Detailed Answer
What Is a Delaware Small Estate Affidavit?
In Delaware, you can use a small estate affidavit when the decedent’s personal property in this state does not exceed $30,000 in value and there is no real property to probate. This streamlined process lets qualifying family members collect assets without formal probate court proceedings. See 12 Del. C. § 3903.
Step 1: Confirm Eligibility
- Calculate the value of personal property located in Delaware (bank accounts, vehicles, personal effects).
- Ensure the total does not exceed $30,000. (12 Del. C. § 3903(a))
- Verify there is no real estate or that real estate is excluded (e.g., joint tenancy, survivorship deed).
Step 2: Identify Heirs or Beneficiaries
Review the decedent’s will if one exists. Without a will, Delaware’s intestacy rules apply (12 Del. C. §§ 301–319). Typically:
- If a surviving spouse and no descendants, spouse receives everything.
- If a spouse and descendants all from that spouse, spouse receives one-half of the estate; descendants split the remainder.
- If no spouse, descendants inherit equally.
Step 3: Prepare the Small Estate Affidavit
The affidavit must include:
- Decedent’s name, date of death and county of residence.
- Statement that personal property in Delaware does not exceed $30,000.
- List of known creditors and payment status of funeral expenses, administration costs and taxes.
- Heir or beneficiary names with their relationship to the decedent.
- Affiant’s statement under penalty of perjury.
Use the form in 12 Del. C. § 3904 or a similar document.
Step 4: File the Affidavit
- Wait at least 30 days after date of death. (12 Del. C. § 3904(a))
- File or present the signed affidavit to the Register of Wills in the county where the decedent lived.
- Pay any required filing fee. Fees vary by county.
Step 5: Notify Creditors and Settle Debts
- After filing, you may need to publish notice for creditors per 12 Del. C. § 3906.
- Pay funeral expenses, administration costs and taxes out of estate assets.
- Remain aware of creditor claims for at least six months.
Step 6: Collect and Distribute Assets
- Present a certified copy of the affidavit to institutions holding funds or personal property.
- Financial institutions must honor the affidavit and release assets up to the $30,000 limit. (12 Del. C. § 3904(d))
- Distribute proceeds per the will or Delaware intestacy law.
Example: Jane Doe dies owning $20,000 in bank accounts and a vehicle titled in joint names with her spouse. Her estate qualifies for a small estate affidavit. Her spouse files the affidavit 30 days after her death, pays funeral costs, and collects remaining funds, then keeps the vehicle by survivorship rights.
Relevant Statutes:
12 Del. C. Chapter 39 (Small Estates)
12 Del. C. Chapter 3 (Intestacy Rules)
Disclaimer: This article provides informational content only and does not constitute legal advice. Consult a licensed attorney to address your specific situation.
Helpful Hints
- Keep detailed records: track all expenses and distributions.
- Check property values: get appraisals or statements to confirm totals.
- Talk to financial institutions before filing to learn their procedures.
- Use certified copies of death certificates for banks and other entities.
- Consider legal counsel if the estate approaches the $30,000 limit or if disputes arise.