Overview
Delaware has not adopted the Uniform Probate Code (UPC), maintaining its own probate statutes under Title 12 of the Delaware Code. Probate in Delaware is administered through the Register of Wills in each of the state's three counties: New Castle, Kent, and Sussex.
Delaware offers two main probate tracks:
- Small Estate Affidavit — for estates with assets valued at $30,000 or less and no solely-titled real estate
- Full Probate Administration — standard proceedings through the Register of Wills for larger estates
Delaware does not impose a state estate tax or inheritance tax. The state repealed its estate tax, which previously applied as a pick-up tax tied to the federal credit. Only the federal estate tax applies for very large estates.
Delaware is known for its business-friendly laws and sophisticated Court of Chancery, but probate matters are handled through the Register of Wills, not the Chancery Court.
When Probate is Required
Probate is required in Delaware when a decedent owned assets in their sole name that do not transfer automatically at death. Common examples include:
- Real property titled solely in the decedent's name or as tenants in common
- Bank accounts and investments without payable-on-death (POD) or transfer-on-death (TOD) designations
- Vehicles and titled personal property in the decedent's sole name
- Business interests held individually
Probate is generally not required for:
- Joint tenancy property with right of survivorship — passes automatically to the surviving joint tenant(s)
- Tenancy by the entirety — property held by married couples passes to the survivor
- Beneficiary-designated assets — life insurance, retirement accounts, POD/TOD accounts
- Property held in a revocable living trust
- Small estates valued at $30,000 or less with no solely-titled real estate
Small Estate Options
Delaware provides a small estate affidavit process for estates that meet certain criteria.
Eligibility requirements:
- The total value of estate assets must not exceed $30,000
- The estate must not include any solely-titled real estate
- There must be no pending probate proceeding
How the process works:
- Contact the Register of Wills in the county where the decedent resided
- The Register of Wills office issues a Small Estate Affidavit
- Complete the affidavit with information about the estate and beneficiaries
- The affidavit allows assets to be transferred to appropriate family members and heirs
- Filing and certification fees are typically under $100
Important limitations:
- This process does not transfer solely-titled real estate
- The affiant becomes personally liable for claims and debts up to the value received
- If disputes exist among heirs, full probate may be necessary
Step-by-Step Process
1. Determine the appropriate probate track
Assess the estate to determine whether it qualifies for the small estate affidavit ($30,000 or less, no solely-titled real estate) or needs full probate administration.
2. File with the Register of Wills
File the original will (if any), death certificate, and a Petition for Letters Testamentary (testate) or Petition for Letters of Administration (intestate) with the Register of Wills in the county where the decedent was domiciled. Filing fees vary by county.
3. Appointment of executor or administrator
The Register of Wills reviews the petition and issues Letters Testamentary or Letters of Administration, granting the personal representative legal authority to act for the estate.
4. Post bond if required
Delaware may require the personal representative to post a surety bond unless the will waives it.
5. Publish notice
Provide notice as required by the Register of Wills. Delaware does not have a strict newspaper publication requirement in all cases, but notice to known creditors and heirs is required.
6. File the inventory
File an Inventory with the Register of Wills listing all estate assets and their fair market values.
7. Pay debts, claims, and taxes
Review and pay valid creditor claims. File the decedent's final federal and Delaware income tax returns. Delaware has no state estate tax.
8. File the accounting
File an Account with the Register of Wills detailing all assets, debts paid, and proposed distributions.
9. Obtain approval
The Register of Wills reviews the account and approves the proposed distributions.
10. Distribute assets and close
Distribute remaining assets according to the will or Delaware's intestacy laws. Obtain receipts from beneficiaries. Obtain the estate closing letter.
Timeline & Costs
Typical timeline:
- Small estate affidavit: 2 to 4 weeks
- Full probate: 6 to 12 months
- Complex or contested estates: 1 to 3+ years
Filing fees (vary by county):
- Small estate: typically under $100
- Full probate: varies by county, typically $100 to $300 for filing
- Inventory filing: $15 base fee plus $1 per extra page (New Castle County)
- Estate closing letter: $50 (New Castle County)
- Certified copies: additional fees
Personal representative compensation:
Delaware allows reasonable compensation for the personal representative, subject to court approval.
Attorney fees:
Delaware probate attorneys typically charge between $3,000 and $6,000 for straightforward probate, and $6,000 to $15,000+ for complex proceedings. Hourly rates generally range from $250 to $450 per hour.
Additional costs:
- Certified copies: varies by county
- Surety bond premiums: varies by estate size
- Appraisal fees: varies by asset type
- Recording fees for real property: varies by county
Required Forms
Delaware probate forms are available from the Register of Wills in each county. Forms may vary slightly between the three counties (New Castle, Kent, Sussex). Key documents include:
Starting the case:
- Petition for Letters Testamentary (testate)
- Petition for Letters of Administration (intestate)
- Renunciation of Right to Administer — if the priority person declines
Letters of authority:
- Letters Testamentary — authority for the executor
- Letters of Administration — authority for the administrator
Inventory and accounting:
- Inventory — listing of all estate assets and values
- Account — financial report for review
Small estate:
- Small Estate Affidavit — issued by the Register of Wills for qualifying estates
Closing:
- Estate Closing Letter — issued by the Register of Wills after final accounting
Executor Duties
In Delaware, the estate administrator is called the executor (if named in a will) or administrator (if appointed by the Register of Wills). Their fiduciary duties include:
Immediate responsibilities:
- File the will with the Register of Wills in the appropriate county
- File the petition for letters
- Post a surety bond if required
- Obtain Letters Testamentary or Letters of Administration
- Secure and protect all estate assets
Administrative duties:
- Open an estate bank account
- Notify creditors, heirs, and beneficiaries
- File the Inventory with the Register of Wills
- Manage the decedent's ongoing obligations
- Maintain detailed records
Financial obligations:
- Collect and inventory all estate assets
- File the decedent's final income tax returns
- Review and pay valid creditor claims
- Pay estate administration expenses
Distribution and closing:
- File the Account with the Register of Wills
- Distribute assets according to the will or Delaware intestacy laws
- Obtain signed receipts from beneficiaries
- Obtain the estate closing letter
Unique State Rules
Register of Wills system
Delaware handles probate through the Register of Wills, an elected official in each of the three counties (New Castle, Kent, Sussex). This is distinct from Delaware's famous Court of Chancery, which handles equity and business matters but not probate. The Register of Wills provides a more accessible, less formal forum than a traditional court.
No state estate tax or inheritance tax
Delaware does not impose a state estate tax or inheritance tax. The state previously had a pick-up tax tied to the federal credit, but this was effectively eliminated. Only the federal estate tax applies for very large estates.
Three-county system
Delaware has only three counties — New Castle, Kent, and Sussex — each with its own Register of Wills. Filing fees, forms, and procedures may vary slightly between counties. Most of the state's population is in New Castle County (Wilmington area).
Business-friendly trust laws
While not directly related to probate, Delaware is known for its favorable trust laws, including the Delaware Directed Trust Act, asset protection trusts, and dynasty trusts. Many Delaware residents use trusts to avoid probate for significant assets.
Not a UPC state
Delaware has not adopted the Uniform Probate Code. Its probate procedures are governed by Title 12 of the Delaware Code.
Low small estate threshold
Delaware's small estate threshold of $30,000 (no solely-titled real estate) is relatively low compared to many states. This means many families with even modest assets will need full probate.
Elective share
Delaware provides a surviving spouse with an elective share of one-third of the decedent's augmented estate, providing protection against disinheritance.
How SwiftProbate Helps
Delaware's probate system — with its Register of Wills structure, three-county variations, and specific procedural requirements — requires careful navigation. SwiftProbate generates a tailored roadmap for your specific Delaware estate.
What SwiftProbate does for Delaware estates:
- Determines the right track — evaluates whether your estate qualifies for the small estate affidavit ($30,000) or needs full administration
- Confirms no state tax obligations — verifies that no Delaware estate or inheritance tax applies
- Identifies county-specific requirements — maps your situation to the appropriate Register of Wills office in New Castle, Kent, or Sussex County
- Creates asset-specific task lists — with steps for transferring real property, closing financial accounts, and retitling vehicles through the Delaware DMV
- Generates Delaware-specific deadlines — including inventory and accounting requirements
Start with a free account to get your Phase 1 estate administration checklist, covering the essential first steps for opening and managing a Delaware estate.