Will.com / Living trust / Delaware
DE · Revocable Living Trust
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Delaware living trust requirements
Special notes for Delaware
- 12 Del. C. § 3545 sets the witness rule as '1 disinterested or 2 credible persons,' not notary-plus-witness. Notarization is not required by the trust statute (though strongly recommended for real-property funding and for the §§ 901-908 elective-share spousal-waiver clause if applicable).
- The notary who acknowledges the trustor's signature may also serve as the disinterested or credible witness; the two roles need not be separated.
- 12 Del. C. § 3550 (Subchapter III General Provisions): trust governing instruments described in § 3545 may be electronically executed in accordance with the Uniform Electronic Transactions Act, provided they are otherwise validly executed. Electronic execution is an alternative to the traditional § 3545 witnessing pathway, not a replacement; the underlying disinterested-witness or 2-credible-witness rule still applies.
- Delaware is a leading asset-protection-trust jurisdiction. 12 Del. C. §§ 3570-3576 (Qualified Dispositions in Trust Act) permits a settlor to transfer assets to an irrevocable Delaware trust with a qualified Delaware trustee, retaining limited interests (income, special power of appointment, trustee-removal right) while shielding the principal from most future creditors after a four-year fraudulent-transfer lookback. Spousal consent is required to bar a spouse's claims. This Delaware-specific regime is distinct from a standard revocable living trust.
How it works
- 1
Answer a few questions
About your assets, trustees, and beneficiaries.
- 2
Download your trust
A complete, personalized revocable living trust, formatted for Delaware.
- 3
Sign and fund
Sign with 1 disinterested adult witness OR 2 credible witnesses. Fund the trust by transferring assets into its name.
Signing a Delaware living trust
Trust instrument creating an interest contingent on surviving the trustor must be witnessed in writing in the trustor's presence by at least 1 disinterested adult OR by 2 credible persons. A notary public may serve as the witness whether signing as a witness or solely in a notarial capacity (12 Del. C. § 3545).
Tenancy by the entirety
Delaware recognizes tenancy by the entirety. It's a form of co-ownership available only to married couples that provides automatic survivorship and creditor protection from individual debts. When you transfer such property into a revocable trust, you may lose the tenancy-by-entirety protection unless your trust is drafted to preserve it.
Funding Delaware real estate into the trust
To transfer Delaware real estate into your trust, you sign a new deed conveying the property from yourself to yourself as trustee, then record the deed with the Recorder of Deeds of the county where any deeded Trust property lies for the county where the property is located. The trust does not control real estate unless the deed transfer is recorded.
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