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Living trust or probate

Delaware

A funded revocable living trust lets the successor trustee handle assets titled to the trustee. Property left in your own name can still be a probate matter in Delaware.

CourtRegister of Wills and the Court of Chancery

Where the estate is opened.

Small-estate figure$50,000

Only if the statute's conditions are met. Read the section below.

TaxNo current estate tax

See the tax section for the exemption or the repeal.

Living trust or probate

A revocable living trust holds assets you title in the trustee's name. You can serve as trustee while you are able.

At death, the successor trustee handles those assets. Property you leave in your own name can still go through the probate court. A pour-over will sends leftover assets into the trust, and those leftover assets may pass through probate first.

The probate path

In Delaware, the estate is opened in the Register of Wills and the Court of Chancery.

An executor or administrator must render an account of administration to the Court of Chancery, in money, every year from the date of letters until the estate is closed and a final account is passed by the Court. The Register of Wills receives the accountings filed for the Court's approval and mails notice that an account is open for inspection and exception for 3 months. The ordinary path is appointment of a personal representative. Section 2306 is the alternative that avoids waiting for that appointment when its affidavit conditions are met.

Source: 12 Del. C. sec. 2301

Fees

In Delaware, probate compensation is a statutory commission.

Title 12, section 2305 does not set a percentage. It says commissions and attorneys' fees shall be allowed as provided by rule of the Court of Chancery. No commission is allowed to an executor or administrator who has not complied with Title 30, Chapter 13, and the Court may reduce commissions and attorneys' fees if accounts are late. The opened Court of Chancery rules did not state an executor percentage schedule.

Source: 12 Del. C. sec. 2305

Calculator

Probate cost

The result is the statutory schedule on this page applied to the amount you enter.

a figure you want to compare with the small-estate amount on this page

Small estate

Delaware's small-estate figure on this page is $50,000 when the statute's conditions are met.

Section 2306 lets specified relatives, a qualifying named executor, a trustee of a trust created by the decedent, or a Delaware funeral director take the personal estate for distribution without waiting for a personal representative or probate of a will, by an affidavit. The affidavit must state that no appointment petition is pending or granted, that 30 days have elapsed since death, that the personal estate other than property described in section 1901(b) and (c) and other than jointly owned property does not exceed $50,000, that known debts are paid or provided for, that the spouse's allowance is paid, provided for, waived, or expired, and that the decedent did not own Delaware real estate solely or as tenants in common. The Register of Wills may issue the affidavit.

Source: 12 Del. C. sec. 2306

Estate or inheritance tax

Delaware has no current estate tax on the page linked below.

Title 30, Chapter 15, Estate Tax, is marked repealed, effective January 1, 2018, for sections 1501 through 1507. Title 30, Chapter 13, Subchapter I, the former inheritance tax provisions, is marked repealed by 71 Del. Laws, c. 353, section 10, effective January 1, 1999. The code pages say repealed. They do not use the sentence no estate or inheritance tax.

Source: 30 Del. C. Chapter 15, Estate Tax [Repealed]

Questions

The answers use the same statute and court pages as the sections above.

Does a living trust avoid probate in Delaware?

A revocable living trust holds the assets you title in the trustee's name. The successor trustee handles those assets. Property still titled in your own name can be a probate matter. A pour-over will can send leftover assets into the trust, and those leftover assets may still pass through probate first.

What is the small-estate procedure in Delaware?

Section 2306 lets specified relatives, a qualifying named executor, a trustee of a trust created by the decedent, or a Delaware funeral director take the personal estate for distribution without waiting for a personal representative or probate of a will, by an affidavit. The affidavit must state that no appointment petition is pending or granted, that 30 days have elapsed since death, that the personal estate other than property described in section 1901(b) and (c) and other than jointly owned property does not exceed $50,000, that known debts are paid or provided for, that the spouse's allowance is paid, provided for, waived, or expired, and that the decedent did not own Delaware real estate solely or as tenants in common. The Register of Wills may issue the affidavit.

How are probate fees set in Delaware?

Title 12, section 2305 does not set a percentage. It says commissions and attorneys' fees shall be allowed as provided by rule of the Court of Chancery. No commission is allowed to an executor or administrator who has not complied with Title 30, Chapter 13, and the Court may reduce commissions and attorneys' fees if accounts are late. The opened Court of Chancery rules did not state an executor percentage schedule.

Does Delaware tax an estate or an inheritance?

Title 30, Chapter 15, Estate Tax, is marked repealed, effective January 1, 2018, for sections 1501 through 1507. Title 30, Chapter 13, Subchapter I, the former inheritance tax provisions, is marked repealed by 71 Del. Laws, c. 353, section 10, effective January 1, 1999. The code pages say repealed. They do not use the sentence no estate or inheritance tax.

Sources

These are the statute and court pages used above.

TaxFreeTrusts

TaxFreeTrusts writes the guides on this site and drafts the will and living trust packets at the prices posted on the page. Dollar figures in the guides are copied from the statute, IRS page, or court site linked beside them.