How Probate Laws Work in Delaware

When a person dies, the initial grief must give way to the practical and financial responsibilities of the family. Even as you are adjusting to the loss, you have to deal with the will and the assets of the person who just passed away. The legal process is known as probate, and you must follow the timelines of the state where you live. 

Probate is simply a legal term that describes going through court to validate a will and having the court oversee the distribution of the estate according to the stipulations of the will. If there is no will, the state law will indicate how the estate is to be divided. Anyone involved in this process needs to understand some basic information about probate. 

Is Probate Required in Delaware?

Probate is required in Delaware in most cases unless you have all assets in a living trust, or they all go to a named beneficiary with a payable on death or transfer on death title. Small estates may use an affidavit instead of going through probate to transfer assets. 

How Do You Avoid Probate in Delaware?

The most effective way to avoid probate in Delaware is by putting all the assets into a living trust. This ensures that all the assets go to the beneficiaries after you die without the need for probate. You can also avoid probate through joint ownership. If you own the property with someone else, they are automatically the sole owner after your death. In Delaware, joint ownership may take the form of joint tenancy or tenancy by the entirety. The second form is only allowed for married couples. 

If you own assets with a payable on death or transfer on death designation and a beneficiary listed, those assets will not need to be part of probate. Examples include bank accounts, retirement accounts and life insurance policies. You can transfer ownership of vehicles, but Delaware doesn’t allow for TOD deeds with real estate. 

Can an Executor of an Estate in Delaware be Compensated?

Delaware does allow for payment to an executor of an estate. There is no mention of minimum or maximum payment or even if they can receive a percentage of the estate. However, they are allowed to create an invoice for their services and expenses, but they must provide proof of spending.

How Much Does an Executor Get Paid in Delaware?

The laws regarding probate in Delaware don’t provide specific details about how much an executor should be paid. However, most cases consider the size and complexity of the estate and what other estates are paying for the executor. The time it takes to complete probate and any delays or extra challenges may also have an impact on the payment amount for the executor. 

How Long Does Probate Take in Delaware?

The timeline for probate will vary based on the size and complexity of the estate. If anyone contests the will or disputes actions of the administrator, it can lengthen the time it takes to get probate completed. However, it generally takes about one year before the estate can be closed and dispersed to the heirs. 

Do All Estates Have to Go Through Probate in Delaware?

Many estates will be required to go through probate in Delaware. However, there are a few exceptions. For instance, estates with less than $30,000 in assets and no real property may avoid probate. In this situation, the Register of Wills Office will provide an affidavit for a small estate that allows you to transfer the assets of the deceased to their heirs. 

Does a Will Have to Be Probated in Delaware?

Yes, state law requires that all wills be filed with the Register of Wills in the county where the deceased person lived. Even if the estate doesn’t need to go through probate, the will must be filed with the court. You must also provide a copy of the death certificate when you file the will. The witnesses to the signing of the will must appear before the office unless their signatures were notarized originally. 

Settling an Estate in Delaware

Probate in Delaware can be quite complicated, and it is important that you follow the steps precisely. 

  • The will and a copy of the death certificate is presented to the Register of Wills. An administrator must be found and presented within 60 days, or the Register of Wills Office may appoint another person to be the administrator.
  • The administrator has three months to file the inventory list for the estate with the office along with the value. They must also file a tax return for the estate.
  • Creditors have eight months to file a claim against the estate, and the administrator must pay any valid claims.
  • The administrator must file an accounting form, which lists the assets and value as well as costs and expenses for the estate. Once the court approves the form, the assets can be distributed to the heirs.

How Long Do You Have to File Probate After Death in Delaware?

State law requires the will to be filed within 10 days of the death of the owner of the estate. Before any other actions can be taken for probate, the will must be proven to be valid. This can take quite some time if the witnesses who signed the will must appear before the Office to validate their signatures. 

Probate Court in Delaware

The Register of Wills Office in each county is where probate is handled. Every county has this office, and the administrator of the estate would file the will in the county where the deceased person lived prior to their death. The Register of Wills Office is part of the Delaware court system as the Court of Chancery. You can find contact information for the three courts on their website: https://courts.delaware.gov/chancery/

Probate Code in Delaware

Delaware has its own probate code, known as Title 12, Chapter 13. The code lists the guidelines and various deadlines that must be followed for the estate to be closed. You can learn more about the details at the State of Delaware website: https://delcode.delaware.gov/title12/c013/index.shtml.

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