Delaware

Delaware probate runs through the Register of Wills in each of the three counties. The
Register admits the will, issues letters testamentary or letters of administration, and
settles the estate — and, unusually, the office is a branch of the Court of Chancery. Contested
matters go to Chancery itself, the country's best-known court of equity.

No death tax

Delaware repealed its estate tax effective 1 January 2018, and there is no inheritance tax.
Only the federal return can arise. Material written before 2018 still discusses a Delaware estate
tax and a threshold matched to the federal figure; none of that applies now.

What the personal representative must do

• File the will with the Register of Wills, promptly.
• Publish and mail the notice to creditors; claims are barred after the statutory period.
• File an inventory within the period the Register sets.
• Pay the debts and file the final income tax returns.
• File an accounting for the Register to audit before distribution.

Delaware Registers audit accounts as a matter of routine and chase overdue filings, so keep to the
timetable.

A note on trusts

Delaware is one of the principal trust jurisdictions in the United States — directed trusts,
long-lasting trusts for personal property, and strong confidentiality. A Delaware-connected
decedent is more likely than most to hold assets in trust rather than passing them under a will,
and a Delaware trust may exist for a family who live entirely elsewhere. Establish what exists
before assuming the probate estate is the whole picture.

Before distributing

Let the creditor period run, settle the taxes, and get the accounting approved.

A Delaware will must be in writing, signed by the testator (or by another in the
testator's presence and at their direction), and attested and subscribed in the testator's
presence by two or more credible witnesses. The testator must be 18 or older and of sound
mind.

Delaware does not accept holographic wills

A handwritten will is fine if two witnesses attested it. Unwitnessed, it is not valid in
Delaware — the handwriting achieves nothing on its own, and there is no emergency exception.

Delaware is stricter than Pennsylvania immediately to the north, where a will signed personally by
the testator needs no witnesses at signing at all. A will made in one state and carried to the
other is worth having checked.

Make it self-proving

Attach a self-proving affidavit before a notary. The Register of Wills can then admit the will
without producing a witness, which is the ordinary Delaware practice.

Think about whether a will is the right instrument

Delaware families — and a great many families elsewhere — hold assets in Delaware trusts,
because the state's trust law is among the most developed in the country. If you have one, the
will should be a pour-over drafted alongside it, not a separate plan that contradicts it. A
will drafted in isolation from an existing trust is the most common cause of avoidable conflict in
a Delaware estate.

Also

• Name an alternate personal representative and consider waiving bond.
• A surviving spouse has an elective share whatever the will says.
• With no Delaware death tax since 2018, state tax planning is no longer a reason to complicate a
  Delaware will — only the federal exemption matters.
• Review after a marriage, divorce, birth or a move to Delaware.

Yes. A Delaware personal representative is entitled to reasonable compensation for
services rendered. Delaware prescribes no statutory percentage.

What "reasonable" turns on

The size and nature of the estate, the time actually spent, the responsibility assumed, the skill
the work required, the difficulty of any problems encountered, and the results achieved.
Practitioners often propose a percentage as a starting point, but no percentage is prescribed.

The Register audits the account

This is the practical difference from many states. Delaware Registers of Wills audit the
accounting as a matter of routine rather than only on complaint, and the compensation figure sits
on that account for an official to read. That is a discipline rather than an obstacle — a
representative who has kept records is rarely troubled by it, and one who has not will be asked.

Records decide it

With no schedule in the statute, contemporaneous time records are the argument. Dated entries
from the first week.

How it is approved

Compensation is claimed on the accounting and allowed by the Register, or agreed in writing by all
the beneficiaries. Settle it before taking it.

If the will fixes the figure

A will provision governs where the personal representative accepts the appointment on those terms.

Tax

Compensation is taxable income to the representative; an inheritance is not. Since Delaware
repealed its estate tax in 2018 and has no inheritance tax, there is no state death tax for the
fee to be deducted against — so unless the estate is large enough for the federal estate tax,
a family representative who is also a beneficiary usually converts an untaxed inheritance into
taxable income for nothing. Ask an accountant before deciding.

A Delaware personal representative is reimbursed from the estate for the reasonable expenses
of administration, separately from compensation. Everything appears on an accounting the Register
of Wills audits, so document as you go.

Normally claimable

• Funeral, burial or cremation, the headstone, and a reasonable reception.
• Register of Wills filing fees, certified letters, certified death certificates, and
  publication of the notice to creditors.
• Attorney's fees, and accountant's fees for the final Form 1040 and any Form 1041.
• Appraisals for the inventory, which the Register requires, and valuation of real property,
  vehicles, antiques, art and collections.
• Carrying costs on estate property until sale: insurance — including flood and windstorm cover
  on beach property at the shore, which must not lapse — property tax, utilities, security,
  maintenance, landscaping and snow removal.
• Homeowners' or condominium association fees, which continue regardless.
• Hurricane and coastal storm preparation on a Sussex County property.
• Cleaning, clearing, storing, moving and shipping contents.
• Travel on estate business at a reasonable rate.
• Bond premiums where the will did not waive bond.

Normally not claimable

• The representative's lost wages, meals near home, or personal spending — compensation covers
  those.
• Costs run up for one beneficiary's convenience rather than the estate's.
• Improvements beyond preparing a property for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open an estate bank account and run every payment through it. Because the Register audits the
accounting rather than merely filing it, an expense you cannot evidence will be queried — and the
query arrives months later, when reconstructing the answer is hardest.

Delaware's Register of Wills system makes routine estates approachable for a family member. A
corporate fiduciary or an attorney serving as personal representative earns its cost in
specific cases — and Delaware has more corporate trustees per head than almost anywhere, so the
option is genuinely available here.

Consider a professional when

• There is a Delaware trust as well as a will. Coordinating a trust administration with a
  probate estate, and working out which assets sit where, is the most common complication in a
  Delaware estate. It is also the case where a Delaware corporate trustee is already involved and
  can simply take the estate too.
• The estate is large enough for the federal estate tax, which since 2018 is the only death tax
  Delaware estates face.
• The estate holds an operating business, farmland, or beach property at the shore that has to
  be insured, maintained and let or sold.
• There is conflict among the beneficiaries, or a will contest looks likely — which puts the
  matter before the Court of Chancery, where a professional is on home ground and a family
  member very much is not.
• A beneficiary is a minor or incapacitated, so a trust runs for years.
• The named representative lives out of state and cannot readily deal with the Register or the
  property.

What it costs

Corporate fiduciaries charge a negotiated percentage with a minimum annual fee. Attorneys generally
bill hourly. Because Delaware prescribes no percentage, ask precisely what the basis will be, in
writing.

Middle ground

Appoint a family member, waive bond, and let them retain a Delaware attorney at the estate's
expense to prepare the inventory and the accounting for the Register's audit.

A named representative who does not want the job can decline before letters issue.