Probated Estates

Does an Estate have to be opened?

Whether the decedent has a Will or not does not determine whether an estate must be opened. The requirements for opening an estate are as follows:

  • The decedent has more than $20,000/$30,000 in personal property in his/her name alone; or,
    • $20,000 - for a death before 4/27/04
    • $30,000 - for a death after 4/27/04
  • The decedent had an interest in real estate in his/her name alone; or,
  • The decedent had no next of kin and has less than $20,000/$30,000 in his/her name alone (see example above).

 

When an Estate does not need to be opened?

If the decedent does not have solely owned real estate, and has less than #20,000 (if before 4/27/04, after $30,000) in solely owned personal property, and has next of kin, then the qualified next of kin (spouse, children, parents, brothers and sisters, grandchildren, grandparents and funeral directors, in that order) may acquire possession of that personal property by executing a "Small Estate Affidavit" at the Register of Wills and taking that affidavit to banks, Division of Motor Vehicles, etc., as evidence of their right to take possession.

If there was jointly held real estate with a surviving spouse or another person, a No Delaware Estate tax is Due affidavit and a Jointly Held Property Affidavit will be issued. These affidavits will remove the decedent's name from the property for tax purposes only. The Register of Wills Office will send these affidavits to the Assessment Office for you. If you wish to have the decedent's name removed from the deed, you must seek an attorney to do so.

If there is a Will and the estate qualifies as a "Small Estate", the person(s) administering the assets must still comply with the terms of the Will. If there was no Will, the person obtaining the assets must distribute them, after payment of debts, according to the intestate laws of Delaware.

If the decedent had a Will it is required by law to file the original in the Register of Wills Office, as well as a death certificate. If the decedent had no Will it is still required to file a death certificate whether or not the decedent owned any property.