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What If I Die Without a Will in Delaware?

When a person with a will dies, their will outlines how to distribute personal property, real estate, and assets to your loved ones. If a decedent does not have a will, they die “intestate,” and the probate court follows intestacy laws to distribute the estate to family members.

Under Delaware intestate succession law, if there is a surviving spouse or children, they inherit the estate. If not, the next of kin (parents, siblings, or grandparents) inherit. If no next of kin exists or the court can’t find them, the estate goes to the state.

So, if you have a partner but are not married or a stepchild that you have not adopted, they may be left out of your estate entirely. By making a will, you make sure your property goes to your loved ones, not the state of Delaware.

What Does a Will Do?

A Delaware last will and testament lets you name who handles your estate, receives your property, and cares for your minor children. Here are some general provisions you might want to include in your will:

• Name a personal representative or executor. Your personal representative submits your will to the Register of Wills office in your county (New Castle County, Kent County, or Sussex County), locates your assets, and follows the instructions in your will.
• Specifically identify and give away personal property and real estate to your beneficiaries
• Name guardians for your minor children
• Name caregivers for pets
• Make gifts to charitable organizations

Having a will streamlines the probate process. Because you made these decisions, a court does not have to, saving your loved ones time and money in probate court.

What Doesn’t a Will Do?

Although you give away property in your will, some other assets and accounts transfer outside your will. These “non-probate” assets go to the beneficiaries you name in legal documents. For example, you may have a bank account with a transfer-on-death beneficiary or a named beneficiary on a life insurance policy. These types of non-probate assets may include:

• Funds in payable on death or transfer on death bank accounts or investment accounts
• Retirement accounts, pensions, 401(k)s, IRAs, and Keoghs
• Life insurance and annuity proceeds (to beneficiaries other than to the estate itself)
• Property owned as joint tenants with right of survivorship
• Property owned by trusts, including living trusts and irrevocable trusts

Check your accounts and policies to make sure you have the correct beneficiary designations. And name a backup beneficiary in case your primary beneficiary dies before you. Any assets or accounts without a beneficiary go back into your probate estate. A smaller probate estate may qualify you for a shortened probate proceeding. In Delaware, an estate valued under $30,000 with no real estate solely owned by the decedent is a “small estate,” and your personal representative can handle probate with an affidavit.

Who Can Make a Will in Delaware?

Under Delaware law, the person making a will, called the testator, must meet the following requirements.

• Age: The testator is at least 18 years of age.
• Sound Mind: The testator has a “sound and disposing mind and memory,” meaning the testator understands they are making a will and have sufficient mental capacity and memory to understand the nature of their actions.

A testator must have sufficient mental capacity when they sign their will. Delaware residents with concerns about whether they can make a will should consult with an estate planning attorney for legal advice.

Does Delaware Have a Statutory Will?

No. Delaware does not have a statutory will. You can either hire an attorney to draft one or create one yourself. Many people use online legal resources, such as FindLaw Legal Forms and Services, that conform to Delaware law.

What Types of Wills Does Delaware Accept?

Most wills are typewritten or printed and then signed by the testator. However, it is a good idea to understand other types of wills and Delaware’s rules about them.

• Handwritten Will: A handwritten or holographic will is a will that the testator writes in their own handwriting but does not have any witnesses or notary attesting to their signature. Under Delaware law, a will handwritten and signed by the testator in front of two witnesses may be acceptable.
• Oral Will: An oral will, called nuncupative will, is a spoken will. Delaware does not recognize oral wills, only written ones.
• Electronic Will: An electronic will refers to creating, signing, or witnessing a will using two-way audio-visual technology. Currently, Delaware does not allow electronic wills.

Most testators type or print their will and sign in front of two witnesses and a notary. This method helps prevent challenges to your will based on claims of fraud, mistake, or undue influence.

Can I Make My Own Will in Delaware?

Yes. Delaware does not require that you use an attorney to create your will. If you know what property you own and who you want to give it to, you are ready to make your will. Many people who prefer doing it themselves use a form service, such as FindLaw Legal Forms and Services. The benefit is that they can customize their will to their needs and update it through the years. Creating a new will is easier than amending or adding a codicil to the original will. However, if you have high net worth and are concerned about estate tax liability or have a child with special needs and want a special needs trust, you may wish to seek legal advice.

How Do I Make My Will Valid in Delaware?

• Signature: The testator must sign the will or direct someone else to sign for them in their presence.
• Witnesses: Two competent witnesses must be in the testator’s presence when the testator signs their will. A competent witness generally means someone who can testify in court. Many states prohibit interested witnesses. An interested witness is a witness who is also a beneficiary under the will. Although Delaware allows interested witnesses, it is good practice to avoid them. You do not want your will challenged due to undue influence of interested parties.
• Notary: Delaware does not require a testator to use a notary public to make it valid. However, you may use an optional self-proving affidavit requiring a notary’s signature.
• Self-Proving Affidavit: Delaware allows you to add an affidavit to your will to make it self-proving. The affidavit is a statement your witnesses sign when you execute your will, and the notary signs the affidavit. The benefit of this affidavit is that your will becomes self-proving and is evidence that you signed your will properly. Your witnesses do not have to testify in probate court that you signed your will.

Can I Disinherit My Spouse in Delaware?

You do not have to provide for your spouse in your will. However, provided they did not waive their right in a premarital agreement, your spouse can claim an elective share of your estate. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will. Under Delaware law, a surviving spouse may claim an elective share of up to a third of your estate.

Can I Disinherit My Children in Delaware?

A child does not have the right to inherit from you. However, if a child is born or adopted after you sign their will, they may be entitled to receive a share of your property if the court thinks you omitted them by mistake. If you intend to disinherit a child, you should specifically mention their disinheritance in your will.

What Estate Planning Documents Should I Have in Delaware?

A will is a necessary legal document that helps your family after your death. However, other estate planning documents are helpful to you and your family throughout your life.

• Power of Attorney. A power of attorney lets you name someone you trust to manage your financial life when you cannot, for example, if you are incapacitated or even out of town. They can pay bills, provide for your family, and handle tax matters. You decide what powers to grant your agent, and they have a fiduciary duty to act in your best interests.
• Health Care Directive. A health care directive, also called a living will, allows you to give instructions for your end-of-life care and treatment, including life-prolonging measures. You can also name a health care agent in your health care directive. Your health care agent is someone you trust to access your medical information and make health care decisions when you can’t speak for yourself.

Fortunately, making a valid will and creating other Delaware estate planning documents is easy with online estate planning templates.