Detailed Answer — Do you need probate when there is no will under Delaware law?
When someone dies without a will (intestate) in Delaware, probate administration is commonly required if the decedent owned assets solely in their name that must be transferred to heirs or used to pay debts. Probate is the court-supervised process that appoints a personal representative (an administrator when there is no will), collects and protects estate assets, notifies creditors, pays valid debts and taxes, and distributes the remaining property according to Delaware’s intestacy rules. For the statutory framework governing decedents’ estates, see Delaware Code, Title 12 (Decedents’ Estates and Fiduciary Relationships): delcode.delaware.gov/title12.
When probate is normally required
- There are bank accounts, real estate, or other assets titled only in the decedent’s name with no payable-on-death (POD), transfer-on-death (TOD) designation, beneficiary, or joint owner.
- Real property needs a clear court order or letters appointing an administrator so title can be transferred.
- Creditors must be notified and paid from estate assets before distributions to heirs.
- There are disputes among family members about who should manage or inherit assets.
When probate may not be required
Certain assets pass outside probate and can be transferred without full probate administration. Common non-probate transfers include:
- Property held in joint tenancy with right of survivorship.
- Accounts or securities with designated beneficiaries (POD, TOD, or retirement accounts).
- Life insurance proceeds payable to a named beneficiary.
- Property held in a properly funded living trust.
Delaware also provides simplified procedures or small‑estate options in certain circumstances so that a full probate administration may not be necessary; consult the Delaware Code (Title 12) or the probate court in the county where the decedent lived for details: delcode.delaware.gov/title12.
Typical probate steps in an intestate (no will) case
- File a petition in the appropriate Delaware court to open an estate and request appointment of an administrator.
- The court issues letters appointing the administrator and may require posting bond.
- The administrator locates assets, secures property, and gives notice to heirs and creditors.
- Creditors file claims; valid claims are paid from estate assets.
- The administrator prepares an inventory and accounts for the court.
- After debts, taxes, and expenses are paid, the administrator distributes assets according to Delaware’s intestacy statutes and obtains court approval where required.
Key practical points for Delaware estates
- If important assets already have beneficiaries or joint owners, probate may be avoidable for those assets.
- Real estate often requires probate-related paperwork to retitle the property unless it already passes outside probate.
- Even when probate is required, some estates qualify for small‑estate or simplified procedures that reduce time and cost—check Title 12 for specifics: delcode.delaware.gov/title12.
- If heirs want to act quickly to sell property or access funds, opening probate and obtaining letters of administration gives legal authority to do so.
When to get legal help
Consider contacting an attorney if any of the following apply: there are disputes among potential heirs, the estate includes real estate or complex assets, creditors or tax issues arise, or you are unsure whether a simplified procedure applies. An attorney can explain Delaware’s intestacy rules, help prepare required filings, and represent the estate in court.
Where to read the law: Delaware Code, Title 12 covers decedents’ estates and fiduciary relationships; visit https://delcode.delaware.gov/title12/ to review the statutes and find chapters on administration, intestate succession, and small‑estate procedures.
Disclaimer: I am not a lawyer. This article is educational and does not constitute legal advice. For advice about a specific situation, contact a licensed Delaware attorney.
Helpful Hints
- Inventory assets first: list bank accounts, real property, life insurance, retirement accounts, and any joint holdings.
- Check beneficiary designations and account titling—assets with beneficiaries or joint owners usually avoid probate.
- Contact the bank or title company before filing court papers to learn their document and transfer requirements.
- Ask the county probate or courts website about small‑estate procedures that may speed up transfers.
- Keep records of notices and creditor communications—these protect the administrator from later claims.
- If heirs agree, consider a limited, informal settlement if the estate is small. If disagreement exists, open formal administration promptly to obtain court authority.
- Even if there is no will, the court follows statutory intestacy rules to determine heirs—knowing who those likely heirs are will speed the process.