Probate Shortcuts in Delaware

Delaware offers a probate shortcut for "small estates." This makes it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using the following probate shortcut -- saving time, money, and hassle.

Claiming Property With a Simple (Small Estate) Affidavit

Delaware has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- gets the affidavit and a copy of the death certificate, it releases the asset.

The out-of-court affidavit procedure is available in Delaware if the estate is without Delaware real estate that is solely owned or owned as tenants in common and has a value of no more than $30,000. (Jointly owned property, and death benefits that pass outside of probate, such as insurance or pension proceeds, are not counted toward the $30,000 limit.) There is a 30-day waiting period. The affidavit process is available only to the spouse, certain relatives, named executor in the deceased person’s will, trustee, or funeral director.

The affidavit must say that:

• no personal representative has been appointed
• the deceased person died at least 30 days ago
• the personal property is $30,000 or less
• the deceased person’s known debts have been paid, and
• the surviving spouse’s allowance has been paid or waived and that the deceased person did not own any real property.

The executor or next of kin has the right to enter the deceased person’s residence to get clothes for the burial and to take possession of the personal property. He or she can also take possession of the deceased person’s motor vehicle. Del. Code Ann. Tit. 12, § 2306.

The surviving spouse can request the executor set aside cash up to $7,500 for a spousal allowance, which has priority over other claims of the estate like unpaid rent or child support. Del. Code Ann. Tit. 12, § 2308.

For More Information

For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor’s Guide, by Mary Randolph (Nolo), or Estate Planning Basics, by Denis Clifford (Nolo).