Quick overview: what the petition asks the court to do

A petition for possession and control of estate property typically asks the probate authority to grant a person (often the named personal representative, executor, or administrator) authority to take possession of estate assets, control them, and in some cases to sell, collect, or manage those assets during administration. In Delaware, matters involving decedents’ estates are governed by the Delaware Code (Title 12) and handled through the probate/Register of Wills procedures and the state courts. See Delaware Code, Title 12: https://delcode.delaware.gov/title12/.

Who can challenge the petition?

• Heirs and beneficiaries named in the will or who would inherit under intestacy if there is no will.
• Creditors with proper standing.
• Other persons with a legally protectable interest in the estate property (for example, a creditor secured by property of the decedent, or a co-owner).
• A competing claimant who says the property never belonged to the decedent or that the petitioner lacks authority.

Common legal grounds to challenge or move to dismiss

Valid reasons to oppose a petition include:

• Improper service or lack of notice. The petitioner must provide required notice to interested parties. Failure to do so may be a procedural defect.
• Wrong party or lack of authority. The petitioner is not the appointed or qualified personal representative, or the court has not granted that person authority to possess or control estate property.
• Jurisdiction or venue problems. The court lacks authority over the parties or property.
• Fraud, undue influence, or forgery. The will, appointment, or documents supporting the petition are alleged to be forged or signed under duress.
• Title disputes. The objector claims the property belonged to someone else (e.g., joint tenancy, trust property, conveyance before death).
• Failure to meet statutory requirements. The petition does not include mandatory affidavits, inventories, or statutory showings under Delaware law.
• Conflict of interest or breach of fiduciary duty. The proposed controller stands to profit improperly, or the proposed action would harm the estate or beneficiaries.

Step-by-step: how to challenge or move to dismiss in Delaware

1. Act quickly. Probate petitions often have short windows for objections. Even if you need time to gather information, file a timely written objection or request for additional time so you do not forfeit rights.
2. Get and review the file and petition. Request the full petition, all exhibits, any inventories, and the case file from the Register of Wills or the probate clerk. Identify the stated legal basis for possession and any supporting affidavits.
3. Check notice and service. Confirm that the petitioner served the petition and provided notice to all required parties (heirs, beneficiaries, creditors). If notice is defective, that can be a basis for dismissal or a continuance.
4. Prepare a written objection or answer. File a short, clear written objection responding to the petition’s allegations and stating your grounds (e.g., lack of authority, improper notice, title claim). Attach copies of documents that support your position (deeds, wills, correspondence).
5. File supporting motions when appropriate. If the defect is procedural, move to dismiss for lack of jurisdiction or improper service. If urgent, file for temporary injunctive relief or a temporary restraining order (TRO) to prevent removal or transfer of property pending a hearing.
6. Request a hearing and serve opposing parties. Ask the court to schedule a hearing and follow service rules so the petitioner receives formal notice of your objection and any request for emergency relief.
7. Prepare evidence and witnesses. Collect documents showing title, account statements, correspondence, and any witnesses who can attest to ownership, intent, or misconduct. Be ready to show why the petitioner’s proposed control would harm the estate or is legally unsupported.
8. Consider provisional remedies. Ask the court to order a bond, appoint a neutral custodian, or require accounting if the court allows interim control but you fear mishandling.
9. Use settlement or alternative dispute resolution if possible. Mediation or negotiation can resolve disputes without protracted litigation and preserve estate value.

What to expect at the hearing and possible outcomes

At the hearing the court will consider the pleadings, evidence, and arguments. Possible outcomes include:

• The court denies the petition and refuses to grant possession or control.
• The court grants the petition in whole or in part, possibly with conditions (bond, accounting, limited powers).
• The court continues the matter to allow the parties to produce more evidence or to try mediation.
• The court orders temporary measures (custodial appointment, TRO) pending final decision.

When emergency relief is appropriate

If the petitioner is about to remove, sell, or dissipate assets that you believe will be lost or hidden, seek emergency relief immediately. Ask the court for a temporary restraining order or preliminary injunction to preserve the status quo while the court resolves the dispute. Emergency motions require clear, persuasive evidence and prompt filing.

Evidence and standards

The petitioner generally bears the burden of proving a right to possession and control. Your role as objector is to create a genuine dispute about that showing—through documents, affidavits, and testimony—so the court cannot grant the petition without a full hearing. Maintain organized records and present a coherent chain of title or contractual evidence if you claim property does not belong to the estate.

Statutes and rules to consult

Delaware law governing decedents’ estates is in the Delaware Code, Title 12. Review Title 12 for statutory rules about probate administration, personal representative powers, notice, and inventories: https://delcode.delaware.gov/title12/. For local procedural rules, contact the Delaware courts website: https://courts.delaware.gov/.

When to consult an attorney

If the dispute involves significant assets, allegations of fraud or undue influence, urgent risk of dissipation, or complex title issues, consult a Delaware probate attorney promptly. An attorney can analyze statutory authority, draft precise pleadings, request emergency relief, and represent you at hearings.