How Probate Works in Delaware

Probate is opened with the Register of Wills in the county where the decedent lived. The main steps are: the will is proved and letters testamentary or of administration are granted (after any required bond); the Register posts and publishes notice to creditors within 40 days of the grant of letters; the personal representative files an inventory and appraisal within 3 months after letters (with a copy in any other county where the decedent owned real estate); claims and expenses are paid; and the personal representative files an account every year from the date of letters until a final account is approved and the estate is closed. The personal representative generally has 1 year from the date of letters to settle the estate.

Besides the small estate affidavit, the Register of Wills may allow notice to creditors by posting only (no newspaper publication) when the gross personal estate is $30,000 or less and the gross real and personal estate together are $35,000 or less. Delaware has no separate summary administration procedure.

Claims that arose before or at death are barred unless presented within 8 months of the date of death, whether or not notice to creditors was given. Claims arising after death must generally be presented within 6 months after they arise. If the personal representative rejects a claim in writing, the creditor must sue within 3 months after notice of the rejection.

The person named in the will is granted letters testamentary. Without a will, letters of administration go first to the spouse, then children, then parents, then siblings; if no one in those classes is available or no petition is filed within 60 days after death, the Register of Wills may choose. Minors and mentally incapacitated persons cannot serve, and a person convicted of a crime that disqualifies them from taking an oath cannot serve unless the Register grants an exception. A personal representative who lives outside Delaware must file an irrevocable power of attorney naming the Register of Wills to accept legal papers. No bond is required unless the will requires one or the Court of Chancery orders it.

If the decedent's personal property (not counting jointly owned property and certain exempt items) is worth $50,000 or less and the decedent owned no Delaware real estate in their own name or as a tenant in common, a spouse, close relative, trustee of the decedent's trust, a qualified named executor or a licensed Delaware funeral director can collect the personal property by sworn affidavit. At least 30 days must have passed since death, no personal representative petition can be pending or granted, all known debts must be paid or provided for, and the surviving spouse's allowance must be paid, provided for, waived or expired. The affidavit is given to whoever holds the property.

Estates are handled by the Register of Wills in each county (New Castle, Kent and Sussex), which records wills after death and other estate documents, oversees the appointment of personal representatives, and keeps estate matters as permanent records. Kent County offers an online Estate Search for its Register of Wills records.