Probate is the court process of settling the estate of a person who has died. In Delaware, the Chancery Court in the county in which the decedent lived at the time of death has jurisdiction over the process. The rules related to probate are found in Delaware’s Decedents’ Estates and Fiduciary Relations Law, Del. Code Ann. Tit. 12. The two main purposes of probate are to make sure that a decedent’s property goes to the right beneficiaries or heirs and to ensure that the estate’s creditors are paid. Probate can be time consuming. In fact, in Delaware the process will typically take at 8-12 months. However, it can be significantly longer if there are complications.
When someone passes away, while it might seem logical that the transfer of property to family and friends is a quick process, that is generally not the case. Even where the wishes of the decedent are clear from their will, the estate must first go through the steps of the legal process known as probate. From a legal perspective, there are two objectives of probate. First, probate is designed to ensure that creditors are paid. The executor is required to pay substantiated, known debt from estate assets. The law allows any claimants up to 8 months after the decedent’s death to file legally enforceable claims against the estate. Del. Code Ann. Tit. 12, §2102.
The second objective is to distribute estate assets to the decedent’s beneficiaries or heirs. The process is designed to ensure that if there is a will, that the people or institutions who the decedent wanted to receive their property actually receive it. Or, in the absence of a will, that the assets are distributed as the law requires.
Disputes can develop during probate. Ideally the parties will be able to settle them through negotiation and avoid a significant delay in the process. That does not always happen. Instead, there are instances in which the issue must be resolved in court. This is called probate litigation. Probate litigation can cause significant delays in an already lengthy process. It can also be costly and impact the value of the assets available for distribution as the court may require that expenses related to defending or initiating probate litigation be paid out of estate assets.
Problems with the will. A will contest is one of the most common types of probate litigation. If someone does not believe that the will is valid due to improper execution, undue influence, duress, fraud, or incapacity, they can object to it. As a result the question would have to be resolved in court. Similarly, if there are ambiguities in the will such that one or more terms are open to multiple interpretations, a will construction hearing may be required during which the judge will listen arguments and determine how the will should be interpreted.
Problems with the executor. Probate litigation can also center on challenging the executor. In some instances there are objections to the appointment of the executor, even if the person was named in the will. Under Delaware law there are qualifications for serving as an executor. The qualifications or fitness of an executor can be challenged. Once the executor has been appointed, the way they perform their duties can be challenged if someone feels that the executor has mishandled estate assets or has in some other way breached their fiduciary duty. If the executor refuses to distribute assets according to the terms of the will or state law, a beneficiary can file an action for a legacy or distributive share.
Absence of a Will
At the end of the probate, the decedent’s property will be distributed to the beneficiaries based on the terms of the decedent’s will. In the absence of a will, the assets will be distributed to the decedent’s heirs based on Delaware’s rules of intestate succession, Del. Code Ann. Tit. 12, §§ 501-510. In Delaware this means that the estate will go relatives based on a statutory order of priority. The surviving spouse and children will share in the estate. In the absence of either, the order of priority is parents then siblings. If there are no close relatives, any claimant may have to prove relatedness before they will be deemed entitled to inherit.
Small Estate Administration
While all estates must go through an administration process, not all estates must go through the lengthy formal probate process. Delaware law provides that if an estate’s assets are less than $30,000, and there is no real estate, formal probate is not required. Instead, a Small Estate Affidavit can be completed and filed with the Register of Wills in the county in which the decedent resided. The Small Estate Affidavit will allow the transfer of assets. Those who would be entitled to a Small Estate Affidavit include the decedent’s closest next of kin in the following order: surviving spouse, adult children, parents, siblings, and grandparents.