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Delaware Last Will and Testament

Delaware requires 2 witnesses for a will and does not recognize unwitnessed handwritten wills. Free Delaware will template. Attorney review available.

Introduction

A last will and testament is a legal document that states who receives your property when you die and names the executor who will carry out its instructions and settle your estate. It can also name a guardian for your minor children. In Delaware a valid will must be in writing, signed by the testator (or by someone else signing at the testator's direction and in the testator's presence), and attested and subscribed by 2 or more credible witnesses who sign in the testator's presence, under 12 Del. C. Section 202. Delaware has no purging statute for an interested witness: a beneficiary may serve as one of the 2 witnesses and the will remains valid, though naming disinterested witnesses is still the more cautious practice. Delaware also recognizes a self-proving affidavit under 12 Del. C. Section 1305, a separate sworn statement signed by the testator and both witnesses before an officer authorized to administer oaths, such as a notary public, that lets the will skip live witness testimony at probate. The will itself does not need a notary, only the 2 witnesses. Delaware does not recognize an unwitnessed handwritten (holographic) will; a handwritten will is valid only if it meets the same 2-witness formality as any other will. You must be at least 18 and of sound and disposing mind and memory to make a will under 12 Del. C. Section 201. Attorney review is available as an option before you sign.

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Key Things to Know

  1. 1

    A last will and testament is a legal document that states who receives your property and names the executor who will administer your estate after you die. It can also name a guardian for minor children.

  2. 2

    Delaware requires 2 credible witnesses. Under 12 Del. C. Section 202 the will must be attested and subscribed in the testator's presence by 2 or more credible witnesses. Section 203 lets any person generally competent to be a witness serve, and a will is not invalid because it was signed by an interested person, though disinterested witnesses remain the more cautious choice.

  3. 3

    Delaware recognizes a self-proving affidavit. Under 12 Del. C. Section 1305 the testator and both witnesses can sign a sworn affidavit before an officer authorized to administer oaths, such as a notary public, either at execution or any later date, letting the will be admitted to probate without live witness testimony.

  4. 4

    Unwitnessed handwritten (holographic) wills are not recognized. Delaware Title 12, Chapter 2 has no holographic-will exception; a handwritten will is valid only if it meets the standard Section 202 formalities, including attestation by 2 or more credible witnesses.

  5. 5

    The will itself does not need a notary. Delaware requires 2 credible witnesses to sign in the testator's presence under 12 Del. C. Section 202; a notary, or other officer authorized to administer oaths, is used only for the optional self-proving affidavit under Section 1305.

  6. 6

    You must be at least 18 and of sound and disposing mind and memory. 12 Del. C. Section 201 sets the minimum age at 18 for making a will of real or personal estate, and requires the testator to be of sound and disposing mind and memory.

  7. 7

    You can revoke a Delaware will several ways. 12 Del. C. Section 208 allows revocation by canceling the will, by a valid later will, or by a signed writing. Section 209 separately revokes any gift or appointment to a former spouse if the testator divorces or annuls the marriage after signing, unless the will expressly provides otherwise.

Key decisions before you file

Before you file a Last Will and Testament in Delaware, a few decisions shape the document: which option to choose and what each one means. The Last Will and Testament guide walks through them.

Open the Last Will and Testament guide

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DELAWARE LAST WILL AND TESTAMENT

  1. DECLARATION AND REVOCATION OF PRIOR WILLS I, [TESTATOR NAME], a resident of [COUNTY] County, Delaware, being at least 18 years old and of sound and disposing mind and memory under 12 Del. C. Section 201, declare this to be my Last Will and Testament, and I revoke all prior wills and codicils I have made.

  2. EXECUTOR APPOINTMENT I appoint [EXECUTOR NAME] as the executor of my estate. If [EXECUTOR NAME] is unable or unwilling to serve, I appoint [SUCCESSOR EXECUTOR NAME] as successor executor. I ask that my executor be allowed to serve without bond, to the extent Delaware law permits.

  3. DISPOSITION OF PROPERTY (BEQUESTS) [INSERT specific gifts and bequests here, naming each beneficiary and the property or amount given to each.]

  4. RESIDUARY CLAUSE I give all the rest and residue of my estate, of whatever kind and wherever located, to [RESIDUARY BENEFICIARY NAME]. If [RESIDUARY BENEFICIARY NAME] does not survive me, I give the residue to [ALTERNATE BENEFICIARY NAME].

  5. GUARDIAN FOR MINOR CHILDREN (if applicable) If I have minor children living at my death, I appoint [GUARDIAN NAME] as guardian of their persons and estates. If [GUARDIAN NAME] is unable or unwilling to serve, I appoint [SUCCESSOR GUARDIAN NAME].

  6. ATTESTATION CLAUSE This will must be signed by me, or by someone else signing my name in my presence and at my express direction, and attested and subscribed in my presence by 2 or more credible witnesses under 12 Del. C. Section 202. Delaware does not invalidate a will because an interested person (a beneficiary) signed as a witness, but choosing witnesses who receive nothing under this will is still the safer practice and avoids later disputes.

Signed: _____________________ Date: [DATE] [TESTATOR NAME], Testator

WITNESS ATTESTATION The foregoing instrument was signed by the testator in our presence. At the testator's request, and in the presence of the testator and each other, we sign below as witnesses on the date above, attesting and subscribing this will under 12 Del. C. Section 202.

Witness 1 signature: _____________________ Print name: _____________________ Address: _____________________ Witness 2 signature: _____________________ Print name: _____________________ Address: _____________________

  1. SELF-PROVING AFFIDAVIT (OPTIONAL) This affidavit is authorized under 12 Del. C. Section 1305 and, if completed, lets this will skip live witness testimony at probate.

STATE OF DELAWARE COUNTY OF [COUNTY]

We, [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME], being first duly sworn, declare to the officer signing below that the testator signed this will as a free and voluntary act, and that each witness signed as a witness in the presence of the testator and of each other.

_____________________ [TESTATOR NAME], Testator _____________________ [WITNESS 1 NAME], Witness _____________________ [WITNESS 2 NAME], Witness

Sworn to and acknowledged before me by [TESTATOR NAME], [WITNESS 1 NAME], and [WITNESS 2 NAME] on [DATE].

Notary Public / Officer Authorized to Administer Oaths

Note: This will is governed by 12 Del. C. Chapter 2, Subchapter I, which requires a writing signed by the testator and attested and subscribed in the testator's presence by 2 or more credible witnesses. Delaware does not recognize an unwitnessed handwritten (holographic) will; a handwritten will must still meet this same 2-witness formality. This is a Delaware skeleton, not the complete document. For the complete, customizable template, see the full Last Will and Testament template.

Once your Last Will and Testament is ready, you can check whether it needs to be notarized in Delaware in about a minute, and notarize it online through DocDraft if it does.

Delaware Requirements for Last Will and Testament

Attested and Subscribed by 2 Credible Witnesses

12 Del. C. Section 202 requires the will to be attested and subscribed in the testator's presence by 2 or more credible witnesses. A will not meeting this formality is void.

Interested Witnesses Do Not Invalidate the Will

Under 12 Del. C. Section 203 any person generally competent to be a witness may serve, and a will or any provision is not invalid because it was signed by an interested person (a beneficiary). Naming disinterested witnesses is still the more cautious practice to avoid disputes.

Self-Proving Affidavit Is Available

12 Del. C. Section 1305 lets the testator and the witnesses sign a sworn affidavit before an officer authorized to administer oaths, such as a notary public, at execution or any later date, so the will can be admitted to probate without live witness testimony.

No Notary Required for the Will Itself

12 Del. C. Section 202 makes attestation and subscription by 2 credible witnesses, not a notary, the formality that validates a Delaware will. A notary is used only for the optional self-proving affidavit under Section 1305.

Unwitnessed Holographic Wills Are Not Recognized

Delaware Title 12, Chapter 2 has no holographic-will exception. A handwritten will is valid only if it meets the standard 12 Del. C. Section 202 formalities, including attestation by 2 or more credible witnesses.

Minimum Age 18 and Sound and Disposing Mind

12 Del. C. Section 201 requires the testator to be at least 18 years old and of sound and disposing mind and memory to make a will of real or personal estate.

Revocation by Canceling, a Later Will, or Divorce

12 Del. C. Section 208 allows revocation by canceling the will, by a valid later will, or by a signed writing. Section 209 separately revokes any gift or appointment to a former spouse if the testator divorces or annuls the marriage after signing, unless the will expressly provides otherwise.

Name an Executor

Name an executor to administer the estate, along with a successor in case the first choice cannot serve. Naming both a primary and a successor executor avoids delay when the will is offered for probate.

Does your Last Will and Testament need to be notarized in Delaware?

Whether a Last Will and Testament needs to be notarized depends on your state. Upload yours, pick your state, and get the current rule with the official source behind it, free and with no account. If yours does need a notary, online notarization is part of your DocDraft plan.

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Frequently Asked Questions

Delaware requires 2 or more credible witnesses. Under 12 Del. C. Section 202, the will must be attested and subscribed in the testator's presence by these witnesses. Section 203 allows any person generally competent to be a witness to serve, and does not invalidate the will or a gift because an interested person (a beneficiary) signed as one of the witnesses, though it is still safer to choose witnesses who receive nothing under the will.

No. A Delaware will is made valid by 2 credible witnesses under 12 Del. C. Section 202, not by a notary. A notary, or another officer authorized to administer oaths, becomes relevant only if you choose to complete the optional self-proving affidavit under 12 Del. C. Section 1305, which is a separate sworn statement, not a requirement for the will itself.

Not on its own. Delaware does not recognize an unwitnessed holographic will. A handwritten will is valid only if it meets the same formalities as any other Delaware will under 12 Del. C. Section 202, including a signature and attestation by 2 or more credible witnesses in the testator's presence, and the testator being at least 18 and of sound and disposing mind and memory.

Put your wishes in writing, name an executor and a residuary beneficiary, and sign the document (or have someone sign it for you at your direction and in your presence). 12 Del. C. Section 202 then requires 2 or more credible witnesses to attest and subscribe the will in your presence. You must be at least 18 and of sound and disposing mind and memory under Section 201. Attorney review is available as an option before you finalize it.

A valid Delaware will is in writing, signed by a testator who is at least 18 and of sound and disposing mind and memory under 12 Del. C. Section 201, and attested and subscribed in the testator's presence by 2 or more credible witnesses under Section 202. A will not meeting these formalities is void.

A self-proving affidavit is a sworn statement, signed by the testator and the witnesses before an officer authorized to administer oaths such as a notary public, that lets a will be admitted to probate without live witness testimony. Delaware recognizes this affidavit under 12 Del. C. Section 1305, and it can be completed at the time the will is signed or at any later date.

You must be at least 18 years old and of sound and disposing mind and memory to make a will of real or personal estate in Delaware, under 12 Del. C. Section 201.

12 Del. C. Section 208 lets you revoke a Delaware will by canceling it yourself (or having someone else cancel it in your presence and at your direction), by making a valid later will, or by a signed writing. Section 209 separately revokes any gift or appointment made to a former spouse if you divorce or annul your marriage after signing the will, unless the will expressly says otherwise.