Delaware: Finalizing Probate Administration and Securing Authority to Sell Estate Property

This answer explains how to complete probate administration in Delaware when the decedents will is outdated and how to make sure the personal representative has authority to sell estate real property. It assumes no prior legal knowledge. This is educational information only and not legal advice; consult a Delaware probate attorney for case-specific guidance.

Understanding the basic concepts

• Will validity: A will that was validly executed while the decedent was alive can still control distribution unless it was revoked by a later will or by operation of law (for example, by a subsequent marriage or divorce in some circumstances). Determining whether a will is the decedents latest valid will is your first task.
• Outdated provisions: “Outdated” often means the will does not reflect later life events (marriage, divorce, births, sales of property). That does not automatically invalidate the will, but it can create conflicts between the wills terms and the current estate assets or family situation.
• Personal representative: Probate starts with the court appointing a personal representative (also called an executor or administrator). That person receives formal authority (letters testamentary or letters of administration) to act for the estate.
• Authority to sell real property: A personal representative normally needs either (a) express authority in the will, (b) statutory authority granted by Delaware law after appointment, or (c) a court order authorizing the sale.

Step-by-step process in Delaware

1. Locate the most recent will and any codicils.

   Find the original signed will. If multiple documents exist, the court will determine which is controlling. If you cannot find an original will, the court can accept a copy in some circumstances, but having the original simplifies probate.

2. Decide where to file for probate.

   File the probate petition in the appropriate Delaware register of wills/superior court office for the county where the decedent lived. (Delawares probate procedures are in Title 12 of the Delaware Code; basic probate resources are on Delaware Courts Register of Wills pages.) See Delaware law: Del. Code Title 12 and the state court probate resources at courts.delaware.gov/register-of-wills.

3. Petition to admit the will and appoint the personal representative.

   Submit a petition to admit the will to probate and to have the nominated executor appointed. If no valid will is found, you will petition for administration under intestacy rules. The court issues letters testamentary or letters of administration that formally authorize the representative to act.

4. Inventory assets and provide notices.

   Prepare an inventory of estate assets, including real property, and comply with creditor notice and any publication requirements under Delaware law. The personal representative must manage assets for the benefit of creditors and beneficiaries.

5. Determine power to sell the property.

   Check three possible bases for sale authority:

   • The will itself may grant the executor explicit power to sell estate real property. If so, sales are generally permitted subject to any conditions in the will.
   • Delaware law often gives an appointed personal representative certain powers to manage and, where necessary, sell assets to pay debts and settle the estate. The representatives letters plus governing statute provide authority. See general Delaware probate statutes at Del. Code Title 12.
   • If authority is unclear or beneficiaries object, petition the probate court for an order authorizing sale. The court can approve a sale, impose sale terms, or require other protections for beneficiaries.
6. If the will devises the property specifically, check for ademption or conflicting gifts.

   A specific devise of a property may be “adeemed” (fails) if the decedent sold the property before death. If the will devised the house to a beneficiary and the property no longer exists or has been transferred, distribution will follow statutory rules. If a devise exists but multiple beneficiaries claim an interest, ask the court to resolve competing claims or to authorize a sale and division of proceeds.

7. If beneficiaries disagree, consider a court-supervised sale or partition.

   When co-beneficiaries own the property and cannot agree, you may file a petition to partition real property or ask the probate court to authorize a sale and division of the proceeds. A court order protects the buyer and clears title for closing.

8. Work with title companies and buyers.

   Title companies typically require proof of the personal representatives authority (letters), a certified copy of the death certificate, and often a court order if the right to sell is not clearly spelled out in the will or letters. Coordinate with the title company early to learn what documents they require for a clean closing.

9. Close the sale and account to the court and beneficiaries.

   Use sale proceeds to pay valid debts, taxes, and administration expenses first. Then distribute remaining funds per the will or Delaware intestacy rules. Provide final accountings to the court if required and obtain court approval to close the estate.

Common complications and how they affect the sale

• Missing or multiple wills: Competing will claims can delay appointment and letters; a court may need to resolve which document is controlling before any sale.
• Pretermitted heirs or changed family status: If the will predates major family events, Delawares statutes governing omitted spouses or children can alter distribution, affecting who must consent to sale or share proceeds.
• Debt claims or tax liens: Creditors can require liquidation of assets to pay claims. A sale to satisfy creditors usually proceeds with notice and under court oversight.
• Property title issues: Undisclosed liens, mortgages, or clouded title can prevent sale without curing the defect or a court order clearing title.

When to involve the court directly

If anyone disputes the validity of the will, the identity of the personal representative, the right to sell, or the proposed sale terms, seek a court order. A court-approved sale provides clear title and shields buyers and the personal representative from later claims.

Key Delaware law resources

• Delaware Code, Title 12 (Decedents Estates and Fiduciary Relations): https://delcode.delaware.gov/title12/.
• Delaware Courts  Register of Wills and probate contact information and forms: https://courts.delaware.gov/register-of-wills/.

Helpful Hints

• Start by locating the original will and any codicils. Originals matter for probate.
• Obtain a certified copy of the death certificate earlymany filings and closings require it.
• Apply promptly for letters testamentary or letters of administration so the personal representative has formal authority.
• Get a title company involved before marketing the property to identify defects that could block a sale.
• If the will lacks express sale power, get a written court order or clear statutory authority before closing; buyers and title companies often require it.
• Keep detailed records and receipts for all estate transactions and distributions. You may need to file a final accounting with the court.
• If beneficiaries disagree, consider mediation or a court petition rather than informal agreement. A court order avoids later challenges.
• Consult a Delaware probate attorney early if the will is outdated, family relationships changed, or conflicts emerged. Attorneys help draft petitions, negotiate with creditors, and obtain the court orders needed to clear title.

Disclaimer: This content is general information about Delaware probate and real property sales. It is not legal advice and does not create an attorney-client relationship. For advice specific to your situation, contact a licensed Delaware attorney who handles probate and estate matters.