Delaware Estates and Trusts Law

You can rely on our experienced team to work closely with you to make a plan to protect your assets and family from unnecessary taxes and ensuring that what you want to happen does in fact happen.  We provide a variety of legal services to meet your estate planning needs including advising clients on the use of Revocable Living Trusts for the distribution of assets with the advantage of probate avoidance. We understand this type of planning for the future requires a sensitivity to family and personal relationships without abandoning the principles of strong advocacy – you, the client, come first. A cornerstone of our firm’s philosophy is to listen carefully to our clients: this is essential to properly identify the objective needs of a client and to also understand a client’s goals for this very personal matter. Attentive listening allows us to tailor an estate plan for your situation using the expertise, experience, quality, and breadth of service that a national firm can provide while being mindful of keeping your costs low.

What If You Pass Away Without a Will or Trust?

Contrary to popular belief, estate planning is not only for the affluent families or persons, but it is also a concern for every person with assets. If you pass away without estate planning, then your home, other real estate, personal property, money, and other assets that do not have designated beneficiaries will be distributed according to the laws of intestacy. To die intestate means your real and personal property will be divided among relatives, sometimes estranged relatives with whom you may not have maintained any personal relationship, according to the laws of intestacy, which is a rigid set of rules. The framework of intestacy does not take into consideration your intentions, promises, or the needs of those that you left behind. The laws of intestacy apply to every individual who passes away without a will.

What is an Estate?

It is important to consider what will happen to your property and assets when you pass and to plan ahead and determine which individuals or institutions you would like to have benefited from your estate. Everything you own, cars, real estate, bank accounts, and even your furniture are all assets that are generally part of your “estate” under Delaware estate planning law.  These assets will get distributed to your family at your death, usually, after administrative and probate taxes are paid.  Our lawyers can set up a trust and draft a will that makes sure that those taxes are minimized – or avoided altogether – and to make sure that your assets go to the people you want them to go to on your death.

Estate planning, powers of attorney, wills, trusts and medical directives are necessary documents for every person, and it can be complicated.  Our lawyers have decades of estate planning experience and will listen to you and will translate your requirements and desires into legal documents.

Why Make a Will?

Creating a last will is one of the most important things you can do for estate planning and is the centerpiece or starting place for most people.  Making a will protects your family and guides the Executor through your wishes concerning the distribution of your property.  While you do not legally have to sign in front of a notary in Delaware it can make the will process much easier when it is probated at your death. Making a will is a way to decide in advance who gets what.  If you do not have a will when you die it is possible that your assets will go to people who you would not have chosen, including, in some cases, the state of Delaware.

How to Make a Valid Will in Delaware.

To make a valid will in Delaware the maker of the will must be at least 18 years of age and of sound and disposing mind and memory.  The will must also be:

  1. In writing; and
  2. Signed by the maker or by another person who is writing the maker’s name in his or her presence and at the maker’s explicit direction; and
  3. Witnessed by two or more credible adult witnesses who sign their names in the presence of the maker.

Delaware is relatively unique in that a beneficiary to a Delaware will may also be a witness.  We always also recommend that you get every signature on a will notarized.  It is really important to speak to a lawyer if you have recently moved to or from Delaware as the will requirements in other states vary dramatically in some cases and a Delaware will may not be valid in all states.  Our firm has offices and licensed attorneys in most other states in the United States, and has a very experienced international and immigration team to help with complex issues.

Why create a trust?

A living trust provides an excellent way of controlling your assets. When you set up a revocable living trust your wishes will be honored and your family can avoid probate. A trust allows you to maintain control of your assets until your death or incompetency. Thereafter, the designated trustee will manage those same assets and will distribute them to your beneficiaries according to the specifications in the trust. As trust allows you to specify exactly how and when assets are distributed, unlike a Will where the assets are distributed immediately through probate.

Death & Taxes in Delaware

Delaware is one of the few states that continues to collect an estate tax on death.  An estate tax is one that is charged against the transfer of a deceased person’s property. The Delaware estate tax applies to all Delaware resident estate and anyone who owns property in Delaware, regardless of their state of residence.  While Delaware does have an exemption rule for the estate tax, the amount of the exemption and tax rate is pegged to and varies with the federal estate tax.

What Is Probate?

Your estate must be probated if either; you had more than $30,000 in personal property in your name at the time of death, and/or you owned Delaware real estate.  The register of wills grants Letters Testamentary or Letters of Administration to the Executor or Next-of-kin and the estate is then considered open. This process takes approximately one year and involves filing an inventory, accounting and paying various fees.  Your executor will have to pay your bills and any taxes you owe at the time of your death, then will value and distribute the rest of your property.  Probate takes time, effort and money, which can be avoided with a simple living trust prepared by one of our Delaware probate lawyers.   If you find yourself as the executor of a will, or the administrator of an intestate estate, we can likewise step in and help you manage the time-consuming and burdensome duties.  The costs of our services for probate legal work can be deducted from the assets of the estate and are not paid from executor’s own funds.

The executor’s or administrator’s duties include:

  • Filing a certified copy of a death certificate; and
  • Paying the costs of opening the estate and posting bond; and
  • Publishing notice of the filing of the will in a local newspaper; and
  • Ascertaining, collecting, and managing the probate assets; and
  • Filing an inventory of the assets within 90 days after the estate is opened; and
  • Managing and set-aside for a spousal or civil union allowance or elective share; and
  • Validating and then paying the debts of the estate; and
  • Filing and paying and State and Federal death taxes within 9 months; and
    Filing an accounting with the Register of Wills office; and
  • Closing the estate and paying the Register of Wills a fee of 1.75% of the “net personal estate”

Trust & Will Disputes

Sometimes family members don’t agree with each other.  One case where this happens a lot is after a family member’s death where one family member feels you made a mistake in your will.  Our litigation team works closely with the estate and probate attorneys at our firm. In Delaware, you only have sixty (60) days to protest a will after the executor opens probate.  We can file the will protest or defend the executor of the will.  This can be avoided for your will as our estate planning lawyers always include a “no-contest provision” in wills which will legally prevent any of your beneficiaries from starting a will contest and trying to change what you put in your will if they still want to get at least what you have already left them.  Further – our lawyers can work with you to pre-validate your will before you die by dealing with issues of capacity and undue influence. (See e.g. Delaware Code Title 12 § 3101 Action at law, which reads “An action at law may be maintained against an executor or administrator for a legacy or distributive share that is due. Assets in the executor’s or administrator’s hands to pay a legacy shall create a legal liability and raise a consequent promise to pay it. If there are not sufficient assets to pay the whole legacy, a part may be recovered. If the delivery of a specific legacy has been refused, the value of it may be recovered by an action at law. There shall be a legal liability to pay a distributive share and a consequent implied promise.”)

Delaware Estates & Trusts Law

Title 12 of the Delaware Code (2016) deals with everything relating to Decedents’ Estates and Fiduciary Relations.  You can find a copy of the laws at the state’s official website by clicking here. (Link to Delaware Estates & Trusts Laws).

Talk to a Delaware Estate Attorney

For help and more information on Delaware estate planning, email our team at