DE state guide
Delaware estate risk overview
This guide explains how estate outcomes work in Delawarewhen there is no plan. We cover intestacy rules, probate flow, guardianship defaults, and tax exposure in clear, educational language.
Snapshot
Key default outcomes
- Intestacy laws determine who receives assets.
- Probate court oversees the estate and public filings.
- Guardianship for minors is court-appointed if needed.
- State and federal tax rules may apply to larger estates.
What happens without a will
Delaware intestacy gives the surviving spouse a dollar-based share of personal property and, in some cases, a life estate in real property, with the remainder passing to heirs by statute.
- If there is no surviving issue or parents, the spouse receives the entire intestate estate.
- If parents survive but no issue, the spouse receives the first $50,000 of intestate personal estate plus one-half of the balance and a life estate in intestate real estate.
- If issue survive and are all the spouse's issue, the spouse receives the same $50,000 plus one-half of the balance and a life estate in intestate real estate.
- Any portion not passing to the spouse goes to issue per stirpes; if none, to parents; then to issue of parents; then next of kin.
- An heir must survive the decedent by 120 hours to inherit under intestacy.
Probate process
Delaware permits distribution of personal property by affidavit without letters when estate assets do not exceed the statutory small-estate threshold.
- Small-estate affidavit is available when personal estate assets do not exceed $30,000.
- Eligible persons can distribute the estate without appointment of a personal representative.
- Distribution must follow the will or Delaware intestacy rules.
- A small-estate affidavit is filed with the Register of Wills to distribute personal property without letters.
Estate and inheritance tax exposure
Delaware's estate tax was repealed for deaths on or after January 1, 2018.
- Delaware's Estate Tax chapter is repealed effective January 1, 2018.
- Delaware estate tax returns are not required for deaths on or after January 1, 2018.
- With no state death tax, tax exposure is primarily federal when the estate exceeds the federal exemption.
Guardianship for minors
Delaware courts grant guardianship of a child based on parental consent or a court finding that guardianship serves the child's best interests.
- Parental consent can support a guardianship appointment.
- If parents do not consent, the court must find dependency, neglect, or abuse and that guardianship is in the child's best interests.
- Courts rely on best-interest findings when appointing a guardian.
Risk areas
Explore estate risk dimensions in Delaware
Intestacy risk
How assets are distributed when there is no will and state default rules control the outcome.
Probate risk
Court-supervised estate process, timing, cost exposure, and public record requirements.
Tax exposure
State estate or inheritance tax rules and how they interact with federal thresholds.
Guardianship risk
How courts appoint guardians for minors when no plan is in place.
Complexity triggers
Scenarios that increase estate risk, such as blended families or multi-state property.
Common mistakes in Delaware
- Assuming a spouse automatically receives everything under state law.
- Leaving guardianship decisions to the court by default.
- Ignoring probate timelines, creditor notices, or court filings.
- Failing to coordinate beneficiary designations with estate intent.
- Assuming no tax filings are required because the state has no estate or inheritance tax.
Who is most exposed
Higher default risk in Delaware
- Families with minor children or dependents.
- Blended families or second marriages.
- Households with property in more than one state.
- Business owners without succession instructions.
Next: explore planning options in Delaware
EstateRiskIQ does not provide legal advice. We highlight how default outcomes work so you can decide whether to explore professional guidance or planning tools.