Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. Delaware wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with the testator (or the person making the will), to create valid Delaware wills and to assign a person (called the executor in most states) to administer a Delaware last will and testament after the death of the testator.
Basic Requirements for a Delaware Last Will and Testament:
Age: The testator must be at least 18 years old.
Capacity: The testator must be of sound (capable of reasoning and making decisions) and disposing (free of restraint) mind and memory.
Signature: A Delaware last will and testament must be signed by the testator or be signed by some person in the testator's name in the testator's presence and by the testator's express direction.
Witnesses: Two witnesses must sign the Delaware last will and testament in the testator's presence.
Writing: A will must be in writing to be valid.
Beneficiaries: A will may make a disposition of property to any person.
Distribution of Property:
A will is a legal document created by you to determine how your property, known as your estate, is distributed after your death. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, Delaware laws allow you to dispose of your property as you wish.
Other Purposes of Wills:
Our Delaware wills form may be used to designate a guardian for any minor children.
Our Delaware wills form may also be used to name an executor (also called a personal representative) to handle a testator's property and affairs from the time of death until an estate is settled.
Notable exceptions to the ability to distribute property:
Property owned in joint tenancy with a right of survivorship automatically passes onto the surviving owner.
Spousal elective share: If a married person residing in this Delaware dies, the surviving spouse has a right to take one third of the elective estate (decedent's gross estate for federal estate tax purposes), less the amount of all property transfers to the surviving spouse by the decedent.
Providing for Pets
Delaware law currently does not have specific statutes pertaining to providing care for pets. However, the testator may specify a beneficiary as the new owner of a pet using our Delaware wills form. There is pending legislation to recognize pet trusts, by which you may designate a caretaker for your pets.
Changing and Revoking
Changing a Will
A Delaware will and testament may be changed whenever the testator desires.
A Delaware will and testament can be changed through a codicil, which is a document stating additions or changes to the original will. Codicils must be executed in accordance with Delaware laws.
Revoking a Will
A Delaware will and testament may be revoked:
- by the testator, or by some person in the testator's presence and by the testator's express direction, canceling the will;
- by a valid last will and testament;
- by a writing signed by the testator, or by some person signing the testator's name in the testator's presence and by the testator's express direction, and attested and signed in the testator's presence by 2 or more credible witnesses.
Probate and Estate Taxes
After the testator has died, probate procedures prove the validity of a Delaware last will, pay off debts and taxes of the estate, and distribute property as designated in the Delaware last will. Ten days after the death of the testator, the will must be delivered to the county register of wills to initiate the probate process.
Delaware's estate tax is equal to the death tax credit under Federal estate tax system. In general, if Federal estate taxes are due from probate of a Delaware last will, then no additional state estate taxes are required. Any required estate taxes should be filed within 9 months of the testator's death.
It is extremely important to make a Delaware will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict Delaware laws.
For example, a spouse will receive the entire estate when no children or parents exist at the time of the decedent's death. When only children survive after the death, then the children share the property in equal amounts.
If you make a Delaware will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.