Probate in Delaware: What Your Family Goes Through Without a Will

If someone dies owning property in Delaware, probate usually follows unless one of a few exceptions applies. Intestate succession is how we refer to estates when someone dies without a will. An estate will go through probate in Delaware if there is no will, with a few exceptions.

• Any life insurance policies and retirement accounts that have a designated beneficiary will not be subject to probate.

• Any bank or brokerage accounts with a payable-on-death or transfer-on-death designation will not fall under probate.

• Any property owned jointly with right of survivorship do not become subject to probate.

If none of these apply, an estate without a will does go through probate in Delaware. If the gross estate value is $50,000 or less (as of 2026), you can use a simplified affidavit procedure instead of full probate.

Succession Laws Without a Will in Delaware

Who inherits in Delaware depends first on how the law classifies what a couple owns. Delaware is a common law property state, not a community property state, meaning ownership follows whose name is on the title, deed, or account. A surviving spouse also has the right to an elective share of the estate, even if a will provides less.

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If none of the exceptions above apply, assets will be distributed according to the following rules.  

• If you have no children and no living parents, your spouse inherits everything.

• If you have children who are all also your spouse's children, or you have no children but a living parent, your spouse inherits the first $50,000 of your estate, plus 1/2 of the balance, plus a life estate in any real estate. Your children (or parents, if there are no children) inherit the rest.  

• If you have one or more children who are not your spouse's children, your spouse inherits 1/2 of your personal estate plus a life estate in any real estate. Your children inherit the rest.

• If you have no spouse but you do have living children, your children inherit everything.

• If you have no spouse and no children, your parents inherit everything.

• If your spouse and parents are no longer living and you have no children, your siblings inherit everything.

Delaware Probate Process

Delaware probate is administered by the Register of Wills in one of the state's three counties. Delaware has no state estate or inheritance tax, having repealed its estate tax in 2018, which is a relatively unusual break from many of its neighboring states.

Avoiding Probate in Delaware

Probate can be slow and public, which is why many people plan around it. Here's how.

• Assign your assets in a revocable living trust to keep it from going through probate. In a living trust, you name a successor trustee who will manage distributing your assets after your death.

• Place beneficiaries on financial and retirement accounts with a payable-on-death (POD) designation or a transfer-on-death (TOD) designation. For those accounts, ownership will automatically pass to the person who is listed.  

• Establish joint ownership with right of survivorship. This gives your spouse or another co-owner automatic ownership of any joint property.

Want to learn more about trusts in Delaware? Discover what you need to put together your trust.