or new deed, witnessed | Yes, with a new will or codicil | N/A |
| Can a later will override it? | No (§216) | N/A | N/A |
| Public before death? | Yes, it is recorded | No | N/A |
To revoke, record a later TOD deed, an instrument of revocation, or a regular deed that expressly revokes it, acknowledged and witnessed by two people, before death. Tearing up your copy does not work (§211). For how probate works, see the Delaware Register of Wills guide and Kent County Register of Wills.
What does a Delaware TOD deed not fix?
A TOD deed does not fix a title that is already tangled. Kent County's Recorder says it cannot record one unless title is already clear, so a house still in a late parent's or grandparent's name needs probate or a court fix first. It also does not remove mortgages, liens or creditor claims.
- Tangled or heirs' property: the Recorder's TOD explainer and heirs' property page say TOD deeds suit simple situations and list fixes for heirs' property, such as quiet title or delayed probate.
- Mortgages and liens: the beneficiary takes the property subject to every mortgage, lien and encumbrance, with no warranty of title (§213(b), (d)). A reverse mortgage or unpaid taxes still have to be dealt with.
- Creditors: if the probate estate can't pay allowed claims, the estate can reach TOD property; claims must be brought within 8 months of death (§215).
- Tenants in common: joint-owner survivorship rules cover joint tenants and tenants by the entirety, not tenants in common (§202(3), §213(c)).
If the house already has title problems, see selling with liens or title problems and when heirs disagree.
What happens after the owner dies?
The house passes to the surviving beneficiaries in equal shares, without survivorship between them, unless the deed says otherwise. A beneficiary who dies first is dropped. Beneficiaries can record a death certificate, and failing to file a notice form does not invalidate the transfer. Then they can keep, rent or sell.
Sources: §213(a), §218. With joint owners, the deed only takes effect when the last joint owner dies (§213(c)). The same law gives a TOD beneficiary insured status under the owner's property policy for 60 days after death (new 18 Del. C. §2720A, in the session law), so call the insurer quickly about a vacant house. Disputes over validity go to the Court of Chancery (§219). Delaware has no inheritance tax and repealed its estate tax for deaths after 2017 (Title 30); federal estate tax and income tax on a later sale are separate questions for a tax professional.
Can beneficiaries sell a house received by TOD deed?
Yes. Once the transfer is effective and documented, the beneficiaries own the house and can sell it like any owner, with all of them signing. The settlement attorney will check the recorded TOD deed, the death certificate, liens and any creditor issues before closing. It is usually far faster than selling through probate.
If you inherit a house this way and don't want to keep it, we buy as-is, contents included. Delaware sales close at a licensed Delaware settlement attorney; Maryland and Pennsylvania sales close at a licensed title company or settlement attorney. See selling an inherited house or call (302) 525-0787. For setting up a TOD deed, talk to a Delaware estate-planning attorney.
General information, not legal or tax advice. Delaware sales close at a licensed Delaware settlement attorney; Maryland and Pennsylvania sales close at a licensed title company or settlement attorney.
Want to see your options?
Tell us about the house. We'll lay out every option that fits, with the numbers, and no obligation.
Get My Written Offer Call (302) 525-0787Frequently asked questions
When did Delaware's transfer-on-death deed law take effect?
December 4, 2025. It was House Substitute 1 for HB 147, signed September 5, 2025, now 25 Del. C. §§201-221.
Does a Delaware TOD deed need witnesses?
Yes. It must be notarized and witnessed by two people, at least one of whom is not a beneficiary, and recorded before the owner dies (§209).
Can I revoke a TOD deed with my will?
No. A TOD deed controls over a contrary will. Revoke it with a recorded, witnessed revocation, a later TOD deed, or a deed that expressly revokes it.
Does a TOD deed avoid the mortgage?
No. The beneficiary takes the property subject to all mortgages, liens and encumbrances.
Can I record a TOD deed if the house is still in my late parent's name?
Generally no. Kent County's Recorder says title must already be clear. Fix the title first through probate or a court process.
Sources
- 25 Del. C. ch. 2, Uniform Real Property Transfer on Death Act
- 85 Del. Laws c. 212 (HS 1 for HB 147)
- Delaware General Assembly: HB 147 bill detail
- Kent County Recorder of Deeds: Transfer on Death Deeds
- Kent County: New option to avoid Tangled Titles in Delaware
- Kent County: What is Heirs' Property
- New Castle County: Transfer on Death Deeds
- Delaware Code Title 30 (inheritance and estate tax chapters repealed)
General information, not legal, tax, or financial advice. Facts checked Oct 11, 2026 against the official sources above. Laws, fees, and schedules change; confirm with the office named or your attorney.
