Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
In Delaware, there is no statutory “affidavit of heirship” to transfer real estate outside of probate. Instead, Delaware law provides a procedure called a small estate affidavit to collect certain personal property of a decedent without formal probate. If you need to transfer real estate or handle an estate exceeding the small-estate limits, you must open a probate case in Superior Court.
1. Determine Eligibility for a Small Estate Affidavit
- The decedent died intestate (without a valid will).
- The total value of the decedent’s personal property located in Delaware does not exceed $30,000. (See 12 Del. C. § 3902(16) and § 3914.)
- No creditor has filed a claim in a pending probate proceeding against the decedent’s estate.
- You are an eligible person—typically a surviving spouse, next-of-kin, or other heir under Delaware’s intestacy statutes. (See 12 Del. C. § 205.)
2. Gather Required Information
- Certified copy of the decedent’s death certificate.
- Documentation of personal property values (bank statements, vehicle titles, etc.).
- A complete list of the decedent’s heirs under 12 Del. C. §§ 201–212, with their contact details.
3. Draft the Small Estate Affidavit
Your affidavit must include:
- The affiant’s name, address, and relationship to the decedent.
- Decedent’s full name, last residence, and date of death.
- Statement that the estate qualifies as a 30,000 small estate and that no probate is pending.
- Itemized list of personal property and its value.
- Names and addresses of all known heirs and their relationship to the decedent.
- Attestation that the affiant will distribute assets according to Delaware’s intestacy rules. (See 12 Del. C. §§ 201–212.)
- Signature of the affiant, notarized by a Delaware notary public.
4. File and Serve the Affidavit
- Record your affidavit with the Recorder of Deeds only if you need to show title to personal property (not real estate).
- Provide a copy to any financial institution or creditor holding the decedent’s property. They may rely on the affidavit to release funds or assets.
5. Distribute the Assets
- Collect the personal property listed in your affidavit.
- Distribute assets to heirs according to the intestacy statutes. (12 Del. C. §§ 201–212)
For estates that include real property or exceed $30,000 in personal property, you must open probate in Delaware Superior Court. See 12 Del. C. §§ 3901–3954 for more information.
Key Statutes:
- 12 Del. C. § 3914 (small estate affidavit procedure): delcode.delaware.gov/title12/c003/sc05/index.html
- 12 Del. C. §§ 201–212 (intestacy rules): delcode.delaware.gov/title12/c002/index.html
Helpful Hints
- Always verify current statute amounts—legislatures can change monetary limits.
- Use certified documents whenever possible to prevent delays.
- Consult a probate attorney if the estate includes real estate or complex assets.
- Keep detailed records of all communications and distributions to heirs.
- Notarize the affidavit in Delaware to meet state requirements.