Delaware House Bill 147 & Transfer-on-Death Deeds

estate planning, elder law, estate and trust administration, probate, Will, Trust, Power of Attorney, Advance Health Care Directive, Delaware

House Bill 147: Is my estate plan affected by this new law?

The Uniform Real Property Transfer on Death Act allows owners of Delaware real estate to execute and record a Transfer on Death (TOD) deed designating one or more beneficiaries who will receive the real estate upon the owner’s death, without a probate procedure.

The Act outlines the following:

Transfer on Death deeds will take precedence over any other instruction, including those in a Will
Provides the forms needed to create or revoke a TOD deed
Creates a procedure for beneficiaries to notify the Register of Wills office of a death
Ensures property subject to transfer is covered by insurance up to 60 days following date of death

Does this new law limit the benefits of a Trust? No. Consider the following:

Geographic Limitations: Delaware residents should title their in-state and out-of-state property in the formal name of their Trust, ensuring probate avoidance in Delaware and in the other state(s). This Act addresses DE real estate only.

Limited Asset Coverage: While TOD deeds can prevent real estate from being exposed to probate, they won’t help avoid probate on any other assets, including cash accounts, investments, and personal property.

Reduced Flexibility: Unlike Trusts, TOD deeds don’t allow for customizations.

There are no sale provisions in this designation, meaning real estate transfers as-is to beneficiaries, even if selling and distributing cash proceeds would be more practical.
There are no contingency designations, addressing what should happen if named beneficiaries predecease the owner.
There’s no allowance for custom directions in case beneficiaries are experiencing divorce, bankruptcy, lawsuits, the need for public benefits, and more at the time of inheritance.

Forced Co-Ownership: When multiple beneficiaries inherit real estate as joint owners, the arrangement can lead to disagreements about property use and maintenance, financial strain derived from different owners’ ability to contribute, and a requirement for all owners to agree on each decision. Forced co-ownership can be a recipe for conflict.

Exposure to Long-Term Care Costs: TOD deeds can’t shelter real estate from being exposed to, or depleted on, the costs of long-term care such as in a skilled nursing facility.

Consider Current Trends in Deed Fraud: While using a Trust doesn’t prevent deed fraud, the formality could make a person with malicious intent feel more caution. Additionally, if the Recorder of Deeds received a TOD deed filing for property already titled in Trust, this could raise red flags. Since Trusts designate beneficiaries and provide directions, there wouldn’t be a logical reason for a TOD deed form to be filed. This inconsistency could prompt closer scrutiny and help prevent fraudulent filings from being processed.

Procino-Wells & Woodland, LLC is Delaware's trusted resource for estate planning, elder law, and estate and trust administration. Serving all of Delaware from offices in Lewes and Seaford, our firm is dedicated exclusively to helping families create comprehensive estate plans, protect assets from long-term care costs, navigate Medicaid and Veterans Aid & Attendance benefits, establish supplemental needs trusts, and administer estates. Our team-based approach ensures every client receives consistent, exceptional service from our award winning attorneys and experienced staff, all women who are passionate about this area of law. Whether you're planning ahead or need immediate assistance with asset protection, our 46 years of combined experience serves Delaware families through in-person and virtual consultations. Learn more at www.pwwlaw.com.

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