Certificate of Trust — Delaware Non-UTC
State-specific requirements for a Certificate of Trust in Delaware.Create yours now →
Certificate of Trust · At a glance
Delaware · summary of the record on file
12 Del. C. Chapter 33 (Trust Act), including §3301 (Definitions), §3302 (Prudent Person Standard), §3303 (Duty to Inform Beneficiaries), §3313 (Directed Trusts - Investment Direction), §3313A (Directed Trusts - Distribution Direction), §3356 (Trust Protectors and Advisors), §3528 (Decanting), §3556 (Purpose Trusts), §3570-3576 (Qualified Dispositions in Trust Act / DAPT), §3585 (Statute of Limitations), §3811 (Certification of Trust for Statutory Trusts), §3801 et seq. (Delaware Statutory Trust Act). 25 Del. C. §503 (Abolition of Rule Against Perpetuities).Citation text is shown as currently recorded. No source URL is on file for this state.Source URL missing · unverified- Notary: Notarization is not strictly required for trust creation under Delaware law, though it is standard practice.
- Witnesses: Not stated in record
- Recording: Real property transfers to a trust must be recorded with the county recorder.
- Source URL: https://delcode.delaware.gov/title12/c038/sc01/index.html
- Last verified: 2026-09-17
- Legal review: Not performed
Statutory Citation
12 Del. C. Chapter 33 (Trust Act), including §3301 (Definitions), §3302 (Prudent Person Standard), §3303 (Duty to Inform Beneficiaries), §3313 (Directed Trusts - Investment Direction), §3313A (Directed Trusts - Distribution Direction), §3356 (Trust Protectors and Advisors), §3528 (Decanting), §3556 (Purpose Trusts), §3570-3576 (Qualified Dispositions in Trust Act / DAPT), §3585 (Statute of Limitations), §3811 (Certification of Trust for Statutory Trusts), §3801 et seq. (Delaware Statutory Trust Act). 25 Del. C. §503 (Abolition of Rule Against Perpetuities).
How a Certificate of Trust works in Delaware
Certification Requirements
Delaware does not have a UTC-based certification of trust statute for private trusts. Instead, 12 Del. C. §3811 governs certificates of trust for Delaware statutory trusts (business trusts). Under §3811(a), a certificate of trust must be executed by all of the trustees of the statutory trust and must state: (1) the name of the statutory trust; (2) that the governing instrument has been duly executed in accordance with the Delaware Statutory Trust Act; (3) the name and address of each trustee; (4) the powers of the trustees; (5) the manner in which trustees are to sign or otherwise authenticate instruments; (6) whether all or fewer than all trustees are required to exercise the powers of the trustees. Trustees who execute certificates are deemed to swear or affirm, subject to penalties for perjury, that the facts stated are true. A person dealing with a trustee in good faith reliance on a certificate may enforce the transaction as if the representations were correct. For private (non-statutory) trusts, Delaware relies on common law principles and the trust instrument's own provisions for certification, as it has not adopted the UTC §1013 certification of trust framework.
When a trustee presents a certification of trust in Delaware, the recipient checks the certificate against 12 Del. C. ç3811. Delaware does not have a UTC-based certification of trust statute for private trusts. Instead, ç3811 governs certificates of trust for Delaware statutory trusts (business trusts). Under ç3811(a), a certificate of trust must be executed by all of the trustees of the statutory trust and must state: the name of the statutory trust, that the governing instrument has been duly executed in accordance with the Delaware Statutory Trust Act, the name and address of each trustee, the powers of the trustees, the manner in which trustees are to sign or otherwise authenticate instruments, and whether all or fewer than all trustees are required to exercise the powers of the trustees The statute expressly provides that a certification need not contain the dispositive terms of a trust.
Common mistakes that get certificates rejected
A common error is treating Delaware's statutory trust certificate requirements as applicable to private trusts. The certificate of trust under 12 Del. C. ç3811 applies only to Delaware statutory trusts (business trusts). For private trusts, Delaware relies on common law principles and the trust instrument's own provisions, and there is no statutory certification requirement. Another common error is omitting the statement that the governing instrument has been duly executed in accordance with the Delaware Statutory Trust Act. A certificate that omits the name or address of any trustee, or fails to state whether all or fewer than all trustees are required to exercise powers, also falls short of ç3811(a).
What makes Delaware different
Delaware's trust law is among the most favorable in the United States. The Delaware Statutory Trust Act, 12 Del. C. çç3570-3576, provides a comprehensive framework for statutory trusts including business trusts. Delaware has a well-established trust industry with the Delaware Court of Chancery providing expert judicial oversight. The state imposes no state income tax on trusts that are not domiciled in Delaware, and the trust statute provides strong privacy protections. Delaware allows directed trusts under ç3313 and ç3313A, trust protectors, and broad decanting powers under ç3528. The state also permits nonjudicial settlement agreements under ç3338. Delaware statutory trusts must file a certificate of trust with the Secretary of State under ç3810 The state's trust industry benefits from the Delaware Court of Chancery, which provides expert judicial oversight and a well-developed body of trust case law.
Frequently asked questions
Who signs a certificate of trust in Delaware?
Under 12 Del. C. ç3811(a), a certificate of trust for a Delaware statutory trust must be executed by all of the trustees of the statutory trust. Each trustee must sign or otherwise authenticate the certificate. Trustees who execute certificates are deemed to swear or affirm, subject to penalties for perjury, that the facts stated are true. For private trusts, Delaware relies on common law principles and the trust instrument's own provisions for certification.
What must a Delaware certificate of trust contain?
12 Del. C. ç3811(a) lists the required contents for statutory trust certificates: the name of the statutory trust, a statement that the governing instrument has been duly executed in accordance with the Delaware Statutory Trust Act, the name and address of each trustee, the powers of the trustees, the manner in which trustees are to sign or otherwise authenticate instruments, and whether all or fewer than all trustees are required to exercise the powers of the trustees.
Can a bank in Delaware require the complete trust after receiving a certificate?
Under 12 Del. C. ç3811, a person dealing with a trustee in good faith reliance on a certificate may enforce the transaction as if the representations were correct. The statute provides that trustees who execute certificates are deemed to swear or affirm, subject to penalties for perjury, that the facts stated are true. For private trusts, Delaware relies on common law principles and the trust instrument's own provisions for certification.
Is a certificate of trust the same as a trust agreement in Delaware?
No. A certificate of trust under 12 Del. C. ç3811 is a short declaration summarizing the required contents for statutory trusts, while the trust agreement is the full governing instrument containing the dispositive and distribution terms. The statute expressly provides that a certification need not contain the dispositive terms of a trust. For private trusts, Delaware relies on common law principles and the trust instrument's own provisions for certification.
Execution Requirements
Delaware trust instruments must be in writing and executed by the settlor. Notarization is not strictly required for trust creation under Delaware law, though it is standard practice. Real property transfers to a trust must be recorded with the county recorder. For Delaware statutory trusts, a certificate of trust must be filed with the Delaware Secretary of State under §3810. The Delaware Statutory Trust Act requires a governing instrument (trust agreement) and the filing of a certificate of trust with the Secretary of State. Delaware allows electronic records and signatures under 12 Del. C. Chapter 39. For directed trusts, the trust instrument must specify the roles of advisors and trustees under §3313 and §3313A.
Business Trust Treatment
Delaware is the premier jurisdiction for statutory (business) trusts through the Delaware Statutory Trust Act (12 Del. C. §3801 et seq.), enacted in 1988. The Act provides that a statutory trust is a separate legal entity with limited liability for beneficial owners equivalent to shareholders of a Delaware corporation. The rights, obligations, and liabilities of trustees and beneficial owners can be customized in the governing instrument. The Act permits separate series or portfolios, making it ideal for registered investment companies (mutual funds, REITs, asset-backed securities). Common law business trusts (Massachusetts trusts) existed before the Act and can elect to be governed by it by filing a certificate of trust. The Act gives maximum effect to freedom of contract (§3825(b)). Foreign business trusts must register with the Secretary of State before doing business in Delaware (§3851 et seq.).
Favorable Trust Laws
Delaware abolished the Rule Against Perpetuities for personal property held in trust effective July 1, 1995 (25 Del. C. §503), allowing perpetual dynasty trusts for personal property. Real property in trust is subject to a 110-year limit. Delaware has no state income tax on trust income if all current beneficiaries are non-Delaware residents, there is no Delaware-source income, and trustee location alone does not create tax nexus. The Qualified Dispositions in Trust Act (§3570-3576) provides DAPT protection with a 4-year statute of limitations and requires creditors to prove fraudulent transfer by clear and convincing evidence. Delaware has the most comprehensive directed trust statutes in the nation (§3313, §3313A), allowing complete separation of administrative, investment, and distribution functions. The broadest silent/quiet trust provisions allow elimination of beneficiary information rights during specified periods (§3303). Broad decanting powers under §3528. Nonjudicial settlement agreements permitted under §3338.
Unique Factors
Delaware has not adopted the Uniform Trust Code, instead developing its own comprehensive trust law framework in Title 12 Chapters 33 and 35. The Delaware Court of Chancery is the premier business and trust court in the nation, with deep case law and an experienced bench. Delaware pioneered the directed trust concept and has the most sophisticated silent trust framework. The state's statutory trust (DST) is the industry standard for business trusts, REITs, and securitization vehicles. The freedom-of-contract principle (§3825(b)) gives maximum effect to governing instruments. Delaware's trust industry is the most developed in the country, with numerous trust companies and experienced fiduciaries. The combination of perpetual trusts, no income tax (with conditions), strong asset protection, and the Court of Chancery makes Delaware the gold standard for complex trust planning.