Delaware Petition for Probate

Introduction

Key Things to Know

1. 1

   The Register of Wills of the county where the decedent was domiciled at death grants letters on a petition for letters testamentary or letters of administration (12 Del. C. §1302(a), §1502(a)). Each county Register of Wills issues its own petition form, and the form the county Register of Wills requires controls over any draft petition.

2. 2

   No one may act as executor or administrator of a domiciliary decedent's estate in Delaware without letters testamentary or letters of administration being granted (12 Del. C. §1501). A named executor must still petition and be appointed, and should not distribute assets, pay heirs or sell property before letters issue.

3. 3

   Anyone holding a will must deliver it to the Register of Wills for the county where that person resides within 10 days of learning of the death (12 Del. C. §1301(a)). If no petition for administration is filed within 60 days from death, the Register may grant letters of administration to anyone the Register chooses (§1505(d)).

4. 4

   A named executor is first in line. Otherwise administration goes to the first class with a living, qualified member: spouse, then children, then parents, then siblings (12 Del. C. §1505(b)). A minor, a mentally incapacitated person or a person convicted of a crime that disqualifies them from taking an oath may not serve (§1508). A nonresident may serve but must file an irrevocable power of attorney naming the Register of Wills as agent for service of process before letters issue (§1506).

5. 5

   Proof of a will may be taken without notice to interested persons unless one requests notice by petition to the Court of Chancery (12 Del. C. §1303). A caveat against probate goes to the Court of Chancery before the order of probate (§1308).

6. 6

   The Register of Wills posts notice of the grant of letters within 40 days and publishes it in an approved newspaper at least 3 times, once a week for 3 successive weeks, unless the estate is small enough to skip publication (12 Del. C. §2101). Claims arising before or at death are barred unless presented within 8 months of the death, whether or not notice was given (§2102(a)). Bond is not required before letters unless the will requires it or the Court of Chancery orders it (§1522).

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and Delaware allows distribution by affidavit for some small estates. See our small estate affidavit page for that route.

Delaware Requirements for Petition for Probate

• County Register of Wills Grants Letters

  A will is proved and letters are granted by the Register of Wills of the county where the decedent was domiciled at death, not by a judge (12 Del. C. §1302(a), §1502(a)). The Court of Chancery handles contested matters such as caveats and bond demands.

• County Petition for Letters

  Each Delaware county Register of Wills issues its own petition for letters testamentary or letters of administration, such as Sussex County's Petition to Act as Personal Representative. The form the county requires controls over any draft petition.

• No Authority Without Letters

  No one may act as executor or administrator of a domiciliary decedent's estate in Delaware without letters testamentary or letters of administration being granted (12 Del. C. §1501). A will is effective to prove a transfer of property or nominate an executor only after admission to probate (§1302(b)).

• Will Delivery Within 10 Days

  Any person holding a will must deliver it to the Register of Wills for the county where that person resides within 10 days of learning of the death. A wilful failure makes the holder liable for damages and, after a Chancery order, subject to civil contempt (12 Del. C. §1301). If no petition for administration is filed within 60 days from death, the Register may grant letters of administration to anyone the Register chooses (§1505(d)).

• Priority and Nonresident Power of Attorney

  A named executor has first priority for letters, which the Register grants on petition. Otherwise letters of administration go to the first class with a qualified living member: spouse, children, parents, then siblings. A nonresident may serve but must file an irrevocable power of attorney naming the Register of Wills as agent for service of process before letters issue (12 Del. C. §1505(b), §1506, §1508).

• Proof of Will Without Notice

  Proof of a will may be taken without notice to interested persons unless one requests notice by petition to the Court of Chancery (12 Del. C. §1303). A caveat goes to the Court of Chancery any time before the order of probate (§1308).

• Creditor Notice by the Register of Wills

  The Register of Wills posts notice of the grant of letters within 40 days and publishes it in an approved newspaper at least 3 times, once a week for 3 successive weeks. Publication may be skipped if gross personal estate is not over $30,000 and gross real plus personal estate is not over $35,000 (12 Del. C. §2101).

• Claims Barred 8 Months After Death

  Claims arising before or at death are barred unless presented within 8 months of the decedent's death, whether or not notice was given. Post-death claims must be presented within 6 months after they arise or performance is due, and a rejected claim must be sued on within 3 months of written rejection (12 Del. C. §2102).

• Bond Not Required by Default

  No bond is required before letters unless the will expressly requires one or the Court of Chancery orders bond on a demand. The Court of Chancery may dispense with a bond the will requires, and a person or creditor with an interest or claim over $2,000 may demand bond (12 Del. C. §1522, §1523, §1524).