Making a Will in Delaware

Learn how to write a will in Delaware, and what can happen if you don't.

 

 

Steps to Create a Will in Delaware

 

 

Here's a quick checklist for making a will in Delaware:

1. Decide what property to include in your will.
2. Decide who will inherit your property.
3. Choose an executor to handle your estate.
4. Choose a guardian for your children.
5. Choose someone to manage children's property.
6. Make your will.
7. Sign your will in front of witnesses.
8. Store your will safely.

Why Should I Make a Delaware Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

• leave your property to people or organizations
• name a personal guardian to care for your minor children
• name a trusted person to manage property you leave to minor children, and
• name an executor, the person who makes sure that the terms of your will are carried out.

What Happens If I Don't Have a Will?

In Delaware, if you die without a will, your property will be distributed according to state "intestacy" laws. Delaware's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in Delaware?

No. You can make your own will in Delaware, using Nolo's Quicken WillMaker & Trust. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Requirements for Making a Will?

To make a will in Delaware, you must be:

• 18 years of age or older
• of "sound and disposing mind and memory." Del. Code Ann. Tit. 12, § 208.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. Delaware does not permit handwritten wills.

How Do I Sign My Delaware Will?

To finalize your will in Delaware:

• you must sign your will in front of two witnesses, and
• your witnesses must sign your will in front of you. Del. Code Ann. Tit. 12, § 202.

While Delaware law does not prohibit an "interested person" who stands to inherit under the will to serve as a witness, it is usually not a good idea. Del. Code Ann. Tit. 12, § 203.

Do I Need to Have My Will Notarized?

No, in Delaware, you do not need to notarize your will to make it legal.

However, Delaware allows you to make your will "self-proving," and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit (sworn statement) that proves who you are and that each of you knew you were signing the will. Del. Code Ann. Tit. 12, § 1305.

Should My Will Name an Executor?

Yes. In Delaware, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker & Trust. produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In Delaware, you may revoke or change your will at any time. You can revoke your will by:

• canceling your will yourself or instructing someone else to do so in front of you
• signing a document that says you are revoking your will
• instructing someone else to sign a document in front of you and two witnesses who also sign the document saying you are revoking your will, or
• making a new will. Del. Code Ann. Tit. 12, § 208.

If you and your spouse divorce or your marriage is annulled, any gift you gave your spouse in the will and any provision that named your spouse as an executor or trustee is automatically revoked unless your will expressly says otherwise. Del. Code Ann. Tit. 12, § 209.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.

Connecticut has passed the Uniform Electronic Transaction Act that accepts electronic signatures on some documents, but this law specifically excludes using this type of signature for a will or codicil. Del. Code Ann. Tit. 6, § 12A-103.

Where Can I Find Delaware's Laws About Making Wills?

You can find Delaware's laws about making wills here: Delaware Code Title 12 Decedents' Estates and Fiduciary Relations Part II Wills Chapter 2 General Provisions Subchapter I. Tenets and Principles.