Real Property and Probate in Delaware

When a property owner in Delaware dies, the decedent’s estate must be opened in probate, with some exceptions. In Delaware, the Register of Wills – a division of the Chancery Court – oversees estate administration in the county in which the decedent resided.

The process by which a decedent’s real property passes to those named in a will or to rightful heirs through intestate succession (when the decedent dies without a will) is called probate. Property exempt from the probate process includes survivorship assets, assets held in trust, and certain qualifying small estates.

At the beginning of the probate process, the Register of Wills approves a personal representative to take control of the decedent’s estate through the granting of letters. In Delaware, the personal representative is called an executor when named by a will, or an administrator when the decedent either dies without a will, or fails to name an executor in a will. The letters authorize the personal representative to act on behalf of the estate.

To open probate when a decedent has died testate (with a will), the will must be proved at the Register of Wills office. If the decedent died intestate, a person designated under 12 Del. C. § 1505 may petition for grant of letters of administration. For either situation, the death certificate is required. Persons entitled to become administrator include the decedent’s surviving spouse, the decedent’s children, the decedent’s parents, and the decedent’s siblings.

Among other duties, the personal representative gathers and takes inventory of the decedent’s assets, pays any valid claims on the estate, files any necessary affidavits or estate taxes, and conducts all accounting for the estate.

In Delaware, title to real property devised by will or passed by intestate succession vests “immediately upon death to the beneficiaries” and does not require a new deed. The chain of title is reflected “through documents filed at the Register of Wills office and forwarded to the County Assessment Office” [1,2,3].

For jointly held title to real property, the surviving spouse or joint tenant files an affidavit, which removes the decedent’s name from the property for tax purposes only [4]. To officially remove a name from a deed, another deed must be executed. Contact an attorney with questions.

A personal representative may be required to sell real property if the will dictates (see 12 Del. C. § 2719), or if the debts of the estate necessitate a sale to raise the required funds. The personal representative must petition the Chancery Court for an order of sale to pay the estate’s debts. The process for selling real property, including priority of payment of debts and surplus, is outlined at 12 Del. C. § 2701 et seq. The Court may refuse an order of sale or refuse to approve a sale under 12 Del. C. § 2717.

The statutory form for a conveyance of real property in Delaware is a special warranty deed. In a personal representative’s deed, the administrator or executor is the grantor, conveying all the title that the decedent had at the time of death to the grantee.  The terms “grant and convey” warrant the title against the grantor and all persons claiming under the grantor (25 Del. Co. § 121). In addition to requirements of a statutory deed, the personal representative’s deed includes information about the decedent, including name, date of death, and information regarding the open estate.

The personal representative signs the deed in the presence of a notarial official and records the deed and all necessary supporting documents in the Recorder of Deeds office where the property subject to transfer is located. Bear in mind that deed formatting standards vary across Delaware’s three counties.

Delaware Personal Representative Deed Form

Consult a lawyer with questions regarding personal representative’s deeds or other issues with probate in Delaware.