Estate Planning in Delaware: A Complete Guide for Residents

Most Delaware residents start thinking about estate planning after a scare — a health crisis, a death in the family, or the sudden realization that their children would be left without a named guardian. By that point, the stress makes everything harder.

Delaware's estate planning framework looks deceptively simple from the outside. Three counties, a handful of forms, a few signatures. But the state operates under its own statutory code rather than the Uniform Probate Code, and each county Register of Wills runs a separate filing system with different fees, deadlines, and procedures. Miss a detail — like the 10-day original-will delivery requirement under 12 Del. C. § 1301 — and your family inherits a legal headache along with everything else.

The Five Documents Every Delaware Estate Plan Needs

A basic Delaware estate plan consists of five core documents. Without all five, gaps in coverage leave your family scrambling during a crisis.

1. Last Will and Testament. Directs who receives your property and names an executor to manage your estate through probate. Delaware does not recognize unwitnessed holographic wills — your will must be written, signed, and witnessed by two competent adult witnesses to be valid.

2. Durable Power of Attorney. Authorizes a trusted person to handle your financial and legal affairs if you become incapacitated. Under 12 Del. C. Ch. 49A, the document must be written, signed and dated by the principal, signed before a notary, and signed before one adult witness who is not related to the principal by blood, marriage, or adoption and is not entitled to a portion of the principal's estate under an existing will, codicil, or trust. The agent must execute and attach a statutory Agent's Certification before acting under the POA; a missing certification can cause a financial institution to reject a transaction.

3. Advance Health-Care Directive. Names a health-care agent and documents your treatment preferences. Delaware's five-point witness exclusion rule bars witnesses who are related to the principal by blood, marriage, or adoption; entitled to a portion of the principal's estate under a will or intestacy; have a claim against the estate; are directly financially responsible for the principal's medical care; or hold a controlling interest in or are employed by the residential healthcare facility where the principal resides.

4. Transfer on Death Deed. Since the Uniform Real Property Transfer on Death Act became effective December 5, 2025, Delaware homeowners can designate a beneficiary who automatically inherits real estate outside of probate. The deed must be signed, notarized, witnessed by two people (at least one must not be a named beneficiary), and recorded with the county Recorder of Deeds before the owner's death.

5. Beneficiary Designations. Bank accounts, retirement funds, and life insurance policies generally pass directly to named beneficiaries — bypassing probate. These designations generally control the asset over your will, subject to applicable statutory protections, so they must be reviewed whenever your circumstances change.

County-Specific Filing Differences You Need to Know

Delaware's three counties each run their own Register of Wills with different procedures:

New Castle County uses mandatory electronic filing through File & ServeXpress. Paper filings are not accepted. Opening fees range from $30 to over $1,905 depending on estate value, and the closing fee is 2.00% of the net personal estate (1.75% base plus a 0.25% technology surcharge).

Kent County operates entirely on paper. Documents must be submitted by mail or in person. Late filings trigger a $25 penalty for anything more than 30 days past deadline. The closing fee is 1.75% of the net personal estate.

Sussex County also uses paper filing, but adds a unique step: before scheduling an in-person closing appointment, the personal representative must complete a phone audit with the Chief Deputy Register. The closing fee is 1.25% — the lowest in the state.

Two Recent Law Changes That Reshape Delaware Estate Planning

Small Estate Threshold Increase (June 2026). House Bill 333 was signed June 10, 2026, raising the small estate affidavit threshold from $30,000 to $50,000 for deaths on or after that date. If such a decedent's solely owned personal property is at or below $50,000 and includes no solely owned real estate, the estate can use the simplified affidavit process after a 30-day waiting period; earlier deaths use the $30,000 threshold.

Transfer on Death Deed Act (December 2025). House Bill 147 adopted the Uniform Real Property Transfer on Death Act, effective December 5, 2025, giving Delaware homeowners a new tool to pass real estate directly to a beneficiary without going through probate. The owner retains complete control during their lifetime, but a revocation must be executed, notarized, and recorded before the owner's death.

What a Delaware Estate Plan Costs

Local Delaware estate planning attorneys typically charge $3,000 to $6,000 for a basic plan (will, power of attorney, and health-care directive). Trust-based plans routinely exceed $10,000. National document generators like LegalZoom charge $89 to $399+ depending on document tier and subscription but often lag behind Delaware-specific legislative changes.

The Delaware Basic Estate Planning Kit provides county-compliant instructions, checklists, and step-by-step guidance for every essential document — updated for the 2025-2026 legislative changes — at a fraction of attorney fees.

Start With Your Asset Titles

The single most productive first step is auditing how your assets are currently titled. List every account, property, and vehicle. Note whether each is solely owned, jointly held, or has a named beneficiary. This audit reveals exactly which assets would go through probate if you died today — and which ones already bypass it.

That gap between "would go through probate" and "already bypasses it" is where your estate plan does its work.

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