Clear Money Guide
What this state guide covers
A quick view of the questions, practical details and source notes below.
Updated August 3, 2026. Quick answer: Delaware’s transfer on death deed is a recent addition — enacted by 85 Del. Laws c. 212. Its execution rule is stricter than most: two witnesses, and at least one of them cannot be a beneficiary.
The requirements, in full
A transfer on death deed must meet all of the following: contain the essential elements and formalities of a properly recordable inter vivos deed, including notarization of all signatures required under this section. Be witnessed by 2 individuals, at least 1 of whom must not be a beneficiary. State that the transfer to the designated beneficiary is to occur at the transferor’s death. Be recorded before the transferor’s death in the public records in the office of the recorder of deeds of the county where the property is located.
— Del. Code tit. 25 ch. 2 (subsections joined for readability; no words added)
Read requirement two carefully. Two witnesses is not enough on its own — at least one must have no interest in the deed. The natural move, asking the two adult children who are inheriting to sign as witnesses, fails.
Delaware’s own form tells you to get advice
You May Want to Consult a Lawyer Before Using This Form. This form must be recorded before your death, or it will not be effective.
— Del. Code tit. 25 ch. 2
That is the statutory form’s own language. When the legislature writes the warning into the form it publishes, it is worth taking at face value.
Capacity, revocability, nontestamentary
Section 208 sets capacity at the same level as making a will. Section 206 makes the deed revocable even if the deed says otherwise. Section 207 confirms it is nontestamentary — not a will, and not passing through one.
What a transfer on death deed does not do
- It moves one parcel, not an estate. It avoids probate on that property; everything else is untouched, so it is not a substitute for a will.
- It does not take effect until death — the owner keeps full control and can sell, mortgage or revoke without the beneficiary’s agreement.
- It does not clear debts. A mortgage, lien or judgment passes with the property.
- It does not override how the property is titled. Joint ownership and survivorship rights generally come first.
Honest gaps
We have quoted §§ 206 to 209 of title 25 chapter 2 and the statutory form’s warning language. The revocation mechanics and the provisions on beneficiary predecease and creditor claims are not reproduced here. This is the statute, not legal advice. Deed drafting, title and recording practice vary by county, and a property with a mortgage, co-owners or a disputed title is one to take to a lawyer in the state.
Source note. Read from https://delcode.delaware.gov/title25/c002/index.html on 2026-08-04.
Related: transfer on death deeds by state · how it compares with a living trust · what it actually avoids.
General information drawn from state statutes and official state or court forms, not legal advice. These instruments are governed by the law of the state where the property sits or the document is signed, and formalities differ from state to state — execution, witnessing and recording requirements are the parts that void a document when they are missed. Your own state’s current statute governs.
A transfer-on-death deed keeps one asset out of probate; whether the rest of the estate has to go through it is a separate test, and the answer is on when probate is required in Delaware, which gives Delaware’s qualifying value for the small-estate route and what that route does not reach.