To make a living trust in Delaware, you sign a written trust instrument naming your trustee and beneficiaries, executed in the manner Delaware trust law requires for the type of trust you are creating, then retitle your assets into the trust so it actually holds them instead of just sitting as a document in a drawer.
Key Takeaways
- Delaware trust execution requirements for certain written trusts are set out in 12 Del. C. section 3545.
- A living trust only protects the assets you actually retitle into it. An unfunded trust does not avoid probate.
- Real estate transferred into a Delaware trust requires a new deed recorded with the recorder of deeds in the county where the property is located.
- Delaware is known nationally for flexible trust law, but a simple revocable living trust for probate avoidance does not require the state's more advanced structures like asset protection trusts.
What Is a Living Trust Under Delaware Law?
A living trust, or inter vivos trust, is a document you create during your lifetime that holds legal title to your property, managed by a trustee, for your own benefit and later for your named beneficiaries. Delaware's trust statutes are codified at Title 12, Chapter 35 of the Delaware Code, which governs how trusts are created, modified, and administered in the state.
Delaware residents most often set one up to keep real estate and other titled assets out of Delaware's Court of Chancery and Register of Wills probate process.
Who Can Create a Trust in Delaware?
You need the same general legal capacity Delaware expects for other legal documents: an understanding of what you own, who your natural beneficiaries are, and what the trust document actually does. If capacity is a concern, for example following a serious illness, get a contemporaneous medical evaluation documented rather than relying on it holding up years later without evidence.
What Does Delaware Law Require to Create a Valid Trust?
Delaware's trust statute, 12 Del. C. section 3545, addresses limitations on oral trusts and execution requirements for written trusts, providing that where a person other than the settlor acquires or is divested of an interest contingent on surviving the settlor, the trust must be executed by the settlor and witnessed in writing by at least one disinterested person, or executed by a disinterested trustee. Beyond this specific execution rule, Delaware trusts generally follow the common law elements of a valid trust: a capable settlor, clear intent, identifiable trust property, an ascertainable beneficiary, and a trustee with real duties. For a general explanation of these elements, see Cornell Law School's Legal Information Institute.
In practice, this means your Delaware living trust should be a single signed written document, properly witnessed, naming your trustee and beneficiaries clearly.
How Do You Fund a Living Trust in Delaware?
Funding means actually retitling your property into the trust's name.
- Real estate: a new deed naming the trustee, signed and recorded with the recorder of deeds in the county where the property sits.
- Bank and brokerage accounts: retitled in the trust's name through your institution's own paperwork.
- Vehicles: Delaware Division of Motor Vehicles has its own titling process for trust-owned vehicles.
- Business interests: assignment documents specific to the entity.
Recording fees and realty transfer tax treatment can vary, so confirm specifics with your county recorder of deeds before recording a new deed. See how to fund a trust for a fuller walkthrough.
Who Should Serve as Successor Trustee?
Your successor trustee manages trust property if you become incapacitated and distributes it after you die, without court supervision. Pick someone dependable and organized, and name a backup. See how to choose a successor trustee for more.
Can a Delaware Living Trust Be Revoked?
Yes, a properly drafted revocable trust can be amended or canceled by the settlor at any point while they retain capacity, unless the trust instrument states it is irrevocable. If you are weighing a revocable trust against Delaware's more specialized irrevocable structures, revocable vs irrevocable trust breaks down the basics.
Do You Still Need a Will With a Delaware Trust?
Yes. A pour-over will catches anything you forget to retitle and remains the only document that names a guardian for minor children. If you have not decided between a trust and a will, do I need a trust or just a will can help.
What Mistakes Should You Avoid When Making a Delaware Living Trust?
Most problems with a Delaware living trust trace back to a handful of avoidable mistakes rather than anything wrong with the trust document itself.
- Signing the trust and then never retitling anything, which leaves every asset in probate anyway.
- Forgetting to update beneficiary designations on retirement accounts and life insurance, which pass outside the trust regardless of what the trust says.
- Naming a successor trustee without naming a backup, so the plan stalls if that person cannot serve.
- Buying new real estate or opening new accounts after signing the trust and never retitling those either.
- Assuming a living trust replaces a will entirely, when you still need a pour-over will and guardianship nominations for minor children.
How Much Does a Living Trust Cost in Delaware?
Cost depends mainly on whether you hire an attorney, use a DIY platform, or work with a hybrid service, plus how much real estate and how many accounts you need to retitle. Attorney-drafted trusts in Delaware typically run higher than a self-directed platform, largely because of the time spent on custom drafting and funding guidance rather than the document itself. Whatever route you choose, budget separately for county recording fees on any real estate deed, since those are set locally and are not part of the drafting cost. Ask any estate planning service for a clear, itemized breakdown before you sign, so you know exactly what is included and what is billed separately.
Preguntas frecuentes
Does a Delaware living trust avoid probate?
Only for assets actually retitled into the trust. Anything left in your individual name at death still goes through Delaware's Register of Wills probate process.
Does Delaware require witnesses for a living trust?
For certain trusts where someone other than the settlor gains an interest contingent on surviving the settlor, section 3545 requires execution witnessed by at least one disinterested person, or execution by a disinterested trustee.
Can I serve as my own trustee in Delaware?
Yes, most people act as their own initial trustee while capable and name a successor trustee for later.
Is Delaware a good state for a basic revocable living trust?
Delaware's reputation is built on advanced structures like asset protection and directed trusts, but a standard revocable living trust works the same basic way here as anywhere else for probate avoidance purposes.
What happens to a Delaware trust if I move to another state?
It generally remains valid, but should be reviewed after a move since funding steps and recording rules differ by state.
Do I need to update my Delaware living trust after a major life event?
Yes. Marriage, divorce, a new child, a significant change in assets, or moving to a new home are all good reasons to review and, if needed, amend your trust rather than waiting for a scheduled review.
Ready to put your Delaware living trust in writing? FastWill's trust package walks you through naming your trustee and beneficiaries in order.
