Probate for Small DE Estates

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Courthouse for estate probate

Estates worth <$30,000 can skip probate in Delaware, instead using a small estate affidavit to facilitate the settlement process.

Requirements for Small Estate Affidavit

To use the small estate process in DE, the following must be true:

  • The value of all solely owned personal property is <$30,000
  • The decedent did not own real property (i.e., real estate) in Delaware, either solely or as tenants in common
  • At least 30 days have passed since the death
  • Any surviving spouse's allowance has been paid, provided for, waived, or the time limit for such a request has expired
  • All known debts are paid or provided for
  • No petition has already been made to the court to officially appoint a personal representative

In calculating estate value, you should value assets as of the date of death, and ignore any debts (other than secured debt such as liens and mortgages). Do not include assets that would not normally go through probate, such as property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Process

If an estate meets the requirements above, you can skip probate and instead use the following settlement process:

  1. Prepare a Small Estate Affidavit
  2. Pay or arrange for all estate obligations to be paid (perhaps once you collect estate assets)
  3. Obtain possession of estate assets by presenting the affidavit to current custodians
  4. Settle the estate in the normal way (pay obligations, distribute remaining assets)
  5. If you are transferring a vehicle, you will need to notify the DMV
  6. If everything goes smoothly, no court involvement will ever be required

Note that in an attempt to be helpful, the New Castle County Register of Wills can supply New Castle estates with an "official" affidavit, but this is not required by law.

Estate Settlement Considerations

Before paying any debts or making any distributions, be sure to account for any DE Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.

Personal representatives (i.e., executors) using this small estate process are not entitled to compensation, but any reasonable expenses should be reimbursed.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

See also Making Distributions.

No Summary Administration

Since people commonly ask, note that unlike many other states, Delaware does not offer a simplified or summary probate administration.

Court

In Delaware, the Court of Chancery in the relevant county handles estate matters (see Chancery Court locations). The Register of Wills is a clerk of the Court of Chancery, and each clerk maintains his or her own website: New Castle Register, Kent Register, Sussex Register.

See 12 DE Code § 2306 for statute details.

See also General Probate.

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