Delaware Small Estate Affidavit: A Dollar Limit With a Hard Gate In Front of It

Settled Estate puts the Delaware small estate affidavit limit at $50,000. Real property cannot pass this way. The wait is 30 days after death. Last verified September 2026.

Delaware raised this route to $50,000 in June 2026, so most published guidance still prints the old figure. Check the real estate question first: any Delaware property the decedent owned alone or as a tenant in common closes the route completely, whatever the estate is worth.

Based on 12 Del. C. § 2306

By Settled Estate EditorialPublished: January 15, 2026Updated: May 31, 2026

What Is a Delaware Small Estate Affidavit?

It is the affidavit for distribution of a decedent's property without grant of letters, under 12 Del. C. § 2306. The Register of Wills of the county where the person lived issues the form, a qualifying relative or the will's named executor swears it, and the personal estate is then collected and distributed without any petition, any court filing or any personal representative. The offices call it a Small Estate Affidavit, and the same section supports the Funeral Director Affidavit a licensed Delaware funeral director may swear.

Do you qualify?

Qualifying threshold: $50,000The measure is the value of the PERSONAL estate only, and three things come out of it before you compare: the articles 12 Del. C. § 1901(b) keeps out of the inventory (the family Bible, the clothes of the decedent, the family stores laid in before the death), the § 1901(c) death benefits payable to a designated person, trust or corporation under an insurance policy or contract, pension, bonus, stock option or other employee benefit plan, and jointly owned property. Real estate is not in this measure at all, and that is not generosity: § 2306(a)(6) closes the route outright when any exists.
Waiting period: 30 days after death
Court filing fee: Set by county, not by the state. New Castle charges $10; Kent charges $5.00 in person or $10.00 by mail; Sussex charges $5.00 plus $2.00 per page.
Attorney: Not typically neededNo Delaware attorney requirement; the affidavit is sworn, so take advice if any of the seven conditions is uncertain
Real estate: Not covered by this procedureDELAWARE DISQUALIFIES RATHER THAN EXCLUDES, AND THE TWO ARE NOT INTERCHANGEABLE. A state that excludes real property from the measure leaves a small personal estate qualifying; 12 Del. C. § 2306(a)(6) requires that the decedent "did not own real estate in Delaware, either solely or as tenants in common", which shuts the route entirely. A $12,000 bank account plus a house the decedent owned outright is not a $12,000 small estate here: it is not a small estate at all. Read the form of ownership, because the subsection names SOLE ownership and TENANCY IN COMMON. Property held as a joint tenant with right of survivorship, or by spouses as tenants by the entireties, passes outside the estate, but that follows from the words the statute chose rather than from any provision saying so in terms, so confirm the title form with the Register of Wills before relying on it.

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Main Requirements

No Delaware real estate owned solely or as a tenant in common

12 Del. C. § 2306(a)(6). This is a disqualifier rather than an exclusion, so it closes the route at any value. Survivorship property and tenancy by the entireties pass outside the estate and are a different question; confirm the title form with the Register of Wills.

Personal estate of $50,000 or less

12 Del. C. § 2306(a)(3), measured at the time the affidavit is sworn, excluding the § 1901(b) articles, the § 1901(c) death benefits and jointly owned property. Raised from $30,000 on June 10, 2026.

Thirty days have passed since the death

12 Del. C. § 2306(a)(2). There is no longer wait and no shorter one.

No petition for a personal representative pending or granted

12 Del. C. § 2306(a)(1). Once anyone has asked a Register of Wills to appoint an executor or administrator, or one has been appointed, this route is gone.

Known debts paid or provided for

12 Del. C. § 2306(a)(4). A fact about what the family has already done, sworn to under oath.

The surviving spouse's allowance is resolved

12 Del. C. § 2306(a)(5) requires the § 2308 allowance of up to $7,500 to have been paid, provided for, waived, or to have expired by lapse of time under § 2308(b), which runs for the shorter of 9 months from the death or 6 months from the grant of letters.

The affiant is within the statutory class

The spouse, a grandparent, a lineal descendant of a grandparent, the personal representative of any of those if deceased, the guardian or trustee of any of those if incapacitated, the trustee of a trust the decedent created, a funeral director licensed in Delaware, or the executor the will names who satisfies 12 Del. C. § 1508. Preference runs to the qualified named executor, then the spouse, any child, any parent, any sibling, any grandchild or any grandparent, then a licensed Delaware funeral director.

The affidavit reaches every holder of property

12 Del. C. § 2306(a)(7) names the person who owes the money, holds the property, or acts as registrar or transfer agent. Delivery is a step you take, not a condition on eligibility, but nothing moves until it happens.

Available Small-Estate Options

Small Estate Affidavit (12 Del. C. § 2306)

Limit: $50,000 of personal estate, and no Delaware real estate owned solely or as a tenant in common
Real Estate: Not included
Timeline: 30 days after the death, then as long as the holders take to pay
Typical Fee: County-set: $10 New Castle, $5.00 to $10.00 Kent, $5.00 plus $2.00 per page Sussex

Funeral Director Affidavit (12 Del. C. § 2306)

Limit: The same conditions; sworn by a funeral director licensed in Delaware, after the family classes
Real Estate: Not included
Timeline: 30 days after the death
Typical Fee: The same county affidavit fee

Grant of letters (12 Del. C. §§ 1502 and 1504)

Limit: No ceiling. Required for any Delaware real estate owned solely or as a tenant in common, and for a personal estate above $50,000
Real Estate: Can be included
Timeline: 12 to 18 months, floored by the 8-month creditor bar that runs from the date of death
Typical Fee: County-set letters fee starting at $25, plus a closing charge measured on the net personal estate

Check the deed before the dollar figure

The mistake this route produces in Delaware is not arithmetic. It is reading the $50,000, seeing that the section measures only personal property, and assuming the house is simply left out the way it is in states that EXCLUDE real property from the measure. 12 Del. C. § 2306(a)(6) does something different: it requires that the decedent owned no Delaware real estate solely or as a tenant in common, and any such property shuts the route completely. Pull the recorded deed first. And remember that 25 Del. C. § 701 presumes a TENANCY IN COMMON unless the deed expressly grants a joint tenancy and not a tenancy in common, so co-owners who assumed they had survivorship may be holding exactly the interest that closes this door.

Step-by-Step Process

Check the Real Estate Question Before Anything Else

Pull the recorded deed. If the decedent owned any Delaware real estate alone or as a tenant in common, 12 Del. C. § 2306(a)(6) closes this route at any value and the estate needs letters instead. Doing this first saves the rest of the exercise.

Wait 30 Days After the Death

Covered in the "Do you qualify?" checklist at the top of this page.

Total the Personal Estate and Compare It to $50,000

Add the personal property, then take out jointly owned property, the § 1901(b) articles and the § 1901(c) death benefits payable to a named person. The comparison is made at the time the affidavit is sworn, not at the date of death.

Confirm Nobody Has Already Petitioned

12 Del. C. § 2306(a)(1) requires that no petition for the appointment of a personal representative is pending or has been granted. Ask the Register of Wills, or use the county estate search, rather than assuming.

Pay or Provide For the Known Debts

12 Del. C. § 2306(a)(4) requires that all known debts are paid or provided for. The affidavit is sworn, so this is a statement you are making under oath about what has actually been done.

Settle the Surviving Spouse's Allowance

12 Del. C. § 2306(a)(5) requires the § 2308 allowance to have been paid, provided for, waived, or to have expired by lapse of time. In an estate with a surviving spouse this has to be answered even where nobody intends to claim the money.

Get the Affidavit From the Right Register of Wills and Swear It

Ask the office for the county where the person was domiciled. New Castle publishes a Small Estate Affidavit Request Form and a checklist, Kent a Certified Small Estate Affidavit Request Form and a Small Estate Flowchart, and Sussex its own request form. Each office charges its own fee.

Give a Copy to Everyone Holding Property

12 Del. C. § 2306(a)(7) requires the affidavit to be furnished to whoever owes the money, holds the property, or acts as registrar or transfer agent. That is what lets them act: § 2307 releases them as if they had paid a personal representative, and 5 Del. C. § 922 says the same thing from the bank's side.

Distribute Under the Will, or Under Chapter 5 If There Is None

The affidavit distributes the property in accordance with the decedent's will or, where there is no will, with 12 Del. C. ch. 5. The people who take remain answerable to anyone with a prior right and to any personal representative later appointed.

County Note: There are three Registers of Wills, one for each county, and they are not courts: 12 Del. C. § 2501 provides that the Register, in performing the functions of the office, acts only as a Clerk of the Court of Chancery. Use the office for the county where the person was domiciled at death. Each office publishes its own request form and sets its own fee under 12 Del. C. § 2510, so take the form from the office that will receive it rather than from another county or a third-party copy.

FAQ: Delaware Small Estate Affidavit

What is the small estate limit in Delaware?

$50,000 of personal estate, under 12 Del. C. § 2306(a)(3), excluding jointly owned property and the property described in § 1901(b) and (c). It was $30,000 until 85 Del. Laws, c. 281 raised it on June 10, 2026, so a Delaware page still printing $30,000 is out of date. The figure is not indexed.

Can a Delaware small estate affidavit transfer a house?

No, and the point is stronger than that: any Delaware real estate the decedent owned solely or as a tenant in common closes the route entirely, whatever the estate is worth. 12 Del. C. § 2306(a)(6) requires that the decedent owned none. This is a disqualifier, not an exclusion from the dollar measure, so there is no version of the arithmetic that gets you back in.

Do I file the Delaware affidavit with a court?

There is no court to file it with. Delaware has no probate court: the Register of Wills of each county issues the affidavit, and under 12 Del. C. § 2501 that officer acts only as a Clerk of the Court of Chancery. There is no petition and no hearing, and the affidavit goes to the banks and transfer agents rather than into a case file.

How long do I have to wait?

Thirty days from the death, under 12 Del. C. § 2306(a)(2). There is no upper time limit written into the section, and because the $50,000 is measured when the affidavit is sworn rather than at the date of death, an older estate uses the current figure.

Can the affidavit be used when there is a will?

Yes. Delaware does not restrict this route to intestate estates. The executor the will names may swear the affidavit if that person satisfies 12 Del. C. § 1508, which disqualifies a minor, a person who is mentally incapacitated, and a person convicted of a crime disqualifying them from taking an oath. The affidavit then distributes the property in accordance with the will.

Why will a bank pay out on a piece of paper?

Because two statutes protect it. 12 Del. C. § 2307 releases a person who pays or transfers on the affidavit to the same extent as if payment had been made to a personal representative, and 5 Del. C. § 922 says banks, trust companies, savings banks and savings societies may pay out deposits of decedents without requiring letters, when and as provided by §§ 2306 and 2307. The protection runs to the holder; the people who take the property remain answerable to anyone with a prior right and to any personal representative later appointed.

Official Forms, Sources, and VerificationOfficial references used for this page

12 Del. C. § 2306, Distribution of decedent's property without grant of letters where estate assets do not exceed $50,000Delaware Code Online, State of Delaware. Accessed September 9, 2026.
85 Del. Laws, c. 281 (HB 333), raising the ceiling from $30,000 to $50,000Delaware General Assembly, Session Laws. Approved June 10, 2026, accessed September 9, 2026.
Small Estates, New Castle County Register of WillsNew Castle County, Delaware. Accessed September 10, 2026.
Register of Wills Forms, Sussex CountySussex County, Delaware. Accessed September 10, 2026.

Information current as of May 31, 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.