Delaware Wills

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Delaware Will FAQs

Can a spouse be a witness to signing a Will? Yes. A Delaware Will is not void merely because it’s witnessed by an ‘interested person’. An interested person includes a spouse or any person who has an interest in the Will or would have an interest under intestate succession laws. However, it is advisable to have independent persons witness your Will. Can I exclude my spouse, wife / husband from the Will? In Delaware, a spouse is entitled to 1/3 of the elective estate regardless of whether he/she is excluded from the Will. Can I exclude my son, daughter or children from my Will? Yes. However, if you made a will prior to having a child, then that after-born child will be entitled to a share of your estate, unless you make a new will. Can I leave the residue to my grandchildren? Yes. Where do I probate a Delaware Will? The Register of Wills in the county where the deceased person died or left property. What happens if I die without a Will? Your assets will be distributed in accordance with the intestacy laws (see below for an explanation).

Make, change or revoke a Delaware Will

Requirements for Making a Delaware Last Will & Testament

Wills and estates in Delaware are regulated by Title 12 Decedent’s Estates and Fiduciary Relations. All references to sections on this page refer to this statute. In order to make a valid Delaware Last Will and Testament:

  • The testator (person making a Will) must be aged 18 or older and of sound mind and memory. § 201

 

  • The Will must be in writing and signed by the testator. § 202

 

Who can Witness a Delaware Will?

  • Two or more credible witnesses (any person who is generally competent to act as a witness) must attest the Will in the testator’s presence. A Delaware Will is not void if an attesting witness has an interest in the Will. This means that the spouse may witness the Will. § 203

How do I change my Delaware Will?

A clause may be altered by the testator by canceling it, by making a codicil or drawing up a new last Will (§ 208). Changing a Will can become very messy when using cancelation or codicils. Many attorneys suggest making a new last Will and Testament and revoking the document you wish to be changed.

How do I revoke my Will?

A testator may revoke his/her last Will and Testament either by canceling it, making a valid new Delaware Will or some other writing signed by the testator and witnessed in accordance with Will execution requirements. § 208 Attorneys suggest expressly revoking all previous Wills in any new Will and Testament and destroying previous Wills. If you divorce your partner after making a Will, then unless the Will expressly stipulates otherwise, any gift or appointment made to your spouse becomes void. Being divorced does not revoke the rest of the Will. § 209

Statutory Provisions regarding Delaware Wills

  • After-born children – a child born after you have made a Delaware Will, who was not provided for in the Will, will be entitled to a share of your estate, unless your will specifically states that the subsequent birth of any child or children shall not affect the Will. The amount this child will be entitled to is based on the share he/she would have received if you had died intestate (without a Will). § 301

 

  • Marriage after making a Will – if you make a Will prior to being married and did not provide for your spouse in that Delaware Last Will and Testament, then on your death, your spouse will be entitled to a share of your estate as he/she would have been entitled to if you had died intestate (without making a Will). § 322. You should always make a new Will after you marry, unless your Will already provides for your spouse.

 

 

  • Spouse’s elective share – the spouse of a Delaware resident who dies with or without a Delaware Will, is entitled to an elective share of one third of the elective estate less the amount of all transfers made to the spouse by the deceased. You need to take this into consideration if you are trying to exclude your spouse from inheriting under your Will. § 901

 

 

  • TOD Accounts – Delaware has adopted the Uniform TOD Security Registration Act, which enables registration of transfer on death or “TOD” accounts. These securities enable the owner to bypass a last Will and Testament by designating a beneficiary directly. The designation can be changed at any time without the consent of the beneficiary (§ 806). However, accounts where multiple ownerships are held as tenants in comment cannot obtain registration in beneficiary form and therefore each account holder’s interest in such security can only be passed using a Delaware Last Will and Testament. § 802

 

 

  • Simultaneous Death – if you and a beneficiary die simultaneously, then without evidence to the contrary, it will be deemed that each person had survived the other. § 701

 

Probating a Will in Delaware

Delivering the Will

The person who has custody of a deceased’s last Will and Testament must deliver it to the Register of Wills within 10 days of learning of the death. If the person willfully fails to deliver the Will, they will be liable for damages to any aggrieved person. § 1301

Proving the Will

If the deceased only left personal property worth less than $30,000 (and no real property), then you may use the Small Estate Affidavit to transfer personal assets such as a car, boat and trailer. The original affidavit or short certificate is issued by the Register of Wills. If the testator lived in Delaware, his/her Delaware Will must be proved before the Register of Wills in the County where he/she resided at the time of death. If the testator did not reside in Delaware at the time of death, then it may be proved in any county where the decedent left property. § 1302 The Register of Wills can grant letters testamentary to appoint an executor under the Delaware Last Will & Testament. § 1502. If there is no Will, the court may grant letters of administration to appoint a personal representative to administer the estate. The order of priority for the administrator role is usually the spouse, then children, parents, whole blood siblings and finally half blood siblings. If there is no such person, then a personal representative will be appointed by the Register of Wills in its discretion. § 1505

Paying Inheritance and Estate Taxes

The executor or administrator will need to file an inheritance tax return with the Delaware Division of Revenue. No estate tax return is needed to be filed if all the real and personal property was owned by the deceased jointly with his/her spouse. The spouse just needs to file an affidavit with the Register of Wills.

Contesting a Will in Delaware

A Delaware Will can be contested for many reasons including improper execution or witnessing, fraud, forgery and duress on the testator at the time of signing the Will. Most importantly, there are strict timelines and procedures to be followed when objecting to probate of a Will. Legal guidance from a qualified lawyer should be sought.

Before Probate

The Court of Chancery can receive a caveat against the allowance of a Will any time before the order for probate is entered. Once the caveat is received, the court will appoint a hearing date and provide notice to interested parties. For persons outside Delaware, the court will require service or publication of notice. § 1308

After Probate

Once the Delaware Last Will and Testament is proved and the order for probate granted, any interested person may apply to have the probate order reviewed within six (6) months. The same proceedings (as though a caveat had been received prior to the probate order) will take place. The court may either affirm or reject the Will and either affirm or revoke the granting of letters appointing the personal representative. § 1309

What if I die without a Will?

If a Delaware resident passes away without having made a valid Will, his/her property will pass to the heirs in accordance with the laws of intestate succession. Any property not validly disposed of by a Delaware Willpasses as follows: § 502 & § 503

    • Your spouse’s share:
      • if you do not leave any issue or parents – the whole estate

       

    • if you leave issue (all of whom are also issue of your spouse) OR if you are survived by your parent(s) – the first $50,000 of the “personal” estate, plus one half of the balance “personal” estate, plus a life estate in the real property.
    • if you leave issue (one or more of whom are not issue of your surviving spouse) – one half of the “personal” estate plus a life estate in the real property.

 

  • Any remaining balance (which did not pass to your spouse):
    • To your issue (lineal descendents) per stirpes (which means by representation, so if your child has predeceased, that child’s child(ren) will take their parent’s share).

     

  • If there are no surviving issue, to your parents or the survivor of them.

 

Further heirs such as brothers, sisters, nieces, nephews and next of kin are mentioned. However, if you do not have any heirs or kindred, then your property will escheat to the State of Delaware (unless you make a Will). § 1101 Half blood relatives inherit the same as if they were full blood. § 506

No Will Case Studies

Here are some case studies of what happens to a resident’s assets if they die without a Delaware Will. Note, a person’s estate does not include jointly owned property: Husband died, no will, left wife & their children: Julie’s husband Ken died without a will. He left $100,000 in savings and investments and a house. They have two children together. Who gets what? Wife: $75,000 + life estate in the house, Children: $12,500 each + the house (after Julie’s life estate ends). Wife died, no will, left husband, their children & her child from former partner: Sandra died without a will. She had two children to her husband Tim plus another child to a former partner. She had $60,000 in personal investments and savings plus a house. Who gets what? Husband: $30,000 + life estate in the house, Sandra’s Children: $10,000 each + the house (after Tim’s life estate ends). Husband died, no will, leaving wife, their children & wife’s child from former partner: Michael died without a will. He had 2 children with his wife Mary. Mary also has a child from a former partner. He left $100,000 in savings plus a house. Who gets what? Wife: $75,000 + life estate in the house, Michael & Mary’s 2 children: $12,500 each + the house (after Mary’s life estate ends).

Delaware Will Forms

Before making a Delaware Last Will and Testament, we recommend you obtain attorney advice on:

  • Preparing, signing and witnessing a Last Will and Testament
  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):

Delaware Will Form: Married with adult children
Delaware Will Form: Married with adult and/or minor children, includes a trust for minor children
Delaware Will Form: Married with no children

Delaware Will Form: Single with adult children
Delaware Will Form: Single with adult and/or minor children, includes a trust for minor children
Delaware Will Form: Single with no children

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