Probate in Delaware

Overview

Delaware's probate system is administered by the Register of Wills in each of the state's three counties. Delaware does not follow the Uniform Probate Code, instead relying on its own probate statutes under Title 12 of the Delaware Code. The state is well-known for its business-friendly laws, and this extends to its trust and estate laws, which include no state estate tax and favorable trust provisions.

Key Facts

• Governing Law: Delaware Code, Title 12 (Decedents' Estates and Fiduciary Relations)
• Court: Register of Wills / Court of Chancery
• Small Estate Threshold: $30,000
• Typical Timeline: 8 to 12 months for standard estates; complex estates can take 1–2 years
• Follows UPC: No

What Makes Delaware Unique

• No State Estate or Inheritance Tax — Delaware does not impose a state estate tax or inheritance tax, making it one of the more tax-friendly states for estates.
• Register of Wills System — Delaware uses a Register of Wills rather than a traditional probate court for most estate matters. This elected official handles routine probate administration, making the process more accessible and often faster.
• Favorable Trust Laws — Delaware is nationally recognized for its trust-friendly laws, including dynasty trusts with no rule against perpetuities, directed trusts, and asset protection trusts. These tools can help families avoid probate entirely.
• Three-County Simplicity — With only three counties, Delaware's probate system is geographically compact, which can make the process more efficient and predictable than in states with dozens or hundreds of counties.
• Spousal Elective Share — Delaware provides a surviving spouse with an elective share of one-third of the augmented estate, which includes certain non-probate assets, offering significant spousal protection.

Probate Process Steps

1. File petition for probate with the Register of Wills in the county where the decedent resided
2. Register of Wills admits the will and grants letters testamentary or letters of administration
3. Notify beneficiaries and known creditors
4. Publish notice to creditors in a newspaper
5. Inventory estate assets within 3 months of appointment
6. Allow creditor claims period (8 months from date of death or 6 months from grant of letters)
7. Pay valid debts, taxes, and administration expenses
8. File an accounting with the Register of Wills
9. Distribute remaining assets to beneficiaries
10. File final report and close the estate

Costs & Fees

Fee Structure: Delaware does not have a statutory fee schedule for attorney compensation in probate. Attorney fees are based on reasonable compensation, typically charged hourly or as flat fees. The Register of Wills charges filing fees that vary by county and estate size. Personal representative compensation is set at reasonable rates.

Typical Attorney Fees: Hourly rates typically $200–$400/hour; flat fees of $2,000–$6,000 for simple estates

Non-Lawyer Fees: $300 – $1,500 including Register of Wills filing fees ($50–$250), publication costs ($75–$200), certified copies, and recording fees

Delaware's relatively streamlined probate process and lack of state estate tax help keep overall costs lower than many neighboring states. Bond requirements may be waived by the will or by agreement of all beneficiaries.

Frequently Asked Questions