Wills and probate in Delaware
Key takeaway
Delaware probate rules explain how wills take effect, how property passes when someone dies without a will, and how certain estate documents are handled. The rules are relevant to business owners, real estate owners, private investors, their spouses, and adult children. The sections cover will execution, probate review, intestacy, delivery of a will, and access to a sole-name safe deposit box.
Making and proving a will
A Delaware will must be in writing, signed by the testator or by another person at the testator's direction and in the testator's presence, and attested by at least two credible witnesses in the testator's presence.
Admission to probate is required for a Delaware will 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.
For a self-proved will, compliance with signature requirements is conclusively presumed. Other execution requirements are presumed subject to rebuttal.
Delivering a will and reviewing probate
A person holding a document that purports to be a will must deliver it to the county Register of Wills within 10 days after learning of the testator's death.
An interested person who did not voluntarily appear at the proof of a will, or was not served with notice, has a right to review within 6 months after the probate order. The Court of Chancery orders review on petition.
Intestacy and survival
When the decedent leaves no surviving issue or parents, Delaware intestacy law gives the entire intestate estate to the surviving spouse.
For intestacy purposes, Delaware generally treats a person who does not survive the decedent by 120 hours as having predeceased the decedent.
Sole-name safe deposit box access
Before appointment of a personal representative, access to a decedent's sole-name safe deposit box is limited to people who present a key or combination and a certified copy of the death certificate or other satisfactory proof.
Common questions
When does a Delaware will take effect for property transfer purposes?
Probate admission is required for a Delaware will to prove a property transfer or nominate an executor. A will executed elsewhere may be treated as valid if it meets the law of the place of execution or a qualifying place tied to the testator's domicile, abode, or nationality.