Detailed Answer — Overview

When a person dies in Delaware, some of their property usually must be administered through the court process called probate (or estate administration). Other property passes outside of probate directly to surviving people or entities because of how the property was titled or because a contract or statute gives it to a named beneficiary.

Basic rule

Assets that are solely in the decedent’s name and that have no beneficiary designation generally must be collected and distributed through the decedent’s probate estate. Assets that are jointly owned with rights of survivorship or that have beneficiary designations typically pass automatically to the surviving co-owner or beneficiary and do not require probate administration.

Where to look in Delaware law

Delaware’s laws governing decedents’ estates and probate are in Title 12 of the Delaware Code. For topics about real property title and transfer-on-death mechanisms, see Title 25. Official text and chapter lists are published by the State of Delaware:

• Delaware Code — Title 12 (Decedents’ Estates and Fiduciaries)
• Delaware Code — Title 25 (Real and Personal Property)
• Delaware Courts — Register of Wills / Probate information

Assets that usually must go through probate (court administration)

These assets generally become part of the decedent’s probate estate and are administered under the supervision of the Register of Wills and/or the probate process in the county where the decedent lived:

• Solely owned real estate (land or a house) titled only in the decedent’s name, unless a valid transfer-on-death deed, joint tenancy with right of survivorship, or other nonprobate mechanism exists.
• Bank and brokerage accounts titled only in the decedent’s name, without a payable-on-death (POD) or transfer-on-death (TOD) beneficiary.
• Personal property (cars, jewelry, furniture) owned solely by the decedent and without beneficiary designations.
• Assets titled as “tenancy in common” (a co-owner’s share is part of the decedent’s estate and passes by will or intestacy).
• Any asset for which a creditor’s claims must be presented and resolved through estate administration (creditor notice and claims process are part of probate administration).

Assets that commonly pass directly to survivors (non‑probate assets)

These forms of property generally transfer outside probate and go directly to the surviving co-owner or named beneficiary:

• Joint tenancy with right of survivorship (JTWROS): the surviving joint owner usually takes full ownership automatically.
• Payable-on-death (POD) bank accounts and transfer-on-death (TOD) accounts and securities: funds move to the named beneficiary on the institution’s records without probate.
• Life insurance proceeds and retirement accounts (IRAs, 401(k)s, annuities) that have a valid named beneficiary.
• Assets placed in a trust: trust assets are controlled by the trust document and generally do not pass through probate.
• Real estate transferred by a valid TOD or beneficiary deed (where Delaware law and the deed form allow), or property that automatically transfers by operation of law.

Common special issues in Delaware

• Small-estate procedures: Delaware provides faster or simplified procedures for smaller estates in some situations. See Title 12 for governing rules and thresholds.
• Beneficiary problems: If a beneficiary predeceases the decedent or the beneficiary designation is ambiguous or invalid, the asset may end up in probate.
• Joint ownership form matters: Labels like “joint tenants” or “tenants in common” have different effects. The exact title language and the circumstances of acquisition can determine whether the asset avoids probate.
• Creditors and surviving beneficiaries: even when assets pass outside probate, certain claims (for example, claims for unpaid funeral expenses or taxes) can affect distribution. Administering an estate formally can provide protection against unknown claims.
• Elective share and family allowances: Delaware law gives certain rights to a surviving spouse (for example, an elective share or family allowance). Those rights can affect distribution whether or not some assets pass outside probate. See Title 12 for rules affecting spousal rights.

Examples (hypothetical facts to illustrate)

1. House owned only by Alice, no beneficiary deed or joint owner: Alice’s house will normally go through probate and be distributed under her will or under Delaware intestacy rules.
2. Bank account titled to Bob with a POD beneficiary “Chris”: funds will pass to Chris by the bank’s transfer procedure and generally avoid probate.
3. Stock account jointly held by Dana and Evan as joint tenants with right of survivorship: when Dana dies, Evan typically owns the account outright without probate.
4. Life insurance policy listing a named beneficiary: proceeds go to that beneficiary outside probate unless the beneficiary designation is invalid or ambiguous.

When probate is still a good idea

Even if many assets pass outside probate, opening an estate can still be useful to: clear title to real property, have a court-supervised process for creditor claims, obtain a formal order allowing sale of estate property, and protect personal representatives who act in good faith. If you expect disputes, large debts, or complex asset structures, a full probate administration may be safer.

Disclaimer: This information is educational and general in nature and does not constitute legal advice. Laws change and your situation may have unique facts that change the legal outcome. Consult a licensed Delaware attorney for advice tailored to your circumstances.

Helpful Hints

• Gather documents early: title papers, deeds, account statements, beneficiary forms, and the decedent’s will (if any).
• Check beneficiary designations: banks, brokers, insurers, and plan administrators honor their beneficiary forms—if a beneficiary is named and survives, that asset often bypasses probate.
• Look at title language for real estate and accounts: the words used can determine whether the property avoids probate.
• Be cautious about assuming everything outside probate is safe from creditor claims or spousal rights; consult counsel if liabilities or spousal claims may exist.
• If the estate seems small or uncontested, ask the Register of Wills about simplified or expedited procedures available in Delaware.
• If you are a named executor, trustee, or beneficiary and are unsure how to proceed, a short consultation with a Delaware probate attorney can help you avoid costly mistakes.
• Use the official Delaware Code and Register of Wills pages for authoritative references: Title 12, Title 25, and Delaware Register of Wills.