4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

No. Decedent's estate citations are generally found in Title 12 of the Delaware Code.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate. If so, specify for both situations. Provide statutory citations.

No. However, 12 Del. C. Section 1301 requires production of the Will within ten (10) days from the time the person in possession of the Will received information of the death of the testator.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Yes. Delaware is not a community property state. Delaware has abolished dower and curtesy, 12 Del. C. Section 511. Delaware does recognize tenancy-by-the-entirety.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes. The preferred way to hold joint title with right of survivorship is joint tenant with right of survivorship not as tenants-in-common. Title held with right of survivorship passes immediately upon death. Such property is subject to inheritance taxes.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. In the case of marriage after the Will, the surviving spouse is entitled to his/her intestate share, 12 Del. C. Section 321. A surviving spouse is also entitled to an elective share, 12 Del. C. Section 901. A surviving spouse is also entitled to spousal allowance, 12 Del. C. Section 2308.

Summarize the steps required for a testate administration. Provide statutory citations.

Produce Will, 12 Del. C. Section 1301. Prove Will if not self-proving, 12 Del. C. Section 1501-1528. Petition for letters and post bond if not waived in the Will.

Summarize the steps required for an intestate administration. Provide statutory citations.

Petition for letters, 12 Del. C. Sections 1504-1505.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

No.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Yes. Estates under $20,000; without individually owned real estate; no petition for the appointment of a personal representative is pending or has been granted; thirty days have elapsed since the death of the decedent; all known debts of the decedent are paid or provided for and the surviving spouse's allowance has been paid, provided for, waived or has expired by lapse of time, may file a Small Estate Affidavit. 12 Del. C. Section 2306.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Yes. Ancillary administration is required for decedent's owning real property and dying out of state. Procedures are similar to the answers 6th and 7th questions above.

Does your state provide for an ?inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Delaware has both an inheritance tax and an estate tax. However, the inheritance tax has been repealed for anyone passing away January 1, 1999, and later. Del. Code Title 30, Chapter 13. If the inheritance tax, which is based upon an heir's share, does not equal or exceed the federal state death tax credit a state estate tax equal to the difference between the inheritance tax and federal state death tax credit is imposed.

Does your state provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Yes. Attachment to gross estates except to charges and expenses allowed by the Court. Also can be discharged by 12 Del. C. Section 2304. The statute of limitations for the inheritance tax lien is ten (10) years. 30 Del. C. Section 1345. See also 10 Del. C. Section 8129.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

A petition for sale of real estate must be filed with the Court of Chancery.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

This is unsettled in Delaware. 12 Del. C. Section 207 seems to require consent of beneficiaries unless the property is being sold to pay debts and taxes under a grant of authority contained in the Will.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

When there is no grant of authority to sell in the Will, a petition must be filed with the Register in Chancery.

Does your state provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Yes. The provisions and procedures are the same as in original probate.