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Delaware Inheritance Laws

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Sooner or later, everyone passes on, and regardless of how much money or property one manages to accumulate while alive, none will be taken to the afterlife. 

These assets and debts will be passed on to a person’s heirs and family members upon death in accordance with the provisions of Delaware inheritance law and whatever estate plans the departed may have left behind.

The general term for anyone who passes away and leaves an inheritance is a decedent. A decedent who leaves behind a will is called a testator.

The field of law that concerns itself with inheritance, wills, and succession is called inheritance law. This field of law is known for its complexity, so it is best to work with an experienced probate or estate planning attorney who specializes in this field. 

This article outlines the basics of Delaware inheritance laws to help readers navigate this otherwise stressful and emotional situation.

What Happens if Someone Dies With a Will in Delaware?

The usual consequence of dying with a will in Delaware is that the document will have to undergo the probate process if it fits the guidelines set in Delaware inheritance law. 

Probate is necessary regardless of the presence of a will if the decedent owned more than $30,000 worth of personal property or if the same decedent owned any real estate in her or his name alone, whether solely or as a tenant in common. 

A tenancy in common is an arrangement where a co-owner’s interest goes to heirs instead of the other co-tenants and still counts as owning an interest in real property in one’s own name.

The will is sent to probate to determine its validity and authenticity. A valid will is one that is:

  • Written by someone who is at least 18 years of age and of a sound disposing mind and memory. This means the party--called a testator--knows what they own and fully intends to give these away to the parties in the will.

  • The will has to be written. Handwritten wills are valid if they follow all the other formalities required by the law.

  • The will has to be signed by the testator. If the testator cannot sign, it can be signed by a third party under the testator’s direction and in the latter’s presence.

  • There have to be two or more credible adult witnesses. Delaware allows beneficiaries to a will to also be witnesses.

  • Notarization of every signature is not required but is highly recommended for ease of authentication later on.

If a will does not meet any of these factors, it may be considered invalid. The decedent may also authenticate the will while still alive to reduce hassles in probate later on. 

The requirement is that the will that has been duly attested to has to be self-proven using the appropriate affidavits on behalf of the witnesses and the testator. To be considered “appropriate,” the affidavits have to be duly sworn before an officer who is empowered to administer oaths.

It is useful to note that not all assets form part of a person’s estate for purposes of probate. Some examples of assets that cannot be included are:

  • Savings bonds

  • Pension plans

  • 401(k) accounts

  • Living trust assets

  • Certain savings accounts

In several of these cases, the sums in the accounts transfer to beneficiaries upon death, and thus never get an opportunity to become part of the departed’s estate.

Contesting a Will

The usual parties who initiate will contests in Delaware are those who have been left out of a will. The contestants commonly allege that the person who made the will lacked the mental capacity to write a will and dispose of their property. 

Another popular ground is that the document was drafted out of duress and that the testator was coerced into excluding the contestant or giving undue shares to a particularly influential relative.

The time to contest a will is within 60 days of the executor opening probate proceedings. Should the contest succeed, the contested portions of the document will be invalidated, and the testamentary dispositions they contain will have no effect. 

It is possible for the entire will to be declared invalid if the duress or incapacity taints the whole document or there are not enough valid provisions to work with.

A will contest can be completely bypassed if the will is validated while the testator is still alive. This works because it belies any claim that the testator was under duress or was not of sound mind when writing the will, given how they went out of their way to authenticate the will while alive.

What Happens if Someone Dies Without a Will in Delaware?

Should the deceased die without leaving a will or have certain properties outside of the will, intestate succession or intestacy will occur. The court will use the law to gauge how the departed would have given away the undisposed assets and debts given the chance to write a will. 

Spousal Rights

The share of the surviving spouse is contingent upon how many lineal relatives the decedent left behind. Lineal relatives include parents and children, while siblings, aunts, and uncles are collateral kin. The husband or wife’s share is determined thusly:

Surviving Lineal Relatives

Effect

None (no parents or descendants)

The spouse inherits everything.

Parents survive (no descendants)

The spouse gets the first $50,000 of the intestate personal/movable estate, half the balance of the remainder of the personal assets, and a life estate in the real estate excluded from the will (all of it if there is no will). The parents get the rest.

Common children survived

The spouse gets the first $50,000 of the intestate personal/movable estate, half the balance of the remainder of the personal assets, and a life estate in the real estate excluded from the will (all of it if there is no will). The children get the rest.

Children survived, but one or more are not the surviving spouse’s

The spouse gets half of the intestate personal/movable estate and a life estate in the real estate excluded from the will (all of it if there is no will). The children get the rest.

A good rule of thumb to follow here is that the spouse and children are always entitled to a share in the intestate estate, while the parents only inherit alongside the spouse if the decedent leaves no descendants. 

Also, Delaware is a common law state when it comes to the distribution of property during marriage, hence there is no presumption that the spouse receives half the entire estate automatically. 

Children’s Rights

As seen in the provisions above, the children generally receive whatever is left from the decedent’s intestate estate once the surviving spouse gets their share. 

If there is no surviving spouse, the children divide the estate equally among themselves. If any of the children die before the decedent and have children of their own, those children will divide what would have been their parent’s share equally among themselves. 

For illegitimate children, their mothers will inherit their assets and debts if they pass without a will. If the mother dies before the illegitimate child, the latter shall inherit from her in the same manner as a legitimate child would. 

As for the fathers of illegitimate children, should they legitimate their illegitimate offspring, the illegitimate children will inherit from their dads just like legitimate ones would.

Adopted children are treated like biological children for purposes of intestate succession since they acquire all the rights and privileges of a natural child. They lose the right to inherit from their biological parents intestate unless these parents leave behind a will establishing the adoptees as heirs. 

The right to inherit of the adoptee extends to the collateral (when applicable) and lineal relatives of the adopter.

The Rights of Other Surviving Relatives

The distribution of assets to parents and collateral relatives shall be done in intestacy as follows:

Surviving Relatives

Effect

The parents only.

The parents receive everything.

The siblings only.

The siblings receive everything, sharing equally among themselves. If any of the siblings died before the decedent but had kids, the kids divide among themselves whatever their parent would have gotten.

There are no siblings, but there is a next of kin.

The next of kin receive everything. If the next of kin died before the decedent but had children, the children would divide among themselves whatever their parents would have gotten.

The decedent is the last of the line.

The estate will undergo escheat proceedings (see the next section).

Estates With No Heirs

When a person dies without any legal heirs or known family and without a will, the assets will be subject to escheat proceedings. In simple terms, the properties will be surrendered back to the state if no one else is around to inherit them. 

The process will be handled by the Secretary of Finance or the latter’s delegate, who shall file suit in court under due process requirements. Also, for due process purposes, notice will be posted once a week for three consecutive weeks in a newspaper of general circulation to give anyone who has an interest in the estate a chance to lay claim to said interest. 

The court will determine if the claimants have valid grounds to inherit, and if so, inheritance through intestate succession will occur. If not, the state effectively becomes the sole heir and acquires all the property.

Unique Situations in Delaware Inheritance Law

A unique situation is presented when the heir is the slayer of the decedent. The law defines a slayer as any person who has been convicted of, pleaded guilty to, or entered a plea of no contest to the manslaughter of the deceased or testator. 

Whether or not the departed left a will or not, the slayer will be counted as having died before the person who was murdered. This effectively removes the murderer from the line of succession but not any descendants they may have.

Does Delaware Impose Inheritance and Estate Taxes?

Under the inheritance laws of Delaware, there is no inheritance tax due at the state level. The exception is if the decedent died before January 1, 1999.

Even if there is no estate tax levied by Delaware itself, the heirs have to pay the tax at the federal level. 

As of 2023, the filing threshold for inheritance taxes under the IRS is $12,920,000, and estates worth less than this do not need to file any papers or pay any sums. For 2024, the threshold will be increased to $13,610,000. 

The limits jumped from $5,490,000 to $11,180,000 between 2018 and 2019, so those who are inheriting from someone who died between those dates have to be aware of the sudden leap in the exempted numbers.

Legal Resources Related to Inheritance Law in Delaware

Obtaining legal representation in Delaware does not have to be unnecessarily challenging. This section provides resources that can help individuals find legal representation or obtain the necessary information needed to represent themselves while trying to find the right attorney for their case.

Delaware State Bar Association

The Delaware State Bar Association is the professional organization of lawyers to which all lawyers within the state must be members. It has a lawyer referral page on its website through which would-be clients may link up with probate attorneys and discuss their legal options in detail. The association has existed since 1923 and among its initiatives is the raising of the quality of the legal profession by promoting ethics and hunting down those who illegally practice law. It also seeks to advance the level of jurisprudence in the state. The Delaware State Bar Association can be reached by phone at (302) 658-5279, or by fax at (302) 658-5212.

Delaware Volunteer Legal Services

Delaware Volunteer Legal Services gives legal assistance to the citizens of Delaware who face civil law concerns ranging from familial disputes and divorce to disagreements as to wills and guardianships. The group also undertakes matters concerning domestic violence. It was established in 1981 by the Delaware State Bar Association as a response to the gap in service left by cutbacks to the Legal Services Corporation. The organization is manned by volunteer attorneys who give pro bono solutions to eligible and needy residents of the state. The DVLS also holds educational events that teach the general public a selection of topics that have to do with law.

Delaware Legal Help Link

Delaware Legal Help Link offers free legal help to the residents of the state. It is partnered with Pro Bono Net, and its catalog of legal services extends from immigration and debt concerns to elder issues like the drafting of living wills. While clients may want to go to the DVLS for issues concerning last wills and testaments proper, those with greater estate planning needs can still obtain value from the formulation of advanced care directives, which will facilitate the end-of-life concerns of the testator. 

Community Legal Aid Society, Inc.

The Community Legal Aid Society, Inc. offers elder law programs to the residents of Delaware who are aged 60 and above. While the group does not tackle issues pertaining to simple wills and testaments, it handles inquiries relating to greater estate planning concerns like living wills and powers of attorney. Tangential issues like Medicaid and Social Security benefits also affect how large a person’s estate will be at the time of death and the group can advise its clients on how to maximize their gains. While no substitute for hiring a lawyer, consulting CLASI is a good first step. It has three branches across the three counties of the state.

Delaware Courts Judicial Branch

The Delaware Courts Judicial Branch is the branch of the state government charged with resolving actual cases and controversies that arise between the citizens of the state. The state’s judiciary has a limited legal assistance program that is designed to assist those who wish to litigate on their own without a lawyer. The pro se representatives are given 15 minutes each to discuss with a legal professional how to go about the court’s processes and technicalities.

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