A last will and testament in Delaware is valid when you are at least 18, of sound mind, and sign a written document in front of two credible witnesses who also sign in your presence. The rules sit in Title 12 of the Delaware Code, and a single missed formality can void the whole document, so the details below are worth getting right the first time.
Who Can Make One
You must be at least 18 years old and of “sound and disposing mind and memory.”1Delaware Code Online. Delaware Code Title 12 Chapter 2 – Wills There is no exception for married minors. Sound mind means you understand what you own, who your close family members are, and that the document you are signing will control what happens to your belongings after death. If anyone later challenges the will on capacity grounds, the court looks at your mental state at the moment of signing, not before or after.
How to Sign It Validly
The will must be in writing and signed by you. If you cannot physically sign, another person can sign your name, but only in your presence and at your explicit direction.2Justia. Delaware Code Title 12 Section 202 – Requisites and Execution of Will
Two or more credible witnesses must then sign in your presence.2Justia. Delaware Code Title 12 Section 202 – Requisites and Execution of Will “Credible” means competent to serve as a witness generally. Delaware does not require witnesses to be disinterested, and Section 203 states expressly that a will is not invalid because it was signed by an interested person.1Delaware Code Online. Delaware Code Title 12 Chapter 2 – Wills A beneficiary can serve as a witness without wrecking the will. Using disinterested witnesses is still the safer practice because it removes one argument from a future contest.
One boundary worth stating directly: Delaware does not recognize holographic wills. A handwritten document you sign without the two witnesses cannot be admitted to probate here, no matter how clear your intent.
Add a Self-Proving Affidavit
A self-proving affidavit is a sworn, notarized statement you and your witnesses sign at the same time as the will. Each witness affirms under oath that you appeared to be at least 18, of sound mind, and under no undue influence.3Justia. Delaware Code Title 12 Section 1305 – Self-Proved Will It must be made before an officer authorized to administer oaths in Delaware, with the officer’s certificate and seal attached.
Skip the affidavit and the probate court may need to track down your witnesses years later to testify that the signing was proper. If a witness has died or cannot be found, proving the will gets expensive. The affidavit takes a few extra minutes at execution and removes that problem entirely.
What Your Will Can and Can’t Control
Assets That Pass Outside the Will
Some property moves to the next owner no matter what the will says. Jointly titled property goes to the surviving owner. Life insurance pays the policy’s named beneficiary. Retirement accounts and bank accounts with payable-on-death or transfer-on-death designations bypass probate. Trust property follows the trust’s terms. Your will should concentrate on assets held solely in your name. Trying to redirect non-probate assets through the will just creates confusion and potential litigation.
The Residuary Clause
After specific gifts (“my 2020 Honda Accord to my daughter”) and general gifts (“ten thousand dollars to my brother”), a residuary clause catches everything else: assets acquired after signing, gifts that fail because a beneficiary died, and anything you forgot. Without it, leftover property falls into intestacy and goes to people the statute picks, not people you picked.
Name Alternates for Every Gift
If a beneficiary dies before you, the gift normally lapses into the residuary estate. Delaware’s anti-lapse statute saves gifts to certain relatives by passing the share to that relative’s descendants who survive you by at least 120 hours.4Justia. Delaware Code Title 12 Section 2313 – Anti-Lapse; Deceased Devisee; Class Gifts It does not cover friends, stepchildren, or in-laws. Name an alternate for every gift and the statute’s gaps stop mattering.
You Cannot Fully Disinherit a Spouse
A surviving spouse has a statutory right to claim an elective share equal to one-third of the elective estate, reduced by transfers you already made to them.5Justia. Delaware Code Title 12 Section 901 – Right to Elective Share The elective estate is based on your gross estate for federal estate tax purposes with certain adjustments, and the share can be satisfied in cash, property, or a mix. A will that leaves the spouse less than one-third can be overridden by filing the election. A prenuptial or postnuptial agreement can waive it; without one, the one-third floor is effectively mandatory.
Children Born After You Sign
A child born or adopted after you sign the will, called a pretermitted child, is entitled to an intestate share unless the will already provides for them by name or as a member of a class. You can prevent that result with a clause stating that the birth of future children should not affect the will.6Delaware Code Online. Delaware Code Title 12 Chapter 3 – After-Born Children Children born after your death but conceived before it get the same protection.
Choosing an Executor
Your executor locates assets, pays debts and taxes, files court accountings, and distributes what remains. Name a primary and at least one alternate. If no one you named can serve, the court appoints an administrator, which adds delay and cost.
Delaware does not set a fixed statutory commission rate. Commissions and attorney fees are governed by rules of the Court of Chancery, and the court can reduce commissions if the executor fails to file required accountings on time or deny them entirely for noncompliance with Delaware tax filings.7Justia. Delaware Code Title 12 Section 2305 – Allowance of Commissions and Attorneys Fees You can set compensation terms directly in the will if you prefer.
A non-resident executor may have to post a bond with the Register of Wills. Resident executors are usually exempt unless the will requires a bond or a beneficiary petitions for one. A short clause waiving the bond spares your executor that expense.
Naming a Guardian for Minor Children
If you have children under 18, your will is where you nominate a guardian. The court is not strictly bound by the nomination but gives it heavy weight. Name a primary and an alternate because circumstances shift over the years. Decide separately whether the guardian should also manage any money you leave the child, or whether a trustee or custodian makes more sense; combining both roles is simpler, and splitting them adds financial oversight.
Digital Accounts and Cryptocurrency
Delaware gives your executor explicit authority over digital assets. Under Title 12, Chapter 50, a fiduciary can control your digital accounts and assets, including email, social media, cloud storage, and cryptocurrency wallets, to the extent allowed by law.8Delaware Code Online. Delaware Code Title 12 Chapter 50 – Fiduciary Access to Digital Assets and Digital Accounts License agreements that try to block fiduciary access are void as against Delaware public policy unless the account holder agreed to the restriction by a separate affirmative act.
Custodians such as email providers and social media platforms must comply with a valid written fiduciary request within 60 days, and your executor can seek a court order if they refuse.8Delaware Code Online. Delaware Code Title 12 Chapter 50 – Fiduciary Access to Digital Assets and Digital Accounts Leave your executor a list of accounts and your wishes for each. Accounts the executor never learns about are the ones that disappear.
Changing or Revoking the Will Later
Codicils
A codicil updates part of the will without rewriting it. It must meet the same formalities: written, signed by you (or by someone at your direction and in your presence), and witnessed by two or more credible witnesses who sign in your presence.9Justia. Delaware Code Title 12 Section 208 – Revocation of Wills Generally Pen marks on the original have no legal effect in Delaware. For anything beyond a minor edit, executing a fresh will usually beats layering codicils that can conflict.
Full Revocation
You can revoke a will by executing a new one that expressly revokes all prior wills and codicils, provided it satisfies the same signing and witnessing requirements.9Justia. Delaware Code Title 12 Section 208 – Revocation of Wills Generally You can also revoke by destroying the document yourself, or having someone destroy it in your presence at your express direction, paired with genuine intent to revoke. If the will cannot be found after death, the court may presume you destroyed it, but that presumption can be rebutted. Misplacing the document is not revocation.
Divorce and Remarriage
Divorce or annulment automatically revokes every provision benefiting your former spouse, including gifts, powers of appointment, and nominations as executor, trustee, or guardian. Those provisions are read as if the former spouse died before you. Remarrying the same person revives them.10Justia. Delaware Code Title 12 Section 209 – Revocation by Divorce; No Revocation by Other Changes or Circumstances A legal separation that leaves the marriage intact does not trigger the rule. No other life change automatically revokes a will, including a new marriage. A new spouse is not written in by operation of law, but can still claim the elective one-third share.
What Happens Without a Will
Delaware’s intestacy statute decides who inherits if you die without a valid will, and the surviving spouse does not automatically get everything.11Delaware Code Online. Delaware Code Title 12 Chapter 5 – Intestate Succession The share depends on who else survives you:
- Spouse plus children who are all shared with the spouse: the spouse takes the first $50,000 of personal property, half the remaining personal property, and a life estate in real property; the children take the rest.
- Spouse plus children who are not all the spouse’s: the spouse takes half the personal property and a life estate in real property, with no $50,000 preference; the children split the remainder.
- Spouse plus parents but no children: the spouse takes the first $50,000, half the remaining personal property, and a life estate in real property; the parents take the balance.
- Spouse alone, no children or parents: the spouse inherits everything.
In every scenario where children or parents also survive, the spouse receives only a life estate in real property, not outright ownership. The surviving spouse can live in the home but does not own it free and clear. If no spouse survives, the estate goes to children, then parents, then siblings, then more distant relatives, and finally escheats to the state if no heir can be found. A valid will overrides every one of these defaults.
The Small Estate Shortcut
If personal property is worth less than $30,000 and the deceased owned no real estate solely or as a tenant in common, the estate may qualify for a small estate affidavit instead of full probate. A qualifying family member or the named executor can file the affidavit to collect and distribute personal property, including transferring titles to vehicles and boats, without waiting for court-appointed letters.12Delaware Code Online. Delaware Code Title 12 Chapter 23 – Accounting and Distribution At least 30 days must have passed since the death, all known debts must be paid or provided for, and no petition for a personal representative can be pending. Property is distributed under the will or, if there is none, under the intestacy rules above. Estates that cross the $30,000 line or include real property go through full probate with the Register of Wills.