First Light / Delaware Estate Planning
Estate Planning in Delaware
Delaware has no state estate tax, strict will execution requirements, and one of the most sophisticated trust law frameworks in the country. Whether you're a Delaware resident planning a simple estate or leveraging the state's directed trust and dynasty trust provisions, understanding what Delaware law offers — and requires — is essential.
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Last updated: April 2026
What most people don't know about Delaware
Delaware is one of the nation's leading trust jurisdictions — and residents often don't realize the tools available in their own state. Delaware allows directed trusts (where an advisor manages investments while a corporate trustee handles administration), dynasty trusts with no rule against perpetuities, silent trusts (where beneficiaries don't need to be notified), and trust decanting (pouring one trust into a new one with better terms). The Court of Chancery provides specialized trust jurisprudence that is nationally recognized. These tools are available to Delaware residents without out-of-state setup costs.
Source: 12 Del. C. § 3313
Plain English Rules
- •A will must be signed by two credible witnesses — holographic wills are not valid in Delaware
- •Delaware has no state estate tax and no inheritance tax — repealed in 2018
- •Delaware is a premier trust jurisdiction with directed trusts, dynasty trusts, and specialized trust courts
- •Small estates under $30,000 can be settled by affidavit without formal probate
- •A durable power of attorney must explicitly state it survives incapacity
- •The elective share gives a surviving spouse one-third of the elective estate
What Actually Breaks
Will signed without two witnesses
Invalid — Delaware does not recognize holographic wills
POA lacks durability language
Authority terminates at incapacity
Trust created but not funded
Assets still go through probate — the trust provides no benefit
Blended family with no will
Spouse receives only a portion of the estate; children from prior relationship inherit a significant share
No healthcare directive
Family may disagree on treatment decisions
Directed trust without proper advisor documentation
Trustee may be held liable for investment decisions that should have been the advisor's responsibility
If This Is Your Situation
Married with children, all from current marriage
Spouse inherits entire estate under intestacy
Married with children from a prior relationship
Spouse receives first $50,000 plus half the balance; children inherit the rest
Estate under $30,000
Small estate affidavit available — no formal probate required
Significant appreciated assets
Delaware's trust infrastructure — directed trusts, dynasty trusts — offers sophisticated planning options not available in most states
Single with minor children
Without a will naming a guardian, court decides custody
At a Glance
| Will witnesses | 2 required |
| Why it matters | Must be credible witnesses who sign in the testator's presence |
| Notarization required | Not required |
| Notarization note | Self-proving affidavit available |
| Self-proving affidavit | Allowed and recommended |
| Durable POA | Recognized |
| POA note | Must include durability language under Delaware Uniform Power of Attorney Act |
| Healthcare directive | Recognized |
| Directive note | Advance health care directive under Title 16, Chapter 25 |
| Probate timeline | Typically 6–12 months for standard estates |
| Probate filing fees | Typically $200–$500 depending on estate value and county |
| Small estate threshold | $30,000 (small estate affidavit) |
How Delaware Actually Works
Delaware follows stricter execution requirements than UPC states — wills must be written and witnessed by two credible people. Holographic wills are not recognized. This makes proper execution non-negotiable for Delaware residents.
The state's tax environment is favorable. Delaware repealed its estate tax in 2018, meaning no state-level death tax applies. Only the federal estate tax — with its much higher exemption — affects Delaware estates. This makes Delaware one of the more tax-friendly states on the East Coast for estate transfers.
Where Delaware truly stands apart is its trust law. The state has built a comprehensive trust infrastructure that attracts trust business from across the country. Directed trusts allow separating investment management from administrative trusteeship — the investment advisor makes investment decisions while the corporate trustee handles administration, and the trustee isn't liable for the advisor's choices. Dynasty trusts can last indefinitely because Delaware abolished the rule against perpetuities. Trust decanting allows pouring one trust into another with better terms. Silent trust provisions allow limiting the information shared with beneficiaries. And the Court of Chancery provides specialized jurisdiction with nationally recognized trust expertise.
For everyday Delaware residents, the practical implications are: execute your will properly with two witnesses, use the self-proving affidavit to streamline probate, and don't overlook the sophisticated trust tools available in your own state. Many residents use generic planning structures when Delaware-specific tools would serve them significantly better.
Without a Will: How Delaware Distributes Your Estate
Delaware follows common law property rules. When someone dies without a will, state intestacy law determines who inherits — and the result depends on your family structure.
Delaware follows common law property rules. When someone dies without a will, state intestacy law determines who inherits — and the result depends on family structure.
The surviving spouse's share varies based on whether the decedent had children and whether those children are shared with the spouse. In straightforward families, the spouse inherits everything. In blended families, the spouse's share is reduced to a priority amount plus a fraction of the balance.
Married with children (same marriage)
Spouse inherits the entire estate if all children are also children of the surviving spouse.
Married with children from a prior relationship
Spouse receives the first $50,000 plus one-half of the balance. Children of the decedent inherit the rest.
Married, no children
Spouse inherits the entire estate.
Single with children
Children inherit everything equally.
Single, no children
Parents inherit equally. If no parents, siblings and their descendants. Then more distant relatives.
Survival period: 120 hours (5 days) — must survive decedent by this period to inherit
Delaware's elective share gives the surviving spouse one-third of the elective estate, which includes certain nonprobate transfers.
Wills in Delaware
What makes a will valid
A written will signed by the testator and attested by two credible witnesses in the testator's presence.
What people think
That a notarized or handwritten document is sufficient.
What actually happens
Two witnesses are mandatory. No holographic or electronic wills are recognized.
Common failure
Missing witnesses or improper execution. Adding a self-proving affidavit prevents witness testimony issues during probate.
When a trust is better
Delaware's trust infrastructure is among the best in the nation. Directed trusts, dynasty trusts, decanting, and the Court of Chancery make trust-based planning especially powerful for Delaware residents.
Power of Attorney in Delaware
What it does
Grants authority to a named agent to manage financial and legal affairs.
Key rule
Must include durability language under the Delaware Uniform Power of Attorney Act.
Real-world friction
Financial institutions may reject POAs they consider outdated. Using the statutory form helps.
Common mistake
Not specifying durability or not updating after major life changes.
Healthcare Directive in Delaware
What it covers
Treatment preferences and healthcare agent designation under Delaware's advance directive law.
What's different
Delaware allows combining treatment instructions and agent designation in a single document.
Execution requirements
Must be signed by the principal with two witnesses and a notary.
Common misunderstanding
Confusing financial POA with healthcare directive — they are separate documents with different authority.
Probate in Delaware
When required
When assets are held solely in the decedent's name.
What makes Delaware different
No state estate tax. Register of Wills handles probate at the county level. Delaware's trust courts (Court of Chancery) are nationally recognized for trust jurisprudence.
Probate paths
Full administration· 6–12 months
Standard probate with inventory, accounting, and distribution.
Small estate affidavit· 30+ days after death
Estates under $30,000 can be collected by affidavit.
What people get wrong
Not taking advantage of Delaware's world-class trust infrastructure. Many residents use generic out-of-state trust structures when Delaware law offers significantly better tools.
Trusts in Delaware
When a trust is useful
Delaware's trust laws are among the most advanced in the country. Directed trusts allow separating investment management from administrative trusteeship. Dynasty trusts last indefinitely. Decanting allows fixing outdated trusts. Silent trust provisions allow limiting beneficiary information. These tools make trust planning especially powerful.
When a trust is unnecessary
Very small estates under $30,000 where a small estate affidavit suffices, or straightforward estates with clear beneficiaries and no special planning needs.
Key mistake
Not leveraging Delaware-specific trust tools. Many Delaware residents create generic revocable trusts without utilizing directed trust provisions, dynasty trust capabilities, or the Court of Chancery's specialized jurisdiction.
Common Mistakes
Signing a will without two witnesses
Delaware does not recognize holographic wills. Two witnesses are always required.
Not leveraging Delaware's trust infrastructure
Delaware offers directed trusts, dynasty trusts, decanting, and specialized trust courts. Many residents use generic planning when state-specific tools would serve them better.
Not including durability language in a POA
Without explicit language, the POA terminates at incapacity.
Assuming Delaware still has a state estate tax
Delaware repealed its estate tax in 2018. Only federal estate tax applies.
Creating a trust but not funding it
Assets must be retitled in the trust's name. An unfunded trust provides no benefit.
Not updating estate plans after divorce
Delaware revokes provisions in favor of a former spouse, but beneficiary designations may not be affected.
What Most People Actually Need
Most people don't need a trust. They need a valid will, a durable power of attorney, and a healthcare directive — executed correctly under Delaware law. The most common mistakes are ones of execution, not planning.
Check your situation →Frequently Asked Questions
Does Delaware have an estate tax?›
No. Delaware repealed its state estate tax effective January 1, 2018. Only the federal estate tax applies to very large estates.
Why is Delaware considered a premier trust jurisdiction?›
Delaware offers directed trusts (separating investment from administration), dynasty trusts with no rule against perpetuities, trust decanting, silent trust provisions, and the Court of Chancery — a specialized court with deep trust expertise. These tools make Delaware one of the most favorable states in the nation for trust-based planning.
Are holographic wills valid in Delaware?›
No. Delaware requires two witnesses for a valid will. Handwritten, unwitnessed documents have no legal effect.
What happens if you die without a will in Delaware?›
Delaware intestacy law gives the surviving spouse the entire estate if all children are shared. In blended families, the spouse receives $50,000 plus half the balance, with children inheriting the rest.
What is the small estate threshold in Delaware?›
$30,000. Estates at or below this value can be transferred by affidavit without formal probate.
What is a directed trust in Delaware?›
A directed trust separates investment management from administrative trusteeship. An investment advisor handles investment decisions while a corporate trustee handles administration. The trustee is not liable for the advisor's decisions. Delaware pioneered this structure.
Primary Sources
- Delaware Code (Wills, Execution) 12 Del. C. § 202 ↗
- Delaware Code (Intestate Succession) 12 Del. C. § 501 ↗
- Delaware Code (Directed Trusts) 12 Del. C. § 3313 ↗
- Delaware Code (Small Estate Affidavit) 12 Del. C. § 2306 ↗
- Delaware Code (Advance Directives) 16 Del. C. § 2503 ↗
- Delaware Code (Trust Decanting) 12 Del. C. § 3528 ↗
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This page is for informational purposes only and does not constitute legal advice. Delaware law is subject to change. Verify current statutes and consult a licensed attorney for your specific situation. Last updated: April 2026.