Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney in the jurisdiction where the real estate lies for guidance specific to your situation.
Detailed Answer
When a Delaware resident decedent owns real estate in another state, their heirs must use the correct deed form and recording procedure under both Delaware and the out-of-state law. In most cases, real property transfers require probate or ancillary probate and a properly executed deed.
1. Probate and Appointment of a Personal Representative
First, the decedent’s estate in Delaware must open probate if real property lies in Delaware; however, for out-of-state real estate, you typically file an ancillary probate proceeding in the state where the property sits. The court will issue letters testamentary or letters of administration to the personal representative (PR). Only the PR may convey clear title to the heirs or a third party.
2. Personal Representative’s Deed
Under Delaware law, a PR uses a Personal Representative’s Deed to transfer estate real property once administration is complete. The statutory form authority appears in 25 Del. C. § 572 (Del. Code Ann. tit. 25, § 572). This deed must include:
- The full legal description of the property.
- Reference to the probate case number and grant of letters testamentary or administration.
- Signature of the PR, acknowledged before a notary public.
3. Heirship Affidavit and Quitclaim Deed (If No Probate)
In some cases—when ancillary probate is impractical and the jurisdiction accepts heirship affidavits—heirs may sign a Quitclaim Deed coupled with an Affidavit of Heirship. This document asserts their status as heirs and conveys “whatever interest” they hold. Keep in mind:
- Not all states accept affidavits in lieu of probate for real estate. Always check local recording office rules.
- Quitclaim deeds offer no warranties of title. Buyers often require a PR’s deed or a special warranty deed instead.
4. Recording the Deed
To record either deed, submit the original signed and notarized deed in the county recorder or land records office where the property is located. Requirements typically include:
- Payment of transfer or recording fees and any documentary transfer tax.
- Two copies of the recorded deed (to satisfy Delaware estate closing requirements).
- A certified copy of the letters testamentary or ancillary letters (if deed is by a PR).
- The death certificate of the decedent (if required by local practice).
Once recorded, the county will return a stamped copy of the deed. The PR or heirs should then file that copy with the Register of Wills in Delaware to close the estate.
Helpful Hints
- Always verify deed requirements and fees with the county recorder where the property lies.
- Confirm whether the out-of-state jurisdiction allows heirship affidavits in lieu of full probate.
- Use a PR’s deed whenever possible to provide buyer confidence and clear title.
- Include precise legal descriptions taken from the recorded deed to avoid clerical rejections.
- Keep detailed copies of all documents submitted for recording and probate.