Delaware Probate and Estate Tax Laws

Created by FindLaw's team of legal writers and editors.

Probate is the administrative process of settling a deceased person's estate after he or she dies. Regardless of whether the deceased died testate (with a valid will) or intestate (without a valid will), the estate passes through probate in order to collect the deceased's assets, pay any applicable debts and taxes, and distribute the deceased's property.

If the deceased died testate, then his or her estate will be distributed according to the will the person left. However, any part of the deceased's estate that isn't validly distributed by will (or the entire estate if the deceased died intestate) passes according to Delaware's intestate succession laws.

Intestate Succession

Any part the deceased's estate that isn't effectively disposed by will passes to the deceased's heirs as described in the table below.

Code Section

Delaware Code chapter 5: Intestate Succession

What Does the Surviving Spouse Get?

The deceased's surviving spouse (if there is one) receives:
  • The entire estate if the deceased doesn't have a surviving descendant or a surviving parent
  • The first $50,000 of the estate plus one half of the remaining personal estate and a life estate in the estate's real property, if the deceased doesn't have a surviving descendant but is survived by a parent
  • The first $50,000 of the estate plus one half of the personal estate and a life estate in the estate's real property, if all of the deceased's surviving descendants are also descendants of the deceased's surviving spouse, or
  • Half of the personal estate plus a life estate in the estate's real property, if the deceased has a descendant who is not also a descendant of the deceased's surviving spouse

What Do Heirs Other than the Surviving Spouse Get?

Any part of the estate that doesn't pass to the deceased's surviving spouse passes in the following order until someone eligible to inherit:
  • To the deceased's descendants (per stripes)
  • To the deceased's parents
  • To the deceased's brothers and sisters and the descendants of each deceased brother or sister (per stripes), and then
  • To the deceased's next of kin and to the deceased's next of kin's descendants (per stripes)

Definitions

 

Life estate: Property held only for the duration of a specified person's life.

Real property: Land and the buildings on it.

Per stripes: By right of representation.

120 Hour Rule

 

In order to inherit under Delaware's intestate succession laws, a person must survive the deceased by at least 120 hours.

The Estate Tax

Delaware is one of the states that still collects an estate tax, or a tax imposed on the transfer of a deceased person's property. Delaware's estate tax is applicable to the estates of Delaware residents and the estates of deceased nonresidents who own real estate or personal property located in Delaware. However, there is an estate tax exemption that varies based on the federal estate tax. In 2015, estates that are smaller than $5,430,000 are exempt from both the Delaware estate tax as well as the federal estate tax.

Additional Resources

State laws change frequently. For case specific information regarding Delaware's probate and tax laws contact a local estate planning lawyer or tax attorney.

Next Steps: Search for a Local Attorney

Contact a qualified attorney.