Click on the + sign to expand a question.
|
General Information |
 What does the Register of Wills office do? |
| This office registers the wills of New Castle County residents after they have passed. We give executors or administrators the authority to collect assets, pay creditors and distribute assets (the "estate"). We also provide safekeeping for Wills (of living people) and assist in genealogy and title searches. |
| How do I see the Will of someone who died in Kent or Sussex County? |
| You should contact the office of the Register of Wills in the county in which the person who died domiciled at their time of death. To reach the Kent County Register of Wills, call (302) 744-2330. To reach the Sussex County Register of Wills, call (302) 855-7875. |
| If I put my Will in for safekeeping at your office, can other people see it? |
| No. Wills kept for safekeeping in our office are NOT public record. |
| What is the format of your records? |
| It varies. Older estates are stored on microfiche or microfilm depending on the age. The more recent estates are kept as paper files. We hope to have documents available online in the near future. |
| Are your records available on the internet? |
| At the moment, you can use our Wills Finder to search for a file to find out the file number, date of death, date file was opened, decedent's address, name and address of personal representative and/or attorney, date the inventory was filed, date the estate was closed and cleared, and who filed the will. For more information or to actually see the documents, individuals can review files in our office or purchase copies. We hope to have documents available online to view in the future. |
| How can I get a "Power of Attorney"? |
| You should seek professional advice to get a power of attorney. The Register of Wills office does not draw up Wills, powers of attorney, "living wills", or other legal documents. Please note that a power of attorney and related documents become void after death. |
| A person who died owed me money. How do I file a claim against the estate? |
| Complete a Statement of Claim along with supporting documentation and the filing flat fee of $20.00. Please note that claims must be filed within 8 months from the date of death. |
| What is an estate? |
| An estate is everything a person owns (excluding assets in a trust) at the time of death, including money, real estate, collections, tools, appliances, jewelry, etc. |
| How far back do your records go? |
| Our records date back to the 1600s. |
| Do you have estate records for the entire state? |
| NO. We only have records for people who were domiciled in New Castle County at the time of their death. To see if we have a file for a decedent, you can visit our Wills Finder. |
| A relative of mine recently passed away. How can I find out when the estate is opened?
|
| Unfortunately we cannot send out notifications when estates are filed. You can visit our Wills Finder online to search for a file or you can call us at (302) 395-7800. |
| How can I get a copy of a death certificate? |
| The Register of Wills office does not supply death certificates. The Office of Vital Statistics provides information on death certificates and can be reached at (302) 995-8586. |
| Who do I contact regarding estate or inheritance taxes? |
| Please contact the Delaware Division of Revenue at (302) 577-8170 for information about estate and inheritance taxes. |
| How do I get copies of Wills, etc. from the Register of Wills? |
| Copies of Wills and other estate documents can be ordered through our office. There is a fee for this depending on the type of copy and number of pages (Please see our fee schedule). Copies can be obtained by sending a written request with payment to: New Castle County Register of Wills, 2nd Floor, Louis L. Redding City/County Bldg., 800 North French Street, Wilmington, DE 19801. You can also visit the Register of Wills office to make your own copies or call us at (302) 395-7800. |
| Who can get copies from an estate file? |
| Once a will is filed for a decedent, it becomes public record. Therefore, anyone can get copies or review files in our office. However, we only have information on people who were domiciled in New Castle County at the time of their death. |
Personal Representatives |
| Who distributes my inheritance? |
| The personal representative distributes the assets of an estate. This person is either named in the will (executor) or else it is the next of kin or an appointee of the Register of Wills, determined by Delaware law (administrator). Felons and incompetents cannot serve as personal representatives. In addition, both executors and administrators can decline to serve or renounce if they so choose. Note: Sometimes, more than one person is named or appointed. They are co-executors or co-administrators. |
| If someone is named as executor in the will, does that person still need to go to the Register of Wills office? |
| Yes. Even though someone is named as the executor, they cannot conduct business unless provided with the appropriate documents from the Register of Wills office. |
| Who is in charge of submitting the necessary paperwork to begin the probate process? |
| The personal representative. |
| How does the personal representative get the authority to conduct business? |
| A potential executor or administrator needs to open an estate. To do this, go to the Register of Wills for the county in which the person who died was domiciled. If this is New Castle County, you can contact us at (302) 395-7800 to set up an appointment and find out what documents are needed. |
| What if the personal representative (executor) does not wish to serve? |
| The personal representative can renounce his or her duties in writing and the named alternative or the next of kin according to Delaware law will then act as the personal representative. |
| What if the named personal representative wishes to be removed after being appointed? |
| The personal representative can renounce his or her duties in writing and the named alternative or the next of kin according to Delaware law will then act as the personal representative. |
| What are the duties of a personal representative? |
| The responsibilities of a personal representative include filing a certified copy of the death certificate, paying the costs to open the estate (varies depending on value of solely held personal property), post bond if necessary, publish legal notice of the filing of the petition in a local newspaper to give creditors notice, collect, manage and protect all probate assets, file an inventory of the assets within 90 days of opening the estate, pay the debts of the decedent, file an accounting with the Register of Wills office within one year of opening the estate, and close the estate at the Register of Wills office (there are also closing fees). For more information, please refer to page 14 in our brochure, Your Will and the Delaware Probate Code or call us at (302) 395-7800. |
| What if I am not satisfied with the way the personal representative is performing his or her duties? |
| You should seek professional advice because the court may need to be involved. |
| How does being a felon effect my ability to be a Personal Representative? |
| Anyone convicted of a felony could not take an oath and therefore could not be appointed a Personal Representative. |
Probate Process |
| When is it necessary to probate an estate? |
| If the person who died had more than $30,000 (if the date of death is after 5/1/2004) in personal property in his or her name alone or if the person who died had real estate in his or her name alone, it is then necessary to probate the estate. |
| What is the procedure to probate an estate with a will? |
| The personal representative should make an appointment to bring the necessary documents (including a death certificate) to the Register of Wills office. If you have questions about what documents to bring or to make an appointment, please call (302) 395-7800. |
| What are the steps involved in the probate process? |
| First, the Will must be filed with our office and proven. Then, if there is solely owned real estate or if the assets are $30,000 or more, "letters" or authority are granted to the personal representative. Shortly thereafter, the personal representative must file an inventory of assets. Fees, taxes and creditors must be paid if necessary. An accounting should be submitted to the Register of Wills office within one year of opening the estate. Then the estate is closed and the assets are distributed. |
| Who is in charge of submitting the necessary paperwork involved in the probate process? |
| The personal representative. If the person is named in the Will, the person is called the "executor". If there is no Will, the person is called the "administrator". Felons and incompetents cannot serve as personal representatives. In addition, both executors and administrators can decline to serve or renounce if they so choose. Note: Sometimes, more than one person is named or appointed. They are co-executors or co-administrators. |
| How does a deed for inherited real estate get transferred? |
| The Register of Wills does not prepare or record deeds. You should contact your lawyer or contact the Recorder of Deeds office for the county in which the land is located. If it is New Castle County , the Recorder of Deeds office can be reached at (302) 395-7700. |
| What if the only property was jointly owned? |
| If a decedent's real and/or personal property are owned jointly with someone other than a spouse, the surviving joint tenant should file an inventory with the Register of Wills and an inheritance tax return with the State Division of Revenue. If the real and personal property are joined with a spouse, the spouse may file an affidavit with the Register of Wills. The spouse need not file an inheritance tax return. |
| What if the only asset was a motor vehicle? |
| If a decedent does not have solely owned real estate and has less than $30,000 in solely owned personal property, then the closest next of kin (spouse, children, parents, brothers and sisters, grandchildren, grandparents and funeral directors, in that order) may obtain possession of that personal property by executing a "small estate affidavit" at the Office of the Register of Wills thirty days after the date of death. To view a pamphlet about the transfer of motor vehicles and small estate affidavits after a person passes away, click on small estate in the menu on the left. |
| What is a small estate affidavit and how can I get one? |
| A small estate affidavit allows you to gain access to the decedent's assets without going through the entire probate process. The named executor in the original, valid, self-proven will or if there is no will, the closest next of kin may obtain a small estate affidavit from our office thirty days after the date of death if the person who died did not solely own Delaware real estate and did not own more than $30,000 in assets (if the date of death was after 5/1/2004). To view a pamphlet about the transfer of motor vehicles and small estate affidavits after a person passes away, click on small estate in the menu on the left. |
Wills |
| What is a Will? |
| A will is a written plan. It is a set of legally enforceable orders directing the transfer of property to the named beneficiaries effective upon the death of the maker. A will controls what happens to assets that are not in a trust. |
| Where should I keep my Will? |
| This is your decision but we recommend that the original is kept in a secure location, such as the Register of Wills office or an attorney's office. It is NOT a good idea to keep your will under your bed. Make sure to give your personal representative a copy of the will or instructions as to where it is kept. |
| Can I leave instructions about my funeral? |
| Yes. It is a good idea to prepare a Letter of Last Instruction so your heirs or executor(s) can locate your Will and other important documents. This letter may explain where you keep your Will, the names and addresses of people you would like to be notified of your death, and where to find documents such as titles, deed, stocks, bonds, insurance policies, etc. It may also explain how to contact your employer in order to receive death benefits, and where your safe deposit key can be found. This letter may also include instructions for your funeral and burial. A law passed in 2004 gives you more control of funeral and burial arrangements than in the past. Be sure to speak with a licensed funeral director to get a full explanation. |
| What happens to your Will after you die? |
| Your Will is filed at the Register of Wills office in the county in which you were domiciled at the time of your death. It is the legal duty of any person in possession of any document that might be a will to deliver it to the Register of Wills within 10 days after receiving notice of your death. The original Will (not a copy) must be filed with our office. |
| What happens if I die without a Will? |
| If you die without a Will or your Will is rejected, your estate is considered to be "intestate". Intestate estates are divided among the decedent's spouse and other heirs according to Delaware's laws. For more information, please refer to page 3 of our Your Will and the Delaware Probate Code brochure. |
| If the decedent didn't have any assets does the Will still have to be filed? |
| Yes, the decedent's Will must be filed in the County in which the decedent was domiciled at the time of death. |
| How do I make a "Living Will"? |
| A living will specifies to what extent you would like to be kept alive if you are terminally ill or become incapacitated. It also appoints your health care agent, who will make health care decisions on your behalf. It is important to specify your wishes in writing so your entire family can be certain when making important decisions about your health care. The Delaware Attorney General office has created a pamphlet about end of life decisions. A copy of a living will can be downloaded at www.state.de.us/attgen/. |
| What is a trust? |
| A trust is a written document that controls the disposition of certain designated property. It requires that title to the property be transferred to the trust for a period of time, for certain purposes, and eventually distributed to certain beneficiaries. Revocable trusts may be amended before or after the making of the Will. By their nature, they are inter vivos. Please seek professional advice to discuss the advantages of having a trust. |
| Can a will be filed with the Register of Wills before death? |
| Yes, the maker of a will or the maker's attorney can bring the ORIGINAL will to the New Castle County Register of Wills office. This is called "Wills for Safekeeping". There is a one-time fee of $10. |
| Who can withdraw a will once it has been placed in safekeeping at the New Castle County Register of Wills office? |
| Only the testator (maker) with a proper ID or the testator's attorney. |
| Should I have a Will? |
| There are many good reasons to have a Will. You may wish to leave your estate to persons who might not otherwise receive any property or the amounts you desire, under the laws that control what happens when someone dies without a will. A will may also avoid family squabbles. Wills are also used to protect your minor children by naming possible guardians for them. Properly drawn Wills make estate planning easier when the goal may be avoiding death taxes. |
| Can the Register of Wills prepare my will for me? |
| No. The Register of Wills office cannot give legal advice. The Register of Wills office does not draft Wills. Whenever possible, a lawyer should draft your will to avoid problems which may either make the will useless or cause problems in interpreting its terms. Lawyer fees vary and you should ask about cost during your initial contact with the lawyer's office. If you do not know a lawyer experienced in drafting wills, please call the Register of Wills office at (302) 395-7800 to request a list of attorneys who frequently handle estates. Please note that the Register of Wills office provides this list as an aid; it does not list every attorney in Delaware that practices in this area and this list is not intended as an endorsement of any particular attorney. |
| What should I do to prepare to make my Will? |
| We strongly encourage you to seek professional advice to draw up your Will. Whenever possible, a lawyer should draft your will to avoid problems which may either make the will useless or cause misinterpretation of its terms. Lawyer fees vary and you should ask about cost during your initial contact with the lawyer's office. If you do not know a lawyer experienced in drafting wills, please call the Delaware State Bar Association at (302) 658-5279 or call the Register of Wills office at (302) 395-7800 to request a list of attorneys who frequently handle estates. Please note that the Register of Wills office provides this list as an aid; it does not list every attorney in Delaware who practices in this area and this list is not intended as an endorsement of any particular attorney.
BEFORE you meet with your attorney, make a list of your personal property, money, and real estate holdings. Locate your deed, account statements, and insurance policies. List people to whom you want to leave property. Make sure you choose your executor carefully. |
| What makes a Will valid? |
| The maker must be at least 18 years of age and of disposing mind and memory. The Will must be in writing. The Will must be signed by the maker or signed by a person writing the maker's name in his or her presence and at the maker's direction. The Will must be witnessed by two or more credible witnesses who write their names in the presence of the maker. It is also a good idea to have all signatures notarized. In Delaware, a beneficiary to the Will may be a witness although in some states this is not allowed. |
| Are holographic wills (written entirely in the testator's handwriting) legal in Delaware? |
| They are only valid if other legal requirements are met, including 1) the maker must be 18 and of sound mind, 2) the will must be in writing and signed by the maker or a person writing the maker's name in his or her presence and at the maker's direction, and 3) The will must be witnessed by two or more credible witnesses who write their names in the presence of the maker. |
| Is a Will made in another state valid in Delaware? |
| A valid will from another state is also valid in Delaware if it complies with Delaware law or complies with the law in the state where it was executed, or it complies with the law, where, at the time of death, the maker is a legal resident or a national (foreign citizen). |
| What makes a Will proven? |
| A Will is "proven" when its witnesses swear to its validity. It is "self-proved" when the signatures appearing on the Will were previously notarized. If a Will is not proven, it is rejected and has no force or effect. |
| Can I change my Will? |
| Yes. An entire Will can be revoked at any time by destroying the original document, making a new Will revoking the previous Will, or by written direction signed by the maker and witnessed by at least two witnesses. You can also change parts of a Will by making a "Codicil". This is a document that must be executed with the same formalities as the original Will, and it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in a Will. In addition, some changes to your Will may occur due to events in your life. For example, a divorce removes a former spouse from any role as executor and removes any right to inherit. Also, children who are not provided for in a Will who were born after the Will was executed can claim their share of the estate as though the decedent died without a will. |