This probate information is for general informational purposes only. It does not, and is not intended to, constitute legal advice and should not be constructed as such.

This information is being presented in accordance with Ordinance No. 24-054, passed by Wilmington City Council on December 12, 2024, which requires funeral service providers to provide the family or other representatives of the deceased with a copy of this information sheet.  It includes important information about probating estates in the City of Wilmington, which will facilitate a smooth transfer of the deceased’s assets.

Important Definitions

Estate

All property, including homes, vehicles, bank accounts, etc. and other real and personal property, owned by a person at his/her death.

Will

A document legally executed by a person in which the person declares the way by which his/her property should be disposed of after his/her death.

If a person does not have a valid will, Delaware law determines who will have the person’s property after his/her death, which is called intestate succession.

Probate

A legal process that:

1. when there is a will, determines that a will is valid and should be carried out; or
2. when there is not a valid will, otherwise determines who should receive property from the decedent’s estate.

Why It Is Important to Probate an Estate

In Delaware, an estate must be probated if (i) the deceased owned more than $30,000 in personal property in his/her name alone; OR (ii) the deceased owned real property in his/her name alone (either solely held or as a tenant in common).  Any property that has not gone through the probate process while required could not be legally transferred, even if the deceased previously filed a will.

Problems would arise in situations where, for example, you live in a home and consider yourself the homeowner, after the passing of a relative.  But if the estate (including the home) has not been properly probated, you may not take legal ownership of the home and the home is subject to a clouded title.  Most likely your name would not be on the deed either, which may cause a series of issues, such as failure to obtain loans or grants, get homeowner’s insurance, or access utility or tax assistance programs.  Addressing clouded titles before there is an emergency like a foreclosure, utility shutoff, or structural damage is an important part of protecting homes for generations to come.

What Do I Do First? Start the Probate Process

Contact the New Castle County Register of Wills as soon as possible after the passing of the decedent. The Register of Wills will walk you through the probate process and guide you on how to complete your paperwork.

Keep in mind that, although the Register of Wills could describe to you how the probate process looks like, it may not provide legal advice. You may consider hiring an attorney in helping you with implementation.  The Register of Wills maintains a list of attorneys practicing probate law in Delaware that could be found on its website.  You may also request a copy from its office.

What Next After Probate is Complete? Record a New Deed

After probate is complete, you must record a new deed to take legal ownership of any home or real property that has been distributed to you from the estate. Have a lawyer, title company, or other real estate professional prepare the deed and record the new deed with the New Castle County Recorder of Deeds.

Questions About This Law

For questions about this information and/or compliance with this law, please contact the City of Wilmington Department of Real Estate and Housing:

• Dial 311 (within City limits) or (302) 576-3030 (outside City limits)

The information on this page is also available as a downloadable PDF by clicking this link.