Does a living trust avoid probate in Delaware?

Yes — assets properly transferred into a revocable living trust avoid probate entirely [§ 12-3301]. Assets not transferred into the trust may still require probate.

Do I still need a will if I have a trust?

Yes. A pour-over will acts as a safety net to catch any assets not transferred into the trust during your lifetime. It also lets you nominate a guardian for minor children, which a trust cannot do.

Can I be my own trustee?

Yes. With a revocable living trust, you serve as your own trustee and manage the assets exactly as before. You name a successor trustee who takes over at your death or incapacity.

How much does a living trust cost in Delaware?

Trust costs vary by attorney and complexity but are higher than a simple will. Estates with real estate or assets in multiple states gain the most from a trust's probate-avoidance benefits.

What is the difference between a revocable and irrevocable trust?

A revocable trust can be changed or canceled at any time and does not provide asset protection or estate tax benefits during your lifetime [§ 12-3301]. An irrevocable trust cannot be changed once executed, but it removes assets from your taxable estate and can provide asset protection.

Topic guideUpdated 2026-02-27

Delaware Living Trusts — Revocable & Irrevocable

Revocable trusts, irrevocable trusts, and how trusts avoid probate in Delaware.

A trust is a legal arrangement where one person (the Trustee) holds and manages property for the benefit of another (the Beneficiary). In Delaware, trusts are one of the most effective tools for avoiding Probate, protecting assets, and ensuring a smooth transfer of wealth §12-3301.

Revocable vs. irrevocable trusts

	Revocable living trust	Irrevocable trust
Can you change it?	Yes — you can amend or revoke at any time §12-3301	No — cannot be changed once executed
Avoids Probate	Yes — assets in the trust skip probate §12-3301	Yes
Asset protection	No — assets are still considered yours	Yes — assets are no longer part of your estate
Tax benefits	None during your lifetime	May reduce estate tax §26 U.S.C. § 2010
Who controls it	You (as trustee during your lifetime)	An independent trustee
Best for	Most families — probate avoidance, privacy, incapacity planning	Estate tax planning, asset protection, Medicaid planning

How a revocable living trust works

Create the trust document

The trust agreement names you as both the grantor and initial trustee, names your beneficiaries, and names a successor trustee who takes over if you die or become incapacitated.

Fund the trust

Transfer assets into the trust — retitle real estate, bank accounts, and investments in the name of the trust. Unfunded trusts do not avoid probate, so this step is critical.

Manage assets normally

As trustee of your own revocable trust, you buy, sell, and use assets exactly as before. Nothing changes in your daily life.

Successor trustee takes over

At your death or incapacity, the successor trustee distributes assets to beneficiaries according to the trust terms — no court involvement, no probate.

⚠An unfunded trust does not avoid probate. If you create a trust but never transfer your assets into it, those assets still pass through your will (and through probate). This is the single most common trust planning mistake.

Delaware trust law

Delaware has adopted the Uniform Trust Code §12-3301, providing a comprehensive and well-established framework for creating, administering, and modifying trusts.

Delaware is a premier trust jurisdiction. No interest in personal property held in trust is void under any rule against perpetuities, which permits dynasty trusts. Real property held directly in trust is subject to a 110-year rule (Del. Code tit. 25, § 503), but interests in entities that own real estate are treated as personal property for this purpose. Delaware also has directed trust statutes (§ 3313) and asset protection trust laws for qualified dispositions (§§ 3570–3574). That protection is subject to statutory exceptions, including creditor avoidance actions brought within the statutory time limits, support and divorce property claims, and death, injury or property-damage claims arising on or before the transfer. The Delaware Trust Act (Del. Code tit. 12, § 3301 et seq.) provides a comprehensive framework. Trust protectors are recognized as advisers who may act in a fiduciary or nonfiduciary capacity under § 3313(a).

Delaware recognizes trust protectors — an independent party who can oversee the trustee, modify administrative provisions, or adjust the trust in response to tax law changes.

When a trust makes sense

You own real estate (especially in multiple states — a trust avoids probate in each state)
You want to keep your estate private (trusts are not public record; probate is)
You want seamless management if you become incapacitated
You have minor children or beneficiaries who need structured distributions
Your estate may be subject to estate taxes

✓A trust works best alongside other documents. Most estate plans include a trust, a pour-over will (as a safety net), powers of attorney, and healthcare directives.

Prepare for Your Consultation

Quick checklist (Estate Planning)

You can start the intake without all of these.

Existing will or trust

(if any)

Asset summary

(property, accounts, policies)

Family information

(beneficiaries, guardians)

General preparation tips only. Requirements vary by case and state.

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