Delaware Probate | Delaware Inheritance Advances

Probate Process in Delaware

In Delaware, the governing body that oversees the transfer of assets from a deceased person to the heirs is the Delaware Probate Court. Probate in Delaware serves a vital role in that it methodically collects all assets together into a single estate, takes care of all outstanding debts that were left unpaid, identifies the legal heirs, and ensures the heirs receive what is fair under the law.

Delays To Your Inheritance In Delaware

Delays are everywhere in the Delaware probate process. Most heirs assume the inheritance process lasts just a few months, especially if there is a will. This couldn’t be further from the truth. According to a national AARP report on the Probate process, the average estate is open for 17 months by the time it actually closes and pays out to the rightful heirs; that’s basically a year and a half of legal procedure holding the money your loved ones wanted you to have.

Most Common Questions About Delaware Inheritance Law

If you have no legal background, Delaware probate law may appear confusing. Use these answers to frequently asked questions to help guide you.

Is Probate Required in Delaware?

Delaware requires probate in most cases, though you can find some exceptions.

How Do You Avoid Probate in Delaware?

You can skip probate by establishing a living trust for an asset. You must designate someone as your trustee should you die, and you also have to transfer ownership of the asset to yourself as the trustee. Other ways to avoid probate include:

  • Joint ownership
  • Transfer-on-death registration for securities, vehicles and real estate
  • Payable-on-death designations for bank accounts

How Long Does Probate Take in Delaware?

It can take up to a year for probate in Delaware, though it sometimes moves much faster. You can decrease the amount of time in probate by declaring a small estate, which is reserved for those with low monetary or property value.

delaware probate process

As with any estate, certain factors can extend the probate timeline, such as:

  • Non-probate assets: If the decedent has non-probate assets, this can affect how long the probate process takes. While these assets automatically transfer upon the decedent’s death, identifying and managing them can still take a significant amount of time.
  • The estate’s value: In Delaware, if the estate is more than $30,000, it must go through the complete probate process, including filing an inventory with the Register of Wills.
  • Guardianship: According to Delaware law, if a parent passes away and the other parent is unfit or deceased, the state must appoint a guardian for all minor children. While the deceased may leave instructions in their will, the court has a final say. Finding and appointing a guardian can cause significant delays in the probate process.

How Much Does Probate Cost in Delaware?

The fees for probate in Delaware will vary based on factors such as the size of the estate, the county one files for probate in and whether anyone contests the will. During the probate process, it is also common to encounter fees like:

  • Administrator, executor or probate bonds
  • Professional fees like for accountants and land surveyors
  • Executor fees
  • Attorney fees
  • Document fees
  • Initial filing fees and court costs

Steps to Settling an Estate in Delaware

Probate in Delaware is a methodical process that consists of several stages:

  1. Opening the estate: To officially begin the probate process, one must file a petition to open the estate with the Register of Wills in the deceased’s county. This step usually happens within 30 days of the decedent’s death. During this time, the court will appoint a personal representative to manage the probate process.
  2. Notification of heirs and creditors: After their appointment, the personal representative will notify all potential heirs of the decedent’s death.
  3. Inventory and appraisal: Once the person representative notifies all heirs, they will complete an inventory of the decedent’s assets and appraise them to determine their value. Depending on the estate, this process can take a few months.
  4. Paying all debts and taxes: If the decedent has any outstanding debts and taxes, the personal representative will use the estate to pay off these debts. Creditors also have eight months from the date of death to file claims against the property, which can extend the probate process.
  5. Distributing remaining assets: After paying all debts and taxes, the personal representative will begin distributing money to heirs based on the will or intestacy laws.
  6. Closing the estate: To formally complete the probate process, the personal representative must prepare a final accounting that shows all payments and inheritance distributions from the estate. Once the court approves the accounting, the estate is officially closed.

How Long Do You Have to File Probate After Death in Delaware?

The will must be filed with the state within 10 days of someone’s death.

What Happens if Someone Dies Without a Will in Delaware?

If you die without a will in Delaware, your estate is subject to intestate rules. The state will distribute your property among your closest living relatives, including your spouse, any children and your parents, if they are still alive.

How to Determine Next of Kin in Delaware

Delaware follows intestate succession when determining next of kin if the decedent dies without a will. The laws of intestate succession are as follows:

  • Children and no spouse: The children will inherit all assets.
  • Spouse but no children or parents: The spouse will inherit all assets.
  • Spouse and descendants from the decedent and that spouse: The court will distribute the first $50,000 of the estate, half of the remaining assets and the right to use the decedent’s real estate for life to the spouse. The remainder of the assets will go to the descendants, who will not have access to real estate.
  • Spouse and parents: The court will distribute the first $50,000 of the estate, half the remaining balance and the opportunity to use the decedent’s real estate for the remainder of their life to the spouse. The parents will inherit the remainder of the estate and cannot use the real estate.
  • Parents but no spouse or descendants: The court will distribute the entire estate to the parents.
  • Siblings but no spouse, descendants or parents: The court will distribute all assets to the siblings.

Does Delaware Have an Inheritance or Estate Tax?

There is no Delaware inheritance tax, although if you inherit from someone who lives in a state with an inheritance tax, you are subject to the tax. Delaware also doesn’t charge an estate tax.

How Are Spouses Affected by Delaware Inheritance Law?

Delaware is not a community property state but rather an equitable distribution state. When you die, your spouse is entitled to your entire estate if you don’t have any surviving children or parents. If you do have other living descendants, your estate may be divided in several ways:

  • Your spouse receives $50,000 plus half the balance of your estate if you have surviving children. Your spouse also gets the right to use your real estate. The remainder of your estate goes to your kids.
  • If you have no surviving children but your parents are still alive, your spouse gets the same rights. They receive $50,000 of the estate and half its balance, plus rights to real estate for life. The rest goes to your parents.

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Access Your Inheritance In Delaware Immediately

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