When in Delaware… A Homeowner’s Deed Must Be Filed With the Register of Wills

What happens with Delaware real estate deeds when someone dies?

The home’s title (whether the owner dies with or without a will) vests immediately in the beneficiaries’ names. The home county’s Register of Wills sends the deed to the County Assessment Office. That’s how a title is transferred upon death. There’s no need for a new deed.

This makes Delaware different from other states. And there are a few more things to know about how a deceased person’s home goes to the beneficiaries in Delaware.

Delaware Homeowners: The Age Factor

According to the latest census figures, just over a million people live in Delaware. Many are older adults. (A famous one might jump to your mind.)

While Delaware’s population continues to grow at a steady 1% rate, four out of ten Delawareans are over 50. The fastest growing group? Seniors aged 65+. In fact, the swelling of the 65+ population is right in line with a national trend, as boomers get up there in years.

All this indicates that Delaware property owners are passing their homes along to the next generation at a rapid clip. And they should know what’s special about their probate process.

How to Start: Obtain the Death Certificate

Usually, when a Delaware homeowner dies, the estate goes into an administrative process overseen by the probate court. Whether there is a will or not, those who wish to get the process started should go to the Register of Wills, and start by filing a certified copy of the late homeowner’s death certificate.

The Register of Wills oversees probate in a deceased person’s home county. But it doesn’t deal with everything the Delaware homeowner owned. Homes with rights of survivorship or homes held in trust for named beneficiaries don’t need to go through probate.

Some property owners hire attorneys to create trusts to put their homes into. When the owners pass on, an attorney will then create the deed that passes the home from the trustee to the beneficiary named on the trust document. The trust property is transferred outside probate.

There is also an exception to probate for a deceased Delawarean who owned under $30,000 in assets and no real estate titled in their name alone. In this case, beneficiaries should ask the Register of Wills for a Small Estate Affidavit to simplify the process.

The Probate Process: What a Personal Representative Does

How does a regular probate process start? A personal representative goes to the Register of Wills and obtains the granting of letters. There is an associated fee, based on the estate’s value.

If there is a will, that personal representative is called the executor of the will. The will is proved at the office of the Register of Wills. Then the personal representative has other mandatory tasks. A personal representative must:

Notify the public with an announcement of the estate in a local newspaper.

Prepare and file an inventory of assets within three months.

Set aside the spouse’s inheritance (whatever is given in the will, or the spouse’s elective share, which in Delaware comes to a third of the estate).

Manage the estate’s accounting, and pay off legitimate debts and taxes. Federal and state estate taxes, if any, are due within nine months from the homeowner’s death.

Identify the real estate and its new owner as named in the will. File this information to update the county tax assessment.

Close the estate at the Register of Wills, and file the accounting records, showing receipts of payments on the estate’s behalf. Pay the closing fee and attest that the estate was correctly administered.

Creditors and parties with legitimate claims have eight months from the homeowner’s death to step up. For this reason, personal representatives delay major distributions of property for eight months. As you can see, probate in Delaware takes most of a year, and it demands careful attention from the personal representative.

Selling the Home: When a Deed Is Necessary

You’ll recall that a Delaware home’s title goes to the person named in the will or gets passed through the succession statute “immediately upon death” and does not require a new deed.

— Don’t die intestate! Be sure you have an up-to-date, written will.

That said, if the homeowner dies without leaving enough to cover debts — estate expenses and taxes included — the personal representative must petition the Chancery Court to issue an order of sale. Then the estate’s representative can sell the home to cover the debts.

Another reason the home might be sold is because the deceased owner wanted that to happen and said so in the will.

The personal representative becomes the grantor on the deed. A personal representative’s deed transfers whatever interest the homeowner had at the time of death. This is called a special warranty deed.

The personal representative must sign the deed with a notary, and record it at the office of the recorder of deeds in one of Delaware’s three counties — whichever one the home existed in. Each county has its own standard deed format.

Receiving a Jointly Titled Home: When a Deed Is Helpful

When a joint tenant files an affidavit to remove the late owner’s name from the property for tax reasons, that does not create an official name change on the deed. To place the deed in the survivor’s name alone means creating, executing, and recording a new deed.

Or a valid will may state that the property goes to a specific beneficiary. Again, as you know, Delaware probate law passes the title automatically. No need to draw up a new deed.

— Which takes precedence: the joint title, or the will? Know the importance of vesting your property correctly.

The personal representative files all pertinent documents with the Register of Wills as listed above. Preparing and recording a new deed isn’t necessary. But it’s still a good thing to do for the clarity of a title. A new deed will show the beneficiary as the new, sole owner of the property, with the name of the deceased owner removed.

And if you create a new deed for your Delaware home, you know what to do next. File it right away with the home county’s Register of Wills.

Important: A Word to the Wise

State and county probate procedures can change from time to time. If you’re a homeowner, it’s important to sit down with your Delaware lawyer and accountant. Their expertise helps to ensure that an estate is handled properly, in accordance with current law. If you expect to receive real estate when a homeowner passes on, your attorney and accountant can prepare you for what’s next.

Supporting References

25 Delaware Code § 121 – Form of deed; legal effect; other forms as valid.

12 Delaware Code § 2719 – Power of sale in will; execution; liability of purchaser for application of purchase money.

12 Delaware Code § 901 – Right to elective share.

The Sussex County, Delaware Register of Wills Office via SussexCountyDE.gov: Wills and Estates – A Guide for What You Need to Know.

Deeds.com: Real Property and Probate in Delaware (Jan. 30, 2017).

Isabel Hughes for the Delaware News Journal via DelawareOnline.com: Delaware (Barely) Surpasses One Million Residents − And Many of Them Are Older Adults (Nov. 1, 2022; citing figures from the federal Department of Health and Human Services’ Administration for Community Living and the U.S. Census Bureau).

Meaghan Mahoney of Hudson Ward & Taylor LLC, Veronica Townsend of Weidman & Townsend P.A., and Robbie Robinson of Parsons & Robinson, P.A., in the Coastal Point E-Edition via CoastalPoint.com (Bethany Beach, Delaware area): Some Advice About Children, Deeds, and Inheritance (Aug. 10, 2023).

And as linked.