By: Annmarie Bonanno
Introduction
On December 4, 2025, Delaware will become the thirty-fourth jurisdiction to authorize the transfer of real property through a Transfer on Death Deed (“TODD”), joining 32 states and the District of Columbia.1 Delaware’s Uniform Real Property Transfer on Death Act (the “Act”) was signed into law on September 5, 2025, and becomes effective 90 days after enactment.2 Passed with overwhelming support from the public, attorneys, and county officials, the Act is designed to provide homeowners with a streamlined, non-probate alternative for transferring property at death while preserving creditors’ rights.3 Lawmakers emphasized that a TODD is intended to be used as a supplement, rather than a substitute, for traditional estate planning instruments.4
Key Provisions
The Act, modeled after the Uniform Real Property Transfer on Death Act (URPTODA) of 2009, amends Delaware’s existing law to allow TODDs for real property.5 It authorizes Delawareans to execute a deed transferring real estate to a designated beneficiary, effective upon the owner’s death.6 The Act provides model forms that may be used for transfers and revocations.7 The model forms include disclaimers that an attorney should be consulted, and that the TODD or revocation will only be effective if it is recorded prior to the grantor’s death.8
Under the Act, property transferred by a TODD will remain subject to all mortgages, liens, or other interests encumbering the property at the time of the transferor’s death.9 If there is an existing mortgage on the property, the beneficiary must assume the obligation. The property also remains subject to decedent’s debts and valid claims of creditors.10
A TODD allows a grantor to name a beneficiary and an alternate beneficiary.11 If no named beneficiary survives the grantor, the property lapses to the decedent’s residual estate and passes under a will or by intestacy.12 Delaware’s enactment contains a state-specific limitation, allowing only individuals to be named as beneficiaries.13 Trusts, corporations, or other entities may not be named as a beneficiary under a TODD.14 This adds a layer of protection for Delawareans, reducing the potential for misuse of the TODD.
In order to be effective, a TODD must be recorded prior to the grantor’s death.15 It must be notarized, and witnessed by two individuals, one of whom cannot benefit from the transfer.16 The Act provides that if a TODD conflicts with the terms of a will or trust, a recorded TODD will prevail.17
Benefits and Policy Considerations
During the House Administration Committee Hearing on May 14, 2025, proponents emphasized that a TODD offers a low-cost alternative to probate, particularly beneficial for seniors and homeowners whose primary asset is their residence.18 According to AARP, only about half of Americans over age 50 currently have a valid will.19 A TODD offers these individuals an alternative when creating a full-scale estate plan seems overwhelming, or when they lack sufficient assets to justify the cost of attorneys’ fees. Without a TODD, when an owner dies intestate, title to their property may become “tangled”, with multiple heirs holding fractional interests, unpaid taxes, and unclear ownership.20 A recorded TODD publicly memorializes ownership intent, reducing post-death disputes.21
The owner retains full control of their property during their lifetime when a TODD is recorded.22 The grantor can mortgage, sell, or otherwise convey the property, and may revoke the TODD at any time before death. Because the instrument must be witnessed, notarized, and recorded, supporters argue a TODD can be more secure than a will, which remains private until death and may be lost or contested.23
The Act preserves creditor priority, keeping in line with precedent set by the Delaware courts.24 A TODD will not enable a debtor to avoid their debts by transferring their primary asset upon death. The Act states that if an estate’s assets are insufficient to satisfy a valid claim of a creditor, that liability can be enforced against a property transferred by TODD.25
Concerns and Critiques
ractical questions include the coordination of TODDs with existing wills and trusts, the role of personal representatives, and the potential for misuse. Opponents noted potential conflicts with executors regarding access to personal property within the home.26 This issue is resolved by an amendment providing clarification that an executor or administrator has authority to access personal property of the decedent located within the real property.27
Concern also exists regarding potential conflicts with the terms of a will or trust, and for possible exploitation of seniors.28 In addressing any conflict, lawmakers pointed to the Act itself, which clarifies the priority a TODD will have over a will or trust.29 Any claim of undue influence, lack of capacity, or fraud will render a TODD contestable, and the Delaware Court of Chancery retains jurisdiction over disputes, applying standards analogous to will contests.30 Additionally, county officials indicate that the instances of deed fraud in Delaware are far less common than contested wills.31
Improper use of a TODD may frustrate broader estate planning goals or tax planning objectives, particularly if the instrument is executed without being disclosed to the transferor’s attorney.32 Legislators emphasized that this concern underscores the importance of consulting an attorney.33 Where an estate plan already exists, execution of a TODD without coordination may disrupt the intent of a property owner’s overall plan.
Delaware Case Law and Likely Judicial Treatment
Rights of creditors are paramount under Delaware law, and are likely to represent the most common claims involving TODDs.34 The Court of Chancery’s treatment of questions involving creditors’ rights will likely mirror its interpretation under McGaughlin v. Farren (In re Estate of Farren), where it weighed the rights of creditors with an equitable consideration of depriving a beneficiary of their home.35 The court in Farren acknowledged that the rights of creditors take precedence over beneficiaries, even when the only available remedy for the creditor is the sale of a residence in order to pay the debt.36 In that case, the court required a trial on the merits to determine whether the circumstances warranted the sale of a residence in order to satisfy a decedent’s debt.37 After a trial, the court ultimately approved the sale of the property for resolution of payment in favor of the creditor.38 Delaware has required strict statutory compliance in prior cases involving real estate, public recording acts, and notice issues.39 When presented with a question involving a TODD, the court is likely to require strict compliance with the requirements of the Act, but may include equitable considerations in the appropriate circumstances.
Conclusion
While the Act promises to simplify the transfer of real property at death, its effectiveness will depend on proper coordination with existing estate plans, attorney oversight, and public awareness of its benefits and limitations. For Delaware homeowners who properly execute a TODD, and whose estates are free of creditor claims, the Act provides assurance that their home will be transferred to their intended beneficiary.
About the Author
Annmarie is a fourth-year student in the Evening Division at Widener University Delaware Law School and serves as the Lead Articles Editor for Volume 51 of the Delaware Journal of Corporate Law. She has several years of experience as a Senior Commercial Real Estate Paralegal and has continued to work full-time throughout law school. Annmarie hopes to practice commercial real estate law in Delaware and Pennsylvania after graduating in May 2026.
1 Which States Allow Transfer on Death Deeds?, LEGAL CLARITY TEAM (Aug. 30, 2025), https://legalclarity.org/which-states-allow-transfer-on-death-deeds/.
2 H.S. 1 for H.B. 147, § 8, 153rd Gen. Assemb., (Del. 2025).
3 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
4 Id.
5 H.S. 1 for H.B. 147, 153rd Gen. Assemb. (Del. 2025).
6 DEL. CODE ANN. tit. 25, § 203 (2025).
7 Id. at § 216.
8 Id.
9 DEL. CODE ANN. tit. 25, § 213(b) (2025).
10 Id. at § 215.
11 Id. at § 216.
12 Id. at § 213(a)(2).
13 DEL. CODE ANN. tit. 25, § 213(b) (2025).
14 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
15 DEL. CODE ANN. tit. 25, § 209(4) (2025).
16 Id. at § 209(2).
17 Id. at § 216.
18 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
19 S. Kathi Brown, Disparities in Wealth Transfer: Experiences and Expectations of Adults Ages 50-Plus, AARP RESEARCH, June 6, 2024 (2024), https://www.aarp.org/pri/topics/work-finances-retirement/financial-security-retirement/wealth-transfer-inheritance-wills/?msockid=2640297c0f5c667e334939de0e3e67f0.
20 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
21 Id.
22 DEL. CODE ANN. tit. 25 § 211 (2025).
23 Id.
24 Id. at § 215.
25 Id.
26 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb., (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
27 H.A. 1 to H.S. 1 for H.B. 147, 153rd Gen. Assemb., (Del. 2025).
28 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
29 DEL. CODE ANN. tit. 25 § 216 (2025).
30 Id. at § 219.
31 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
32 Id.
33 Hearing on H.B. 147 Before the H. Admin. Comm., 153rd Gen. Assemb. (Del. 2025), https://legis.delaware.gov/WatchAndListen?view=1&category=222.
34 DEL. CODE ANN. tit. 25 § 2105.
35 McGlaughlin v. Farren (In re Estate of Farren), 131 A.3d 817 (Del. Ch. 2016).
36 Id. at 839.
37 Id.
38 McGlaughlin v. Farren (In re Farren), Nos. 8714-VCL, 9385-VCL, 2017 Del. Ch. LEXIS 741 (Del. Ch. 2017).
39 See, e.g., Cravero v. Holleger, 566 A.2d 8 (Del. Ch. 1989); Council of Unit Owners of Pilot Point Condo. v. Realty Growth Inv’rs, 436 A.2d 1268 (Del. Ch. 1981).
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