Delaware has become one of the most recent states to enact a Uniform Real Property on Death Act. With the signing into law of House Bill 147-Substitute 1, Delaware residents have a new way to pass down real estate. This act seeks to benefit all residents, especially those from underserved communities by providing them a greater deal of self-determination. The bill does this by authorizing the use of transfer on death (TOD) deeds, allowing individuals to transfer property to beneficiaries at the time of their death while also avoiding the cost and delays of probate. All three counties will begin to accept deeds with this designation starting no later than December 5, 2025. If you are considering if a TOD deed is right for you, it is important to understand how these deeds are created and revoked as well as the effects they have during and after your life.

This act makes sure that TOD deeds contain essential elements to protect against fraud. This includes the deed clearly stating the transfer is to occur at the time of the transferor’s death, being witnessed by two individuals with notarized signatures, and the deed being recorded before the transferor’s death in public record at the local recorder of deeds office. Similarly, to revoke a TOD deed, a revocation instrument with many of the same requirements is needed. This includes being witnessed by two individuals and being recorded in public record at the same recorder of deeds office as the original deed. Transfer on death deeds and revocation forms can be conveniently found on each county’s Recorder of Deeds website.

When deciding to create a TOD deed it is important to understand the effects it has while the transferor is still alive and what happens at the time of the transferor’s death. Having a TOD deed in place during the transferor’s life does not affect their ability to transfer or encumber the property. Moreover, it does not affect the transferor or beneficiary’s eligibility for any form of public assistance. The effects of the deed only occur during the transferor’s death. At the time of death, the TOD deed takes precedent over any contrary instructions in a will. When this happens, the beneficiary takes the property subject to all conveyances, contracts, mortgages, liens, and other interest. It is important to note that if the transferor’s probate estate is insufficient to satisfy a claim against it, the estate may enforce the liability against the property transferred by the deed.

The Uniform Real Property Transfer on Death Act seeks to make it easier for individuals to pass down property to their heirs. When trying to decide if a transfer on death deed is right for you, it is important to understand how it is put in place and the affects it may have on you and your beneficiaries. For that reason, the Recorder of Deeds strongly encourages individuals to seek legal advice to fully understand the document’s scope and purpose.