Delaware Probate and Intestate Succession: What Happens Without a Will (2026)

Delaware probate is handled by the Register of Wills in each of the state's three counties, an office that also serves as a clerk of the Delaware Court of Chancery. When a Delaware resident dies without a valid will, 12 Del. C. §502, not personal wishes, decides who inherits, including a distinctive life estate rule for real property.

Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.

How Probate Works in Delaware

Delaware's probate system runs through the Register of Wills, an elected officer in each of the state's three counties (New Castle, Kent, and Sussex), who handles day-to-day intake: filing the will if one exists, issuing Letters Testamentary or Letters of Administration, and receiving inventories and accounts. The Delaware Court of Chancery holds broader supervisory and appellate authority; Delaware's separate Orphans' Court, which once handled estate settlements and will appeals, was abolished in 1970 and its duties were transferred to Chancery. Delaware has not adopted the Uniform Probate Code, so its probate code, Title 12 of the Delaware Code, uses its own procedure rather than UPC-style "informal" or "formal" tracks.

In practice, a Delaware estate moves through one of two tracks. Regular administration begins when an interested party files the will, if any, with the Register of Wills, who then issues Letters Testamentary to the named executor or Letters of Administration to an administrator if the decedent died intestate. The personal representative must then file an inventory of the estate's probate assets within 3 months of qualifying, and must give notice to creditors through newspaper publication as well as direct written notice to any known creditors. Since 1973, fiduciary accounts have been rendered to the Court of Chancery for settlement, and since 1989 Chancery has held the power to remove a negligent executor or administrator. The second track, for smaller estates, is the small estate affidavit process described below, which can avoid the need for Letters altogether.

Intestate Succession in Delaware: Who Inherits Without a Will

When a Delaware resident dies without a valid will, 12 Del. C. §502 sets the surviving spouse's share of the intestate estate, and 12 Del. C. §503 sets out who inherits after that share is set aside. Delaware is a common-law, separate-property state, not a community-property state, so the decedent's entire separately titled estate is subject to these rules. Delaware's intestate succession statute has one feature that distinguishes it from most states: rather than giving the surviving spouse outright ownership of a share of real estate, the statute gives the spouse only a life estate in it, with the remainder passing to other heirs.

Under 12 Del. C. §502, the surviving spouse's share breaks down as follows:

• If every surviving descendant is also a descendant of the surviving spouse, the spouse takes the first $50,000 of the intestate personal estate, plus one-half of whatever personal estate remains, plus a life estate in the decedent's real estate.
• If at least one surviving descendant is not a descendant of the surviving spouse, for example a child from a prior relationship, the spouse's flat $50,000 set-aside disappears; the spouse instead takes one-half of the intestate personal estate, plus a life estate in the real estate.
• If there is no surviving descendant but a parent of the decedent survives, the spouse takes the first $50,000 of personal estate plus one-half of the balance, plus a life estate in the real estate.
• If there is no surviving descendant and no surviving parent, the spouse takes the entire intestate estate outright.

Because the spouse's interest in real estate is only a life estate, the remainder interest, meaning who actually owns the property once the surviving spouse dies, passes under 12 Del. C. §503. That same section governs distribution when there is no surviving spouse at all, and governs the residue once any spousal share is set aside: first to the decedent's descendants, per stirpes; if none survive, to the decedent's parents in equal shares; if no parent survives, to the descendants of the decedent's parents, per stirpes, meaning siblings and, by representation, nieces and nephews; and if none of those survive, to the decedent's next of kin.

One way to make sure your property goes to the people you actually choose, rather than following Delaware's intestate succession order, is to have a valid will in place. recordinglaw.com's free Delaware Last Will and Testament Generator can help you create one, with no account required.

Small Estate and Simplified Probate in Delaware

Delaware's small estate procedure, codified at 12 Del. C. §2306, lets heirs distribute a decedent's estate without obtaining a grant of Letters at all, provided the decedent's personal estate, excluding jointly owned property and other assets that already pass outside probate, does not exceed the statutory cap. Real estate is not eligible for this simplified process regardless of value; only personal property counts toward, and can be distributed through, the small estate procedure. Delaware Governor Matt Meyer signed House Bill 333 on June 10, 2026, raising that cap from $30,000, unchanged since 2005, to $50,000.

The new $50,000 threshold applies to decedents who die on or after June 10, 2026; estates of people who died before that date remain subject to the prior $30,000 cap. Because the increase is so recent, older articles and even some official-looking secondary sources online may still cite the $30,000 figure, so anyone relying on Delaware's small estate process should confirm the decedent's date of death against the transition rule before assuming which threshold applies.

Delaware Estate and Inheritance Tax

Delaware currently has neither a state estate tax nor a state inheritance tax. Delaware repealed its inheritance tax in 2009, and repealed its separate state estate tax effective January 1, 2018. Estates of Delaware residents who died before those repeal dates could still have been subject to the older taxes, but for any death occurring in 2026, neither Delaware tax applies.

Delaware estates remain subject only to the federal estate tax, and only if the estate's value exceeds the federal basic exclusion amount, $15 million per person for deaths in 2026 according to the IRS. Because that federal threshold is so high, and Delaware itself imposes no estate or inheritance tax of its own, the large majority of Delaware estates owe no estate or inheritance tax of any kind.

Do You Need a Probate Attorney?

A probate attorney is worth engaging in Delaware when the estate is likely to be contested, when real estate is involved given the state's distinctive life-estate rule for a surviving spouse, when the family is blended with children from outside the marriage, a scenario that directly changes the spousal share under §502, or when the estate approaches the federal estate tax threshold. For a modest estate under the personal-property small estate cap, many Delaware families use the simplified process through the Register of Wills without hiring counsel. For how probate works in other states, see recordinglaw.com's Probate by State guide.

Disclaimer

This article provides general information about probate and intestate succession in Delaware as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in Delaware, particularly for a contested estate, real estate affected by the state's life-estate spousal rule, a blended family, or an estate large enough to raise federal estate tax questions. Figures, thresholds, and program details change; verify current details directly with the Delaware Register of Wills for your county before relying on any figure here.

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Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.