How Probate Works in Delaware

Does Delaware require probate?

Not always. Estates valued at under $30,000 with no solely-titled real estate can use a simplified small estate process. For larger estates or those that include real property in only the deceased's name, full probate through the Register of Wills is required.

Delaware's probate process is moderately formal. The state has not adopted the Uniform Probate Code, but the small number of counties (just three) keeps the system relatively straightforward.

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What court handles probate in Delaware?

Probate in Delaware starts at the Register of Wills in the county where the deceased person lived. Delaware has only three counties:

• New Castle County (Wilmington area)
• Kent County (Dover area)
• Sussex County (southern Delaware)

Each county has its own Register of Wills office that accepts filings, admits wills to probate, and issues letters testamentary or letters of administration.

The Court of Chancery handles contested matters, such as will disputes, trust litigation, and complex estate issues. For most uncontested estates, the Register of Wills manages the entire process without involving the Court of Chancery.

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Small estate threshold

Estates valued at $30,000 or less with no real estate titled solely in the deceased's name can use a simplified small estate process (Delaware Code Title 12, § 2306).

Requirements:

• Total assets do not exceed $30,000.
• No real estate is titled solely in the deceased's name (jointly-held property with survivorship passes automatically).
• At least 30 days must have passed since the date of death.

This simplified process allows the personal representative to collect and distribute assets with reduced court involvement. It is not a complete bypass of the probate system, but it involves less paperwork and lower fees than full administration.

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Simplified probate options

For estates that exceed the small estate threshold, Delaware offers:

Standard administration. The personal representative files with the Register of Wills, receives letters testamentary (if there is a will) or letters of administration (if there is no will), and manages the estate under court supervision. An inventory must be filed, debts paid, and a final accounting submitted.

No informal probate. Delaware has not adopted the Uniform Probate Code, so there is no informal probate track. All estates go through the Register of Wills with some level of court oversight.

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What if there is no will?

When someone dies without a will in Delaware, the estate follows the state's intestate succession laws (Delaware Code Title 12, § 502 et seq.).

If the deceased was married:

• Spouse, no descendants (or all descendants are also the surviving spouse's descendants). The surviving spouse inherits the first $50,000 of the personal estate plus one-half of the balance. Real property: the surviving spouse receives a life estate in all real property.
• Spouse and descendants from a prior relationship. The surviving spouse receives one-half of the personal estate and a life estate in real property. The descendants receive the rest.

If the deceased was not married:

• Children. The children inherit equally.
• Parents (no children). The parents inherit everything.
• Siblings (no children or parents). The siblings inherit equally.

For a broader overview, see our guide on handling an estate without a will.

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What makes Delaware different?

The elective share

Delaware gives the surviving spouse the right to an elective share of the estate. If the will leaves the spouse less than one-third of the "elective estate" (which includes some assets outside the probate estate, such as revocable trusts), the spouse can elect to take one-third instead.

This means a surviving spouse cannot be entirely disinherited in Delaware, regardless of what the will says.

Only three counties

Delaware's small size means there are only three Register of Wills offices in the entire state. This can be an advantage: the offices are generally accessible and the staff tend to be familiar with local practitioners and procedures.

Court of Chancery

Delaware's Court of Chancery is one of the most respected courts in the country, primarily known for corporate law. For estate matters, it handles disputes that the Register of Wills cannot resolve, including contested wills and trust litigation.

For a general overview of the probate process, see our guide on how probate works. You can track your progress through the estate settlement process with our interactive checklist.

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