First Steps After a Death in Delaware

A medical professional has to pronounce the death. Where hospice was involved the hospice nurse can usually do it; where the death was unexpected or happened at home without hospice, call 911. The funeral home or crematory takes it from there and is the practical route into the Delaware death registration that produces the certificate. Order several certified copies at the same time: every bank, insurer and title office will want one and most will not give it back.

This is the one Delaware deadline that starts immediately, and it falls on whoever is HOLDING the will rather than on the family generally. 12 Del. C. § 1301(a) requires any person having custody or possession of an instrument purporting to be a last will to produce and deliver it to the Register of Wills within 10 days of receiving information of the testator's death. READ THE VENUE CAREFULLY, BECAUSE IT IS NOT THE ONE PEOPLE EXPECT: the section names the Register of Wills for the county in which THE PERSON HOLDING THE WILL resides, not the county where the decedent lived. § 1301(b) makes a wilful failure a civil matter, creating liability to anyone aggrieved for the resulting damages and exposing the holder to civil contempt if the Court of Chancery has ordered delivery. It names no crime.

You do not need letters to get a will out of the decedent's sole-name box. 12 Del. C. § 1313 lets a person who brings a key or combination, a certified copy of the death certificate and proof of identity open the box under the supervision of an officer of the financial institution, for the limited purpose of photocopying and removing any will or declaration of disposition of last remains. A photocopy has to be left in the box. Without a key, a court order is required. A will that appears on its face to have been executed in Delaware or by a Delaware resident is then sent by the institution to the Register of Wills under § 1301(a).

Lock the house, bring in the mail, and make a written list with photographs before anyone starts taking keepsakes. Delaware gives you less to fall back on here than most states do: there is no exempt-property set-aside and no homestead allowance, so nothing is automatically set apart for the family, and the only cash right a surviving spouse has is the $7,500 allowance in 12 Del. C. § 2308, which has to be demanded in writing. Property that walks out of the house in week one is property nobody can later inventory.

Delaware lets a family collect the personal estate on a sworn affidavit with no petition, no letters and no court filing, if the personal estate is $50,000 or less and thirty days have passed since the death. The ceiling was raised from $30,000 on June 10, 2026 by 85 Del. Laws, c. 281, so most published Delaware guidance still prints the old figure. THE DISQUALIFIER IS THE PART TO CHECK FIRST: 12 Del. C. § 2306(a)(6) closes the route entirely if the decedent owned Delaware real estate solely or as a tenant in common, whatever the estate is worth. The Register of Wills issues the affidavit and charges a local fee for it.

Delaware has no probate court and no probate division. Probate runs through the Register of Wills of the county where the decedent was domiciled at death, and there are three: New Castle, Kent and Sussex. In performing the functions of the office the Register acts only as a Clerk of the Court of Chancery, and where no notice is required the Register may hear the matter and enter orders the Court of Chancery could enter, subject to being set aside or modified by the Court within 30 days. For someone who died domiciled outside Delaware but left property here, the will may be proved before the Register of any county where the property lies.

If there is a will, letters testamentary go to the executor it names. If there is no will, or the named executor cannot or will not serve, 12 Del. C. § 1505(b)(1) takes the first of these classes with a living member who is not incapacitated: spouse, children, parents, siblings of the whole and half blood. Everyone in that class who gives any required bond and does not renounce is appointed together. Two rules catch people out. A minor, a person who is mentally incapacitated, or a person convicted of a crime disqualifying them from taking an oath cannot receive letters at all (§ 1508). And if NO petition is filed within 60 days of the death, § 1505(d) lets the Register grant letters to whomever the Register decides, so leaving it too long hands the choice to the office.

Social Security (the funeral home usually reports the death, but confirm it), any pension or annuity provider, the employer, life insurers, and the banks. Ask each one what it needs from you rather than guessing: some accept a certified death certificate plus a beneficiary claim form, some want a short certificate from the Register of Wills, and some will accept the § 2306 affidavit. Do not close a joint account before checking how it was titled.

The petition goes to the Register of Wills of the county of domicile. No one may act as executor or administrator of a Delaware domiciliary's estate without letters (12 Del. C. § 1501). Bond is usually not part of this: § 1522 requires no bond before letters issue unless the will expressly demands one or the Court of Chancery orders one on an interested person's demand under § 1524. The personal representative takes an oath under § 1509. An unrepresented personal representative appears in person at the Register of Wills; Court of Chancery Rule 190 excuses that appearance for one represented by a Delaware attorney or serving with a co-fiduciary who will appear.

Delaware imposes no residency test on a personal representative, but it does impose a filing. 12 Del. C. § 1506 requires a nondomiciliary executor or administrator, or a corporation not incorporated in Delaware, to file with the granting Register of Wills, BEFORE the letters issue, an irrevocable power of attorney designating that Register and the Register's successors as the person on whom notices and process may be served. It is a condition on issuance rather than something to catch up on later, and it is irrevocable, so keep the address on it current.

12 Del. C. § 2101 requires notice to creditors, posted within 40 days of the grant of letters and advertised in one or more newspapers approved by the Register of Wills and published in the county, at least 3 times within those 40 days and not less than once a week for 3 successive weeks. The Register may waive newspaper publication and allow posting alone where the gross personal estate does not exceed $30,000 and the gross real and personal estate does not exceed $35,000. HERE IS THE PART THAT DIFFERS FROM MOST STATES: the bar in § 2102(a) runs 8 months from the DATE OF DEATH and applies whether or not the notice was ever given. Publishing does not start the clock and failing to publish does not stop it. Recorded mortgages and judgments that were liens on Delaware real estate at the date of death sit outside the bar under § 2103.

12 Del. C. § 2309 requires a certified copy of the death certificate to be filed with the Register of Wills for the county where the decedent's interest in real property is situated. That is a separate filing from the one in the county of domicile when the property is in a different county, and all three offices charge $1.00 to file it.

12 Del. C. § 2308 gives a surviving spouse cash up to $7,500 out of the estate, ranking FIRST in the § 2105 order of preference, ahead of the funeral bill. It is not automatic. § 2308(b) makes it of no effect unless the spouse notifies the Register of Wills of the county where letters were granted AND the executor or administrator, in writing, of a demand for a specific sum, within 9 months of the death or 6 months of the grant of letters, whichever period is SHORTER. Miss it and the right is gone.

12 Del. C. § 1905 requires an inventory and appraisal filed with the Register of Wills within 3 months of the grant of letters, with a copy filed with the Register of any county where the decedent owned real estate. It lists the goods and chattels, the debts and credits, and a general description of every Delaware parcel the decedent died seized of or that transferred by a transfer on death deed under 25 Del. C. ch. 2, each with its parcel identification number and the name and relationship of everyone entitled to an interest. Each item is valued at fair market value as of the date of death. Late filing costs $1.00 per day of delinquency personally, beginning one month after the Register gives notice of it, under § 1906, and failing to file after a Court of Chancery order is contempt. The catchline on § 1906 reads "civil and criminal penalties", but the body of the section names no crime, so this duty must not be described as a criminal offence.

12 Del. C. § 2105(a) sets twelve classes, paid after all administration expenses, fees and commissions: the spouse's § 2308 allowance, then funeral expenses, then child support arrears, then last-sickness medical bills and nursing, then certain wages capped at one year, then state taxes, then up to one year's rent, then judgments, then recorded obligations, then sealed obligations, then contracts under hand, then everything else. No preference is given within a class, and a claim that is due takes no preference over one that is not. A representative who cannot decide between two claimants may petition the Court of Chancery under § 2106 rather than guess.

12 Del. C. § 2301 requires an account of the administration to the Court of Chancery, in money, every year from the date of letters until the estate closes and a final account passes. The Register of Wills may extend the time by up to 6 months for sufficient cause and may dispense with an account for a year with no transactions, on affidavit. Every account is filed with the names and mailing addresses of the beneficiaries, and § 2302 then has the Register mail each of them notice that the account is open for inspection and exception for 3 months. Filing late is not only a procedural problem: § 2305 lets the Court reduce commissions and attorneys' fees when the chapter 23 accounts are not filed on time.

12 Del. C. § 2311 sets the time for settling an estate and provides for accounting for interest or earnings pending settlement, so an estate held open without reason is a question the Court can ask about. Legacies are paid under § 2312, and where a legatee refuses a receipt or cannot be found, §§ 2315 and 2316 give the machinery for paying a minor, an absent person or someone unknown.