Delaware living trusts & estate documents

Living trust law in Delaware

A revocable living trust holds your home, accounts, and other property during your life, you stay in full control as trustee and can change or revoke it any time, then passes it to your beneficiaries without probate when you're gone. In Delaware, trusts are governed by the Delaware Code Title 12 (Trusts).

Avoiding probate in Delaware

Probate in Delaware is governed by the Del. Code Title 12 and handled by the Court of Chancery, through the county Register of Wills. See state probate code for administration options.

Delaware allows collection by affidavit, 30 days after death, for personal estates of $50,000 or less with no Delaware real estate (12 Del. C. § 2306). The $50,000 limit comes from 85 Del. Laws c. 281 (HB 333, approved June 10, 2026), which raised it from $30,000. Assets held in a funded living trust pass to your beneficiaries without probate, whatever the size of the estate. Many Delaware homeowners set one up for that reason. Delaware also authorizes a transfer-on-death deed (Del. Code tit. 25, § 201 et seq.) to pass real estate outside probate. A living trust does the same for every asset, not just real estate.

In Delaware, creditors generally have 8 months from the date of death to file claims against the estate (12 Del. C. § 2102), one reason court probate takes time that a funded trust avoids.

Estate and inheritance tax in Delaware

Delaware repealed its estate tax (2018); no inheritance tax. The separate federal estate tax reaches only estates above $15 million per person (2026, adjusted yearly), so most families never owe it.

Protecting a surviving spouse in Delaware

A surviving spouse in Delaware who is left out of the will can instead claim an elective share of one-third of the elective estate under 12 Del. C. § 901, a protection the will itself cannot override.

Delaware also sets aside a surviving spouse's allowance of up to $7,500 for the surviving spouse (12 Del. C. § 2308), treated as a debt of the estate and paid in the order of preference of claims under § 2105.

Signing your Delaware documents

1. Sign the living trust. Sign your Delaware trust in the presence of two witnesses, then have it notarized. Delaware requires a revocable trust that gives anyone other than you an interest contingent on surviving you to be witnessed (Del. Code tit. 12, §3545); your trust is signed before two witnesses who sign in your presence and in each other's presence, and is then acknowledged before a notary.
2. Sign the will. Two witnesses; notarized self-proving affidavit included (standalone and pour-over wills).
3. Sign the power of attorney. Sign your Durable Power of Attorney in the presence of a Notary Public and one adult witness, who also signs. The witness may not be related to you by blood, marriage, or adoption and may not be entitled to any part of your estate under your will or trust. Also sign and date the Notice on the first page. Each person you named as agent must sign the Agent’s Certification attached to the Power of Attorney before acting under it.
4. Sign the health care documents. Sign your Advance Health-Care Directive in the presence of one adult witness, who then signs the witness section. Delaware law (16 Del. C. §2508(d)) requires the witness to be an adult who is present when you sign, who reasonably believes you are signing voluntarily and knowingly, and who is not your agent or your agent’s spouse, domestic partner, or cohabitant (someone your agent lives with as a couple). If you live or are receiving care in a nursing home or long-term care facility, the witness may not be an owner, operator, employee, or contractor of the facility. No Notary Public is needed for this document.
5. Follow your package instructions. Your package includes page-by-page signing instructions written for Delaware. Follow those as the authoritative guide.

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