1 Overview — what makes Delaware probate different
Delaware probate is governed by Title 12 of the Delaware Code (Decedents' Estates and Fiduciary Relations), accessible at the Delaware Code Online at delcode.delaware.gov. The state's probate system stands out from every other state in four fundamental ways.
First: The Register of Wills — an elected official, not a court judge. Delaware's probate is administered through the Register of Wills, a separately elected official in each of the three counties. This is structurally distinct from virtually every other state. The Register's office is a branch of the Delaware Court of Chancery — not an independent court — and handles all routine probate administration: filing wills, appointing personal representatives, supervising inventories, and approving final accountings. When matters become contested (will disputes, challenges to fiduciary conduct, equitable claims), they go to the Court of Chancery itself, one of the most respected business courts in the world.
Second: Only three counties — and each has its own fee schedule and procedures. New Castle (Wilmington — largest county, most probate volume), Kent (Dover — state capital), and Sussex (Georgetown — shore county, rapidly growing). Fee schedules differ by county: New Castle charges approximately 1.75% of the net personal estate as a closing fee; Sussex charges approximately 1.25%. Forms and procedures also vary slightly. Always confirm the current schedule with the county Register of Wills office before filing.
Third: 8-month creditor period — the minimum timeline driver. Under 12 Del. C. § 2102, pre-death claims against the estate must be filed within 8 months of the date of death. The estate cannot be formally closed until this 8-month window expires and all known claims are resolved. This is one of the longer creditor periods in the country and drives Delaware's typical 10–14 month estate timeline for simple estates.
Fourth: 10-day will filing requirement. Under Delaware law, any person who comes into possession of a document that appears to be a will must file it with the Register of Wills within 10 days of learning of the decedent's death. This is among the strictest will-preservation requirements in the country. New Castle County also offers will safekeeping during the testator's lifetime for a $10 fee.
Delaware probate at a glance
| Topic | Delaware rule | Authority |
|---|---|---|
| Governing law | Title 12, Delaware Code; full text at delcode.delaware.gov | 12 Del. C. § 101 et seq. |
| Probate forum | Register of Wills in each of 3 counties (New Castle, Kent, Sussex) — elected official, branch of Court of Chancery; contested matters go to Court of Chancery | 12 Del. C. § 2501 et seq. |
| Small estate threshold | New Castle County: $50,000 personal property (raised June 10, 2026 from $30,000); Kent and Sussex: confirm with respective county; no solely-owned real estate; 30-day wait | 12 Del. C. § 2306 |
| Full probate required when | Decedent had personal property above threshold in their name alone, OR owned real estate in their name alone (solely or as tenant in common) | 12 Del. C. § 2101 |
| Will filing requirement | Anyone in possession of a possible will must file it with the Register of Wills within 10 days of learning of the death | 12 Del. C. § 1303 |
| Holographic wills | NOT valid in Delaware — will requires testator signature + two credible witnesses | 12 Del. C. § 202 |
| Dower and curtesy | Abolished — 12 Del. C. § 511 explicitly abolishes dower and curtesy in Delaware | 12 Del. C. § 511 |
| Spousal share — intestate (with children or parents) | Surviving spouse receives first $50,000 personal property (if children are also spouse's, or if only parents survive) PLUS ½ of remaining personal property PLUS a life estate in all intestate real property — not outright ownership | 12 Del. C. § 502 |
| Life estate in real property — implication | Surviving spouse CAN: live in the home; collect rental income. Cannot: sell the property without consent of remainder holders (children or parents). Property passes to remainder holders after spouse's death. | 12 Del. C. § 502 |
| Elective share (testate) | Surviving spouse may elect 1/3 of the augmented estate instead of will provisions | 12 Del. C. § 901 |
| Creditor period | 8 months from date of death for pre-death claims; 6 months from post-death claims — one of the longer periods in the country; estate cannot close until this period expires | 12 Del. C. § 2102 |
| Inventory deadline | Within 3 months of qualification (appointment) of personal representative | 12 Del. C. § 2301 |
| Closing fee (New Castle) | ~1.75% of net personal estate value (assets minus debts); paid to Register of Wills at closing; significant cost for larger estates | New Castle County fee schedule |
| Closing fee (Sussex) | ~1.25% of net personal estate value; Kent County maintains separate schedule — verify current rates | Sussex/Kent County fee schedules |
| Survivorship period | 120 hours (5 days) — heir must survive decedent by 120 hours to inherit | 12 Del. C. § 311 |
| TOD deed (real property) | Available — Transfer-on-Death deed for real property; allows real estate to pass directly without probate | Del. Code tit. 25, § 201 et seq. |
| DE estate tax | None — repealed effective January 1, 2018 | 30 Del. C. Ch. 15 (repealed) |
| DE inheritance tax | None — Delaware has never had an inheritance tax | — |
| Attorney fees / PR compensation | No statutory percentage; "reasonable" compensation per Court of Chancery rules; court approval may be required for supervised estates | 12 Del. C. § 2305 |
2 The Register of Wills — Delaware's unique probate forum
The Register of Wills is an elected official in each of Delaware's three counties. Unlike a judge who applies legal reasoning to disputes, the Register primarily administers the probate process — accepting filings, issuing Letters, supervising inventories, and approving accounts. The Register cannot resolve contested matters; those go to the Court of Chancery. Each county's Register maintains separate office hours, fee schedules, and form packets. Appointments are typically required to open an estate.
New Castle County
Register of Wills · Wilmington · Largest countyKent County
Register of Wills · Dover · State capitalSussex County
Register of Wills · Georgetown · Shore county3 Spousal life estate in real property — Delaware's most surprising intestate rule
Delaware's intestate succession law contains a rule that consistently surprises surviving spouses: when a spouse dies without a will and leaves children or surviving parents, the surviving spouse does not receive outright ownership of the decedent's real estate. Instead, under 12 Del. C. § 502, the surviving spouse receives only a life estate in all intestate real property — the right to live in and receive income from the real estate for their lifetime. After the surviving spouse dies, the real property passes to the children (or parents, if no children).
Delaware Intestate Spousal Share Visualizer
12 Del. C. § 502 · Select the family scenario; enter estate values to see the split
| Family situation (intestate) | Surviving spouse receives | Children / others receive |
|---|---|---|
| Spouse only — no children, no parents | Entire estate (real and personal property outright) | — |
| Spouse + parents (no children) | $50,000 personal property + ½ of remaining personal property + life estate in all real property | Parents receive: ½ of personal property over $50K + real property remainder (after spouse's life estate ends) |
| Spouse + children (all children are also spouse's) | $50,000 personal property + ½ of remaining personal property + life estate in all real property | Children equally share: ½ of personal property over $50K + real property (outright after spouse's life estate ends) |
| Spouse + children (blended — not all children are spouse's) | ½ of all personal property + life estate in all real property (no $50K first allocation) | Children equally share: ½ of all personal property + real property (outright after spouse's life estate ends) |
| 120-hour survivorship requirement | Heirs must survive decedent by 120 hours (5 days) to inherit (12 Del. C. § 311) | |
4 Delaware wills — valid execution requirements
| Will type | Valid in Delaware? | Requirements |
|---|---|---|
| Attested (witnessed) will | Yes — standard form; only valid type in Delaware | Testator must be 18+ years, of sound mind. Sign (or acknowledge signature) in the presence of two or more credible witnesses who sign in the testator's presence. Self-proving affidavit (with notary) allows admission without witness testimony. 12 Del. C. § 202. |
| Holographic will (handwritten) | NOT valid — Delaware does not recognize holographic wills | Unlike neighboring Maryland (where holographic wills are valid), Delaware requires two witnesses. A handwritten will without two witnesses is invalid in Delaware. |
| Electronic will | NOT currently valid in Delaware | Delaware does not allow electronic wills. Wills must be physically signed by the testator and witnesses. |
| 10-day will filing requirement | Anyone in possession of a document that may be a will MUST file it with the Register of Wills within 10 days of learning of the decedent's death. Failure to file can result in personal liability. 12 Del. C. § 1303. | |
Elective share — 1/3 of augmented estate
Under 12 Del. C. § 901, a surviving spouse who is not satisfied with what the will provides may elect to take one-third of the decedent's augmented estate instead. The augmented estate includes not just probate assets but also certain non-probate transfers made by the decedent. This right cannot be waived without a valid prenuptial or postnuptial agreement. The election must be made within a specific time period — generally before the final settlement of the estate.
5 Delaware probate — step by step
- 1
File will within 10 days; assess estate; determine track 10-day will filing deadline — immediate action required
If you have possession of a document that may be the decedent's will, you must file it with the Register of Wills in the county where the decedent lived within 10 days of learning of the death (12 Del. C. § 1303). This applies whether or not you intend to open a probate estate. Also determine whether the estate qualifies for the small estate affidavit (New Castle County: $50,000 personal property and no solely-owned real estate for deaths on or after June 10, 2026; other counties: check with the Register). Call ahead and schedule an appointment before visiting — all three Register of Wills offices operate by appointment for opening estates. Contact the appropriate county Register of Wills: New Castle County at newcastlede.gov (302) 395-7800; Kent County at kentcountyde.gov (302) 744-2350; Sussex County at sussexcountyde.gov (302) 855-7875.
Original will (must be filed within 10 days)Certified death certificates × 6 - 2
File petition; Register appoints personal representative; issues Letters Appointment in person at Register of Wills
File a Petition for Probate with the Register of Wills in the county where the decedent was domiciled. The Register qualifies the personal representative by administering an oath. A bond is generally required unless waived by the will or all interested parties consent (12 Del. C. § 1501). The Register issues Letters Testamentary (testate) or Letters of Administration (intestate). Order 6–8 certified copies of Letters. Filing fees vary by county and estate value — approximately $30–$1,905+ in New Castle County based on estate value (12 Del. C. § 2510). The Register's office provides a "probate packet" with instructions and required forms specific to that county.
Petition for Probate (county-specific form)Letters Testamentary or Letters of AdministrationBond (unless waived) - 3
Publish and mail Notice to Creditors; 8-month period begins 8 months from death — one of longest in US
Publish Notice to Creditors in a newspaper of general circulation in the county. Mail direct notice to all known creditors and beneficiaries. The 8-month creditor claim period for pre-death claims runs from the date of death (12 Del. C. § 2102) — not from publication. Post-death claims have a 6-month period. The Register of Wills office can assist with coordinating newspaper publication. This 8-month period is the primary driver of Delaware's 10–14 month typical estate timeline — it cannot be shortened for routine estates, regardless of estate simplicity.
Published Notice to CreditorsDirect notice mailed to all known creditors and heirs - 4
File inventory within 3 months 3-month deadline from qualification
File a complete inventory of all probate assets with the Register of Wills within 3 months of qualification (12 Del. C. § 2301). List all real and personal property owned solely in the decedent's name at date of death with appraised values. Joint tenancy assets, TOD/POD accounts, and life insurance (to named beneficiaries) are non-probate and excluded. Real estate values require a professional appraisal or documented market value assessment. The inventory value is the basis for computing closing fees charged by the Register of Wills. The inventory is a public record once filed.
Inventory (filed within 3 months of qualification)Professional appraisals for real estate - 5
Pay valid creditor claims; address spousal rights; no DE estate or inheritance tax No DE taxes — but federal estate tax for very large estates
After the 8-month creditor period, review and pay valid claims in statutory priority order. Address the surviving spouse's rights — including the life estate in real property under intestate succession, or the elective share right (1/3 of augmented estate) in testate estates. Delaware repealed its estate tax effective January 1, 2018; no Delaware estate tax return is required. Delaware has no inheritance tax. File the decedent's final federal and Delaware income tax returns. If the estate earns income during administration, file a fiduciary income tax return. For estates approaching the federal threshold (~$15M), a federal estate tax return (Form 706) is required. Even after the creditor period, if distribution is made within the first year of appointment, the executor may require beneficiaries to sign a refunding bond equal to double the distribution amount.
- 6
File final accounting; pay Register of Wills closing fee; close estate Closing fee: 1.25–1.75% of net personal estate
File a Final Accounting with the Register of Wills documenting all receipts, disbursements, and proposed distributions. The accounting must balance to the penny. Upon Register approval, pay the closing fee charged by the county (approximately 1.75% of net personal estate in New Castle County; approximately 1.25% in Sussex County; confirm Kent County's current rate). This closing fee is a significant and often-overlooked cost — for a $300,000 net personal estate in New Castle County, the closing fee alone is approximately $5,250. Distribute assets to beneficiaries; obtain receipts from all distributees. The Register issues an estate closing letter formally closing the estate.
Final AccountingClosing fee payment to Register of WillsReceipts from all beneficiariesEstate closing letter
6 Delaware trust law — why wealthy clients choose Delaware
While Delaware's probate procedures are routine, Delaware is famous for its trust law — among the most sophisticated and favorable in the country. This attracts trust planning from across the United States and internationally. Delaware trusts that own real estate or business interests in Delaware can have probate implications for Delaware residents and non-residents alike.
| Delaware trust feature | What it offers | Relevance to probate |
|---|---|---|
| Dynasty trust | Delaware permits trusts to last up to 110 years (effectively perpetual under modern repeal of Rule Against Perpetuities); trust assets avoid estate tax for multiple generations | Assets held in a Delaware dynasty trust bypass probate entirely; trust administration continues through the trustee under the Delaware Revised Uniform Trust Code |
| Delaware Asset Protection Trust (DAPT) | After a 4-year seasoning period, assets in a DAPT can be protected from the settlor's own creditors while the settlor retains some benefit — unusual and powerful | DAPT assets bypass probate; may affect claims by estate creditors depending on the DAPT structure and applicable law |
| Delaware Directed Trust Act | Allows separation of trust functions among different parties (investment director, distribution trustee, administrative trustee) — sophisticated institutional trust management | Directed trust assets bypass probate; these trusts typically have investment advisors directing the trustee on investment decisions |
| Court of Chancery trust jurisdiction | The Delaware Court of Chancery has deep expertise in trust and fiduciary matters; sophisticated forum for trust disputes | If a trust is contested (breach of fiduciary duty, construction, modification), the Court of Chancery is the forum — experienced and efficient |
Delaware trust law resources: the Court of Chancery at courts.delaware.gov for trust litigation; the Delaware State Bar Association's Find-a-Lawyer at dsba.org for trust and estate attorneys. Delaware trust law is codified at 12 Del. C. § 3301 et seq. (Delaware Revised Uniform Trust Code) and § 3570 et seq. (Delaware Directed Trust Act).
7 Key Delaware probate forms & resources
Each county's Register of Wills maintains its own probate packet with forms and instructions specific to that county. There are no uniform statewide forms. The Delaware Code (Title 12) at delcode.delaware.gov is the primary statutory reference. The Delaware State Bar Association's Find-a-Lawyer at dsba.org provides referrals to estate attorneys. Low-income residents can contact Community Legal Aid Society, Inc. (CLASI) at clasi.org for legal assistance.
Filed with the Register of Wills in the county of the decedent's domicile. Forms differ by county — obtain the probate packet directly from the county's Register of Wills office. Schedule an appointment before visiting. File the original will at the same time (if not already filed within the 10-day deadline). Filing fees based on gross estate value — approximately $30–$1,905+ in New Castle County. All three county offices require in-person qualification. New Castle County also requires e-filing for attorneys via File & ServeXpress at fileandservexpress.com.
For estates with personal property below the small estate threshold and no solely-owned real estate. The Register of Wills issues the Small Estate Affidavit — presented to banks, employers, or other institutions holding the decedent's assets. Processing costs under $100. Wait at least 30 days after death. New Castle County raised its threshold from $30,000 to $50,000 effective June 10, 2026 for decedents dying on or after that date. Kent and Sussex county thresholds may differ — verify with the respective county office before relying on this procedure. Cannot be used if any Delaware real estate is held solely in the decedent's name (even a small property). The affidavit can be used to transfer vehicles, trailers, and boats as well as bank accounts and personal property.
Delaware TOD deeds allow real property to pass to named beneficiaries at death without probate. Recorded in the land records office of the county where the property is located during the owner's lifetime. Revocable at any time. At death, beneficiary records a certified death certificate and affidavit of acceptance. A TOD deed can prevent the spousal life estate problem under Delaware intestacy — the deed transfers the property directly to the named beneficiary (including the surviving spouse) at death without going through the intestate succession rules. A TOD deed on the family home, naming the surviving spouse as beneficiary, gives the spouse outright ownership (not a life estate) when the other spouse dies. Delaware TOD deeds are authorized under Title 25 of the Delaware Code.
Filed with the Register of Wills within 3 months of the personal representative's qualification (appointment). Lists all probate assets — real and personal property solely in the decedent's name — with date-of-death appraised values. Non-probate assets (joint tenancy, TOD/POD accounts, life insurance to named beneficiaries, trust assets) are excluded. Professional appraisals required for real estate. The inventory is a public record once filed and forms the basis for computing the closing fee charged by the Register (1.25–1.75% of the net personal estate). Forms are county-specific — obtain from the Register of Wills office packet.
If a surviving spouse is unhappy with what the will provides, they may elect to take one-third of the decedent's augmented estate instead (12 Del. C. § 901). The augmented estate includes probate assets plus certain non-probate transfers made during the decedent's lifetime. The election must be filed with the Register of Wills within the time specified by Delaware law — before the estate is settled. This is a significant right that cannot be voluntarily waived except in a valid prenuptial or postnuptial agreement. An attorney at the Delaware Bar Association (dsba.org) can assess whether the elective share is advantageous compared to taking under the will.
Filed with the Register of Wills after all creditor claims are resolved (after the 8-month period) and all estate matters are settled. Must document every receipt and disbursement, balance to zero, and propose the distribution. The Register reviews and approves the accounting. Upon approval, the closing fee is paid to the county Register (approx. 1.75% of net personal estate in New Castle County; 1.25% in Sussex County; confirm Kent County's current rate). This closing fee is a significant and often underestimated cost of Delaware probate. The Register issues an Estate Closing Letter formally closing the estate. Forms and instructions are available in each county's probate packet.