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How Delaware Assets Transfer After a Death

What passes without any Register of Wills involvement, what needs the $50,000 affidavit, and what needs letters. In Delaware the answer usually turns on how a thing was titled rather than on what it is worth.

Titling decides the route. A Delaware asset with a living named beneficiary or a surviving co-owner with express survivorship passes outside the estate. A sole-name asset with no beneficiary goes through either the 12 Del. C. § 2306 affidavit or a grant of letters, and the single fact that most often closes the affidavit route is Delaware real estate rather than a dollar figure.

Usually Outside Probate

These pass by contract, by title or by a recorded instrument, with no personal representative and no Register of Wills file.

A bank account in trust form or payable on death under 5 Del. C. § 924

Usually Needs the Register of Wills

Property in the decedent's sole name with no survivorship and no beneficiary, where the asset type or the size of the estate puts it beyond the § 2306 affidavit.

A claim or lawsuit belonging to the decedent

Special Review Needed

Delaware rules that do not match the national pattern, or where a nonprobate route does not settle who ends up keeping the property.

A payable-on-death bank account, because 5 Del. C. § 924 allows only ONE beneficiary and no more than TWO depositors per trust account, unless the bank's own agreements or rules provide otherwise

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Delaware deeds are recorded with the RECORDER OF DEEDS of the county where the property lies. That is a different office from the Register of Wills, which handles probate, and a third office again from the Register in Chancery, which is the clerk of the Court of Chancery. Pull the recorded deed before choosing a route, because the deed decides which of these applies. Delaware recording fees are NOT quoted here: the three county schedules were not read.

Frequently Asked Questions

What is the difference between probate and non-probate assets?
Probate assets are owned solely by the deceased with no designated beneficiary, requiring court supervision to transfer. Non-probate assets have built-in transfer mechanisms like beneficiary designations, joint ownership, or trust ownership.
What assets avoid probate in Delaware?
Assets that typically avoid probate include: life insurance with named beneficiaries, retirement accounts (401k, IRA) with beneficiaries, jointly owned property with right of survivorship, TOD (Transfer on Death) accounts, POD (Payable on Death) accounts, and assets held in a living trust.
What is a TOD or POD designation?
TOD (Transfer on Death) and POD (Payable on Death) are beneficiary designations that allow assets to pass directly to a named beneficiary upon death, bypassing probate.
Does joint ownership avoid probate?
Only joint ownership with "right of survivorship" avoids probate. This includes joint tenancy with right of survivorship and tenancy by the entireties (for married couples in some states).
SourcesOfficial references used for this page

Information current as of April 11, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in Delaware can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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