Updated June 01, 2022
The Delaware living trust allows a Grantor (creator of trust) to delegate their assets to an entity that is set aside for Beneficiaries to receive upon the death of the Grantor. By creating a trust, the Grantor ensures that the Beneficiaries will avoid the probate process and receive the Grantor’s assets immediately after they pass away. The Grantor will have to nominate a Trustee to manage the trust during their lifetime. Whoever shall be nominated will be legally obligated to distribute the Grantor’s assets to Beneficiaries (the Grantor may be the Trustee if the trust is Revocable).
Laws – Title 12, Chapter 35 (Trusts)
Will (Last Will and Testament) – All property that is not mentioned in the trust will be carried out per the instructions stated in the Will. Unlike a trust, a Will does go through the probate process.
Types
Irrevocable – All assets listed in an Irrevocable Trust are in the ownership of the trust, meaning the Grantor is not liable to pay any tax or interest accumulated from the assets. This type of trust may not be changed once it has been established.
Revocable – The Grantor may act as the Trustee and have control of their assets and property during their lifetime. While a Revocable Trust offers no tax benefits, it can be altered by the Grantor at any point.
Individual Roles
There are four (4) main roles in a Living Trust, which are as follows:
Grantor (or “Settlor”) – The initial maker of the trust and the person who is setting aside their assets for the Beneficiaries.
Trustee – This person will retain control of the trust while the Grantor is alive and, after the Grantor dies, distribute the assets to the Beneficiaries. Should the Grantor pass away while acting as Trustee, a Successor Trustee will assume control of the trust. In a Revocable Trust, the Trustee may also be the Grantor.
Successor Trustee – This person will be required to manage the trust in the event that the initial Trustee dies or becomes incapacitated.
Beneficiaries – Recipient(s) of the assets placed within the trust.
How to Make a Living Trust in Delaware
A trust in Delaware may be created in accordance with § 3545 by the Grantor transferring all applicable property and assets into a separate entity to be given to the Beneficiaries upon the Grantor’s death. In addition to the listing of assets, the Grantor should choose a Trustee to carry out their intentions after their death. When a Living Trust form has been completed, it is recommended that a notary public be present for the signing or, at least, acknowledge the document. This is not legally obligatory but will help protect the Trust from unwanted challenges or claims once the Grantor dies.
Motor Vehicles – If you’d like to transfer your vehicle to a trust, draft a Bill of Sale to provide proof of the transfer of ownership.
Real Estate – Transferring real estate to a trust requires that a Delaware Deed be filed in one of three locations depending on the location of the property: Sussex County, Kent County, or New Castle County.
Websites – The administration and contact information registered with ICANN / WHOIS must be changed. To do this, update the settings with your registrar (such as Network Solutions or GoDaddy).
Do I Need a Living Trust?
Under § 2306, it states that if an individual’s total value of property and assets is less than $30,000, he or she will not be subject to the probate process as long as the Heirs file a Small Estate Affidavit. The affidavit, like a trust, will allow the family to bypass the probate process in regards to the decedent’s estate. However, electing to employ the affidavit will force the assets and property to be split evenly among all the Heirs. If an individual would still like to have certain items be transferred to specific people, a Living Trust should be created.