Estate planning rules in Delaware

Trusts and fiduciary roles

Delaware law defines roles and duties for fiduciaries, advisers, and cotrustees. A person authorized to direct, consent to, or disapprove fiduciary decisions may be treated as an adviser and fiduciary unless the governing instrument provides for a nonfiduciary role.

A Delaware directed trust may give an adviser authority over investment decisions, distributions, or other decisions. Unless the trust instrument provides otherwise, the directed fiduciary has no duty to monitor, advise, or warn beneficiaries about those decisions.

A cotrustee excluded from specified authority generally has no duty to monitor, advise, or notify beneficiaries about the other cotrustee's actions. Co-fiduciaries generally participate in administration and try to prevent breaches.

A beneficiary eligible for distributions at a fiduciary's discretion has a discretionary interest and no right to compel a distribution. A letter of wishes is not binding on a trustee, who has no duty to follow it.

Unless the governing instrument expressly provides otherwise, the fiduciary responsible for investment decisions determines whether substituted property has equivalent value before allowing a trustor's substitution. A fiduciary may delegate duties to an agent while retaining responsibility for careful selection, terms, payment, and oversight.

A fiduciary seeking compensation discloses to each principal and current account statement recipients all fees or commissions an affiliate paid or received from affiliated investments or dealings.

Wills, intestacy, and probate

A Delaware will must be admitted to probate to prove a property transfer or nominate an executor. A will executed elsewhere may be treated as valid if it complies with the law of the place of execution or a qualifying place tied to the testator's domicile, abode, or nationality.

A person holding a document purporting to be a will delivers it to the county Register of Wills within 10 days after learning of the testator's death. A person who fails to survive the decedent by 120 hours is generally deemed to have predeceased the decedent.

A surviving spouse receives the entire intestate estate if the decedent leaves no surviving issue or parents. A notified person may contest a will under Delaware's pre-mortem validation procedure within 120 days of receiving notice, subject to statutory conditions.

For a self-proved will, compliance with signature requirements is conclusively presumed, while other execution requirements are presumed subject to rebuttal. An interested person who did not voluntarily appear at proof of a will or receive notice has a right to seek review within 6 months after the probate order.

Powers of attorney and guardianship

A Delaware durable personal power of attorney is written, signed and dated, notarized, and signed before one qualifying adult witness. A durable power of attorney is not terminated by the principal's incapacity and satisfies statutory requirements. The act excludes powers of attorney for health care decisions.

If no authorized person can determine incapacity, a physician or court may make the written determination that activates a personal power of attorney. A photocopy or electronically transmitted copy has the same effect as the original, subject to other statutes.

An agent keeps records of receipts, disbursements, and transactions made on the principal's behalf. A Delaware court may appoint a guardian for a person with a disability, including an adult unable to manage or care for their person or property due to incapacity and facing specified risks.

The Court of Chancery may appoint separate guardians for a person and property or one guardian for both.

Estate administration and security transfers

Executors and administrators account to the Court of Chancery every year until the estate closes and a final account is passed. Beneficiaries generally have three months from mailing of notice to file written exceptions to an estate account.

Qualifying persons may collect and distribute a decedent's personal estate by affidavit without awaiting appointment of a personal representative or probate of a will, if statutory conditions are met. The process requires that 30 days have passed since death and that personal estate value, excluding specified property, does not exceed $50,000.

Eligible securities may be registered with a beneficiary to take ownership at the owner's death. The eligible interests include corporations, limited liability companies, partnerships, and trusts. A transfer-on-death designation does not affect ownership while the owner is alive and may be changed or canceled by the sole owner or all surviving owners.

A registering entity does not have to offer or accept transfer-on-death registrations. An entity that accepts a request agrees to implement the registration at the owner's death under the chapter.

Thresholds and rates change. Check the state's own current figures.

Common questions