Delaware Probate Law: Timeline, Executor Duties, and Costs

Delaware probate law routes nearly every estate through the Register of Wills in the county where the decedent lived. The Register admits the will, issues the executor’s letters of authority, collects the inventory and final accounting, and publishes notice to creditors. If you have custody of a Delaware resident’s will, state law requires you to deliver it to the Register of Wills within 10 days of learning of the death, and failing to do so can expose you to personal liability for any damages the delay causes.¹

Most families never see the inside of a courtroom. The Register of Wills acts as a clerk of the Court of Chancery and handles routine administration directly.² The Court of Chancery itself only enters the picture when something is contested: a disputed will, a fight over who should serve as executor, a petition to remove one.³

The Probate Timeline Step by Step

Once the will is on file, the Register grants letters testamentary to the executor named in the will. If there is no will, the Register grants letters of administration, usually to the surviving spouse or next of kin. These letters are the executor’s legal proof of authority, and banks, title companies, and transfer agents will ask to see them.³

Within three months of receiving letters, the executor must file a sworn inventory and appraisal with the Register. The inventory lists everything the decedent owned, valued at fair market value as of the date of death: personal property, financial accounts, debts owed to the decedent, and any Delaware real estate. Real estate entries have to include parcel identification numbers, and the inventory must identify every person entitled to a share of the estate and their relationship to the decedent.⁴

The Register publishes notice to creditors within 40 days of granting letters. The notice goes on the county website or in the county courthouse and runs in an approved local newspaper at least three times over three successive weeks. After creditor claims are resolved and debts are paid, the executor distributes the remaining assets under the terms of the will or, if there is no will, under Delaware’s intestate succession rules. A final accounting documenting every dollar in and out of the estate goes back to the Register to close the case.⁵

Assets That Don’t Go Through Probate

Before assuming you need full probate, figure out which assets even pass through it. Several categories transfer automatically at death to a named beneficiary or co-owner, regardless of what the will says.

Property held in joint tenancy with right of survivorship passes to the surviving owner. Delaware does not presume joint tenancy, so the deed has to say “as joint tenants and not as tenants in common.” If it’s ambiguous, courts treat the arrangement as tenancy in common, which does go through probate.
Property held in tenancy by the entirety between spouses passes to the surviving spouse.
Payable-on-death bank accounts and certificates of deposit transfer directly to the named beneficiary.
Stocks, bonds, and brokerage accounts registered in transfer-on-death form pass to the named beneficiary.
Delaware allows transfer-on-death registration for motor vehicles.
Beginning December 4, 2025, Delaware allows property owners to record a transfer-on-death deed for real estate. The deed has no effect during the owner’s lifetime, and the property remains subject to any existing mortgages or liens.
Assets placed in a revocable living trust during the owner’s lifetime pass under the trust terms.
Life insurance proceeds and retirement accounts with named beneficiaries pay directly to the beneficiary.

Small Estate Affidavit

If the decedent’s personal assets total less than $30,000 and no real estate is held in the decedent’s name alone, you can usually skip formal administration. The Register of Wills can issue a Small Estate Affidavit instead, which lets the recipient take possession of personal property and transfer titles for vehicles, trailers, and boats.⁶

Small estates also get reduced notice requirements. When the gross personal estate is no more than $30,000 and the total gross estate (real and personal combined) is no more than $35,000, creditor notice can be posted on the county website or courthouse alone, with no newspaper publication.⁵

When the Decedent Lived Out of State

If a nonresident dies owning Delaware property, their out-of-state executor may need ancillary administration here. The Register of Wills in any county where the decedent owned property can grant letters of ancillary administration.³

There is a shortcut. After 60 days from the nonresident’s death, anyone in Delaware who holds the decedent’s property or owes a debt to the estate can pay or deliver directly to the executor appointed in the home state, as long as no Delaware ancillary administration is pending. The out-of-state executor has to provide proof of appointment and an affidavit confirming no Delaware administration has been filed.⁷ If a Delaware creditor objects, formal ancillary probate becomes necessary.

What the Executor Actually Has to Do

The executor (Delaware statutes call this role the personal representative) owes a fiduciary duty to the estate and its beneficiaries, meaning the estate’s interests come ahead of your own in every decision. The work falls into three phases: securing assets, paying debts, and distributing what remains.

Immediately after receiving letters, take control of the decedent’s property. Secure the home, redirect mail, monitor financial accounts, and collect debts owed to the decedent. Then prepare the inventory for the three-month deadline.

After the creditor notice period runs, review and pay valid claims. If you know about outstanding or potential debts, you can require beneficiaries to sign a refunding bond before receiving their share. The bond is double the value of the distribution and obligates the beneficiary to return funds if the estate later comes up short.⁸ You can also require security for any distribution made within the first year after appointment, even with no known claims.

Once debts and taxes are settled, distribute what’s left under the will or under intestate succession, then file the final accounting with the Register.

Executor Compensation

Delaware does not set fixed percentage commissions for executors. Court of Chancery Rule 192 requires compensation to be “reasonable,” considering time spent, the complexity of the estate, the executor’s skill and experience, the character and value of the assets, and comparable rates for similar work in the area. A percentage-based commission is not automatically unreasonable, and neither is an hourly rate. The commission is presumed reasonable unless a beneficiary formally objects.

Personal Liability and Removal

An executor who neglects their duties can be removed by the Court of Chancery, and the executor’s bond secures any losses caused by misconduct.⁹ Missed deadlines, failure to account, and self-dealing are the usual triggers.

Taxes are where the stakes get personal. Under federal law, an executor who distributes estate assets knowing the estate owes taxes becomes personally liable for the unpaid amount up to the value of what was improperly distributed. “Knowing” includes being aware of facts that would put a reasonable person on notice that a tax debt exists. You can protect yourself by filing IRS Form 5495 to request discharge from personal liability for income, gift, and estate taxes. The IRS has nine months to respond; if it doesn’t, you’re released from personal liability, though the IRS can still pursue the estate or its beneficiaries.

If you decide you cannot continue, you can petition the Court of Chancery for a voluntary discharge. The court will grant it where doing so benefits the interested parties and may impose conditions to protect the estate first.¹⁰

Creditor Deadlines You Can’t Miss

Delaware’s creditor rules work in the executor’s favor if you keep track of the clock. Claims that arose before or at the time of death are barred unless presented within eight months of the death, whether or not the estate published a creditor notice.⁵ This eight-month bar covers contract claims, tort claims, and government debts.

Post-death claims have their own windows. A claim based on a contract with the executor must be presented within six months after the executor’s performance is due. Any other post-death claim must be presented within six months after the claim arises.⁵

Once you reject a claim, the creditor has three months to file a lawsuit. If they miss that window, the claim is gone. Executors who distribute assets after the eight-month creditor window closes have significant protection, though using refunding bonds for earlier distributions is the safer approach.

If There Is No Will

When a Delaware resident dies without a valid will, state law decides who inherits. The results surprise most families, especially when real estate is involved.

If all surviving children are also children of the surviving spouse, the spouse receives the first $50,000 of personal property plus half the remaining personal property, plus a life estate in any real estate. The children split the other half of the personal property and inherit the real estate subject to the spouse’s life estate.¹¹

In a blended family, where any surviving child is not also a child of the surviving spouse, the spouse’s share drops. The spouse receives half of the personal property plus a life estate in the real estate, with no $50,000 preference.¹¹

If the decedent leaves a spouse and surviving parents but no children, the spouse takes the first $50,000 of personal property plus half the balance, plus a life estate in the real estate, and the parents inherit the remainder. With no surviving parents or children, the spouse inherits everything outright.

With no surviving spouse, the estate passes to the children per stirpes; if no children, to the parents equally; if neither, to the siblings and the descendants of any deceased sibling; and failing all of those, to the next of kin.¹¹

The life estate in real estate catches people off guard. The spouse can use the property for life, but it passes to the children or other heirs when the spouse dies, and the spouse cannot sell the property outright without their consent. A will that addresses real estate directly is the simplest way to avoid this.

Challenging a Will

Will contests are heard by the Court of Chancery, and the challenger carries the burden of proving the will should be set aside. Delaware recognizes four grounds:

Improper execution. A Delaware will must be in writing, signed by the testator (or by someone signing the testator’s name at the testator’s direction and in the testator’s presence), and witnessed by at least two credible witnesses present when the testator signed.¹²
Lack of testamentary capacity. The testator must have understood what they owned, who their natural heirs were, and what the will was doing.
Undue influence. Someone in a position of trust coerced or manipulated the testator into provisions that don’t reflect genuine wishes.
Fraud. The testator was deceived about the nature or contents of the document they signed.

Undue influence claims are the most common and the hardest to prove. Courts look at the relationship between the testator and the alleged influencer, whether the testator was isolated from other family members, and whether the will’s provisions line up with the testator’s previously expressed intentions. A will with a self-proving affidavit, where the testator and witnesses sign a notarized statement confirming proper execution, starts with a presumption of validity that the challenger has to overcome.

Taxes

Delaware repealed its state estate tax effective January 1, 2018, so there is no state-level estate tax on Delaware estates.¹³

Federal estate tax still applies to larger estates. For decedents dying in 2026, the basic exclusion amount is $15,000,000 per individual under the One, Big, Beautiful Bill signed into law on July 4, 2025.¹⁴ Married couples can effectively double this through portability of the deceased spouse’s unused exclusion, which can shelter up to $30,000,000 if the first spouse’s estate properly elected portability by filing IRS Form 706.¹⁵

Executors of estates over $15,000,000 must file Form 706 even if deductions reduce the tax to zero. Executors of smaller estates still have to file Form 706 if they want to elect portability for the surviving spouse. The return is generally due nine months after the date of death, with a six-month extension available.¹⁶

Beyond estate tax, the executor files the decedent’s final individual income tax return for the year of death. If the estate earns income during administration, from interest, rent, or dividends on assets not yet distributed, a separate fiduciary income tax return on IRS Form 1041 is required. Missed filings bring penalties and interest that come out of the beneficiaries’ shares.

What Probate Costs

Each county’s Register of Wills sets its own fees. Kent County’s schedule, effective April 2025, charges the following for granting letters based on estate value:

Under $30,000: $25
$30,000 to $99,999: $50
$100,000 to $499,999: $75
Each additional $500,000 increment: $100

On top of the base fee, expect $15 to file the inventory, $20 to record the final accounting, $35 and up for creditor notice advertising, $5 plus $2 per page for certifications, and a closing fee of 1.75% of the net personal estate.¹⁷ New Castle County and Sussex County publish their own schedules. The 1.75% closing fee adds up quickly on larger estates, so factor it in early.

1
Delaware Code Online. Delaware Code Title 12 Chapter 13 – Probate of Wills
2
Delaware Code Online. Delaware Code Title 12 Chapter 25 – Register of Wills
3
Delaware Code Online. Delaware Code Title 12 Chapter 15 Subchapter I – Administration of Decedents Estates
4
Justia. Delaware Code Title 12 1905 – Inventory and Appraisal Filing Requirements Form Contents and Supporting Affidavits
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Delaware Code Online. Delaware Code Title 12 Chapter 21 – Debts of and Claims Against Estate
6
New Castle County. New Castle County Register of Wills – Small Estates
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Delaware Code Online. Delaware Code Title 12 Chapter 15 Subchapter V – Administration of Decedents Estates
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Delaware Code Online. Delaware Code Title 12 Chapter 23 – Accounting and Distribution Subchapter II
9
Justia. Delaware Code Title 12 1541 – Removal for Neglect of Duties
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Delaware Code Online. Delaware Code Title 12 Chapter 15 Subchapter III – Death Removal or Discharge of Executor or Administrator
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Delaware Code Online. Delaware Code Title 12 Chapter 5 – Intestate Succession
12
Delaware Code Online. Delaware Code Title 12 Chapter 2 Subchapter I – General Provisions
13
Delaware Code Online. Delaware Code Title 30 Chapter 15 – Estate Tax (Repealed)
14
Internal Revenue Service. Whats New Estate and Gift Tax
15
Office of the Law Revision Counsel. 26 USC 2010 – Unified Credit Against Estate Tax
16
Internal Revenue Service. Frequently Asked Questions on Estate Taxes
17
Kent County Register of Wills. Register of Wills Fees Kent County