Steps in Probating An Estate

The state law requires that the Will of a decedent be filed with the Register of Wills in the county where the decedent was domiciled. The Will needs to be proven if it is not a "self-proven" document. For a will to be self-proven, after the testator and the witnesses have signed the Will, and additional page is attached that is an affidavit which is signed by all again, then notarized. If the Will has this affidavit page, it will be considered self-proven. If it does not, then the two witnesses to the Will must come to the Register of Wills Office to take an oath that they witnessed the decedent sign the will. If the witnesses are deceased or unavailable, two other people familiar with the handwriting of the witnesses may come to the Register of Wills Office to take an oath as to the signature(s) on the Will. If the witnesses' signatures cannot be proven, then two disinterested individuals can prove the decedent's signature. A disinterested individual is someone who does not benefit from the will.

Opening the Estate

You will need the original Will and a certified copy of the Death Certificate on hand when you call the Register of Wills. If there are no next of kin, or any relatives to administer the estate within sixty (60) days from the date of death, the Register of Wills Office may then at their discretion, appoint any interested person to be the Administrator. To administer a Probated Estate, you must make an appointment. (Sussex County Register of Wills (302) 855-7875). You will be asked a series of questions pertaining to the decedent's next of kin, solely held personal property, and solely held assets, an opening fee is paid to the Register of Wills. Please see the fee listing to determine the approximate opening fees. At the time of the opening, "Short Certificates" are issued. These are papers that allow the personal representative to conduct business on the behalf of the estate.

Filing the Inventory

Within three (3) months after the granting of letters (the date the estate was opened), the Inventory is to be filed in this office. The cost for this is $15.00. The inventory is a list of the assets of the estate that have been appraised, including real estate. The inventory will be reviewed, and if there are any mistakes, it will be sent back to the personal representative to be corrected. On the inventory the personal representative must list the assets, both personal and real-estate, on the proper schedules, along with the value of those assets at the time of death. Also to be included is the name, address, relationship, and share of the person(s) who inherited the real estate when the owner died as well as the tax parcel number of the property.

Division of Revenue Inheritance and Estate Taxes

Deaths occurring on or after 1/1/1999

As of 1/1/1999, there is no Delaware inheritance tax or requirement to file and inheritance tax return. There is a requirement that if no Delaware estate tax is due, an Affidavit that NO Delaware Estate Tax Return is Required must be filed. The filing for the affidavit is $10.00

Deaths occurring between 1/1/1989 and 12/31/1998

Within nine months of the date of the decedent's death, an inheritance tax return must be filed with the Division of Revenue. For decedents who passed away after 1/1/1989, if no inheritance tax is due, an Affidavit That No Inheritance Tax is Required may, in some cases, be filed in place of the return. The Register of Wills files this affidavit and it will be forwarded to the Division of Revenue. The filing fee for this is $10.00.

Deaths occurring on or before 1/1/1989

For decedents who died prior to 1/1/1989, it is necessary to file an inheritance tax return even if no tax is owed. When death occurred after 12/31/1976, the return commonly known as the "Form 600 Inheritance" is used.

Filing the Accounting Form

The next filing requirement with the Register of Wills is the accounting. It is to be filed within one year of the date of granting of letters. An accounting begins with the total value of the decedent’s solely owned personal assets as stated on the inventory ("total of probate assets") and any additional amount which may have come into the estate since the inventory was filed. On the second page, deductions for administrative cost, debts, funeral expenses, and personal representative and attorney fees are listed. All expenses should be identified individually and the amount paid shown.

If the decedent’s real estate is sold under the direction of the Will, the gross proceeds are to be included under the additional assets section of the accounting. The settlement costs should be included as an item under administrative expenses. A copy of the settlement sheet must be attached to the final accounting.

To compute the closing costs, add all the deductions on page two (2), down through commissions taken. Subtract total deductions from the total assets shown on page one (1). If the total is greater, the difference is known as the “net personal estate.” The closing costs are then determined by taking 1.25% of the net personal estate plus $20.00 for recording and indexing, and $5.00 for each release that you wish to file with the Register of Wills.