Inheritance Attorney in Milton, Delaware

Delaware Intestate Succession: When There Is No Will

When a Delaware resident dies without a valid will, the estate is considered intestate and assets pass according to the intestate succession statutes in Title 12, Chapter 5 of the Delaware Code. The statute sets a fixed order of heirs, and what a surviving spouse receives depends on who else survives.

How the Spousal Share Is Calculated

If the decedent’s children are also the spouse’s children, the spouse receives $50,000 plus one half of the remaining intestate personal estate. If any surviving children are not the spouse’s children, the spouse receives only one half of the intestate personal estate with no $50,000 front. If no children survive but a parent of the decedent does, the spouse receives $50,000 plus one half of the balance. If no children or parents survive, the spouse inherits the entire intestate estate. Without a surviving spouse, the estate passes to the decedent’s children; if no children, to parents; if no parents, to siblings and their descendants.

Who Intestate Succession Leaves Out

Two groups are frequently surprised by these rules. Unmarried partners receive nothing under intestate succession regardless of how long the relationship lasted. Stepchildren who were never legally adopted are treated the same way. A will or trust is the only way to direct assets to either of them.

Delaware also requires that any heir survive the decedent by at least 120 hours to inherit under intestate succession. On taxes: there has been no Delaware state inheritance tax since January 1, 1999, and Delaware no longer imposes a state estate tax. Federal estate tax applies only to estates above the federal exemption threshold, which excludes the vast majority of Delaware estates.

Probate in Sussex County: Timelines & Requirements

In Delaware, an estate must be opened with the Register of Wills if the decedent held more than $30,000 in personal property solely in their name, or if they owned real estate solely in their name. The Sussex County Register of Wills, located in Georgetown, oversees all probate administration in the county, including granting authority to personal representatives to act on behalf of the estate.

Key Procedural Deadlines

Deadlines run from the moment the estate is opened. Anyone in possession of a document that may be a will must deliver the original to the Register of Wills within 10 days of learning of the maker’s death. Once letters are granted, the estate inventory is due within three months. The estate accounting is due within one year of opening the estate. Creditors have eight months from the date of death to file claims against the estate, which affects how long administration takes before assets can be distributed.

Small Estate Alternative

A Small Estate Affidavit may be filed when personal assets total $30,000 or less, no real estate is held solely in the decedent’s name, at least 30 days have passed since the death, and no petition is already pending with the Register of Wills. For qualifying estates, this alternative can simplify and shorten the process considerably.

How Planning Shapes What Heirs Receive

The tools used during a person’s lifetime have a direct effect on what their heirs go through after death. Assets held in a revocable living trust pass directly to beneficiaries without going through probate, which can reduce delays and keep the transfer private. Beneficiary designations on life insurance policies, retirement accounts, and accounts with right of survivorship typically override what a will states, regardless of what the will says.

A will that hasn’t been updated after a marriage, divorce, birth of a child, or death of a named beneficiary may distribute assets in ways the person never intended. For parents of minor children, a will is also the only document that formally designates who should care for them if both parents die.

We help clients use wills, revocable living trusts, and beneficiary designations as a coordinated plan rather than separate documents. We also address how Delaware’s rules on spousal shares and jointly owned property interact with the rest of the plan, and we handle real estate deed preparation when property needs to be transferred to a trust or to heirs. Related planning tools, including power of attorney documents and trust administration services, are also available through our firm.