Delaware Last Will and Testament

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.