When is probate needed in Delaware?
Delaware has a probate process similar to many other states, but before we go any further, let’s ask an important question: Do you even need to probate the estate?
Not all assets go through probate. Assets that automatically transfer to another person without a court order will avoid probate.
Generally, joint accounts and accounts or assets with beneficiary designations (e.g. life insurance and retirement accounts) will avoid probate. A properly funded revocable trust will also avoid probate.
You may also qualify for one of the simplified probate procedures that Delaware offers if:
- There is no real estate subject to probate and the assets that are subject to probate are not more than $30,000.
- NOTE: This procedure is limited to use by spouse and certain relatives.
If the assets require probate, and they do not qualify for a simplified procedure based on the dollar values and other qualifications listed above, then you will have to go through the full probate process.
Don’t worry, though. You can still probate a Will or estate without an attorney, and you can still go through probate even if there is no Will.
If there is a Will, the person in charge of the probate is the person named as executor in the Will. Sometimes, however, that person is unable, or unwilling to serve as executor. When that happens, the next executor in the Will (i.e. the successor executor) can serve. If there are no successors, then the beneficiaries under the Will must appoint someone, or go to court if they cannot agree.
If there is no Will, then the heirs at law (e.g. children, surviving spouse, siblings) must agree and appoint someone to serve over the probate estate. The person appointed must consent to serve.
The first step towards getting a probate opened is completing our online questionnaire. If you have already started, you can always go back and finish it.