Detailed answer: How property passes and what you must do in Delaware when a parent dies without a will
When a parent dies without a will (intestate) in Delaware, the house will pass according to Delaware’s intestacy rules unless title already passes automatically (for example, because the deed names a surviving joint owner). Below is a clear, step‑by‑step explanation of how to determine who gets the house and how to put it into your and your siblings’ names.
1. First: identify how the house is titled
The required next steps depend on how the deceased owned the property. Common possibilities:
- Joint tenancy with right of survivorship — the surviving joint owner(s) automatically own the property. No probate is required to transfer title.
- Tenancy in common — each owner holds a separate share. A deceased owner’s share passes under probate/intestacy to that owner’s heirs.
- Owned solely by the decedent — the property will be part of the decedent’s probate estate and distributed under Delaware intestacy law.
- Owned in a trust, or with a Transfer‑on‑Death / beneficiary deed — the trust or deed controls and probate may be avoided.
Look at the recorded deed (available from the county Recorder/Recorder of Deeds office) and any related documents (mortgage statements, title insurance policy). If you’re unsure how the deed is worded, bring a copy to the county office or an attorney.
2. If title transfers automatically
If the deed shows a surviving joint owner or a properly executed beneficiary deed / transfer on death instrument, the surviving owners should be able to record an affidavit of death and an amended deed at the county Recorder of Deeds to show title in their names. The county Recorder’s office can tell you what local form or affidavit they require.
3. If the house is part of the probate estate (no automatic transfer)
When the property is solely owned by the decedent and there is no trust or beneficiary deed, you will normally need to open an estate administration in the appropriate Delaware court so an administrator can be appointed and the house can be transferred or sold under court supervision.
Step A — Where to start
Delaware handles decedent estates under Title 12 of the Delaware Code (Decedents’ Estates and Fiduciary Relationships). See: https://delcode.delaware.gov/title12/. The probate/administration process is handled in the county where the decedent lived. The Delaware Courts website also provides resources on opening an estate and forms.
Step B — What to file and who to appoint
- File a petition for administration (sometimes called opening probate) with the appropriate court or register of wills.
- The court will appoint a personal representative (often called an administrator when there is no will). If family members agree, the court typically appoints a family member; if there is disagreement, the court will decide.
Step C — Gather documents and notify interested parties
The administrator will gather the decedent’s assets, pay valid debts and taxes, and notify heirs and known creditors. Typical documents to collect:
- Certified copy of the death certificate
- Original deed and mortgage statements
- Proof of heirs’ identities (birth certificates, photo IDs)
- Any account statements, bills, and tax information
Step D — Pay debts, then transfer the property
The administrator must pay legitimate creditors and estate taxes (if any) before distributing property. If there is not enough cash, the administrator may sell the real estate under court approval to pay debts. Once debts are resolved, the administrator can execute a deed transferring title to the heirs and record that deed at the county Recorder of Deeds.
4. Who inherits under Delaware intestacy?
Delaware’s intestacy statutes determine the heirs. In general terms:
- If the decedent leaves a surviving spouse and children, the estate is divided between them according to the statute.
- If there is no surviving spouse but there are children, the children (or their descendants) inherit the decedent’s estate, typically in equal shares.
- If there is no spouse or descendants, the estate passes to parents, then to siblings or more distant relatives.
Example hypothetical: A father who owned his house in his name alone dies in Delaware, leaving three adult children and no surviving spouse. Under Delaware intestacy rules, the children will inherit the father’s property (generally in equal shares). To vest ownership in the three children, someone (one child or all acting together) must obtain appointment as administrator, complete the probate process, and have the administrator prepare and record a deed that conveys the property to the three siblings as owners.
For the statutory framework, see Title 12 of the Delaware Code, Decedents’ Estates: https://delcode.delaware.gov/title12/.
5. Small‑estate and simplified procedures
Delaware may have simplified or summary procedures for small estates or for collecting limited assets without full administration. Whether a simplified process applies depends on the value and composition of the estate and local court rules. Check the Delaware Courts resources or ask the Register of Wills in the appropriate county for small‑estate procedures.
6. After probate: recording the deed
Once the court approves distribution, the administrator will prepare a deed transferring title to the heirs. That deed must be recorded in the county Recorder of Deeds office where the property is located. Recording updates the public land records and is necessary for clear ownership and for future sales or refinancing.
7. Practical matters and possible complications
- If the house has a mortgage, the lender’s rights continue. The mortgage must be paid or assumed or the lender may foreclose. Talk to the mortgage company early.
- If heirs disagree about keeping or selling the home, the administrator may need to ask the court for instructions or to sell the property and divide proceeds.
- Family transfers can have tax consequences. Get tax advice if the estate is large or if heirs plan a sale.
- Missing heirs or unknown creditors can delay closing the estate; thorough searches and notices reduce delay.
8. How to get help
Because probate procedures and local filings can be technical, contacting an attorney experienced in Delaware probate and estate administration can speed the process and reduce mistakes. You can also contact the county Register of Wills or the appropriate court clerk for local filing requirements and forms.
Delaware statutory resources: Title 12, Decedents’ Estates — https://delcode.delaware.gov/title12/
Delaware Courts: information and forms for probate/orphans’ court matters are available through the state courts website (courts.delaware.gov).
Important disclaimer: This article provides general information about Delaware probate and intestacy processes. It is not legal advice. For advice about a specific situation, consult a licensed Delaware attorney.
Helpful hints
- Start by obtaining several certified copies of the death certificate right away — many agencies will require them.
- Obtain a copy of the recorded deed at the county Recorder of Deeds to confirm how title is held.
- Make a list of all known assets, debts, and account numbers — this speeds estate administration.
- Talk to the mortgage holder early to learn payoff or assumption options.
- If heirs want to keep the property but cannot afford the mortgage or taxes, consider a family buy‑out arrangement or refinancing after title is transferred.
- If you expect disputes, consult a probate attorney before filing so you understand potential outcomes and timelines.
- Use the Delaware Code (Title 12) and the Delaware Courts website as authoritative starting points for statutes and local filing rules: https://delcode.delaware.gov/title12/ and https://courts.delaware.gov/
- Keep clear, dated records of decisions and distributions during the probate process — the court will expect accurate accounting.