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 for personal estates of $50,000 or less with no Delaware real estate (12 Del. C. § 2306). That simplified procedure is set out in Small estate affidavit, 12 Del. C. §2306. A funded living trust passes outside probate entirely, whatever the size of the estate — which is why Delaware homeowners in particular set one up. 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Delaware imposes no estate tax and no inheritance tax: Delaware repealed its estate tax (2018); no inheritance tax.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 a surviving spouse and minor children (12 Del. C. § 2308), protected ahead of most creditors.

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 before a Notary Public.
4. Sign the health care documents. Sign your Advance Health Care Directive in the presence of two adult witnesses, who then sign the witness statements (each part of the form that shows witness lines is signed the same way). The eligibility rules printed on the form govern who may serve.
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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