Transfer on Death Deeds
A Transfer on Death Deed (TODD) allows you to inexpensively designate a beneficiary(ies) to inherit your real estate upon your death, avoiding probate. The TODD may be revoked by recording a new one, by expressly revoking it, or by an inconsistent act, such as selling the property listed on the TODD.
The TODD is working well in one form or another in more than 30 states, 19 of which follow the format of the Uniform Law Commission, such as ours.
Unless you make a TODD, Will, or Trust, you risk that your property will go to heirs determined by the state, (called "Heirs Property") and could result in legal complications known as a "Tangled Title," which can negatively impact the ability to create generational wealth. Read more about this by clicking the link below.
Before TODDs were legal in Delaware (the General Assembly unanimously passed House Substitute 1 for House Bill 147 on June 30, 2025), an option to avoid probate was to add heirs--beyond your spouse--to your deed while you were still alive. This exposed the property owner(s) to the creditors of others and caused a host of other issues.
If your real estate is owned jointly, every owner must sign the TODD.
The TODD must be recorded before your death. You may mail the original (with payment), put it in the drop box outside 555 Bay Road Dover DE 19901, or hand carry it to the customer service desk of the Recorder’s office. However, to be effective, the document must be RECORDED before the date and time of your death.
When you die--regardless of if you have a Will or a Trust or die without these things--if you have a TODD, your beneficiary(ies) takes ownership of the property immediately, subject to any existing liens, mortgages, or other encumbrances attached to the property. Though not required by law, it is best if you talk things over with your beneficiary to be sure they are willing and able to take over the joys and responsibilities of property ownership.
If you already have a Will, you may still use the TODD. It will override the Will, no matter when the Will is created. Be sure to revoke your TODD if you do a Will that conflicts to avoid confusion.
We encourage you and your beneficiaries to register for our free Property Fraud Alert software. By doing so, everyone will be notified if you subsequently change your mind about the TODD or if you fall prey to someone later attempting to add themselves as your beneficiary without your knowledge. (For more details about the growing crime of Property Theft, please see our webpages devoted to this subject.)
In conclusion, TODDs provide a way to inexpensively leave your real property to your heirs without the expense of a Will or Trust or the complexities of probate, but they are not right for everyone in every situation. Attorneys can help you decide what is the best course of action for you.
While the law does not require it, we recommend you seek the advice of an attorney for estate planning, if at all possible. There are several places in Delaware where you can get free or very low cost legal advice. For three suggestions, click here. Nothing in this website constitutes legal advise, including links to third party information online.
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Key Features
Transfer upon Death
The property transfers to the named beneficiary automatically upon the owner's death, without going through probate.
Revocability
The owner can revoke or change the TOD deed at any time before their death in three ways: 1) record a new TODD; 2) record a revocation document; or 3) by inconsistency, such as selling the property that is listed on the TODD before you die.
No Probate
The primary benefit is that the property avoids probate, potentially saving time and money for the beneficiaries.
Step-Up in Basis
When inherited through a TOD deed, the property still receives a "step-up" in tax basis, meaning the beneficiary's cost basis for capital gains tax purposes is the fair market value at the time of the owner's death, not the original purchase price, according to a YouTube video.
Important Considerations
Complexity
While a TOD deed is relatively simple, it can still lead to unintended consequences if not carefully planned, such as disinheriting other heirs, causing tax issues, or complicating matters for a surviving spouse.
Control
The property owner (owners) retains full control of the property until their death. The beneficiaries named on the TODD have no rights to the property until they inherit it automatically upon the benefactor’s death.
Alternatives
For more complex situations or greater control over the property transfer, consider other options like a Will or a living trust, which offers more flexibility and control over how and when the property is distributed, according to Nolo.
How are TODDs used in estate planning?
This LegalZoom article gives an excellent run down of how Transfer on Death Deeds can be used in estate planning across the country. Recorder Thornton has noted where this article does not conform to Delaware Law with her italicized comments. For more information about estate planning in Delaware, please navagate to the Register of Wills webpage.
LegalZoom Estate Planning Basics Online
If You Decide to Record a TODD
If You Decide to Record a TODD
Formatting Requirements
The deed needs to adhere to specific formatting standards, including font size, line spacing, and margins. Download or print a copy of the TODD and Revocation forms from our website by clicking HERE.
Include Necessary Information
The deed should include the tax parcel number of the property, the name and address of the owner, and the name and address of whoever prepared the TODD and where the document should be returned after recording. The TODD should also include the legal description of the property and the book, volume and page reference of the deed.
Notary and Witnesses
You must find two witnesses, one of whom cannot be a beneficiary, and have them and a notary witness your signature and the signatures of witnesses notarized. You must be of sound mind and memory and not under duress; the witnesses and the notary will attest to this with their signatures. You can do this yourself or seek the assistance of an attorney.
Filing with the Recorder of Deeds
The completed and notarized deed must be filed with the Kent County Recorder of Deeds before the death of the owner.
Recording Fees
There are fees associated with recording the deed. See Filing Fees HERE. Depending on the number of pages, the deed will cost between $70 and $100 plus the notary fee/attorney fee if an attorney is consulted. This is inexpensive compared to hundreds of dollars for a will and thousands for a trust.
Self-Addressed, Prepaid Envelope
If you want the recorded deed returned by mail, include a self-addressed, prepaid envelope. Otherwise, our office will contact you (at your provided email or phone number) that the documents are ready to be picked up.
Review Public Records
The Recorder of Deeds maintains public records, including deeds, and you can review your recorded TODD at their office or on the following website: US Land Records Real Property Search
Register for Property Fraud Alerts
We recommend everyone listed as a beneficiary register for the free Property Fraud Alert system here: Property Fraud Alert System Registration. If the TODD is replaced by a new one or revoked, they will be notified via email within one to five days. This is a check to prevent Fraud and Elder Abuse.
Forms
Transfer on Death Deeds in the News
The photo is of Recorder Thornton briefing a local Rotary Club about Transfer on Death Deeds. To book Recorder Thornton please send an email to Recorder@kentcountyde.gov or call 302 744 2321.