Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Unlike some states, Delaware does not distinguish between “common form” and “solemn form” probate. Under Title 12, Chapter 17 of the Delaware Code, every will undergoes the same proof procedure before the Register of Wills. You submit the original will along with a probate petition. Two or more attesting witnesses must sign affidavits confirming they observed the testator sign the will. The Register reviews the petition and affidavits. If no valid objections arise, the Register admits the will to probate and issues letters testamentary. These letters authorize the executor to gather assets, pay debts, and distribute property under court supervision. (See 12 Del. C. §1701: https://delcode.delaware.gov/title12/c017/.)
Delaware’s unified process resembles an “informal probate” in other jurisdictions. You do not request different probate “forms.” Instead, you follow a single track designed to confirm the will’s validity and empower your personal representative. If interested parties contest the will, the court may schedule a formal hearing before the Orphans’ Court.
Key steps in Delaware probate:
- File the original will and petition with the Register of Wills in the decedent’s county of residence.
- Obtain witness affidavits per 12 Del. C. §1701.
- Notify heirs and beneficiaries as required by statute.
- Receive letters testamentary or letters of administration (if no valid will).
- Administer the estate under court oversight, file accounting, and close the estate.
Helpful Hints
- Locate the decedent’s original will. You cannot probate a copy unless the original is lost and you prove its execution.
- Identify and secure witness affidavits quickly to prevent delays.
- File your petition in the correct county: the decedent’s legal residence at death.
- Serve notices on beneficiaries and statutory heirs within the timelines set by 12 Del. C. §1704.
- Keep detailed records of estate assets and expenses to streamline final accounting.
- Consult a Delaware probate attorney if any beneficiary objects or if the estate holds complex assets.