A Delaware quitclaim deed allows you to transfer real property from one person or entity to another – without making any warranties or legally enforceable promises regarding the title and claims or liens against the property.
How to File
Filing a quitclaim deed in Delaware involves gathering the right documents, notarizing the deed, and submitting it to the correct county office. Following each step carefully helps ensure your property transfer is valid and recorded without delays.
Step 1: Gather Your Paperwork and Documentation
Collecting your paperwork ahead of time sets you up for success as you move forward with the property transfer. You should make sure that you have the current title to the property involved in the transfer and any other relevant documentation.
Furthermore, collect Form 5402 (Realty Transfer Tax Return and Affidavit of Gain and Value), which is necessary for validating and completing a property transfer.
Step 2: Fill Out the Documentation
Complete all required documents. Do not leave any lines or content blank on your paperwork since that could invalidate the transfer.
Step 3: Take the Document to a Notary
Del. Code tit. 25 § 122 requires that quitclaim deeds be witnessed and signed by a notary. Sign and date the form in the notary’s presence.
You will receive the notary’s stamp and signature at that time.
Step 4: File the Deed
Delaware has three districts for filing quitclaim deeds, as laid out in Del. Code Title 9 Chapter 96. These include:
- Kent County
- New Castle County
- Sussex County
Take your quitclaim deed and Form 5402 to the County Clerk’s Office in the county where the property is located. Each county has its own fee schedule, so contact the County Clerk’s Office ahead of time to make sure you know how much you should expect to pay in fees for your document. Make any necessary copies of your quitclaim deed before filing.
Costs and Fees
Understanding the filing fees and taxes for a Delaware quitclaim deed can help you avoid surprises and complete your property transfer without delays or unexpected costs.
Filing Fees
Each county has its own fee structure:
- In Kent County, filing fees are $36 per document, $10 per page, and $5 per tax parcel number.
- New Castle County assesses a $13 per page and $3 parcel description fee. The county also assesses a $30 document fee and a $5 technology fee per document.
- Sussex County has a $30 document fee and a fee of $9 per page, as well as a maintenance fee of $1 per document. Contact the County Clerk’s Office if you have any questions about the fee structure before filing your deed.
Taxes
Property transfers can have tax implications for both the grantor and the grantee.
1. Real Estate Transfer Tax
Del. Code Title 30 Chapter 54 lays out transfer taxes for property exchanges: typically 4%. The state assesses a 3% tax rate unless the county’s tax rate is over 1%, in which case, it is 2.5%. The county has the right to assess between a 1% and 1.5% tax rate. Transfer tax payments are split between the grantor and the grantee at the time of sale.
There are 22 exemptions to the real estate transfer tax, including:
- Wills, mortgages, foreclosures, and leases on commercial property.
- Property values under $100.
- Transfers without consideration between parent corporations and subsidiaries.
- Spousal transfers.
- Transfers due to divorce.
- Transfers between parent and child, or parent and child’s spouse.
- Transfers to trustees.
- Government property sales and purchases.
2. U.S. Gift Tax (Form 709)
The federal government enforces a gift tax on large-value gifts from one party to another, including gifts between relatives.
Because of the value of many pieces of real estate, quitclaim deed transfers are often subject to a gift tax. Delaware does not assess a separate gift tax on real estate transactions.
3. Capital Gains Tax
The capital gains tax is assessed on the increased value of a property after its sale. The IRS looks back on the original purchase price and value of a piece of property compared to how much it sold for and assesses a tax on the amount the grantor obtained when selling the property.
There are exemptions up to a certain amount of the value of the capital gains tax for people who used that property as their primary residence for at least 2 of the last 5 years or who moved due to transfer orders from the United States government or a similar organization.
Delaware has its own capital gains tax, as laid out in Del. Code Title 30 Chapter 11. Delaware may have different rates for people who live in the state and those who live outside it. Consult a tax professional to make sure you fully understand your tax burden as assessed by the state.
Delaware Quitclaim Deed Requirements
Delaware requires quitclaim deeds to meet specific legal standards for the transfer to be valid. Knowing the key requirements helps you complete your deed correctly and avoid delays in recording the property transfer.
Legal Framework
Del. Code tit. 25 § 121 lays out the requirements for Delaware quitclaim deeds, including standard language to be used in the form, including the name of the grantor and grantee and a legal description of the property.
Additionally, a valid Delaware quitclaim deed must meet the following requirements:
Legal Description
The legal description should include details that clearly identify the property being transferred, like the address, subdivision information, and reference to recorded plats or surveys (if available).
The main goal of the legal description is to prevent future disputes by clearly identifying the property’s boundaries and area.
Signing
- According to Del. Code tit. 25 § 122, the quitclaim deed needs to be signed by the grantor in the presence of a notary and validated.
- The statute also allows for deeds to be proved in the Superior Court before witnesses.
Terminology
A Delaware quitclaim deed should avoid including any terms that suggest a warranty or provide assurances regarding the title, as it is issued without any warranty.
Del. Code tit. 25 § 121 provides examples of appropriate wording and layout for such a deed.
Additional Documents
The deed must be filed with Form 5402: Realty Transfer Tax Return and Affidavit of Gain and Value.
Filing
- Del. Code Title 9 Chapter 96 lays out three districts in which to record quitclaim deeds: Kent County, New Castle County, and Sussex County.
- Each county has its own specific fee structure and requirements. You must file a quitclaim deed in the county where the property is located and should contact that county to determine what fees you will need to pay.
Validity Requirements
The real estate transfer may not be validated without following the state’s requirements for quitclaim deeds.
- Language and terms: The deed should not contain any language that indicates a warranty on the property or issues guarantees about the title.
- Notarization: The document must be signed by the grantor in the presence of a notary. The notary will observe the signing process and provide a stamp and signature to validate the document.
- Filing requirements: The deed must be certified under the hand and seal of the office of the clerk in the county in which the property is located. Failure to file the deed may mean that it is not considered valid, which means that the grantor would retain the rights and responsibilities related to possessing that property.
- Taxes and fees: The grantor and the grantee will need to pay all necessary taxes and fees associated with the real estate transfer, including a 4% transfer tax. There is a filing fee assessed by each county at the time the document is filed.
Content Requirements
Several elements should be included in a quitclaim deed:
- The date of the property transfer.
- The name and address of the grantor.
- The name and address of the grantee.
- The consideration for the property (its purchase price or any other property transferred in exchange for the piece of real estate).
- The legal description of the property.
Quitclaim Deeds vs. Other Property Transfer Methods in Delaware
| Quitclaim Deed | Quick property transfer method that does not include a warranty on the property. The new owner takes on the full risk regarding any liens or encumbrances on the property. |
| General Warranty Deed | Conveys full warranty protection to the new owner of the property. May be a slower property transfer method. |
| Special Warranty Deed | Offers a warranty on the property for the period it was owned by the grantor. Either party may face some risk related to encumbrances or liens, depending on when they occurred. |
Sample Delaware Quitclaim Deed
View a sample Delaware quitclaim deed below. Customize it easily with our document editor and download it as a PDF or Word file.
Frequently Asked Questions
How do I remove someone from a deed in Delaware?
In Delaware, removing someone from a deed through a quitclaim deed isn’t possible unless they willingly agree to it. Quitclaim deeds simply transfer ownership interest, but they don’t remove existing ownership rights.
If the individual being removed is alive, a court order or their agreement is required to file a new deed excluding them. Should a property owner be deceased, the property must be transferred to the surviving owners.
How do I add a name to a deed in Delaware?
Adding someone to your Delaware property deed is easy with a quitclaim deed. Fill out the form with property details and the new owner’s information. Once all current owners sign before a notary and you file it with the county recorder, they’ll be officially on the deed.
Will a quitclaim deed release me from the mortgage obligation?
A quitclaim deed only changes the property’s title and does not impact the debts or loan responsibilities of either spouse. Regardless of how property is divided in a divorce, both parties remain accountable for any joint debts.
