Probate in Delaware: small estates, no will, skipping court

When someone dies in Delaware, the family's first question is usually practical. Do we have to go to court, and how long will it take?

Often the answer depends on two things: how much is in the person's name only, and whether they owned a house. Delaware has a small estate affidavit and, since a recent law, a deed that passes a home without court. This page covers each one, plus who inherits if there is no will. It is part of our state-by-state estate planning guides. If the word is new, start with what probate is.

Can my family use a small estate affidavit in Delaware?

Yes, if the estate fits. Delaware calls it "distribution of decedent's property without grant of letters," and the Register of Wills issues the affidavit (12 Del. C. 2306).

Banks and others holding the person's money pay or transfer it to the person who signed the affidavit. That person then distributes it under the will, or under the intestacy law if there is no will.

Who inherits if there's no will?

Delaware's intestacy law decides, and it treats personal property and real estate differently (12 Del. C. 502). A surviving spouse takes:

A life estate means the spouse can live in or use the home for life, but doesn't own it outright. This surprises many families.

Whatever doesn't pass to a spouse goes in this order (12 Del. C. 503):

1. Descendants, by family branch.
2. Parents equally.
3. Brothers, sisters, nieces and nephews.
4. Next of kin and the descendants of deceased next of kin.

Heirs must survive by 120 hours. Half-siblings take the same as full siblings. Friends never appear on this list. If you want a friend, a charity or a neighbor to receive anything, it has to be in a will or trust. Our post on dying without a will covers what happens when the list runs short.

Who serves as personal representative?

With a will, the executor named in it serves. With no will, letters of administration go to the first group with a living, capable member (12 Del. C. 1505):

1. Spouse.
2. Children.
3. Parents.
4. Brothers and sisters.

Everyone in that group who qualifies serves together, or the group can agree in writing on someone else. If nobody in these groups exists, or no petition is filed within 60 days after death, the Register of Wills may appoint whoever it chooses.

The personal representative is a fiduciary: legally required to act in the estate's interest and follow what the will says.

Can someone out of state serve?

Yes. Delaware has no relatives-only rule for nonresidents. Before letters issue, a nonresident files an irrevocable power of attorney naming the Register of Wills as agent for legal papers (12 Del. C. 1506).

A bond isn't required by default. It is needed only if the will requires it or the Court of Chancery orders it (12 Del. C. 1521).

Is there a simpler kind of probate?

Not in the way some states offer it. Delaware has no informal or independent administration. The Register of Wills grants letters, and the Court of Chancery approves accounts. The personal representative files an account every year until a final account is passed (12 Del. C. 2301). The small estate affidavit is the simplified option. Our post on the probate process walks through the general steps.

How long do creditors have?

The Register posts a notice within 40 days of letters and publishes it in a newspaper once a week for three weeks. Debts from before death are barred unless presented within 8 months of the death, whether or not notice was given (12 Del. C. 2102).

Debts that arise after death are generally barred six months after they arise. A creditor whose debt is rejected must sue within three months of written notice.

How much is the personal representative paid?

Delaware says "reasonable." Commissions are allowed under Court of Chancery rule (12 Del. C. 2305). Rule 192 lists factors such as time, risk, difficulty, skill, any will provisions, local rates and the value of the assets (Court of Chancery Rules).

There is no percentage schedule. Commissions are presumed reasonable unless a beneficiary objects to the account, though the court can reduce high fees on its own. Our post on what an executor gets paid compares approaches.

Can my house skip probate?

Yes, with a transfer-on-death deed. Delaware allows them under the Uniform Real Property Transfer on Death Act (25 Del. C. ch. 2), amended in 2025 (85 Del. Laws c. 212).

What to know:

• It must meet the rules for a recordable deed, including notarization.
• Two people must witness it, and at least one can't be a beneficiary.
• It must say the transfer happens at your death.
• It must be recorded with the county recorder of deeds before your death.
• You can always revoke it, even if it says otherwise. The beneficiary doesn't need to be told.
• If a beneficiary dies before you, their share lapses. Name a backup.

Optional statutory forms are included. A living trust is the other common way to keep a home out of court. Our posts on what a trustee does and how to avoid probate compare the options. If you use a trust in Delaware, make sure it says plainly whether it is revocable.

Will my heirs owe Delaware estate tax?

No. Delaware repealed its estate tax for deaths on or after January 1, 2018 (Delaware Division of Revenue; 81 Del. Laws c. 52).

Which path fits?

Here is a typical case, a composite. Marion, 75, lived in Dover and never married. Her house had a recorded transfer-on-death deed naming her nephew. Her savings account came to about $35,000. Thirty days after she died, her nephew used the small estate affidavit for the account. The house passed to him under the deed.

Some people would rather not leave this to a nephew in another state. Trella Trust Company, through a Kinly membership, can be named as executor or trustee, first or as backup to someone you choose. If it steps in and settles the estate, that work is charged by the hour, and you see the rates before anything starts.

Before death, the papers that matter most are your powers of attorney. See our Delaware financial power of attorney guide and Delaware medical power of attorney guide.

Common questions

What is the small estate limit in Delaware?

$50,000 in personal estate, not counting jointly owned property. The person must have owned no Delaware real estate in their sole name or as tenant in common, and the family must wait 30 days after death.

Does a surviving spouse inherit everything in Delaware?

Only if there are no descendants and no parents. Otherwise the spouse gets part of the personal property and only a life estate in real estate.

Does Delaware allow transfer-on-death deeds?

Yes. The deed must be notarized, witnessed by two people (at least one not a beneficiary), and recorded before death.

How long do creditors have in Delaware?

Debts from before death are barred unless presented within 8 months of the death, whether or not notice was published.

Does Delaware have an estate tax?

No. Delaware's estate tax was repealed for deaths on or after January 1, 2018.

Sources

• 12 Del. C. 2301 to 2306: Small estates, accounts and commissions (Delaware Code)
• 12 Del. C. ch. 5: Intestate succession (Delaware Code)
• 12 Del. C. 1502 to 1508: Grant of letters (Delaware Code)
• 12 Del. C. 1521 to 1522: Bonds (Delaware Code)
• 12 Del. C. ch. 21: Claims against estates (Delaware Code)
• Court of Chancery Rules, Rule 192 (Delaware Courts)
• 25 Del. C. ch. 2: Uniform Real Property Transfer on Death Act (Delaware Code)
• 85 Del. Laws c. 212 (Delaware General Assembly)
• Delaware Division of Revenue, 2019-2020 personal income tax forms (estate tax note)
• 81 Del. Laws c. 52 (Delaware General Assembly)