Detailed Answer
In Delaware, a personal representative (often called an executor or administrator) carries out a deceased person’s will or administers an intestate estate. Delaware law sets strict rules on who may serve.
Appointment by Will: If the decedent left a valid will naming you as personal representative, the court generally honors that choice. The court issues letters testamentary once it verifies the will and your qualifications.
Intestate Appointment (No Will): If no valid will exists, the court follows a statutory priority list under 12 Del. C. § 3938:
- Surviving spouse;
- Child(ren) or descendants;
- Parent(s) of the decedent;
- Sibling(s) of the decedent;
- Next of kin in further degree of kinship.
The term “parent” refers to the decedent’s biological or adoptive parent. A mother-in-law does not qualify under this hierarchy. You stand outside the statutory list unless the will specifically names you.
Petitioning as a “Qualified Person”: If no one in the priority chain is willing, eligible, or able, the court may appoint a “qualified person” upon hearing. You could seek appointment by proving special circumstances or lack of other candidates (see 12 Del. C. § 3938).
Helpful Hints
- Review the Will Early: Request a probate copy to see if you’re named.
- Check Statutory Priority: Identify who ranks above you for intestate cases.
- Consider Consent: Higher-priority relatives can waive appointment if they prefer you.
- Gather Qualifications: Delaware requires you to be an adult, of sound mind, and a resident or bond applicant.
- Consult a Probate Attorney: They help prepare petitions and represent you at hearings.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a licensed Delaware attorney to discuss your specific situation.