Detailed Answer
This guide explains, in plain language, how to prepare and submit an affidavit that accounts for a decedent’s personal property in a Delaware small-estate situation. It assumes you start with no legal background and shows typical steps, documents, and practical tips. This is educational only and not legal advice.
When an affidavit is used
An affidavit accounting for personal property (often called a small-estate affidavit or affidavit for collection of personal property) is a sworn statement that identifies the decedent, lists the small estate’s personal property (bank accounts, vehicle, household goods, etc.), and states who is entitled to receive the property. Many banks, title agencies, or other holders of assets accept an affidavit in place of formal probate when the estate assets are small and no formal administration is open. Delaware statutory law governing decedents’ estates appears in Title 12 of the Delaware Code; check the statutes and the local Register of Wills for specific forms and thresholds: Delaware Code, Title 12.
Basic eligibility factors
- The decedent owned only personal property (not significant real estate requiring transfer through probate).
- No full probate or administration is already open for the decedent’s estate in Delaware.
- The person seeking property is a likely successor (surviving spouse, heir, or person named by statute) and can swear to the facts under oath.
- The asset holder (bank, DMV, dealership, etc.) will accept an affidavit instead of formal letters.
Step-by-step: How to prepare an affidavit accounting for personal property
- Identify the property and totals. Make a clear list of each item you will claim: bank accounts (with last 4 digits), vehicles (VIN), safe-deposit box contents, household items, and other tangible personal property. Note approximate values. Institutions often have limits on the total value they will release without probate.
- Determine your status as the claimant. State your relationship to the decedent (surviving spouse, child, etc.). If you are claiming by right of survivorship or under intestacy rules, say so and briefly explain why you believe you are entitled.
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Draft the affidavit. The affidavit should include:
- The decedent’s full name, date of death, and last address.
- A sworn inventory of the personal property you seek to collect (item-by-item if practical).
- A statement that no administration is pending in Delaware (or identify any case number if one exists).
- A clear declaration of your right to the property and that, to your knowledge, no other person has a superior claim.
- A statement addressing creditor claims (e.g., that you are unaware of outstanding claims that would affect the small estate). Note: this does not eliminate the estate’s creditors; it only informs the holder.)
- A jurat (notarized statement) where you swear under penalty of perjury that the affidavit is true.
- Attach supporting documents. Typical attachments include a certified copy of the death certificate, a certified copy of the decedent’s will (if applicable), photo ID for the affiant, and any documents proving ownership (account statements, titles, or vehicle registration). Get certified copies of the death certificate from the Delaware Division of Public Health or the county vital records office.
- Have the affidavit notarized or sworn. Most institutions require the affidavit to be executed before a notary public or other official empowered to take oaths.
- Submit the affidavit to the holder of the property. Present the affidavit and attachments to the bank, DMV, dealership, or other custodian. Some custodians accept the affidavit and release property; others require a court-issued order. If a bank or institution asks for a specific small-estate form, use that form.
- File with the Register of Wills or Court if required. In some cases, you may also file a copy of the affidavit with the local Register of Wills or the clerk handling probate matters. Check with the Delaware Courts forms and the local Register of Wills office first: Delaware Courts — Forms. If the institution refuses the affidavit, you may need to open a formal small-administration case in the Court of Common Pleas or the Register of Wills.
What to expect after submission
Institutions often have internal policies on small estates. They may:
- Accept the affidavit and turn over the asset after verifying identity and documents.
- Refuse and request a court order or formal letters testamentary/administration.
- Require an indemnity agreement if they are concerned about competing claims.
If the holder refuses, you can ask what specific form or court order they require and, if necessary, consult the Register of Wills or a Delaware attorney about opening a modest probate case.
Creditor claims and liability
Submitting an affidavit does not eliminate creditor claims. The affidavit’s signer swears to factual statements and may assume personal liability for false statements. If you collect property and a creditor later proves a valid claim, you or the estate might remain responsible. Consider reserving funds for legitimate creditor claims or seeking guidance before disbursing estate assets.
Helpful Hints
- Start by contacting the holder (bank, DMV, dealership) to ask whether they accept a small-estate affidavit and if they have a preferred form.
- Obtain certified death certificates early — most institutions require one or more certified copies.
- Keep a detailed inventory and photographs of valuable items to prevent disputes.
- Get the affidavit notarized and bring original identification and copies for the institution.
- If a Will exists, attach a copy. Even if you don’t plan to open formal probate, the Will helps show intended distribution and may affect who can sign an affidavit.
- Keep records of any money or property you receive from the estate. If creditors make claims later, you will need those records.
- When in doubt about thresholds, statutory requirements, or competing claimants, check Delaware Code, Title 12, and contact the local Register of Wills or a lawyer. Statutes and local rules govern specific dollar limits and procedures: https://delcode.delaware.gov/title12/.
- If the institution refuses the affidavit, ask in writing what specific court filing or document they require so you can avoid unnecessary filings.
Where to find official forms and local guidance: Visit the Delaware Courts forms page for probate-related forms and local Register of Wills contact information: https://courts.delaware.gov/forms/. For statutes on decedents’ estates, consult Delaware Code, Title 12: https://delcode.delaware.gov/title12/.
Disclaimer: This information is educational only and does not constitute legal advice. Laws change and each case is different. For advice tailored to your situation, consult a licensed Delaware attorney or the local Register of Wills.