Including Out-of-State Real Estate in a Delaware Will: What You Need to Know

This FAQ-style guide explains, in plain language, how to include a house you own in another state in a Delaware will. It uses a simple hypothetical: you live and are domiciled in Delaware and you own a house located in a different U.S. state. This is educational information only and not legal advice.

Detailed answer — Can a Delaware will dispose of a house located in another state?

Yes. A will governed by Delaware law can name a beneficiary and describe a house located in another state. However, transferring clear legal title to that house after your death typically involves law and procedures of the state where the house sits (the situs state). In plain terms:

Under Delaware law, you must execute your will according to Delaware formalities for it to be valid here. See Delaware’s statutes on wills for execution requirements: 12 Del. C. Chapter 1 (Wills).
Even if your Delaware will is valid, the rules that actually affect title and recordation of the property are governed by the laws of the state where the property is located. That state may require an ancillary probate or other local steps before title can be transferred to the person named in your will.

Key points about execution and recognition

To avoid problems later:

Make sure your will is valid under Delaware’s execution rules (usually: in writing, signed by you, and witnessed as required). See Delaware’s statutory requirements for wills at 12 Del. C. Chapter 1.
Delaware typically recognizes wills that meet Delaware formalities. Many states also recognize wills validly executed under the law of the place where they were executed or the testator’s domicile, but the transferring of real estate still follows the law of the state where the real estate is located.

Ancillary probate and transfer of title

If you die owning real estate in another state, the person you name in your Delaware will may need to open an ancillary (secondary) probate proceeding in the state where the house sits before the deed can be recorded in that state. Ancillary probate handles assets located outside the decedent’s domicile. Expect:

Filing a copy of the primary probate or a certified will in the situs state.
Paying local filing fees and, possibly, state estate taxes or fees.
Complying with the recording requirements of the county or local land records office where the house is located.

How to describe the property in your will

Describe the house clearly so a probate court can identify it. Use:

Street address and legal description (if available from your deed or recent title report).
Parcel or tax ID number from the county assessor.
A statement that the gift is of that specific real property, including any buildings and improvements.

Avoid vague descriptions such as “my vacation house” without location or parcel data.

Alternatives and planning steps to simplify transfer

Depending on the other state’s law and your goals, you may avoid ancillary probate by using one of these options:

Living trust: Put the house into a revocable trust during your life and name beneficiaries. A trust can avoid probate in both Delaware and the property state for assets properly titled in the trust.
Joint ownership with rights of survivorship: Co-owning with another person as joint tenants or tenants by the entirety (where available) can pass title automatically at death — but consider creditor exposure and loss of control.
Transfer-on-death or beneficiary deed: Some states permit a beneficiary deed to name a beneficiary who receives the property on your death without probate. Whether this is available depends entirely on the property state’s law.
Deed planning (gifts or life estate): You can transfer the property during life by deed, or create a retained life estate while naming remainder beneficiaries. These have tax and Medicaid implications.

Practical steps you should take now

Confirm your domicile. Your will’s primary probate will follow your domicile (Delaware, in this scenario).
Obtain the property’s legal description and parcel number from the county recorder or tax assessor where the house is located.
Work with a Delaware estate attorney to draft a clear will that properly describes the out-of-state house and meets Delaware signing/witness requirements (12 Del. C. Chapter 1).
Consult a local (property-state) real estate or probate attorney to confirm whether ancillary probate will be required and whether a beneficiary deed, trust, or other alternative is advisable under that state’s law.
Review mortgage, lien, tax, and homeowners’ association rules; a mortgage may have acceleration clauses or require notification on transfer, and liens travel with the property.

Common pitfalls to avoid

Relying on a vague description of the house in the will.
Assuming a Delaware will alone eliminates the need to deal with the property state’s probate rules.
Failing to check whether the property state offers a simple non-probate transfer method like a beneficiary deed.
Changing state residency without updating estate planning documents to reflect the new legal landscape.

Helpful Hints

Keep a copy of the deed, the property’s legal description, and the parcel number with your estate planning papers.
Include a clear bequest (e.g., “I give my real property located at [street address], parcel number [#####], to [full name and relationship].”) rather than a general gift phrase.
Talk to two attorneys: one licensed in Delaware for will formalities and one in the property state for transfer mechanics and local probate rules.
Consider a revocable trust if you want to avoid probate in multiple states; retitling the property into the trust during life is the key step.
Keep your estate plan (will, trust, deeds) up to date when you buy or sell out-of-state real estate, or when your family or financial situation changes.
Ask your attorney about state-specific options such as beneficiary deeds or small-estate procedures that could simplify transfer.

Disclaimer: This article explains general principles under Delaware law and common cross-state issues. It is educational only and is not legal advice. For advice tailored to your situation, contact a licensed attorney in Delaware and in the state where the property is located.