Delaware Restrictions on Who Can Serve as Executor

Learn the rules about who can be your executor in Delaware.

One of the most important reasons to make a will is to name your executor. After your death, your executor’s primary job is to protect your property until any debts and taxes have been paid, and then transfer what’s left to those who are entitled to it.

Every state has some rules about who may serve as the executor of an estate that goes through probate. Here are the requirements in the Delaware.

Basic Requirements for Serving as a Delaware Executor

Your executor must be:

  • at least 18 years old, and
  • of sound mind -- that is, not judged incapacitated by a court.

(See Del. Code Ann. tit. 1, § 701.)

Many states prohibit people who have felony convictions from serving as executor. In Delaware, however, there is no statute prohibiting you from naming an executor who has been convicted of a felony. (Del. Code Ann. tit. 12, § 1503.)

Special Rules for Executors in Delaware

In addition to the restrictions above, a Delaware probate court will reject a potential executor found to be mentally or physically incapacitated while your estate is in probate. In the meantime, the court will appoint this person’s coexecutors, if you’ve named any, or another qualified person to serve until your executor is no longer incapacitated. (See Del. Code Ann. tit. 12, § § 1503, 1505.)

Delaware Restrictions on Out-of-State Executors

For practical reasons, it’s smart to name an executor who lives near you. Your executor may have to handle day-to-day matters for weeks, months, or sometimes longer. If you must appoint an executor who lives far away, you should know the requirements Delaware imposes on out-of-state executors.

In the Delaware, a nonresident executor must file an irrevocable power of attorney appointing the Register of Wills as agent to accept legal papers. (Del. Code Ann. tit. 12, § 1506.)

Learn More

For more information about choosing your executor and making your will, see the Wills section of Nolo.com.

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