Detailed Answer
Short answer: Usually yes — if the money left over after selling your parents’ home and paying valid debts and administration expenses is properly part of your dad’s probate estate, it will be distributed according to his will. But several common situations can change that result. Read the explanation below to see which rules likely apply to your situation under Delaware law.
Why the leftover cash might go to your dad’s will
When a decedent owned real estate in his or her individual name and that property is sold during estate administration, the sales proceeds become part of the decedent’s estate. The personal representative (executor) then uses estate assets to pay funeral costs, administration expenses, taxes, and creditor claims. After those obligations are paid and after any statutory allowances or exemptions, remaining assets are distributed under the will to the beneficiaries named by the testator (your dad).
Delaware’s statutory framework for probate and distribution of a decedent’s estate is found in Title 12 of the Delaware Code. For general provisions about administration and distribution, see Delaware Code, Title 12: https://delcode.delaware.gov/title12/
Common reasons the leftover might NOT go to your dad’s will
- Ownership form at death: If the house was owned jointly with the right of survivorship (for example, joint tenants or tenancy by the entirety between spouses), ownership typically passed automatically to the surviving co-owner when your dad died. Property that passes by survivorship usually is not part of the deceased’s probate estate and does not pass under the will.
- Trust or beneficiary designation: If the house (or proceeds) were owned by or transferred into a living trust, or if there was a beneficiary designation that governs the asset, the trust or beneficiary rules control — not the will.
- Sale by the surviving co-owner before probate: If the surviving spouse (or other joint owner) sold the house in their sole name and kept the proceeds in their own account without depositing them into the estate or otherwise treating them as estate funds, the funds may belong to the survivor instead of the decedent’s probate estate.
- Community/property regime or marital rights: Although Delaware does not use a community property system, surviving spouses have certain elective-share and allowance rights under Delaware law that can affect the net distributable estate. Those rights can reduce the amount passing under a will in favor of a surviving spouse. See Title 12 for information about spousal rights and probate administration: https://delcode.delaware.gov/title12/
- Creditor claims and taxes: If there are unpaid valid creditor claims, liens, or estate taxes, those must be paid before beneficiaries receive anything. That can exhaust the leftover entirely.
Practical examples (hypothetical)
Example 1 (decedent owned the house alone): Dad owned the home in his name only. The executor sells the house, pays the mortgage, funeral and probate costs, creditor claims, and taxes. The remaining cash goes into the estate and is distributed according to Dad’s will — for example, to beneficiaries named in the will.
Example 2 (house held jointly with mother): The property was held as joint tenants with right of survivorship or as tenancy by the entirety. When Dad died, ownership passed to Mom automatically. If Mom then sold the house and kept the proceeds in her name, that cash is not part of Dad’s probate estate and does not pass under Dad’s will.
Example 3 (assets commingled): Mom and Dad sold the house, deposited proceeds into a joint account, and then some funds were used for household expenses while probate was pending. Commingling can complicate the picture: if funds can be traced to Dad’s estate or were retained as estate funds, they may still be estate property. If they were clearly used by the survivor and not treated as estate funds, the survivor may claim them.
Key steps to confirm what happens to the leftover money
- Determine how the house was titled at the time of death (Dad alone; jointly with Mom; in trust; etc.).
- Ask whether the sale was done by the personal representative/executor or by a surviving joint owner acting on their own.
- Check whether proceeds were deposited into an estate account or into an account in the survivor’s name.
- Review whether the estate has unpaid debts, taxes, or statutory allowances that must be paid first.
- If unclear, request an inventory/accounting from the executor — personal representatives usually must provide beneficiaries with information about estate assets and distributions during administration.
When to involve the probate court or an attorney
If you suspect the survivor or executor treated sale proceeds incorrectly (for example, took proceeds that belonged to the estate), or if you disagree with how the estate assets are being administered, contact the Register of Wills or the probate court in the county where the estate is being administered. An attorney can help you request formal accounting, file objections to the executor’s actions, or assert a claim for estate assets if appropriate.
For Delaware probate law and procedures, see Title 12 of the Delaware Code: https://delcode.delaware.gov/title12/
Important disclaimer: This is general information about Delaware probate and property principles and is not legal advice. It does not create an attorney-client relationship. For advice specific to your situation, consult a licensed Delaware attorney.
Helpful Hints
- Locate the deed: The simplest way to tell where proceeds should go is to see whose name is on the deed.
- Get documents: Ask the executor for the death certificate, deed, sale closing statement (HUD-1 or Closing Disclosure), and account statements showing where the sale proceeds were deposited.
- Ask for an inventory: Executors normally must file or provide an inventory/accounting of estate assets and transactions — request one in writing if you are a beneficiary.
- Watch statutory deadlines: Creditors and estate matters have time limits. If you think estate assets were taken improperly, act quickly and get legal advice.
- Keep records: Save copies of communications, bank statements, closing documents, and bills for any estate expenses you see paid from the proceeds.
- Get help locating an attorney: If you need an attorney, consider contacting the Delaware State Bar Association or the Register of Wills in the appropriate county for referrals.