Detailed Answer
Under Delaware law, a valid will must be in writing, signed by the testator, and witnessed by at least two credible individuals. Del. Code Ann. tit. 12, § 205 requires both the signature and the attestation of two witnesses to validate a will. Notarization is not required but can create a self-proving will that streamlines probate. A document that lacks the two required witnesses fails to meet these formalities and cannot be admitted to probate as a will.
When a decedent’s intended will is invalid for lack of witnesses, Delaware treats the estate as intestate. Heirs inherit according to the intestacy scheme in Del. Code Ann. tit. 12, § 901. To administer such an estate, an interested party must petition the Register of Wills for letters of administration under Del. Code Ann. tit. 12, § 707.
Steps to take when a will is invalid due to missing witnesses:
- Locate the decedent’s original document and confirm it is unsigned or unwitnessed.
- File a petition for administration with the Register of Wills in the county where the decedent lived, citing Del. Code Ann. tit. 12, § 707 (Letters of Administration).
- Provide notice to heirs and potential creditors as required by Del. Code Ann. tit. 12, § 901 (Intestate Succession).
- Obtain letters of administration and inventory the estate’s assets.
- Distribute assets according to the intestacy rules in Del. Code Ann. tit. 12, § 901.
Helpful Hints
- Review Del. Code Ann. tit. 12, § 205 (Execution of Wills) to understand formal requirements.
- Gather family tree information to determine intestate heirs and their shares.
- Track all communications and filings with the Register of Wills to maintain clear records.
- File notice to creditors promptly to limit personal liability of the estate’s representative.
- Consider mediation among heirs to avoid disputes and reduce probate costs.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, consult a qualified attorney.