Skip to main content
Delaware Small Estate Affidavit
Support GuideDelaware19 min read

Delaware Small Estate Affidavit

Delaware moves personal property up to $50,000 on a small estate affidavit. Any Delaware real estate the decedent owned closes the route entirely.

By Settled Editorial

Not sure if you need probate?

Many estates can avoid probate entirely. Assets with beneficiary designations, joint accounts, and trust assets may pass automatically without court involvement.

Delaware lets a spouse, a close relative, a trustee, a licensed funeral director or the executor named in a will collect a dead person's personal property on a sworn affidavit, with no petition, no letters and no court case. The ceiling is $50,000. The rule that closes more Delaware cases than the ceiling does is real estate.

12 Del. C. § 2306(a)(6) requires that the decedent "did not own real estate in Delaware, either solely or as tenants in common." That is a disqualifier and not a subtraction. A house, a building lot or a share of a family property shuts the route at any value, and no arithmetic reopens it. This page describes the section as it reads rather than how it applies to one estate, so confirm your own figures with the Register of Wills in the county where the person lived, or with a licensed Delaware attorney, before you act on any of it.

Real Estate Closes the Route. It Does Not Shrink the Total.

Take a Delaware resident who dies owning a $12,000 building lot and $20,000 in a credit union account, with no beneficiary named on either. Add them and you get $32,000, well under the $50,000 line, and a value-only reading says the family qualifies. Section 2306(a)(6) says they do not. The lot is Delaware real estate held in the decedent's own name, so the affidavit is unavailable and the family needs a full administration for the cash as well as for the land.

Reverse the numbers and nothing changes. A $2,000 sliver of inherited farmland shuts the route as completely as a $400,000 house. This is what separates Delaware from the states that merely leave real property out of the measure: there is nothing left to measure once (a)(6) fails.

Here is the part the county pages leave out. Section 2306(a)(6) names two forms of ownership, solely and as tenants in common, and all three Register of Wills offices describe only the first. New Castle County's small estates page says the decedent must have "owned no real estate solely in his or her name." Sussex County's page says "does not have solely owned real estate." Kent County's FAQ says "did not solely own Delaware real estate." A decedent who owned a one-third share of a Delaware property as a tenant in common satisfies all three county summaries and fails the statute. Read the deed before you rely on any of them.

Property the decedent held as a joint tenant with right of survivorship, or with a spouse as tenants by the entireties, passes to the survivor outside the estate and is not what the subsection describes. That reading follows from the two forms of ownership the statute chose to name rather than from any Delaware provision that says so in terms. Take the deed to the counter and ask before you swear anything.

Do you need probate in Delaware?

Answer a few questions to see whether Delaware probate is required and which process applies.

Take the 2-minute assessment

The $50,000 Figure Moved on June 10, 2026

85 Del. Laws, c. 281 (House Bill 333) raised the § 2306 ceiling from $30,000 to $50,000 and was approved on June 10, 2026. The act is one sentence of amendment plus its approval line. It carries no applicability section and no transition clause, and § 2306(a)(3) measures the personal estate at the time the affidavit is sworn rather than at the date of death.

The three offices that issue the affidavit do not say the same thing about it, and the gap between them is worth money. All three were read on September 10, 2026.

Register of WillsWhat the office publishes
New Castle County"$30,000 for decedents who died before June 10, 2026, or $50,000 for decedents who died on or after June 10, 2026"
Sussex County"$30,000 - for a death before 6/10/2026" and "$50,000 - for a death on or after 6/10/2026"
Kent County"$30,000 (if the date of death is after 5/1/2004)", in three separate answers

Kent County's page is three months behind the statute. A Kent family with $40,000 of personal property and no Delaware real estate is told by their own Register of Wills that they must open an estate, when § 2306 as amended lets them use an affidavit. The statute governs and the counter issues the document, so bring the amended section with you and ask the office to read it.

New Castle and Sussex both publish the limit as a date-of-death band. The act sets no such rule. Where an estate falls between $30,000 and $50,000 and the death happened before June 10, 2026, the statute and the administering office point in opposite directions, and only the office can hand you the affidavit. Ask it directly rather than assuming either answer is the one you will get.

What the $50,000 Actually Measures

Section 2306(a)(3) sets the test in one sentence: "The value of the personal estate of the decedent other than property described in § 1901(b) and (c) of this title and other than jointly owned property, does not exceed $50,000." Three groups come out before you compare:

  • The articles 12 Del. C. § 1901(b) keeps out of the inventory: the family Bible, the clothes of the decedent, and the family stores laid in before the death.
  • The death benefits § 1901(c) sends to a designated person, trust or corporation under an insurance policy or contract, a pension, a bonus, a stock option or another employee benefit or incentive plan. A named beneficiary on a life policy or a workplace retirement account takes outside the estate and outside this measure.
  • Jointly owned property.

Real estate is absent from that list, and it is absent because it never enters the measure at all. Delaware answers the house question with the disqualifier in (a)(6) instead.

Advertisement

Seven Conditions, and Every One Has to Be True

Section 2306(a) requires the affiant to swear "to all of the following under oath." There is no alternative branch, no longer waiting period that stands in for the dollar test, and no second tier for a larger estate.

  1. No petition for the appointment of a personal representative is pending or has been granted (§ 2306(a)(1)). If anyone has already asked a Register of Wills to appoint an executor or administrator, this route is shut.
  2. Thirty days have elapsed since the death (§ 2306(a)(2)). This is the only waiting period the section sets.
  3. The personal estate, leaving out § 1901(b) and (c) property and jointly owned property, does not exceed $50,000 (§ 2306(a)(3)).
  4. All known debts of the decedent are paid or provided for (§ 2306(a)(4)). Paid, or money set aside for them. You are swearing to this under oath.
  5. The surviving spouse's allowance under § 2308 has been paid, provided for, waived, or has expired by lapse of time (§ 2306(a)(5)).
  6. The decedent did not own real estate in Delaware, either solely or as tenants in common (§ 2306(a)(6)).
  7. The affidavit is furnished to whoever owes the money, holds the property, or acts as registrar or transfer agent (§ 2306(a)(7)). The document does its work at the bank counter, not at the courthouse.

A Will Does Not Close This Route

Delaware runs against the common assumption here. Section 2306(a) lists "the named executor or executors in the decedent's will" among the people entitled to the personal estate, where that executor satisfies § 1508, and the property is then distributed "in accordance with the decedent's will or, if there be no will, with Chapter 5 of this title." Sussex County's office states the consequence plainly: where there is a will and the estate qualifies as a small estate, the person administering the assets must still comply with the terms of the will.

Section 1508 disqualifies a minor, a person who is mentally incapacitated, and a person convicted of a crime that disqualifies them from taking an oath. Nothing else in that section bars the named executor from acting on the affidavit.

Using the affidavit does not excuse producing the will. 12 Del. C. § 1301(a) requires anyone holding an instrument that purports to be a last will and testament to deliver it to the Register of Wills for the county in which that person resides, within 10 days from the time they receive information of the death. Wilful failure makes that person liable to anyone aggrieved for the damages sustained, and wilful failure after a Court of Chancery order to deliver is punishable as civil contempt.

Who May Swear It, and the Order Among Them

Section 2306(a) opens the route to the spouse, any grandparent of the decedent, any lineal descendant of a grandparent, the personal representative of one of those people if that person has died, the guardian or trustee of one of them if incapacitated, the trustee of a trust the decedent created, a funeral director licensed in Delaware, and the qualified executor named in the will.

Section 2306(b) then sets the preference: the named executor who is not disqualified under § 1508, then the spouse, any child, any parent, any sibling, any grandchild or any grandparent, then a licensed Delaware funeral director, in that order. Among everyone else the subsection lists there is no order of preference at all.

Sussex County flags the case that catches families out. Where the decedent left no next of kin, an estate has to be opened even below the dollar line, because nobody in the statutory class is left to sign.

Advertisement

The Spousal Allowance Comes First

Condition 5 points at 12 Del. C. § 2308, which entitles a surviving spouse to receive cash up to $7,500 out of the estate, paid in the order of preference of claims set by § 2105. Read the $7,500 allowance before you assume it is settled, because § 2308(b) is strict: the allowance is of no effect unless the spouse notifies the Register of Wills and the executor or administrator in writing, demanding a specific sum, within 9 months of the death or 6 months of the grant of letters, whichever period is shorter.

Two things follow. Condition 5 is satisfied by expiry as readily as by payment, so a family with no surviving spouse, or one whose spouse let the period run, clears it without doing anything. And § 2308(b) is written around an estate where letters have been granted, which an affidavit case never has. Ask the Register how the office treats a demand where no letters exist rather than guessing at it.

What the Affidavit Protects, and What It Leaves Open

12 Del. C. § 2307(a) is the reason a bank will act on a piece of paper instead of on letters. The person making payment, delivery, transfer or issuance under the affidavit "shall be released to the same extent as if made to the personal representative of the decedent" and is not required to see to the application of the money or to inquire into the truth of any statement in it.

That protection runs to the holder, not to you. The same subsection makes the distributees answerable to any person having a prior right and accountable to any intestate distributee or to any personal representative appointed later. If a holder refuses to pay, deliver, transfer or issue, § 2307(b) sends the distributees to the Court of Chancery to compel it, on proof of the facts the affidavit had to state.

Debts do not disappear because no estate was opened. 12 Del. C. § 2102(a) bars claims that arose before or at the death 8 months after the death, "whether or not the notice referred to in § 2101 of this title has been given." Delaware has no publication-triggered claim window, so that clock runs from the death itself, and a creditor who presents a claim inside it can still reach what the affidavit moved.

What Each Register of Wills Charges

Register of WillsFee for the affidavit
New Castle County$10 (Small Estate Affidavit or Funeral Director Affidavit)
Kent County$5.00 in person, $10.00 by mail (schedule Rev. 2.5.2026)
Sussex County$5.00 plus $2.00 per page

There is no statewide figure to quote, by design. 12 Del. C. § 2510 gives the governing body of each county the power to set the fees its Register of Wills charges, and § 2511 requires every Register to keep a printed or written list of the fees then in effect available for public inspection. Ask for that list rather than working from a number you read anywhere, this page included. Start at your county's office to find the right one of the three.

The Rights That Start at the Death, With No Dollar Test

Section 2306(c) sits in the same section and answers a different question. On the death, the qualified named executor and the next of kin may take possession of the decedent's motor vehicle or vehicles, enter any premises for the sole purpose of removing clothing to be used for the burial or viewing, and enter a residential rental unit where the decedent was the sole tenant to take possession, but not ownership, of the decedent's belongings there. Access to the rental unit happens during business hours at times both sides agree to, and it must be completed within 30 days of the death or the right expires.

The executor has preference over the next of kin for all three. Where no will names a qualified executor and no next of kin is available, a funeral director may enter to secure clothes only. The subsection also says the Register of Wills provides a form for these steps and that the form "must be obtained prior to any person acting pursuant to this subsection."

None of that carries a dollar limit or a real estate condition. It is available whether or not the estate qualifies for the affidavit, and the form comes first.

When the Route Is Closed

Delaware offers nothing between the affidavit and a full administration. There is no summary administration, no informal probate and no simplified track for a middling estate. Where the decedent owned Delaware real estate, or the personal estate clears $50,000, or a petition for letters is already pending, the answer is the ordinary process, and what full administration involves is the next thing to read. Once Delaware's own affidavit page is live you will also find eligibility at a glance there.

Frequently Asked Questions

What is the small estate limit in Delaware?

$50,000, and it counts only personal property. 12 Del. C. § 2306(a)(3) opens the route when the value of the personal estate, leaving out the property described in § 1901(b) and (c) and leaving out jointly owned property, does not exceed $50,000. The figure was $30,000 until 85 Del. Laws, c. 281 (House Bill 333) raised it, approved June 10, 2026. That act carries no applicability section and no transition clause, and § 2306(a)(3) measures the estate at the time the affidavit is sworn rather than at the date of death.

Can you use a Delaware small estate affidavit if the decedent owned a house?

No, and the value of the house does not matter. 12 Del. C. § 2306(a)(6) requires that the decedent "did not own real estate in Delaware, either solely or as tenants in common." That is a disqualifier rather than a subtraction from the $50,000 measure. A $12,000 building lot plus $20,000 in a credit union is not a $32,000 small estate, it is a full administration. Property the decedent held as a joint tenant with right of survivorship, or with a spouse as tenants by the entireties, passes to the survivor outside the estate, so take the deed to the Register of Wills and confirm the form of ownership before relying on that.

Can you use a Delaware small estate affidavit when there is a will?

Yes. 12 Del. C. § 2306(a) names "the named executor or executors in the decedent's will" among the people entitled to use the affidavit, where that executor satisfies § 1508, and the property is distributed "in accordance with the decedent's will or, if there be no will, with Chapter 5 of this title." Sussex County's Register of Wills says the same thing in its own words: where there is a will and the estate qualifies as a small estate, the person administering the assets must still comply with the terms of the will. Delivering the will is a separate duty. 12 Del. C. § 1301(a) gives whoever holds it 10 days from learning of the death.

How long do you have to wait to use a Delaware small estate affidavit?

Thirty days from the death. 12 Del. C. § 2306(a)(2) is the only waiting period the section sets, and no longer wait substitutes for any other condition. A separate subsection runs on a shorter clock in the other direction: § 2306(c) lets a qualified named executor or the next of kin take possession of the decedent's motor vehicles, remove clothing for the burial or viewing, and clear a rental unit where the decedent was the sole tenant, and the rental-unit right expires 30 days after the death. A form from the Register of Wills has to be obtained before anyone acts on that subsection.

Where do you get a Delaware small estate affidavit and what does it cost?

From the Register of Wills for the county where the person lived. There is no petition, no docket and no judge. Each county sets its own price because 12 Del. C. § 2510 gives that power to the governing body of each county, and § 2511 requires every Register to keep a list of the fees then in effect available for public inspection. New Castle County charges $10 for issuing a Small Estate Affidavit or Funeral Director Affidavit. Kent County charges $5.00 in person and $10.00 by mail. Sussex County charges $5.00 plus $2.00 per page.

Why does Kent County still publish a $30,000 small estate limit?

Because the page has not caught up with the statute. On September 10, 2026 the Kent County Register of Wills FAQ still gave the ceiling as "$30,000 (if the date of death is after 5/1/2004)" in three separate answers, three months after 85 Del. Laws, c. 281 raised 12 Del. C. § 2306 to $50,000. New Castle County and Sussex County both publish the higher figure. The statute governs and the counter issues the document, so a Kent family with $40,000 of personal property and no Delaware real estate should bring the amended section to the office and ask.

Related Guides

This page describes Delaware law broadly rather than advising on one estate. Confirm every date, dollar figure and form of ownership with the Register of Wills in the county where the decedent lived, or with a licensed Delaware attorney, before you act on it.

Sources:

It is not legal advice.

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.

All Delaware guides← Back to all articles

More Delaware Resources

Explore the rest of the Delaware probate hub.

Do I need probate?5 pages
For the executor4 pages
Money and taxes5 pages
Family and inheritance5 pages
Transfer assets5 pages
File and learn5 pages