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The Probate Process: |
Below is some preliminary information that will explain the process of probating a will. We hope this is a helpful introduction to the probate process. If you have any questions, please contact us at (302) 395-7800. The process outlined below takes approximately 1 year.
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I. Personal Representatives (Executors/Administrators) |
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1. State law requires that if a person who dies has a will, the person holding that original will must file it with the Register of Wills office within ten days of learning of the death. A death certificate must also be presented at the time that the will is brought to be registered. The person(s) named in the will as Executor or Executrix of the will need to make an appointment to then file a petition with the Register of Wills seeking the authority to probate the estate. When there is a valid will, the Register will grant this authority which is called "Letters Testamentary" (and the person is called the "Executor" or "Executrix").
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2. If there is no will, the next of kin of the decedent have the right to petition the Register for authority to administer the estate. This authority is called "Letters Administration" (and the petitioner is called the "Administrator" or "Administratrix"). In the absence of a valid will, the right to petition goes in the following order of priority: (1) surviving spouse; (2) children; (3) parents; (4) brothers and sisters. If there are no next of kin having a priority or none has applied to administer the estate within sixty days of the decedent's death, then any interested party may be appointed by the Register. |
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II. Duties of the Personal Representative |
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1. When the Register of Wills grants Letters Testamentary or Letters of Administration, the estate is considered "open". Executors or Administrators (Personal Representatives) have several responsibilities. They must: |
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 Pay costs to open the estate at the time of petitioning. These costs are based on the value of the estate assets. Costs in New Castle County usually average about $100.00. |
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Publish legal notice of the estate in a local newspaper. This is to notify creditors who have 8 months to make claims against the estate. |
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Inquire about, collect, manage, and protect all probate assets. |
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File an inventory of the assets, including jointly held property, within 3 months. |
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Set aside a spouse's allowance from the assets, if requested. |
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Pay valid debts to creditors of the estate. |
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File and pay any federal and state death (estate) taxes, if due, within 9 months of death. |
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File an accounting within 1 year of opening of the estate. This is a report of the total probate assets received, income earned by the estate, and the debts paid. The net value of the estate is determined from these figures. |
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Close the estate and pay a closing fee, which is 1.75 % of the net personal assets of the estate. Real estate assets are not considered in determining closing fees. |
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After the closing of the estate with the Register of Wills, payment of estate tax returns, if required, and the issuance of a receipt of a Certificate of Clearance from the Delaware Division of Revenue, make distributions to the heirs. | |
(302) 395-7800
