Delaware State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Delaware Code Annotated
Probate jurisdiction rests with the Chancery Court
Probate laws are primarily under Title 12

Minimum age requirement to:

Distribute property by will: 18 (Section 12-201)
Which minor gets property: 21

Holographic will NOT recognized (No Section exists)

State taxes: Estate, gift, and inheritance:

Estate tax: Equal to federal credit for state death taxes (Section 30-1501+)
State gift tax:Inheritance tax: No inheritance tax (Section 30-1501+)
- Repealed state gift tax (Section 30-1401-1409)
- Anatomical Gift Act (Section 16-2710 to 16-2719)
Inheritance tax: No inheritance tax (Section 30-1501+)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession:

No surviving spouse, but there are surviving children: (Section 12-503(1) to12-503(4))
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - $50,000, one-half (1/2) of your personal property, and all of your life estate (with remainder in life estate to your surviving parents) to your surviving spouse, and
  - All of the rest of your real estate and the other one-half (1/2) of your personal property split equally among the surviving children or to their children according to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - One-half (1/2) of your personal property, and all of your life estate to your surviving spouse, and
    - All of the rest of your real estate and the other one-half (1/2) of your personal property split equally among the surviving children or to their children according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your surviving spouse
    - No children, but at least one of your parents survives you:
      - $50,000, one-half (1/2) of your personal property, and all of your life estate (with remainder in life estate to your surviving parents) to your surviving spouse, and
      - The other one-half (1/2) of your personal property split equally among the surviving parents
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) or to their children according to their per stirpes share. If none, then to your next of kin according to their per stirpes share

Who must be named as a beneficiary in your will:

Surviving spouse (Section 12-321), andChildren, born or adopted (Section 12-301)
- Surviving spouse must be given either the lesser of:
  - $20,000, (Section 12-901(a)) or
  - One-third (1/3) of your estate (Section 12-901(a))
Children, born or adopted (Section 12-301)

Effects of changes in your marital status on your will: You get married without changing your will that does not provide for your new spouse, then revokes will as to spouse, unless will expressly provides for spouse, but spouse may still be entitled to shares under state intestate law (Section 12-323)

Out of state executors: Must appoint County Register of Wills as agent to accept legal papers (Del. Code Ann. Tit. 12, Section 1506)

Witnesses:

Minimum number of witnesses required: Two (Section 12-202)
Are witnesses allowed to be beneficiaries?: Yes (Section 12-203)
Requirements to be a witness, witnesses must:
- Be an adult,
- Not have a claim against your estate on your death,
- not be entitled to anything in your will,
- not directly financially responsible or your healthcare,
- not be an owner, operator, or employee of a residential long-term healthcare institution in which you reside, and
- if declarant is a patient in a nursing home, one of the witnesses must be a patience a advocate or ombudsman

Property ownership (Section 25-309, 25-311, and 25-701):

Common law state
Jointly held property is presumed to be held as tenancy in common, unless title expressly and clearly creates a joint tenancy with right of survivorship
If married, then property held by either party creates a tenancy by the entirety
Bank account deposits held jointly are payable to any survivor named in the bank account

Other types of wills:

Self-proving wills recognized: Yes, recognized (Section 12-1305)
Living will: Instructions for Health Care (Section 16-2503). Requires:Durable Power of Attorney: Durable Power of Attorney (Section 12-4901 to 12-4905)
- Determination in writing of a terminal condition and/or are in a permanent state of unconsciousness required by two physicians
- Delaware Advance Directive (Section 16-2503) contains Power of Attorney for Health Care and Instructions for Health Care
Durable Power of Attorney: Durable Power of Attorney (Section 12-4901 to 12-4905)