Delaware Probate Process: 8-Phase Guide
From Register of Wills qualification through discharge — the complete Delaware probate process under Delaware Code Title 12, with no estate tax and no inheritance tax
Delaware probate is administered by the Register of Wills in each of Delaware's 3 counties (New Castle, Kent, Sussex). The Personal Representative qualifies there, files all inventories and accounts there, and receives the final discharge there. The Court of Chancery — Delaware's famous court of equity — handles contested estate matters, will contests, fiduciary disputes, and appeals from the Register of Wills. Delaware is NOT a UPC state. Delaware Code Title 12 (Decedents' Estates and Fiduciary Relations) governs all probate.
Delaware has no estate tax (repealed January 1, 2018) and no inheritance tax (repealed 1999). No Delaware estate or inheritance tax returns are required for any estate. Compare with neighboring Maryland (estate tax on estates over $5M + 10% inheritance tax on non-exempt heirs) and Pennsylvania (inheritance tax 4.5%–15%). Only state income tax (Form 200-01/400, due April 30) applies.
Delaware Probate: Phase Overview
| Phase | Key Action | Deadline |
|---|---|---|
| 1 — Determine Probate Need | Classify assets; check Small Estate Affidavit ($30K personal property) | Promptly after death |
| 2 — Gather Documents | Order death certificates; locate original will | Before qualifying |
| 3 — Qualify with Register of Wills | File petition; take oath; receive Letters | No statutory deadline, but promptly |
| 4 — Estate EIN + Bank Account | Apply for EIN; open estate account | Immediately after qualifying |
| 5 — Publish Notice to Creditors | Publish in county newspaper; mail to known creditors | Within weeks of qualifying |
| 6 — File Inventory | File Inventory with Register of Wills | Within 3 months of appointment |
| 7 — Pay Debts and Taxes | Evaluate claims; file DE Form 200-01/400 (April 30) | After 6-month creditor period |
| 8 — File Final Account and Close | File final account with Register of Wills; receive discharge | After distributions complete |
Phase 1: Determine Whether Probate Is Required
Only assets titled solely in the deceased's name with no beneficiary designation pass through probate. Delaware's Small Estate Affidavit (Del. Code tit. 12, § 2306) applies to personal property estates of $30,000 or less — 30-day wait, no court filing.
| Asset Type | Requires Probate? | Notes |
|---|---|---|
| Bank accounts — no POD beneficiary | ✅ Yes | Solely in deceased's name |
| Real estate — deceased's name only | ✅ Yes | Always requires full probate; excluded from small estate affidavit |
| Vehicles — deceased's name only | ✅ Yes | Transfer through probate or small estate if eligible |
| Investment accounts — no TOD | ✅ Yes | Market value at date of death |
| POD / TOD accounts | ❌ No | Pass directly to named beneficiary |
| Joint accounts (survivorship) | ❌ No | Pass to surviving owner |
| Life insurance (named beneficiary) | ❌ No | Paid directly to beneficiary |
| Retirement accounts (named beneficiary) | ❌ No | Paid directly to beneficiary |
| Revocable living trust assets | ❌ No | Pass per trust instrument |
Phase 2: Gather Essential Documents
Order 8–10 certified death certificates from the Delaware Division of Public Health Vital Statistics (dhss.delaware.gov). Each financial institution, government agency, and the Register of Wills needs its own original. The Register of Wills requires the original will, not a photocopy.
Phase 3: Qualify with the Register of Wills
File the petition for probate with the Register of Wills in the county where the deceased was domiciled at death. Delaware has 3 counties — New Castle, Kent, or Sussex. Submit the original will, certified death certificate, and filing fee. The Personal Representative takes an oath and receives Letters Testamentary (with will) or Letters of Administration (intestate).
What to Bring to the Register of Wills
- Completed petition for probate (forms at courts.delaware.gov)
- Original will (if any) — Register retains the original
- Certified death certificate (original)
- Names, addresses, and relationships of all heirs and legatees
- Estimated asset list and values
- Filing fee ($35–$125 base; fees based on estate size)
- Bond (if required — the will may waive bond)
Phase 4: Apply for Estate EIN and Open Estate Bank Account
Apply for a federal EIN at irs.gov immediately after qualifying (select "Estate" as entity type). Open a dedicated estate checking account using the Letters, EIN, and death certificate. Keep detailed records of every deposit and disbursement — all estate activity flows through this account.
Phase 5: Publish Notice to Creditors — 6-Month Creditor Period
Publish a Notice to Creditors in a newspaper of general circulation in the county. Mail direct written notice to all known creditors. The 6-month creditor period runs from the date of first publication (Del. Code tit. 12, § 2102). No distributions to heirs may be made before this period expires.
Delaware's creditor period is 6 months from first publication of the Notice to Creditors. Final distributions to heirs must wait until this period expires. Publish the notice promptly after qualifying — every week of delay in publishing extends your overall timeline by one week.
Phase 6: File Inventory within 3 Months of Appointment
File an Inventory of all estate assets with the Register of Wills within 3 months of appointment. List all probate assets with their fair market values as of the date of death. Send a copy to all interested persons.
| Asset Category | Valuation Method |
|---|---|
| Real estate | Fair market value — professional appraisal or county assessment |
| Bank accounts | Balance at date of death — obtain certified statement |
| Investment accounts / stocks | Closing price on date of death |
| Vehicles | Retail value — NADA/Kelley Blue Book |
| Household furnishings / personal property | Estimated FMV; professional appraisal for high-value items |
Phase 7: Pay Debts and File Taxes
After the 6-month creditor period expires, pay valid claims in the established priority order. Delaware has no estate tax and no inheritance tax — only income taxes apply.
Priority of Claims (Del. Code tit. 12, § 2105)
| Priority | Category |
|---|---|
| 1st | Costs and expenses of administration (Personal Representative fees, attorney fees, court costs) |
| 2nd | Funeral expenses (reasonable amount) |
| 3rd | Debts and taxes with preference under federal law |
| 4th | State and local taxes |
| 5th | Medical and hospital expenses of the last illness |
| 6th | Rent for the last 6 months of residence |
| 7th | All other claims |
Delaware Tax Obligations
| Tax | Applies? | Form | Due Date |
|---|---|---|---|
| DE Estate Tax | ❌ No — repealed 2018 | None | N/A |
| DE Inheritance Tax | ❌ No — repealed 1999 | None | N/A |
| DE Income Tax (deceased's final) | ✅ Yes | Form 200-01 | April 30 |
| DE Fiduciary Income Tax | ✅ If estate earns income | Form 400 | April 30 |
| Federal Income Tax (final) | ✅ Yes | Form 1040 | April 15 |
| Federal Fiduciary Income Tax | ✅ If estate earns > $600 | Form 1041 | April 15 |
Delaware state income tax returns (Form 200-01 for the deceased's final return; Form 400 for estate fiduciary income) are due April 30, not April 15. This is a common mistake for out-of-state executors who assume all tax returns are due April 15.
Phase 8: Distribute Assets, File Final Account, and Receive Discharge
After all debts and taxes are paid, distribute the remaining assets to heirs per the will or Delaware intestacy law. Obtain signed receipts from each distributee. Transfer real estate by deed recorded with the county Recorder of Deeds. Transfer vehicle titles through the Delaware Division of Motor Vehicles. File the final account with the Register of Wills and receive a discharge, formally closing the estate.
Common Delaware Probate Mistakes
| Mistake | Consequence | How to Avoid |
|---|---|---|
| Filing the Delaware income tax return on April 15 instead of April 30 | Late filing penalty and interest | Delaware Form 200-01 and Form 400 are due April 30 — calendar this separately from federal April 15 |
| Assuming no annual accounts are required (coming from MD or VA) | Possible confusion about account-filing obligation | Delaware generally does not require annual accounts for uncontested estates — confirm with the Register of Wills |
| Missing the 3-month Inventory deadline | Register of Wills citation | Calendar Inventory deadline the day you qualify: appointment date + 3 months |
| Distributing assets before the 6-month creditor period expires | Personal liability to creditors who file after distribution | Wait for 6 months from first publication; keep funds in estate account |
| Using a small estate affidavit when estate exceeds $30K | Institutions reject affidavit; delay in accessing assets | Calculate net personal property accurately; if over $30K, open full probate |
| Filing in the wrong county | Rejection; re-filing required | File with the Register of Wills in the county of decedent's domicile (New Castle, Kent, or Sussex) |
Delaware vs. Neighboring States: Probate Process
| Feature | Delaware | Maryland | Pennsylvania | New Jersey | Virginia |
|---|---|---|---|---|---|
| Supervising body | Register of Wills (3 counties) | Register of Wills (24 jurisdictions) | Register of Wills / Orphans' Court | Surrogate (21 counties) | Circuit Court / Commissioner of Accounts |
| Inventory deadline | 3 months | 3 months | 3 months | None specified | 4 months |
| Creditor period | 6 months from publication | 6 months from publication | 1 year from letters | 9 months from appointment | 1 year from qualification |
| Estate tax? | No (repealed 2018) | Yes — $5M exemption | No | No | No |
| Inheritance tax? | No (repealed 1999) | Yes — 10% non-exempt | Yes — 4.5%–15% | Yes — Class D 16% | No |
| Income tax due date | April 30 | April 15 | April 15 | April 15 | May 1 |
| Typical duration | 9–15 months | 10–16 months | 12–18 months | 12–18 months | 18–24 months |
Frequently Asked Questions
Where do I file for probate in Delaware?
File with the Register of Wills in the county where the deceased was domiciled at death. Delaware has only 3 counties: New Castle (Wilmington), Kent (Dover), and Sussex (Georgetown). Do not file based on where the assets are located.
Does Delaware require annual accounts during probate?
Delaware generally does not require mandatory annual accounts for uncontested estates, unlike Maryland (9-month first Annual Account) and Virginia (first settlement at 16 months). However, the Register of Wills may require periodic accounts depending on the circumstances. Confirm with your county's Register of Wills.
What is the Court of Chancery's role in Delaware probate?
The Court of Chancery — Delaware's famous court of equity — handles contested estate and trust matters, will contests, fiduciary disputes, and appeals from the Register of Wills decisions. For routine uncontested probate, you only interact with the Register of Wills. The Court of Chancery is not the primary filing venue for standard probate.
Does Delaware recognize holographic wills?
No. Delaware does not recognize holographic (handwritten, unwitnessed) wills. A valid Delaware will (Del. Code tit. 12, § 202) requires: (1) testator at least 18 years old; (2) signed by the testator; (3) witnessed by two credible witnesses who sign in the testator's presence. A will that fails these requirements is invalid and the estate passes by intestacy.
Ready to Start Delaware Probate?
Our Delaware Probate Guide covers all 8 phases — from Register of Wills qualification through discharge — including the April 30 tax deadline calendar and Inventory checklist.