For Delaware families, passing down a home just got a bit easier.
By: Michael E. Kozikowski Sr., Guest Contributor
Delaware has enacted the Transfer on Death Act, creating a new way for residents to pass real estate directly to heirs without the cost and delays of probate. Sponsored by Representative Harris and Senator Lockman, House Bill 147-Substitute 1 allows property owners to use a TOD deed to name beneficiaries who will automatically inherit property upon the owner’s death.
TOD deeds work much like naming a beneficiary on a bank account or life insurance policy. It has no effect while the owner is alive—the property can still be sold, mortgaged, or otherwise transferred at any time. It only takes effect at death, transferring ownership directly to the beneficiary and helping families avoid probate.
For a TOD deed to be valid, it must be notarized, signed before two witnesses (whom are not a beneficiary), and recorded with the county Recorder of Deeds before the owner’s death. Beneficiaries do not need to sign or be notified in advance, though it’s helpful for them to be made aware to avoid confusion later. It can be revoked at any time by filing a revocation, recording a new TOD deed, or transferring the property during life.
Importantly, TOD deeds are exempt from Delaware’s realty transfer tax. Standardized forms will be available on all the county recording offices website to make both creating and revoking these deeds more accessible to the public.
When a property passes through a TOD deed, it transfers with any existing mortgages or liens still attached. Creditors are protected, as debts and statutory allowances can be recovered from the property if the estate lacks sufficient assets. As real estate is often a family’s greatest asset, transfers previously required lengthy probate. With TOD deeds, a parent can leave their home directly to their child without court involvement.
“The reason for my ongoing support of this bill is the benefit it would bring to underserved communities, affording them a greater degree of self-determination when it comes to their loved ones and property. A recent study performed by the AARP shows that many individuals in these communities do not create a will before death, leaving their loved ones with the consequences of probate,” stated New Castle County Recorder Michael E. Kozikowski Sr.
With this Act, Delaware joins more than 30 other states that have enacted similar laws, promoting consistency in estate planning across the country. The measure reflects a bipartisan effort to reduce red tape and give residents more control over how property passes at death.
New Castle County’s Recorder of Deeds office has been working closely with Kent and Sussex Counties to prepare for the acceptance of TOD deeds. New Castle and Sussex Counties will begin recording these documents on December 4, 2025, while Kent County weighs an earlier start.
The December 4th start date is important: if a property owner passes away before December 4, 2025, the TOD deed will not be valid. In those cases, heirs or loved ones would still need to rely on a will, estate proceedings, or other legal documentation to transfer ownership.
To help residents prepare, TOD deed forms will be posted on our website in the coming weeks leading up to the December 4th launch date. As with any document recorded in our office, we strongly encourage individuals to seek legal advice to fully understand this document’s purpose and scope, while determining if it is the right option for their circumstances. Our office is proud to provide this new option for families and remains committed to serving the public with clear and efficient service.
Michael E. Kozikowski Sr. is the Recorder of Deeds for New Castle County, serving six consecutive terms. During his tenure, he has introduced initiatives aimed at improving transparency and accessibility for residents of New Castle County.