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A Delaware last will and testament is a legal document that lays out how an individual’s estate will be divided after their death. A will often names an executor who will oversee the probate of the will and distribution of the person’s estate. Once created, a will can be updated, altered, or revoked by its maker as long as they have the mental capacity to do so.
To make a will, a person must be at least 18 years old and of sound mind.[1]
State Laws
Holographic Wills – Unwitnessed handwritten wills (holographic wills) aren’t valid in Delaware.[2]
Revocation – A will can only be revoked by the testator or someone in their presence destroying the document or revoking it through a new will or revocation document.[3] If the testator divorces or annuls their marriage before death, any distribution or special power of appointment granted to their ex-spouse is considered revoked unless expressly stated.[4]
Signing Requirements – A will must be signed with two attesting witnesses. [5]
Probate Process in Delaware (7 steps)
After a person dies, anyone who is in possession of the person’s original will is legally obligated to deliver it to the Register of Wills Office within 10 days after learning of their death.[6]
- Open the Estate
- Letters of Testamentary & Bond
- Notice to Creditors
- Inventory
- Accounting
- Notice Form SC1
- Closing the Estate
1. Open the Estate
If the decedent’s estate is valued at $30,000 or less and 30 days have passed since their death, the will can bypass probate through a Small Estate Affidavit requested from the county Register of Wills Office.[7]
To open an estate and begin the probate process, an appointment must be made with the Register of Wills Office in the decedent’s county of residence.[8] The executor named in the will or the person chosen to represent the estate (if no executor is named) will be required to complete and file the Petition to Act as Personal Representative. If available, the following documents will also need to be brought to the appointment.
- Original copy of decedent’s will
- Original copy of decedent’s death certificate
- List of decedent’s solely-owned assets and their estimated values
- List of decedent’s solely-owned real estate and their estimated values
- List of decedent’s next of kin, including their name, address, and relationship
There are three Register of Wills offices in Delaware:
- Kent County | Court Forms
- New Castle County | Court Forms
- Sussex County | Court forms unavailable online.
2. Letters Testamentary & Bond
After proving the will’s authenticity and opening probate, the Register of Wills will approve the personal representative’s appointment by issuing them Letters Testamentary which authorize them to administer the decedent’s estate. The personal representative isn’t required to appear at the office when the letters are issued.[9] If required to post a bond by the will or the court, the personal representative will need to obtain a probate bond before receiving the letters.[10]
3. Notice to Creditors
4. Inventory
Within three months of the approval of the Petition, the personal representative must complete and file Inventory Form 600 RW with the Register of Wills.[12] This form reports all of the estate’s assets, including real property, bank accounts, investments, vehicles, and personal property, and their estimated value.
The completed Inventory Form must also be filed with the Division of Revenue within nine months from the decedent’s date of death.
5. Accounting
The personal representative is required to complete and file the below forms with the Register of Wills within one year of opening the estate.[13], [14]
- Accounting Form SC30
- Beneficiaries Entitled to Share in Distribution of Estate Form SC5
To complete the Accounting Form, the representative must provide the value of all assets from the Inventory Form, plus any additional assets gathered since that form was filed, before listing proposed payments from the estate. These payments may include administrative and funeral expenses, estate debts, taxes, and attorney fees. Form SC5 requires that the names and addresses of all beneficiaries entitled to a share of the estate be provided.
6. Notice Form SC1
The Register of Wills will mail a copy of the Accounting Form and Notice Form SC1 to all the beneficiaries named in Form SC5, informing them that the accounting has been filed and will remain open to objections for three months from the date of notice.[15] If the names or addresses of any beneficiaries are unknown, the court may order a publication of the notice to be completed as well.
Notice isn’t required for any beneficiaries who have executed and filed the appropriate waiver:
- Waiver of Notice and Consent of Beneficiary Form SC2
- Waiver of Notice and Consent by Parent, Guardian, or Trustee of Heir Subject to Legal Incapacity Form SC3
7. Closing the Estate
Upon approval of the Accounting Form, the deputy of the register will contact the personal representative to schedule an appointment to close the estate. Before the appointment, the personal representative will be required to pay all debts and expenses listed in the Accounting Form. Proof of payment for debts and expenses must be provided Register of Wills at the appointment, where the personal representative will take an oath that the estate was properly administered, and pay the closing fee.[16]
Any remaining assets and property should be distributed as outlined in the will and Accounting Form after the eight-month deadline for creditors to make claims against the estate has passed.