Detailed Answer
Under Delaware law, real property owned solely by a decedent at death automatically becomes part of the probate estate. To ensure your real property is properly included for administration or distribution, follow these steps:
- Verify Current Title and Ownership
Review the recorded deed at the county Recorder of Deeds. Confirm that the decedent held title in their individual name (not in joint tenancy with right of survivorship or in a trust). Jointly held property with rights of survivorship passes outside probate. Trust-held real estate also remains outside the probate estate. If title isn’t solely in the decedent’s name, consider a deed transfer back to the individual prior to death. - Prepare and Record a Corrective Deed (if needed)
If title isn’t solely in the decedent’s name, execute and notarize a corrective deed conveying the property to the individual. File and record this deed in the county where the property lies. See 25 Del. C. § 5034 (Recording of deeds). - Execute a Valid Last Will or Trust
Include real property in a Will or fund a revocable trust. A Will must be signed by the testator and two witnesses under 12 Del. C. § 203 (Execution requirements). A properly funded trust avoids probate but achieves the same goal of transferring real estate at death. - Open Probate in the Register of Wills
File the Will (if any) and a petition for probate in the county Register of Wills where the decedent lived or where the property is located. This initiates the issuance of Letters Testamentary (for testate estates) or Letters of Administration (for intestate estates). See 12 Del. C. § 3101 (Register of Wills jurisdiction). - Obtain Letters and Inventory Assets
Once appointed, the personal representative must inventory all estate assets, including real property. File the inventory with the Register of Wills under 12 Del. C. § 3133 (Inventory and appraisal). - Notify Creditors and Pay Debts
Publish notice to creditors and resolve valid claims. Real estate may secure a mortgage or liens; pay these before distribution. See 12 Del. C. §§ 3103, 3110 (Creditor notices). - Manage, Sell or Distribute the Property
With court approval, the personal representative can manage or sell real property under 12 Del. C. § 3322 (Powers of personal representative). If distributing in-kind, prepare a deed to the beneficiary or heir. - Record the Transferring Deed
After distribution, the representative must record the deed conveying title to the heir or devisee in the county Recorder of Deeds. This finalizes the transfer.
Helpful Hints
- Obtain multiple certified copies of the death certificate early.
- Consult a Delaware estate attorney or real estate attorney when retitling deeds.
- Check for liens, mortgages, and tax obligations before distribution.
- Keep detailed records of all filings, notices, and correspondence.
- Consider a revocable trust for future planning to avoid probate delays.
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance on your specific situation.