Creating a Delaware last will and testament is important if you wish to have control over the distribution of real and personal property upon your death. Delaware wills give the person writing the will, called the testator, the opportunity to provide for a spouse, children, other loved ones, and pets after her death. You can also make a charitable contribution via your Delaware will.
It is important to note that a last will differs from a living will in that the latter provides instructions in the event that you become incapacitated and cannot make decisions regarding your health and medical care. Delaware explicitly allows living wills, called advance directives under Delaware law.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
Having a last will and testament can be beneficial for many reasons, including the fact that it allows the testator to choose the executor of her estate, the person who will be responsible for carrying out the wishes contained in the will. If you do not choose an executor of your estate in a will, a court will do so for you.
A will can serve various purposes, most notably by providing a way for the testator to detail how assets such as real property, personal possessions, and business holdings, should be divided upon her death. In general, Delaware law permits you to dispose of your property as you see fit, with some exceptions as described more fully below.
Moreover, a Delaware will allows you to name someone as the legal guardian of your children and/or handle property left to minor children.
In addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people), Delaware law explicitly permits the creation of a trust to provide for the care of an animal or animals alive during the settlor’s lifetime. A Delaware will gives you the opportunity to set up this kind of pet trust, which terminates upon the death of the animal or animals provided for in the trust.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
In Delaware, the will must be delivered to the county register of wills within ten days after the death of the testator to begin the probate process. Once debts and taxes of the estate are paid, the property as designated in the will may be distributed.
Intestacy: Dying Without a Will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Delaware in the absence of a will, the share of a surviving spouse depends on whether there are also surviving children or parents of the decedent. If there are neither, the surviving spouse inherits the entire estate.
If there are no surviving spouse, children, or parents, the estate goes to siblings, and so forth down the family line. The closer the relative, the higher the priority to inherit.
As you can see, it is crucial that you execute a will if you would like to have control over the distribution of your assets and to avoid the application of Delaware intestacy laws.
Exceptions to Ability to Distribute Property
Not all property owned by the testator may pass through a Delaware will; for example, property owned in joint tenancy with the rights of survivorship passes automatically to the survivor.
Although generally you may provide for the distribution of your assets after your death as you wish, Delaware law does give a surviving spouse the right to an elective share in the elective estate (gross estate for federal estate tax purposes) minus the amount of all property transfers to the surviving spouse.
Form a Last Will in Delaware
The basic requirements for a Delaware last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of “sound and disposing mind and memory.”
- Signature: In order to be valid, the will must be signed by the testator or by someone other than the testator in her name, in her presence, and by her express direction.
- Witnesses: At least two witnesses are required for a valid Delaware will.
- Writing: A Delaware will must be in writing to be valid.
- Beneficiaries: Delaware does not limit the class of beneficiaries who may be included in a will.
Other Recognized Last Wills in Delaware
Delaware also recognizes holographic (handwritten) wills so long as they comply with all of the other requirements of wills as listed above.
Changing a Delaware Last Will and Testament
A Delaware last will may be changed whenever the testator wants to do so through a codicil, an amendment to the will that must follow the execution procedures of wills.
Revoking a Delaware Last Will and Testament
The revocation of a Delaware will can be accomplished in the following way:
A last will and testament, or any clause thereof, shall not be altered, or revoked, except by canceling by the testator, or by some person in the testator's presence and by the testator's express direction, or by a valid last will and testament, or by a writing signed by the testator, or by some person subscribing the testator's name in the testator's presence and by the testator's express direction, and attested and subscribed in the testator's presence by 2 or more credible witnesses.
Note that in Delaware, if a testator gets divorced after executing a will, any bequests or nominations (such as to serve as executor) in favor of the ex-spouse are revoked by operation of law unless the will expressly provides otherwise.
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