Detailed Answer — What “probate in common form” means under Delaware law
“Probate in common form” is a shortcut procedure for proving and admitting a will to probate when no one is actively contesting the will’s validity. In plain terms, it lets a court accept a will and allow the executor named in the will to act without a full, in-court trial with witness testimony. If someone later files a challenge, the court can reopen the matter and require a more formal proof (sometimes called a probate in solemn form or an evidentiary hearing).
How this concept applies in Delaware
Delaware law governs wills, probate, and administration through Title 12 of the Delaware Code (Decedents’ Estates). The state’s probate process generally allows the admission of a will based on the document itself plus any sworn affidavits (for example, a self-proving affidavit attached to the will) or other documentary proof. If no one contests the admission, the court typically grants letters testamentary (if there is a valid will) or letters of administration (if there is no will) so the personal representative can manage and distribute the estate.
Useful reference: Delaware Code – Title 12 (Decedents’ Estates): https://delcode.delaware.gov/title12/.
Typical steps when admitting a will in common form in Delaware
- Filing the will and a petition for probate with the appropriate Delaware court or register/office that handles probate matters.
- Providing basic notice to interested persons (heirs, beneficiaries, and potential creditors) as required by local court rules.
- The court reviews the paperwork and the will. If the court sees no present contest and the filing meets statutory requirements, it admits the will in a summary way (i.e., common form) and issues the appropriate letters to the named executor.
- The executor uses those letters to collect assets, pay valid debts and taxes, and distribute the estate according to the will.
When a contest can change the outcome
If an interested person promptly files a written caveat, objection, or contest asserting that the will is invalid (for reasons such as lack of testamentary capacity, undue influence, or forgery), the court will not finalize a common-form probate. Instead, the court may require formal proof of the will’s execution in a hearing or trial. If a contest is later filed after the common-form probate is completed, the court usually has procedures to reopen the estate to address the dispute.
Why parties use common-form probate
Common-form probate is used because it is faster and less expensive than a full contested admission. It helps heirs and beneficiaries move forward with estate administration while preserving the right of any interested person to contest the will within the permissible time frame.
What to expect as a personal representative (executor) in Delaware
- File the original will and petition for probate with the court or register handling decedents’ estates in the county where the decedent lived.
- Provide notice to interested persons and follow the court’s guidance about creditor notice and filing deadlines.
- If the court admits the will in common form, you will receive letters testamentary authorizing you to act on behalf of the estate.
- Keep full records, inventory assets, and follow statutory and court rules for distributing the estate. If a contest appears, be prepared for additional proceedings.
If there is no will
If the decedent died intestate (without a will), someone must seek appointment as administrator. Delaware’s intestacy rules (Title 12) determine who inherits. The same principles apply: a straightforward appointment can proceed quickly if no one objects; if there is a dispute about heirs or creditors, more formal proceedings will follow.
Where to read Delaware statutes and court guidance
– Delaware Code, Title 12 (Decedents’ Estates): https://delcode.delaware.gov/title12/
– Delaware Courts — self-help and probate guidance: https://courts.delaware.gov/
Important: The exact procedures, forms, and deadlines can vary by county or by the specific court handling probate. Always check the local court’s rules or forms page for the office where you will file.
Helpful Hints
- Gather the original will — the court almost always wants the original document.
- Locate a certified death certificate early; courts and financial institutions require it.
- Make a list of likely heirs and beneficiaries with contact information to speed notice requirements.
- Check whether the will includes a self-proving affidavit (a notarized affidavit signed by witnesses). This can make common-form admission faster.
- Ask the court clerk or consult the Delaware Courts website for the correct forms and filing fees for your county.
- Keep detailed records of all estate transactions and communications; they protect you if a contest arises later.
- If a potential heir indicates they plan to contest the will, get legal advice quickly — that may change the strategy and timing of filings.
- Consider whether small-estate procedures apply — they can be a faster option for modest estates, but rules vary and eligibility limits change.
Disclaimer: This information is for general education about Delaware probate procedures and is not legal advice. It does not create an attorney–client relationship. For guidance specific to your situation, consult a licensed Delaware attorney or the probate office where you expect to file.