Disclaimer: This article is for informational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
Under Delaware law, a creditor must receive proper notice of an estate’s administration before filing a claim against the estate. If the personal representative follows statutory notice requirements and two years pass from the decedent’s date of death without a timely claim, most creditor claims are barred by operation of law. To rely on Delaware’s two-year rule (12 Del. C. § 902), a client should verify that all notice requirements in 12 Del. C. § 901 were satisfied.
Key Statutes:
- 12 Del. C. § 901 – Notice to creditors: sets methods (mail and publication) and timing.
- 12 Del. C. § 902 – Time for presentation of claims: establishes two-year statute of limitations.
Here’s how a client can confirm compliance with § 901:
- Obtain the Probate File: Request certified copies of the estate’s probate file from the Register of Wills in the county where the estate was opened. The file should include:
- Letters Testamentary or Letters of Administration.
- Proof of mailing notices to known creditors (affidavits or certificates of mailing).
- Affidavit of publication showing notice was published once a week for three weeks in a newspaper of general circulation, as required.
- Review Proof of Mailing: Under 12 Del. C. § 901(a), the personal representative must mail notice to each known or reasonably ascertainable creditor. Confirm the file contains:
- A creditor list identifying recipients.
- Postage receipts or a certificate of mailing with dates not later than one year after appointment.
- Check Publication Records: Section 901(b) requires a public notice in a newspaper at least once a week for three successive weeks. Verify:
- The newspaper name and publication dates.
- The notarized affidavit of publication filed with the court.
- Confirm Timeliness: Compare notice dates against the decedent’s date of death. All notices must issue within the period specified by § 901. If any notice was late or missing, the two-year rule may not apply.
- Obtain a Certificate of Compliance: In some counties, the Register of Wills issues a certificate confirming notice requirements were met. If available, this certificate provides formal proof.
Once you verify that mail and publication notices comply with 12 Del. C. § 901 and two years have elapsed, unpaid creditors generally lose the right to file claims under the two-year rule in 12 Del. C. § 902. Always confirm dates and documents carefully.
Statutes cited:
Helpful Hints
- Order a full probate docket to ensure no missing entries.
- Cross-check newspaper archives if the affidavit of publication is unclear.
- Keep a timeline of death, appointment, mailing, and publication dates.
- Consider hiring a title search or probate researcher for older estates.
- When in doubt, consult an estate attorney to interpret compliance documents.