Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for guidance on your specific situation.
Detailed Answer
Under Delaware law, whether real property passes automatically at death or must go through probate depends entirely on how title to the property is held at the decedent’s death. Here’s how it works:
1. Assets That Pass Outside Probate
- Joint Tenancy or Tenancy by the Entirety: When property is titled in joint tenancy with right of survivorship or tenancy by the entirety (for married couples), ownership automatically shifts to the surviving owner upon death. No probate is required. 25 Del. C. § 256 (“Joint Tenancy”).
- Transfer-on-Death Deed (TOD Deed): Delaware’s Revocable Transfer on Death Deed statute (25 Del. C. § 503A) lets an owner record a deed naming a beneficiary. If properly recorded before death, title passes directly to the beneficiary outside probate. See https://delcode.delaware.gov/title25/c005/sc03/index.html.
- Payable-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Bank and brokerage accounts designated POD or TOD transfer directly to beneficiaries under 12 Del. C. § 5033, bypassing probate. See https://delcode.delaware.gov/title12/c005/sc05/index.html.
- Life Insurance and Retirement Plans: Proceeds go to named beneficiaries under contract terms, without probate involvement.
2. Assets That Must Be Probated
Real property held solely in the decedent’s name at death does not pass automatically. To transfer legal title, the executor named in the will (or an administrator appointed if there’s no will) must open a probate estate. Key steps include:
- Filing the Will: Submit the original will to the Delaware Superior Court, Register in Probate, in the county where the decedent lived. See 12 Del. C. § 3311 (https://delcode.delaware.gov/title12/c033/index.html).
- Appointment of Personal Representative: The court issues letters testamentary (for wills) or letters of administration (intestate) under 12 Del. C. § 3201. This gives the representative legal authority to manage estate assets.
- Inventory and Appraisal: Within three months, file an inventory of all probate assets, including real property, under 12 Del. C. § 3104.
- Settlement of Debts and Taxes: Notify creditors, pay valid claims, and file the decedent’s final income tax return.
- Distribution of Remaining Assets: After debts and expenses, the representative transfers clear title to heirs or devisees according to the will or Delaware’s intestacy rules (12 Del. C. § 901 et seq.).
3. Why Probate?
Probate ensures creditors are paid, clear title transfers, and heirs receive their lawful share. If real property isn’t titled to pass outside of probate, the court-supervised process protects all interested parties and prevents future ownership disputes.
Helpful Hints
- Review property deeds and account beneficiary designations well before death.
- Consider a Transfer-on-Death deed for real estate to avoid probate.
- Consult an attorney if you’re unsure how your property is titled.
- File probate paperwork promptly to meet Delaware deadlines and minimize delays.
- Keep detailed records of all communications and filings during probate.