Delaware Trust Law: The Statutes That Govern a Delaware Trust

When people say "Delaware trust law," they mean Title 12 of the Delaware Code, and mainly two chapters of it: Chapter 33 (the Delaware Trust Act) and Chapter 35 (trusts generally). Delaware never adopted the Uniform Trust Code. It wrote its own rules instead. In a few areas, those rules go further than the UTC ever did.

Which statutes actually matter

Chapter 33 is the Trust Act. It holds definitions (§3301), the prudent person standard (§3302), a trustee's duty to inform beneficiaries (§3303), and the directed-trust framework (§3313 for investment direction, §3313A for distribution direction). Chapter 35 holds the mechanics. Execution formalities, trustee accounts, decanting under §3528, and the Qualified Dispositions in Trust Act (§3570 through §3576), which is Delaware's asset-protection statute.

One more piece sits outside Title 12. Delaware abolished the Rule Against Perpetuities for personal property held in trust in 1995 (25 Del. C. §503), which is what makes dynasty trusts possible here. Real property is different. It stays subject to a 110-year limit, so a trust holding Delaware real estate can't run forever the way one holding stock can.

Execution — what it takes to create a written trust

12 Del. C. §3545 is the execution statute, and it is stricter than most states in one specific way. For trusts where someone else's interest depends on surviving the settlor, the trust must be in writing, signed by the settlor and witnessed by at least one disinterested person. Someone with no beneficial stake. A notary public can count as that witness. The statute also has a savings clause. A trust that fails Delaware's formalities is still valid if it was properly executed under the law of its initial place of administration.

Notarization isn't required for the trust itself in Delaware, though it's standard practice, and any deed moving real property into the trust must be notarized and recorded either way.See our full guide on trust notarization →

Electronic signatures work here too. §3550 lets governing instruments (wills excepted) be executed under Delaware's electronic transaction law, and e-signature is explicitly available for documents under §3545.

The 120-day contest window

Delaware shortens the window for challenging a trust. Under §3546, a contest must begin within 120 days after the trustee sends written notice of the trust's existence, or within two years of the settlor's death, whichever comes first. If the trust was revocable at death, the trustee may even distribute the property before the window closes, without liability, as long as no contest proceedings are actually started within 30 days of warning. That speed is one of the quiet reasons estate litigators keep an eye on Delaware instruments.

Directed trusts, decanting, and purpose trusts

Three signatures of modern Delaware practice:

• Directed trusts. §3313 and §3313A let the instrument split investment and distribution authority away from the administrative trustee. A directed trustee gives orders. The administering trustee follows them without fiduciary liability for the direction itself.
• Decanting. §3528 lets a trustee with invasion-of-principal authority pour the trust into a second trust, different terms and all, for the benefit of proper objects of the power.
• Purpose trusts. §3556 authorizes noncharitable purpose trusts, a Delaware specialty for pets, graves, or a business continuation vehicle without human beneficiaries.

Who Delaware trust law is for

A settlor doesn't need to live in Delaware for Delaware law to govern the trust. The governing instrument says which law applies, and Delaware's courts sit ready to administer under it through the Court of Chancery. What the state does ask for is administration discipline. A trustee, records, and filings any other state would also expect. For a plain revocable living trust, most of Delaware's heavy machinery (directed trustees, decanting, quiet trusts) never comes into play.

If you're weighing states at all, the honest comparison is Delaware against a handful of rivals on grounds of asset protection and tax posture, not on whether a basic family trust is "better" there. South Dakota, Nevada, and Alaska are the usual contenders. For day-to-day family documents, the choice of Delaware law matters less than getting the instrument right.See how the states compare →

Getting a Delaware trust document

FreeTrustDocs generates the working documents, acertificate of trust and adeclaration of trust, that you can customize and sign, in any state including Delaware. The state pages carry the details:certificate of trust in Delaware anddeclaration of trust in Delaware.