How to File a Will in Delaware: Probate Petition, Will Validation, and First Steps

If someone just died and left a will, Delaware law gives you ten days to act. That is not a suggestion — it is a statutory obligation with legal consequences if ignored. Here is what needs to happen with a Delaware will from the moment of death through the opening of formal probate.

The 10-Day Filing Obligation

Title 12 of the Delaware Code is explicit: any person who has possession of a document that purports to be a last will and testament must produce and deliver it to the Register of Wills in the county where the decedent resided within ten days of receiving notice of the death.

Willfully failing to lodge the will exposes the holder to civil liability for any damages sustained by beneficiaries as a result of the delay. The Court of Chancery holds equitable authority to compel delivery — meaning a beneficiary who suspects the will is being withheld can petition the court to force production.

In practice, most families act quickly. But the ten-day rule matters when a family member has the original will and is reluctant to file it, or when a dispute about the will's validity causes someone to delay. Either way, withholding the will does not protect anyone — it creates personal legal exposure.

Where to file: You file the original will at the Register of Wills office in the county where the decedent was domiciled at death:

• New Castle County: Wilmington (with satellite access at Hockessin and Middletown libraries)
• Kent County: Dover
• Sussex County: Georgetown

What Makes a Delaware Will Valid?

Before the Register of Wills admits a will to probate, it must determine whether the document meets Delaware's statutory requirements for validity. A valid Delaware will must:

• Be in writing
• Be signed by the testator (the person making the will) or by someone else in their presence and at their direction
• Be attested and subscribed by two credible witnesses in the presence of the testator

Delaware allows self-proving wills, which are wills that include a notarized affidavit signed by the testator and witnesses at the time of execution. A self-proving will can be admitted to probate without the Register of Wills needing to locate and interview the witnesses to confirm authenticity. This significantly speeds up the validation process.

If the will is not self-proving, the Register may require witness testimony or affidavits to establish that the document was properly executed. If a witness is deceased or unavailable, the process becomes more complicated and may require a court proceeding.

Filing the Will and Opening the Probate Petition

Filing the will and opening the estate are two related but distinct actions. Filing the will simply lodges the document with the county. Opening the estate — which is what gives the executor legal authority — requires filing a probate petition.

To open the estate, the person named as executor in the will (or a person petitioning to be appointed administrator, if there is no will) files a petition with the Register of Wills. The petition establishes:

• The identity of the decedent and the county of domicile
• The existence and validity of the will (if applicable)
• The identity of the proposed executor or administrator
• A preliminary estimate of the estate's value (to determine the appropriate track: small estate or formal probate)

Historically, the executor was required to appear in person at the Register's office to swear an oath. Court of Chancery Rule 190 creates an exception: if the executor is represented by an attorney admitted to the Delaware Bar, the personal appearance is waived and the petition can proceed on paper. This is particularly useful for out-of-state executors or those who cannot easily appear during court hours.

Upon approval of the petition, the Register of Wills grants Letters Testamentary (if there is a will) or Letters of Administration (for intestate estates). These Letters, along with Short Certificates ($3.00 each), give the executor official, documented authority to act on behalf of the estate.

Which Probate Track Does the Estate Follow?

After the will is filed and the petition is submitted, the estate follows one of three tracks:

Non-probate: Assets held in joint tenancy with right of survivorship, assets in trust, or accounts with named beneficiaries pass outside the probate estate and are unaffected by the will. The will does not control these assets.

Small estate affidavit (12 Del. C. § 2306): As of 2026, if the decedent's solely owned personal assets do not exceed $50,000 — updated from the prior $30,000 limit by House Bill 333 — and the decedent owned no solely titled real estate in Delaware, the estate may qualify for the simplified small estate affidavit process. This avoids the formal administration timeline entirely. The affidavit requires a 30-day waiting period from the date of death and confirmation that all known debts are settled.

Full formal probate: Estates exceeding $50,000 in personal assets, or any estate that includes solely owned real property, require full formal administration. This is the process governed by the petition, the three-month Inventory deadline, the eight-month creditor claim window, and the one-year Final Accounting.

What If You Cannot Find the Original Will?

A copy of a will is generally not sufficient for probate in Delaware. The original document must be lodged with the Register of Wills. If the original is lost, you face a higher burden: Delaware law presumes that a missing will was revoked by the testator, unless you can rebut that presumption with clear and convincing evidence.

Rebutting the presumption typically requires witness testimony, attorney records showing the will was never destroyed, and evidence that the testator did not intend to revoke it. This requires a formal proceeding before the Court of Chancery — not an administrative task you can handle at the Register's counter.

If you suspect a will exists but cannot locate it, check with the decedent's attorney, bank safe deposit box, and home files before concluding it is lost.

The Delaware Probate Process Guide walks through the complete petition process for all three counties — including what documentation to bring, how to handle the Rule 190 waiver if you are working with an attorney, and how to determine whether the estate qualifies for the small estate track after HB 333's 2026 threshold increase.

The First Steps in Order

1. Locate the original will immediately after death
2. Identify the county of domicile — this determines which Register of Wills office has jurisdiction
3. File the original will within ten days of receiving notice of the death
4. Assess the estate's assets to determine the correct probate track
5. File the probate petition and qualify as executor (in person or through Rule 190 attorney waiver)
6. Receive Letters Testamentary and Short Certificates
7. Begin the three-month countdown to the Inventory filing

Starting with the right county and the right documentation prevents the most common delays that occur at the opening stage of Delaware probate.

See more Delaware guides →