Delaware Probate Guide
If you've just lost someone and are facing the Delaware probate process — this guide walks you through what it costs, how long it takes, the exact filings Delaware requires, and whether you can avoid formal probate entirely.
Typical Timeline
9–15 months
Uncontested formal probate
Small Estate Threshold
$50,000
Affidavit for Small Estate (12 Del. C. § 2306)
Court
Court of Chancery — Register of Wills
Filing fee: $50–$500
Executor Commission
Reasonable fee
~$25,000 on a $1M estate
Probate is required for estates above the small-estate threshold or containing solely-titled real estate. Assets passing outside probate include joint tenancy with survivorship, tenancy by the entirety, POD/TOD accounts, Delaware TOD deeds (effective December 5, 2025), and trust assets.
Delaware's 8-month pre-death creditor claim period (from date of death) is one of the longest in the country and is the principal bottleneck; an inventory is due 3 months after appointment and a first account 13 months after.
Delaware's Affidavit for Small Estate (12 Del. C. § 2306) allows qualifying estates to skip formal probate.
| If the death occurred… | Small estate threshold |
|---|---|
| Deaths on or after June 11, 2026 | $50,000 |
| Deaths before June 11, 2026 | $30,000 |
Effective for deaths on or after June 11, 2026, the threshold is $50,000 in personal property (was $30,000 for deaths before that date). No real estate may be solely titled in the decedent. The affidavit is filed with the Register of Wills 30 days after death.
Delaware uses a reasonableness standard for executor compensation, with the Court of Chancery's published fee guidelines (Rule 192) commonly used as a benchmark. Typical fees run 1–4% of total assets depending on estate size and complexity.
Example: An estate valued at $1,000,000 would yield an executor commission of approximately $25,000.
Attorney fees:
Attorney fees are negotiated (typically hourly) and reviewed by the Register of Wills / Court of Chancery for reasonableness.
Multiple co-executors:
Co-executors share a single reasonable fee, allocated among them by agreement or court order.
Statute: 12 Del. C. § 2305 (compensation); Court of Chancery Rule 192
Bond is required unless waived by the will or all interested parties consent. Bond amount typically equals the value of personal property plus one year's anticipated income.
Statute: 12 Del. C. § 1541
Delaware repealed its state estate tax effective January 1, 2018. There is no Delaware estate or inheritance tax. Only the federal estate tax applies, with a 2026 exemption of $15 million per individual / $30 million per married couple under the One Big Beautiful Bill Act.
Delaware is a separate-property state. A surviving spouse may elect a one-third share of the elective estate (less amounts already passing to the spouse) under 12 Del. C. § 901. The petition must be filed in the Court of Chancery within 6 months after grant of letters.
The Delaware Division of Medicaid and Medical Assistance recovers long-term care benefits from probate estates of recipients age 55 or older. Recovery is limited to probate assets; assets passing by survivorship, beneficiary designation, or TOD deed escape recovery.
The full Delaware executor checklist has 24 milestones: 15 specific to Delaware law (shown below — filings, forms, and court interactions tied to Delaware statutes) and 9 universal duties that apply in every state (expandable at the end of the list). The same item never appears in both groups.
Obtain certified death certificates
Order at least 10-12 certified copies of the death certificate from the Delaware Division of Public Health, Office of Vital Statistics. These are required by the Register of Wills, financial institutions, insurance companies, and government agencies.
Locate and review the will
Search for the decedent's original will and any codicils. Under Delaware Code Title 12, Section 1301, any person having custody of a will must deliver it to the Register of Wills in the county where the decedent resided. Delaware has three counties (New Castle, Kent, Sussex), each with its own Register of Wills.
File petition with the Register of Wills
File the will and a Petition for Letters Testamentary (or Letters of Administration for intestate estates) with the Register of Wills in the county where the decedent was domiciled. Delaware also offers a small estate procedure for qualifying small estates using a Voluntary Administration form. The Register of Wills in Delaware handles probate matters directly, not a separate court.
Receive Letters Testamentary or Letters of Administration
After the Register of Wills admits the will to probate and appoints the personal representative, Letters are issued. The representative must take an oath and may need to post a bond unless waived. Obtain multiple certified copies for financial institutions.
Publish notice to creditors
Publish a notice to creditors in a newspaper of general circulation in the county. Under Delaware Code Title 12, Section 2102, creditors must present their claims within eight months of the granting of Letters. Also notify all known or reasonably ascertainable creditors by mail.
Notify financial institutions
Send certified copies of the death certificate and Letters to all banks, brokerage firms, insurance companies, and retirement account custodians. Request date-of-death valuations for all accounts. Delaware is known for its trust-friendly laws, so check for any Delaware statutory trusts or asset protection trusts.
Open an estate bank account
Obtain an EIN from the IRS via Form SS-4 and open a checking account in the name of the estate. All estate income and expense payments should flow through this account. Maintain detailed records for the accounting required by the Register of Wills.
File inventory of estate assets
Prepare and file an inventory of all estate assets with the Register of Wills within three months of appointment. The inventory must list all real and personal property with date-of-death fair market values. Engage qualified appraisers for real estate, business interests, and valuable personal property.
File final personal income tax return (Form 1040 and Delaware Form 200-01)
File the decedent's final federal income tax return (Form 1040) and Delaware individual income tax return (Form 200-01) for the period from January 1 through the date of death. Delaware imposes a graduated income tax. A surviving spouse may file jointly for the year of death.
File estate income tax return (Form 1041 and Delaware Form 400) if applicable
If the estate earns more than $600 in gross income during administration, file federal Form 1041 and Delaware Fiduciary Income Tax Return (Form 400). The estate is a separate taxpayer from the date of death.
File estate tax return (Form 706) if applicable
If the gross estate exceeds the federal estate tax exemption, file federal Form 706 within nine months of death. Delaware repealed its state estate tax for decedents dying on or after January 1, 2018. Form 706 may be filed for portability of the deceased spouse's unused exclusion amount.
Review and pay valid creditor claims
Evaluate all claims presented within the eight-month creditor period. Pay valid claims from estate funds in the order of priority established by Delaware law: costs of administration, funeral expenses, debts with federal preference, taxes, judgments, and all other claims.
Distribute residuary estate to beneficiaries
After all debts, taxes, expenses, and specific bequests have been satisfied, distribute the remaining estate assets to the residuary beneficiaries as directed by the will or Delaware intestacy law (Delaware Code Title 12, Chapter 5). Delaware provides the surviving spouse an elective share of one-third of the augmented estate. Obtain signed receipts from all beneficiaries.
File accounting with the Register of Wills
File a first and final accounting with the Register of Wills detailing all estate receipts, disbursements, and distributions. Under Delaware Code Title 12, Section 2301, the personal representative must file an accounting within one year of appointment. The Register of Wills and the Court of Chancery have oversight authority.
Obtain discharge and close the estate
After the accounting is approved and all distributions are complete, the personal representative is discharged. The Register of Wills enters a final order closing the estate and releasing the representative from further liability.
Secure estate property and valuables
Immediately secure the decedent's residence by changing locks if necessary. Safeguard valuables such as jewelry, cash, important documents, firearms, and collectibles. If the home will be vacant, arrange for regular checks, maintain climate control, and notify the homeowner's insurance carrier of the vacancy. Secure vehicles, safe deposit boxes, and storage units. Document the condition of all property with photographs.
Notify the Social Security Administration
Report the death to the Social Security Administration at 1-800-772-1213 if the funeral home has not already done so. Benefits received after the date of death must be returned. Surviving spouses and dependent children may be eligible for survivor benefits.
Cancel services, subscriptions, and forward mail
Forward the decedent's mail through USPS to the executor's address or a secure location to capture bills, tax documents, and creditor correspondence. Cancel or transfer utilities (electric, gas, water, internet, phone), streaming services, gym memberships, magazine subscriptions, and other recurring payments. Notify the landlord if the decedent rented. Cancel the decedent's driver's license, voter registration, and passport to help prevent identity theft.
File IRS Form 56 (Notice of Fiduciary Relationship)
File IRS Form 56 to notify the IRS that you are acting as the fiduciary (executor or administrator) for the decedent's estate. This establishes your authority to receive the decedent's tax information, file returns on their behalf, and correspond with the IRS regarding estate matters. File this form promptly after receiving Letters.
Maintain insurance and pay ongoing estate expenses
Review and maintain all insurance policies on estate property, including homeowner's insurance, auto insurance, and any umbrella liability coverage. Lapsed coverage during administration can expose the estate to significant liability. Continue paying ongoing obligations from the estate bank account: mortgage or rent, property taxes, HOA fees, storage unit fees, and essential maintenance. Keep detailed records of all payments for the final accounting.
Handle digital assets and online accounts
Identify and secure the decedent's digital assets, including email accounts, social media profiles, cloud storage, cryptocurrency wallets, online banking, and digital subscriptions. Most states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which governs fiduciary access to digital accounts. Check the decedent's devices, password managers, and records for account credentials. Contact service providers to memorialize or close accounts as appropriate.
File claims against life insurance and benefits policies
File claims on all life insurance policies, accidental death policies, and any other insurance or death benefits payable to the estate or named beneficiaries. Provide certified death certificates and completed claim forms to each insurance carrier. Note that policies with named beneficiaries generally pass outside of probate directly to the beneficiary, but proceeds payable to the estate must be inventoried.
Distribute specific bequests
Distribute any specific gifts or bequests identified in the will, such as jewelry, heirlooms, specific dollar amounts, or particular assets to named beneficiaries. Obtain signed receipts from each beneficiary. Ensure adequate reserves are maintained for taxes, administration costs, and any pending creditor claims before making distributions.
Close the estate bank account
After all distributions are complete and the estate has been closed, close the estate bank account. Verify all checks have cleared and the balance is zero. Retain financial records for at least five years.
Out-of-state decedents owning Delaware real property require ancillary probate with the Register of Wills in the county where the property is located, using authenticated copies of foreign letters.
Most estates take 9 to 15 months. The 8-month creditor claim period (running from date of death for pre-death claims) is the main bottleneck, plus first accounts are typically due 13 months after appointment.
Register of Wills filing fees vary by county and estate size, typically $50–$500. Executor compensation is reasonable (often 1–4%) per Court of Chancery Rule 192; attorney fees are negotiated and reviewed for reasonableness.
For deaths on or after June 11, 2026: $50,000 in personal property (no real estate). For earlier deaths: $30,000. The affidavit is filed with the Register of Wills 30 days after death under 12 Del. C. § 2306.
Attorneys are not strictly required, but most personal representatives engage counsel given Delaware's 8-month creditor period, formal accounting requirements, and Court of Chancery oversight.
Yes — revocable living trusts, joint tenancy with right of survivorship, tenancy by the entirety, POD/TOD accounts, and Delaware Transfer on Death Deeds (effective December 5, 2025) for real estate all bypass probate.
Within 10 days of learning of the testator's death, the custodian must deliver the will to the Register of Wills (12 Del. C. § 1301). Willful failure exposes the custodian to damages and contempt of court.
No. Delaware repealed its state estate tax effective January 1, 2018. Only the federal estate tax applies, with a 2026 exemption of $15 million per individual / $30 million per married couple.
Yes. Delaware adopted the Uniform Real Property Transfer on Death Act in 2025, effective December 5, 2025. TOD deeds must be signed, notarized, and recorded during the owner's lifetime.
This page is informational, not legal advice. Probate rules, thresholds, fees, and tax exemptions change. For your specific situation, consult a licensed Delaware probate attorney.