In 2025, Delaware enacted the Uniform Real Property Transfer on Death Act (House Bill 147), creating the Transfer on Death Deed — a revocable, recorded document that lets property owners name beneficiaries who inherit the property automatically at death, with no court involvement required (Reger Rizzo & Darnall). As that law settles into practice in 2026, homeowners across New Castle, Kent, and Sussex counties have a powerful new tool for passing real estate to heirs without the cost and delay of probate.
Team Freebery — the eXp Realty real estate team serving buyers and sellers throughout all of Delaware — has been helping clients since 2005 and is approaching 1,000 real estate transactions, giving it a front-row seat to how this law is changing estate-planning conversations for Delaware homeowners (Team Freebery).
For homeowners throughout New Castle, Kent, and Sussex Counties, this law opens an estate-planning option that did not exist before 2025. If you own Delaware real estate and want to keep control of your property during your lifetime while simplifying what happens after, a TOD deed is worth understanding — even if you ultimately decide a trust or will fits better.
The Transfer on Death Deed — often called a TOD deed or TODD
A Transfer on Death Deed is a recorded legal document that names the person or people who will receive a specific piece of real estate when the property owner dies. Unlike adding a beneficiary to your deed during your lifetime — which gives them a present ownership interest — a TOD deed gives the beneficiary no ownership rights while you are alive. You remain the sole owner.
The law, codified in Title 25, Chapter 2 of the Delaware Code, was signed by Governor Matt Meyer on September 5, 2025, and took effect 90 days later (Delaware Code Online). New Castle County Recorder Michael E. Kozikowski Sr. highlighted the benefit for underserved communities, noting that "many individuals in these communities do not create a will before death, leaving their loved ones with the consequences of probate" (New Castle County). All three Delaware counties — New Castle, Kent, and Sussex — collaborated on uniform TOD and RTOD forms, which became available on December 5, 2025 (Sussex County).
The concept is straightforward: think of a TOD deed like a payable-on-death bank account, but for your house. The property transfers automatically at death, bypassing the probate process that would otherwise require opening an estate with the Register of Wills, filing inventories and accountings, and paying administrative costs before the property could pass to your heirs. As Cooper Levenson attorneys Michael Salad and Delia Clark explain, "the homeowner maintains full control over the property" during life — they "may sell or mortgage the property, or revoke the TOD deed" (Cooper Levenson).
What Does a Delaware TOD Deed Allow You to Do?
A properly recorded Transfer on Death Deed gives the property owner significant flexibility while reserving full control during their lifetime. Under Delaware law, the owner retains the right to sell, mortgage, or otherwise transfer the property at any time — the beneficiary has no legal standing to prevent it (Cooper Levenson). The Delaware Code is explicit: during the transferor's life, a TOD deed does not affect the owner's right to transfer or encumber the property, nor does it create any legal or equitable interest in favor of the beneficiary (Delaware Code § 212).
The beneficiary does not need to accept the deed during the owner's lifetime for it to be effective, and no consideration is required (Delaware Code § 210). You can also name a trust or an LLC as your beneficiary — the law defines "person" to include business entities and trusts, giving homeowners even more flexibility in estate planning (Cooper Levenson).
Does a Transfer on Death Deed Avoid Probate in Delaware?
Generally, yes. A properly executed and recorded TOD deed allows the specific real estate covered by the deed to pass to the designated beneficiary outside of the normal probate process. New Castle County Recorder Michael E. Kozikowski Sr. said the new law is especially valuable for families who do not have a will: "Instead of getting only a percentage of what's left after probate, the beneficiary receives the full property right away" (Delaware Live).
Before this law took effect in December 2025, most Delaware real property had to pass through probate even when the real estate was the only asset in the estate. That meant filing inventories, accountings, and paying administrative costs before the property could reach beneficiaries (Reger Rizzo & Darnall). A TOD deed eliminates that step for the specific real estate it covers.
However, the deed applies only to the property described. It does not affect other assets, replace a complete estate plan, or address what happens to property that is not owned at death — for example, if the owner sold the property during their lifetime, the deed transfers nothing. Individual circumstances vary, and property owners should discuss their situation with a qualified attorney.
What Are the Legal Requirements for a Valid TOD Deed?
Delaware law (Title 25, Chapter 2, § 209) sets specific requirements. A valid Transfer on Death Deed must:
Contain the essential elements of a properly recordable inter vivos deed, including a legal description of the property
State explicitly that the transfer to the designated beneficiary occurs at the transferor's death
Be witnessed by two individuals, at least one of whom must not be a beneficiary named in the deed
Be notarized — all required signatures must be acknowledged
Be recorded before the property owner's death in the Recorder of Deeds office for the county where the property is located (Delaware Code § 209)
The capacity required to make or revoke a TOD deed is the same as the capacity required to make a will in Delaware (Delaware Code § 208).
Can a Transfer on Death Deed Be Changed or Revoked?
Yes — and it remains revocable even if the deed itself says otherwise. Delaware law (§ 206) makes clear that a TOD deed is revocable regardless of any contrary language in the deed or another instrument (Delaware Code § 206).
To revoke a recorded TOD deed, the property owner must record one of the following before their death: a new TOD deed that revokes the prior one expressly or by inconsistency, a written instrument of revocation explicitly revoking the deed, or an inter vivos (standard) deed that expressly revokes it. The revocation must be witnessed by two individuals, acknowledged after the original deed was recorded, and recorded in the same county (Delaware Code § 211). Notably, you cannot simply mark up or destroy the original deed — after recording, a TOD deed cannot be revoked by a revocatory act on the document itself (Delaware Code § 211(c).
Can You Still Sell or Mortgage the Property?
Absolutely. A TOD deed does not take away the owner's ability to sell, refinance, or otherwise encumber the property during their lifetime. The Delaware Code is unambiguous: during the transferor's life, the deed does not affect the owner's right to transfer or encumber the property, nor does it create any legal or equitable interest for the beneficiary (Delaware Code § 212).
If the owner sells or otherwise transfers the property before death, the TOD deed simply has no effect — there is no remaining interest for the deed to transfer. The same applies to mortgages and liens: a beneficiary takes the property subject to any existing encumbrances at the owner's death (Delaware Code § 213).
What Happens to Mortgages and Liens?
A Transfer on Death Deed does not erase existing financial obligations. The Delaware Code is clear: a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests that existed at the transferor's death (Delaware Code § 213).
This means if the property has a mortgage balance, the beneficiary inherits the house with the mortgage still attached. A TOD deed is a method of transferring ownership — it is not a way to eliminate debts. Similarly, any tax liens, judgment liens, or mechanic's liens recorded against the property continue to apply after transfer.
Additionally, if the transferor's probate estate is insufficient to satisfy creditor claims or statutory allowances to a surviving spouse or child, the estate may enforce liability against the TOD-transferred property. This liability runs for up to eight months after the transferor's death (Delaware Code § 215). As a practical matter, homeowners should consider this a simplifying tool — not a complete shield against estate debts.
Is a Transfer on Death Deed Right for Every Homeowner?
Not necessarily. A TOD deed is a useful tool in the right circumstances, but estate planning involves more than determining who receives a home. Delaware's new law provides a streamlined option, but homeowners should weigh several factors:
Multiple property owners — If you own property jointly, all living joint owners must consent to revoke a TOD deed. The rules differ for joint tenants, tenants by the entirety, and tenants in common (Delaware Code § 211).
Blended families — A TOD deed transfers property outright to named beneficiaries. If your goal is to provide for a spouse for life and then pass the property to children from a prior marriage, a trust may be more appropriate.
Minor or disabled beneficiaries — A TOD deed delivers the property directly. If the beneficiary is a minor or receives public benefits, outright transfer may create complications that a properly drafted trust would avoid. Homeowners should discuss such situations with a qualified attorney.
Creditor exposure — While the beneficiary's creditors cannot touch the property during the owner's lifetime, the property may be subject to the transferor's creditors after death if the probate estate is insufficient.
Coordination with a will or trust — A properly recorded TOD deed supersedes conflicting provisions in a will for that specific property (Delaware Code § 207). Property owners should ensure their full estate plan is consistent.
A New Option Worth Understanding
Delaware's Transfer on Death Deed gives homeowners another tool for determining how their real estate will pass to loved ones. For the right situation — a single owner, a straightforward family structure, a desire to avoid probate for a primary residence — it can simplify what would otherwise be a court-supervised process.
As noted by the attorneys at Reger Rizzo & Darnall, complications can arise when an estate has debts but no liquid assets to cover them, which can result in litigation (Reger Rizzo & Darnall). And as Cooper Levenson emphasizes, since the deed limits a transferor's ability to safeguard property for future beneficiaries, homeowners should consult with an attorney to ensure the TOD deed fits with their broader estate plan (Cooper Levenson).
For Delaware homeowners, understanding changes that may affect real property is an important part of making informed decisions. Team Freebery has helped Delaware buyers and sellers navigate nearly 1,000 real estate transactions since 2005. When legal or estate-planning questions arise, we always encourage property owners to consult the appropriate qualified professionals.
A TOD deed is not a substitute for a full estate plan. It does not address minor beneficiaries, disabled beneficiaries, blended family situations, or creditor claims beyond those attached to the property itself. Homeowners should review their entire plan with a qualified attorney before recording a TOD deed.
