Settling Small Estates (DE)
Estates worth <$30,000 can skip probate in Delaware, using a small estate affidavit instead to facilitate the settlement process. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
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 right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
See 12 DE Code § 2306 for statute details.
Process
If an estate meets the requirements above, you can skip probate and instead use the following settlement process:
- Prepare a Small Estate Affidavit
- Pay or arrange for all estate obligations to be paid (perhaps once you collect estate assets)
- Obtain possession of estate assets by presenting the affidavit to current custodians
- Settle the estate in the normal way (pay obligations, distribute remaining assets)
- If you are transferring a vehicle, you will need to notify the DMV
- 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 Family Entitlements in DE, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in DE, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow DE probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
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.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in DE.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in DE.
Finally, in case you're interested, details about handling small estates in other states can be found here: