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Delaware Estate Planning Basics
Pillar GuideDelaware25 min read

Delaware Estate Planning Basics

Delaware estate planning runs on four documents. The will takes two witnesses, the power of attorney a notary and a witness.

By Settled Editorial

A Delaware estate plan runs on four documents: a will, a durable personal power of attorney, an advance health-care directive, and a revocable trust for the families that need one. Each carries its own Delaware signing rule, and the will's rule is the unforgiving one. 12 Del. C. § 202(b) makes a will that misses any part of § 202(a) void.

Every rule below was read section by section at the Delaware Code Online on September 10, 2026, and each section is cited where it appears. Where a chapter changed recently, the act that changed it is named with its approval date, because two of these documents run on law younger than most of the advice written about them.

Read this page as a map of the statutes behind a Delaware plan rather than a signing kit. It is general information about Delaware law and not advice about your situation. A Delaware attorney should draft or review anything you sign, and that goes double for a blended family, a business interest, or real property in more than one state.

What a Delaware Plan Is Made Of

DocumentDelaware statuteWhat signing takes
Will12 Del. C. § 202Writing, your signature, and two or more credible witnesses who attest and subscribe while you are there
Durable personal power of attorney12 Del. C. §§ 49A-104, 49A-105Writing, your signature, a date, a notarial officer, one unrelated adult witness, and the agent's own certification
Power of attorney for health care16 Del. C. § 2508A record, your signature, one adult witness. No notary
Health-care instruction, the living will16 Del. C. § 2507No formality at all. It can be spoken
Revocable trust12 Del. C. § 3545A writing you execute, witnessed by one disinterested person or two credible persons
Guardian nomination for a child12 Del. C. § 3902(b)A written declaration or your will
Transfer-on-death deed25 Del. C. § 209Recordable deed formalities with notarization, two witnesses, at least one taking nothing, recorded before you die

Four of those seven rows are where a national form tends to come apart. Delaware asks for both a notary and a witness on the financial power of attorney, so a document offering a notary alone does not satisfy § 49A-105(a). It asks for a witness on a written revocable trust, and § 3545(a) makes that a condition of validity rather than a nicety. It asks for nothing at all on a living will, so a Delaware reader hunting for witnesses is solving a problem the statute never set. And it asks for two witnesses on a transfer-on-death deed on top of notarization, under § 209(2).

The Will Is the Document Delaware Is Strictest About

12 Del. C. § 202(a) carries three requirements. The will must be in writing. It must be signed by you, or by some person subscribing your name in your presence and at your express direction. And, subject to the choice-of-law rule at § 1306, it must be attested and subscribed in your presence by two or more credible witnesses.

Then § 202(b): "Any will not complying with subsection (a) of this section shall be void." Void, not contestable. Delaware writes no harmless-error rescue into Title 12, so a Delaware will with one witness does not reach the Court of Chancery for an argument about what you meant.

Two smaller sections soften the picture in useful ways. 12 Del. C. § 203(a) says any person generally competent to be a witness may witness a will, with no disinterest requirement anywhere in the sentence. Section 203(b) then says a will or any provision of it "is not invalid because the will is signed by an interested person," so a daughter who witnesses her mother's will breaks nothing and forfeits nothing. Two witnesses who take nothing under the document still cost an afternoon and remove the argument. The full execution picture, including out-of-state wills and the reason handwriting alone passes nothing here, sits in Delaware will requirements.

Three add-ons are worth knowing while the will is still in draft.

A self-proving affidavit can be added later. 12 Del. C. § 1305 lets an attested will be made self-proved at the time of execution or at any subsequent date, by your acknowledgment and the witnesses' affidavits before an officer authorized to administer oaths, certified under official seal. A will signed in 2009 with no affidavit can be made self-proved this year, so long as you and the witnesses will sign.

A separate list handles the furniture. 12 Del. C. § 212 lets a Delaware will point to a written statement disposing of tangible personal property the will does not otherwise dispose of, leaving out money, evidences of indebtedness, documents of title, securities and property used in trade or business. The list must be in your handwriting or signed by you, and must identify the items and the legatees with reasonable certainty. It can be written before or after the will, altered afterward, and where two lists conflict the one with the latest date controls.

Delaware lets you settle a will fight while you are alive. 12 Del. C. § 1311 is pre-mortem will validation, and most planning checklists never mention it. You notify beneficiaries and the people who would inherit if you died intestate, in writing, with a copy of the will, stating that anyone who wants to contest it must file in the Court of Chancery within 120 days of receiving the notice. Outlive that window and the people you notified cannot bring a § 1308 caveat or a § 1309 review after your death, and cannot join one someone else brings. Section 1311(d) protects the people who skip it: not using the procedure is not evidence that a will is invalid.

Your Financial Power of Attorney Is Not Durable Until You Say So

Delaware runs personal financial powers of attorney on the Durable Personal Powers of Attorney Act, 12 Del. C. ch. 49A, and that chapter reverses the default most people carry in from elsewhere.

12 Del. C. § 49A-104 gives a power of attorney durability only if it contains the words "This power of attorney shall not be affected by the subsequent incapacity of the principal," or "This power of attorney shall become effective upon the incapacity of the principal," or similar words showing that you intend the authority to survive your incapacity. A Delaware financial power of attorney silent on incapacity is the document most likely to fail on the morning it is needed.

Execution takes five things, all of them in 12 Del. C. § 49A-105(a). In writing. Signed by you, or by another subscribing your name in your presence and at your express direction. Dated. Signed in the presence of a notarial officer. And signed in the presence of one adult witness who is neither related to you by blood, marriage or adoption, nor entitled to any portion of your estate under your then existing will, codicil, amendment or trust instrument. Delaware is a both state, notary and witness, and the date is a condition of valid execution rather than good housekeeping.

Then comes the step that catches Delaware documents drafted from a national form. Under § 49A-105(c), no matter how the agent accepts the appointment, the agent "shall have no authority to act as agent under the personal power of attorney" until the agent has executed an agent's certification and affixed it to the document. The certification text is printed in the section, and by signing it the agent acknowledges four duties that bind whatever the document says and three more that apply unless the document says otherwise. A signed, notarized, witnessed Delaware power of attorney with no agent's certification attached is a document your bank can decline.

Section 49A-105(b) adds an optional notice, signed by you and placed at the front. Leave it out and the agent carries the burden of proving the document is valid the day someone challenges the agent's authority. That notice also states in plain words that the document "does not authorize your Agent to make health-care decisions for you," which matches § 49A-103(a)(4) putting health-care powers outside chapter 49A entirely.

One more section pays off years later. 12 Del. C. § 49A-108(a) says the person serving as your agent shall, on the agent's request and absent cause to the contrary, be appointed the guardian or other fiduciary in a Chapter 39 proceeding. Naming the right agent now is the closest thing Delaware gives you to choosing your own guardian. The walk through gifts, co-agents and third-party acceptance lives in the Delaware power of attorney guide.

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Health Care Runs on a Chapter Delaware Rewrote in 2025

Start with the date, because it decides whether anything else you read online is still true. 84 Del. Laws, c. 467 amended Title 16 by deleting Chapter 25 in its entirety and enacting the Uniform Health-Care Decisions Act (2023). The act was approved September 30, 2024, and its section 12 says "This Act takes effect 1 year from the date of the Act's enactment," so Delaware has been living under the new chapter since September 30, 2025. Any Delaware page describing a qualifying-condition gate or a two-witness living will is describing repealed law.

16 Del. C. § 2502(1) defines an advance health-care directive as a power of attorney for health care, a health-care instruction, or both, and the term takes in an advance mental health-care directive as well. One record can hold everything, and § 2511 prints an optional form that does exactly that.

The two halves have opposite formalities. A power of attorney for health care under § 2508(d) must be in a record, signed by you, and signed by one adult witness who reasonably believes your act is voluntary and knowing, is not your agent, is not the agent's spouse, domestic partner or cohabitant, is not the owner, operator, employee or contractor of a nursing home or long-term care facility where you live or receive care, and is present when you sign or when you say the document reflects your wishes. Section 2508(e) counts a witness as present over real-time audio and video, and the chapter never mentions a notary. A health-care instruction under § 2507 carries no formality whatsoever, and § 2502(14) defines it as a direction "whether or not in a record," so in Delaware it can be spoken.

Sign nothing and Delaware still picks someone. 16 Del. C. § 2512(b) sets a nine-class default surrogate ladder in descending order: an adult you identified outside a power of attorney, your spouse or domestic partner, your adult child or parent, your cohabitant, your adult sibling, your adult grandchild or grandparent, an adult who has routinely helped you with supported decision making for the past six months, an adult stepchild you actively parented, and an adult who has shown special care and concern for you and knows your personal values. That ladder is the reason to name an agent. It works, and it will not necessarily land on the person you would have chosen. The whole chapter, including the mental health-care directive and the DMOST form, is covered in the Delaware advance directive guide.

Naming Someone to Raise Your Children

Delaware splits a child's guardianship across two chapters and two courts, and a plan that addresses only one of them leaves half the question open.

13 Del. C. ch. 23, Guardianship of a Child, covers the guardian of the person, and § 2303(a) of that chapter gives the Family Court jurisdiction to grant, modify and terminate it. Subchapter VI of the same chapter carries standby guardianships, which are appointed now and switch on at a triggering event you name, a route worth knowing if you are seriously ill. 12 Del. C. ch. 39 and the Court of Chancery cover the guardian of a minor's property.

The nomination itself is short. 12 Del. C. § 3902(b) lets the sole surviving parent of a minor child, by written declaration or last will, name a guardian of the person or property or both, and that person "shall be appointed if there is no just cause to the contrary." The same subsection lets any parent, not only the last surviving one, name a guardian for property the child may inherit from anyone. Section 3902(c) gives a minor aged 14 or over and resident in Delaware a say: where there is no valid parental designation, or the court has just cause not to appoint the named person, the child may choose, and the court shall appoint that choice absent just cause to the contrary.

Both nominations live in documents you already sign. A guardian for the person belongs in the will. A guardian for inherited property belongs there too, and a modest trust often removes the need for the Chancery appointment at all. Delaware guardianship planning walks the alternatives and what a petition costs when nobody planned.

The Revocable Trust, and What Delaware's Trust Reputation Is Really About

Delaware's name in trust law is real and it is mostly about somebody else's problem. Subchapter VI of 12 Del. C. ch. 35, §§ 3570 through 3576, is the qualified dispositions statute that draws nonresident wealth planning here, and 12 Del. C. ch. 38 is the Delaware Statutory Trust Act, a business-entity law. Neither is what a Delaware family means when they ask whether they need a trust.

The rule that matters for an ordinary revocable trust is 12 Del. C. § 3545(a), and it surprises people who have signed a trust in another state. Creating, modifying or revoking a trust under which someone other than you takes an interest contingent on surviving you is void unless it is in a writing you execute and it is "witnessed in writing in the trustor's presence by at least 1 disinterested person or 2 credible persons." A disinterested person is one with no beneficial interest that the change would materially increase or decrease, and the section says a notary public or similar official may serve as that witness whether the official signs as a witness or only in a notarial capacity. The same subsection lets the writing be executed in counterparts unless it says otherwise.

Two more sections make a Delaware trust easier to live with. 12 Del. C. § 3591 lets a trustee hand a bank or a title company a certification of trust instead of the whole instrument, covering the trust's existence and date, the trustor and acting trustee, the trustee's powers, whether it is revocable and who may revoke it, co-trustee signing authority, the taxpayer identification number and how title is taken. Section 3591(h) puts teeth in it: a person who demands the full trust instrument on top of a certification is liable for damages including attorneys' fees if a court finds the demand was not made in good faith. And 12 Del. C. § 3550(a)(1) lets a governing instrument described in § 3545 be executed electronically under the Uniform Electronic Transactions Act, in the statute's own words for a document "other than a will or codicil." Delaware opened electronic signing for trust paperwork and kept it closed for wills.

Section 3545(d) then gives a revocable trust the same separate-writing tool the will has under § 212, for tangible personal property other than money, evidences of indebtedness, documents of title, securities and business property. And 12 Del. C. § 3555 makes a trust for the care of specific animals living at your death valid, enforceable by a person the trust names or one the Court of Chancery appoints, and terminating when the last covered animal dies. Delaware revocable living trusts covers funding and cost, and Delaware pet trusts covers § 3555 in full.

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Moving Property Around Probate

Delaware got a real-property transfer-on-death deed on December 4, 2025, and a lot of what is written about Delaware planning predates it.

85 Del. Laws, c. 212 was "AN ACT TO AMEND TITLE 12, TITLE 18, TITLE 25, AND TITLE 30 OF THE DELAWARE CODE RELATING TO THE UNIFORM REAL PROPERTY TRANSFER ON DEATH ACT," approved September 5, 2025 and effective 90 days later. It is codified at 25 Del. C. ch. 2, and § 203 applies the chapter to a deed made before, on or after December 4, 2025 by a transferor dying on or after that date.

The requirements sit in § 209 and there are four. The deed carries what the statute calls "the essential elements and formalities of a properly recordable inter vivos deed," including notarization of every signature the section requires. It is witnessed by two individuals, at least one of whom is not a beneficiary. It states that the transfer to the named beneficiary happens at the transferor's death. And it is recorded before the transferor's death with the recorder of deeds in the county where the property is located. Miss the recording and the deed does nothing, because no later filing saves it.

Four more sections are worth reading before signing one. Section 206 makes the deed revocable even if the deed or another instrument says otherwise. Section 211 allows revocation only by a later recorded instrument, acknowledged after the deed being revoked and witnessed by two individuals, and its heading says the rest out loud: revocation by act is not permitted, so tearing up your copy changes nothing. Section 207 makes the deed nontestamentary. And § 215 keeps the house within reach of the estate: where the probate estate cannot cover an allowed claim or a statutory allowance to a surviving spouse or child, the estate may enforce that liability against property that passed by the deed, in a proceeding commenced no later than eight months after death.

Delaware's other transfer-on-death statute is a different instrument. 12 Del. C. ch. 8 is the Uniform TOD Security Registration Act, and it registers securities rather than land. Beneficiary designations on retirement accounts and life insurance, and jointly held property with survivorship rights, move outside the will the same way. Avoiding probate in Delaware compares the mechanisms, and the Delaware transfer-on-death deed guide covers ch. 2 section by section.

Your Online Accounts Have Their Own Delaware Chapter

Delaware enacted a fiduciary digital-assets act in 2014 and never replaced it, so the national explanation of how this works is wrong here. 12 Del. C. ch. 50 is the Fiduciary Access to Digital Assets and Digital Accounts Act, and its sections carry the inline history 79 Del. Laws, c. 416. The chapter was searched on September 10, 2026 and the phrase "online tool" appears zero times in it, against 35 occurrences of "fiduciary" on the same page, so the three-tier online-tool priority most national pages describe is not Delaware law.

What Delaware gives instead is blunter. 12 Del. C. § 5005(a) says a fiduciary with authority under the chapter has the same access as the account holder and is deemed to have the account holder's lawful consent and to be an authorized agent or user under state and federal law and any end-user licence agreement. Section 5004(b) voids a provision in a licence agreement limiting fiduciary access as against the strong public policy of Delaware, unless the account holder agreed to it by an affirmative act separate from assenting to the rest of the agreement, and § 5004(c) stops a choice-of-law clause from rescuing it.

The planning move is in § 5004(a), which makes all of that subject to your governing instrument or a court order. Your will, your trust and your power of attorney can widen or narrow what a fiduciary reaches. Section 5005(c) then tells you what your fiduciary will have to produce: a certified copy of the letters for a personal representative, a certified copy of the power of attorney carrying a digital-assets authorization for an agent, and a certified copy of the trust or a § 3591 certification of trust for a trustee. Delaware digital assets covers the 60-day compliance clock and the rest of the chapter.

Delaware Charges No Estate Tax, No Inheritance Tax and No Gift Tax

All three are repealed, and the dates are worth carrying because people still ask.

The estate tax went last. 30 Del. C. §§ 1501 through 1507 were repealed by 81 Del. Laws, c. 52, § 1, and section 2 of that act reads "This Act shall be effective for estates of decedents dying after December 31, 2017." The act was approved July 2, 2017, and every section in the repealed chapter carries the inline note "repealed by 81 Del. Laws, c. 52, § 1, effective Jan. 1, 2018."

The inheritance tax went in 1999. Title 30's chapter 13 is captioned "Inheritance [Repealed]," and its first subchapter records the repeal by 71 Del. Laws, c. 353, § 10, effective January 1, 1999. The gift tax followed the same route: 30 Del. C. ch. 14 is captioned "Gift Tax [Repealed]" and §§ 1401 through 1409 were repealed by 71 Del. Laws, c. 130, § 1.

One filing survived the tax. 12 Del. C. § 2304(b) still calls for an affidavit in a form approved by the Director of Revenue, filed with the Register of Wills in each county where the decedent owned real property, where no estate tax return is due and either real property passed by survivorship or by tenancy by the entireties, or letters were granted and the decedent owned real property. Delaware's county fee schedules still call it a "No Delaware Inheritance Tax Due Affidavit" in places, which is why the question keeps coming back.

The federal estate tax is the one that can still reach a Delaware family, and only above the federal exclusion amount. That figure moves on a federal schedule and inflation adjustment, so no number belongs on a state page. Federal estate tax for Delaware estates carries the current one.

What Changes After You Sign

A Delaware will does not sit still while your life moves, and the sections that reshape it are not the ones people expect.

Divorce. 12 Del. C. § 209 revokes any disposition or appointment of property to a former spouse, any provision giving that spouse a power of appointment, and any nomination of that spouse as executor, trustee, guardian or other fiduciary, unless the will says otherwise. The property passes as if the former spouse had not survived you. Remarry the same person and the revoked provisions come back. A decree of separation is not a divorce for this section.

Marriage. The same section closes with a sentence that retires a rule people import from other states: no changes or circumstances other than the ones § 209 describes revoke a Delaware will or any part of it. 12 Del. C. § 323 says the same thing from the other side, that a subsequent marriage does not revoke the will of a person who made provision for a surviving spouse by that will or otherwise. Make no provision and § 321 does something different from revoking: your surviving spouse takes the same part of your real and personal estate they would have taken if you had died intestate.

A child born after the will. 12 Del. C. § 301 gives a child born to you after the will, for whom the will made no provision vested or contingent, by name or as a member of a class, the share that child would have taken if you had died intestate. The section then names its own opt-out, and it belongs in every Delaware will drafted before a family is finished: no intestacy is created where the testator has provided in the will that the birth of any child or children subsequently shall not affect the will.

The share your spouse can claim regardless. 12 Del. C. § 901(a) gives the surviving spouse of a married person domiciled in Delaware a right to elect one third of the elective estate, less the amount of all transfers to that spouse by the decedent, payable in cash or in kind. No Delaware will can write a spouse out entirely.

Any of those four is a reason to reread the documents rather than assume they still say what you meant. Delaware intestate succession sets out what the statutes would do with an estate the will no longer covers, and the Delaware probate guide covers what your executor walks into at the Register of Wills.

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Information current as of September 10, 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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