Delaware Small Estate Affidavit

Introduction

Key Things to Know

1. 1

   A small estate affidavit is a sworn statement that lets a decedent's heir or successor collect the decedent's personal property, such as a bank account, final wages, or securities, without opening a full probate case in Delaware.

2. 2

   The affidavit is available only when the value of the decedent's personal estate, other than property described in Section 1901(b) and (c) and other than jointly owned property, does not exceed $50,000 (Title 12 Delaware Code Section 2306).

3. 3

   It may not be used until 30 days have elapsed since the date of death (Title 12 Delaware Code Section 2306).

4. 4

   The value excludes the statutory family allowance and exempt property described in Section 1901(b) and (c) and excludes jointly owned property, so the countable amount can be below the total value of what the decedent owned.

5. 5

   The affidavit reaches personal property only, and the decedent must have owned no real estate in Delaware.

6. 6

   The affiant furnishes the sworn affidavit to the person or entity holding the decedent's personal property, and the Register of Wills in the county may also issue an affidavit where appropriate.

7. 7

   The affiant swears that no personal representative petition is pending or granted, that the decedent's debts are paid or provided for, and that the surviving spouse's allowance is paid, provided for, or waived.

Delaware Requirements for Small Estate Affidavit

• 30-Day Waiting Period

  In Delaware a small estate affidavit may not be used until at least 30 days have elapsed since the date of the decedent's death (Title 12 Delaware Code Section 2306). The affidavit states that this 30-day period has passed.

• $50,000 Personal Estate Limit

  The affidavit is available only when the value of the decedent's personal estate, other than property described in Section 1901(b) and (c) and other than jointly owned property, does not exceed $50,000 (Title 12 Delaware Code Section 2306). The current $50,000 figure reflects an increase to Section 2306.

• Excludes Allowance, Exempt, and Joint Property

  The value excludes the statutory family allowance and exempt property described in Section 1901(b) and (c) and excludes jointly owned property, so the countable amount can be below the total value of what the decedent owned (Title 12 Delaware Code Section 2306).

• Personal Property Only, No Delaware Real Estate

  The affidavit reaches personal property only, and the decedent must have owned no real estate in Delaware (Title 12 Delaware Code Section 2306). If the decedent owned Delaware real estate, the affidavit cannot be used.

• Furnished to the Holder or Register of Wills

  The affiant furnishes the sworn affidavit to any person or entity holding the decedent's personal property, and the Register of Wills in the county may also issue an affidavit where appropriate (Title 12 Delaware Code Section 2306).

• Who May Be the Affiant

  Eligible affiants include the decedent's spouse, a grandparent or lineal descendant of a grandparent, a personal representative, guardian, or trustee of any of them, a trustee of a trust the decedent created, a Delaware-licensed funeral director, or a named executor who qualifies under Section 1508 (Title 12 Delaware Code Section 2306).

• No Personal Representative, Debts Provided For

  The affiant swears that no petition for the appointment of a personal representative is pending or has been granted, that the decedent's debts have been paid or provided for, and that the surviving spouse's allowance has been paid, provided for, or waived (Title 12 Delaware Code Section 2306).

• Signed Under Oath

  The affidavit is signed under oath, so a false statement about the estate value, the 30-day waiting period, the absence of Delaware real estate, or the affiant's right to the property carries legal consequences. Do not sign if the facts are uncertain.