General DefinitionA decedent's intestate estate is defined as any part of a decedent's estate not effectively disposed of by a valid will. 12 Del. C. Sec. 501.
Order of DistributionThe intestate share of the surviving spouse will be distributed in the following order:
- If there is no surviving issue or parents of the decedent, the entire intestate estate;
- If there is no surviving issue but the decedent is survived by a parent or parents, the first $50,000 of the intestate personal estate, plus 1/2 of the balance of the intestate personal estate, plus a life estate in the intestate real estate;
- If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000 of the intestate personal estate, plus 1/2 of the balance of the intestate personal estate, plus a life estate in the intestate real estate;
- If there are surviving issue, one or more of who are not issue of the surviving spouse, 1/2 of the intestate personal estate, plus a life estate in the intestate real estate. 12 Del C. Sec. 502.
The part of the intestate estate not passing to the surviving spouse under Sec. 502, or the entire intestate estate if there is no surviving spouse, passes as follows:
- To the issue of the decedent, per stirpes;
- If there is no surviving issue, to the decedent's parent or parents equally;
- If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother or sister, per stirpes;
- If there is no surviving issue, parent or issue of a parent, then to the next of kin of the decedent, and to the issue of a deceased next of kin, per stirpes;
- Any property passing to two or more persons passes to such persons as tenants in common. Sec. 503.
Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. This is not to be applied where its application would result in a taking of intestate estate by the State under this title. Sec. 504.
If there is no taker in accordance with Delaware law, the estate passes to the State of Delaware. Sec. 1101.
Common Law or Community PropertyDelaware is a common law, elective share state.
CapacityAn individual, 18 or more years of age, who is of sound mind and memory may make a will. Sec. 201.
DraftingA will must be:
- In writing and signed by the testator or by some person subscribing the testator's name in the testator's presence and by the testator's express direction, and
- Attested and subscribed in the testator's presence by two or more credible witnesses.
Holographic wills are not recognized in Delaware. Sec. 202.
Any person who is generally competent and credible (capable of testifying in court) can be a witness. Sec. 203. A signing of the will by an interested witness does not invalidate the will or any provision of the will. Sec. 203.
An attested will may at the time of its execution or at any subsequent date be made self-proved, by the acknowledgment of the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this State, and evidenced by the officer's certificate, under official seal. Sec. 1305.
BeneficiariesWhere the title to property or the devolution of title depends upon priority of death and there is not sufficient evidence that the persons have died otherwise than simultaneously, the property of each person will be disposed of as if each person had survived. Sec. 701.
Modifications A will maybe be revoked by performing a revocatory act or alternation by the testator or some person in the testator's presence and by the testator's direction or by a subsequent writing signed by the testator or by some person subscribing the testator's name in the testator's presence and by the testator's express direction and attested and subscribed in the testator's presence by two or more credible witnesses. Sec. 208.
If after executing a will the testator is divorced, the divorce revokes any revocable dispositions made to the former spouse. The divorce also revokes any provisions conferring a general or special power of appointment and any nomination of the former spouse as executor, trustee or guardian, unless the will specifically provide otherwise. The former spouse is treated as having predeceased the testator. Sec. 209.
Naming of ExecutorA decedent has the right to name the executor of his or her estate through a validly executed will. Sec. 1502.
Admission to ProbateAny person, having the custody or possession of any instrument of writing purporting to be a last will and testament and intended to take effect upon the death of the testator, must produce and deliver the instrument to the Register of Wills for the county in which the person resides within 10 days from the time the person receives information of the death of the testator. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Also, any person who willfully fails to deliver a will after being ordered by the Court of Chancery in a proceeding brought for the purpose of compelling delivery is subject to penalty for civil contempt of the Court. Sec. 1301.
Submission of WillA will must be proved before the Register of Wills of the county in which the testator was domiciled at the time of death. To be effective to prove the transfer of property or to nominate an executor, a will must be declared to be valid by admission to probate. Sec. 1302.
InventoryWithin three months after appointment, the executor or administrator must prepare and file an inventory and appraisal with the office of the Register of Wills of any county in which the decedent owned real estate. This inventory must include all of the goods and property of the decedent and list all debts and credits due or belonging to the decedent or to the descendant's estate. Further, a statement setting forth a general description of every parcel of real estate should be included, with a description of the parcel identification number assigned to said parcel, the name of each party entitled to any estate or interest in any part of real or personal estate and the relationship, if any, of each party to the descendent. Each item of property in the inventory, list and statement must be separately valued at its market value as of the date of death of the decedent. Each inventory and appraisal must be supported by an affidavit of each executor or administrator. Sec. 1905.
Elective ShareWhen a married person dies, the surviving spouse is entitled to an elective share of the estate. The elective share is an amount equal to one-third of the elective estate, less the amount of all transfers to the surviving spouse by the decedent. The right, if any, of the surviving spouse to take an elective share in real or tangible personal property shall be governed by the law where the property is located. Sec. 901.
Debts and DistributionsClaims against the estate, personal representative and the heirs and devisees of the decedent must be presented within eight months of the decedent's death whether or not notice is given. Sec. 2012.
Executors and administrators, after payment of all administration expenses, fees and commissions, must pay claims against the decedent in the following order:
- surviving spouse's allowance;
- funeral expenses;
- child support arrears or retroactive support due as of the date of the decedent's death;
- reasonable bills for medicine and medical attendance during the last sickness and for nursing and necessaries for the last sickness of the decedent;
- wages of servants and laborers employed in household affairs or in the cultivation of a farm; but no servant or laborer shall be allowed this preference for more than one year's wages;
- taxes imposed by the state;
- rent for not exceeding one year; and this, at the election of the party entitled, may be of rent in arrear or rent growing due;
- judgments against the decedent, which shall include judgments before justices of the peace and decrees of a court of equity against the decedent for the payment of money;
- recognizances, mortgages and other obligations of record, for the payment of money;
- obligations and contracts under seal;
- contracts under hand for the payment of money, or delivery of goods, wares or merchandise; (12) other demands. Sec. 2105.
Residents will pay estate tax if their estate is greater than the federal exemption amount. The top rate is 16% on taxable estates in excess of $10.04 million Sec. 1502.
Income Tax Charitable Deductions and/or Credits
Delaware allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Del. Code Ann. Tit. 30, §1109(a).
Gift Annuity Requirements
Delaware, a "silent" state, does not specifically address regulation of charitable gift annuities.