Detailed Answer
Short answer: In Delaware, a surviving spouse generally has priority to serve as the decedent’s personal representative (administrator) when the spouse dies without a will. If the decedent’s relatives refuse to cooperate, you can petition the probate forum to appoint you. The court decides appointment, issues letters of administration, and can require a bond or other protections if needed.
What legal authority governs this?
Delaware’s rules for intestacy and estate administration are in Title 12 of the Delaware Code (Decedents’ Estates and Fiduciary Relations). See the Delaware Code, Title 12 for governing statutes: https://delcode.delaware.gov/title12/. The local Register in Chancery or the court that handles probate in your county will apply those statutes when appointing a personal representative.
Who may be appointed as administrator?
Under Delaware law, the person entitled to priority for appointment is usually the surviving spouse. If there is no spouse, other heirs (children, parents, siblings, etc.) may be next in line. The court uses the statutory priority list to decide who should serve. If multiple people with equal priority apply, the court will choose one based on suitability and any agreements among interested parties.
Step-by-step: How to get appointed when relatives won’t cooperate
- Gather basic documents. Typical items to collect before you file: the original or certified copy of the death certificate, your marriage certificate, any documents showing assets (bank statements, deeds, titles), and information about likely heirs (names and last-known addresses).
- Identify the proper court or office. In Delaware, probate matters are handled through the courts and county Registers in Chancery. Contact the Register in Chancery in the county where the decedent lived to learn the correct filing location and local forms. You can also consult the Delaware Code Title 12 to confirm statutory rules: https://delcode.delaware.gov/title12/.
- File a petition for administration. Submit a petition or application asking the court to appoint you as personal representative (administrator). The petition typically states the decedent died intestate (no will), names the decedent’s heirs, and requests issuance of letters of administration.
- Provide notice to heirs. Delaware law requires notice to interested persons (heirs and known creditors). If family members refuse to cooperate, the court still requires that they be served or given notice of the petition. The court’s rules tell you how to serve notice and what proof of service the court needs.
- Bond and waivers. The court may require a surety bond to protect estate creditors and beneficiaries. Sometimes heirs can waive the bond in writing, reducing or eliminating the requirement. If reluctant relatives refuse to sign waivers, the court can still require a bond.
- Attend the hearing. If the court schedules a hearing, be prepared to explain why you should be appointed and provide the required documents. If relatives object, the court will consider their objections before deciding.
- Receive letters of administration. If the court appoints you, it issues letters of administration (sometimes called letters of personal representation). These are the official documents banks, title companies, and other institutions accept when you act for the estate.
What if family members continue to obstruct access to assets or property?
If relatives change locks, refuse to turn over property, or otherwise obstruct estate administration, you have several options:
- Ask the court for temporary or emergency relief, including an order granting you access to the decedent’s residence or restraining others from removing property.
- Seek an order compelling discovery or production of documents and property.
- Request the court to appoint a temporary administrator if urgent action is needed to protect assets.
- If someone is taking or hiding assets, the court can impose sanctions and may authorize law enforcement involvement for enforcement of court orders.
What happens if an heir contests your appointment?
An heir may file an objection. The court will hold a hearing where both sides present evidence about statutory priority, qualifications, and any concerns about fitness to serve (for example, conflicts of interest or incapacity). The judge then decides who should be appointed. If the court finds an heir’s objection was unfounded but obstructive, it can require the objector to pay costs.
When to hire an attorney
Consider hiring an attorney if:
- Relatives actively resist or litigate the appointment.
- The estate holds significant assets or complex accounts (business interests, investments, real estate across jurisdictions).
- Someone is hiding assets or there are creditor claims you do not understand.
- You need help preparing pleadings, serving notice properly, or handling bond issues.
How long does the process take?
Timing varies. If nobody objects and you file a complete petition, courts can appoint an administrator in weeks. If heirs object or assets are contested, the matter can take months. Emergency petitions for temporary relief can be much faster.
Costs
Expect filing fees, possible bond premiums, service costs, and attorney fees if you hire counsel. If you are appointed, the estate may reimburse reasonable costs from estate funds.
Key practical documents to prepare before filing
- Certified death certificate
- Marriage certificate
- List of possible heirs and their contact information
- Inventory of known assets and account statements
- Titles, deeds, vehicle registrations
- Any pre-death correspondence about debts or assets
Where to find forms and local procedures
Contact the Register in Chancery or probate office in the county where the decedent lived. The Delaware Code (Title 12) gives the substantive law; local court offices provide the specific petition forms and filing instructions: https://delcode.delaware.gov/title12/.
Disclaimer: This article explains general principles of Delaware estate administration and is for educational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice about your situation, consult a licensed Delaware attorney.
Helpful Hints
- Start by gathering documents and making a clear list of assets and heirs. Courts act faster when your petition is complete.
- Even if family members refuse to cooperate, the court can appoint you if you follow the statutory process and provide required notice.
- Keep detailed records of communications with relatives and third parties; they can help if the court needs to resolve disputes.
- If you need quick access to a home or to secure assets, ask the court for temporary relief while the main petition is pending.
- Be prepared for bond requirements. If heirs won’t sign waivers, plan for bond costs or consult counsel about alternatives.
- Use certified mail or a process server for notices so you have proof of service for the court file.
- If the case becomes contested, consider mediation to avoid lengthy litigation—courts often encourage settlements among heirs.
- Keep estate funds separate from personal funds. That helps protect you from accusations of mismanagement.
- If the estate involves out-of-state property, expect additional filings in those jurisdictions (ancillary administration).
- When in doubt, consult a Delaware probate attorney early—an attorney can often prevent delays and protect estate assets effectively.