Probate Law in Wilmington, DE
What Is a Probate Law?
A probate is a legal process that determines the validity and administration of a last will and testament. When an individual leaves behind assets, the court appoints an executor (if one is not named in the will). In either case, the appointed official collects all remaining assets, pays off any remaining liabilities, and disperses the remaining assets to beneficiaries listed in the will or to beneficiaries designated by the executor (if no will is present), all according to Wilmington, Delaware probate law.
How Does Wilmington, Delaware Probate Law and the Probate Process Work?
Locating the Will
The first step is determining whether a will even exists. In most cases, the decedent leaves clear direction regarding the location of the last will and testament or files one with a primary attorney. However, sometimes people have to go digging for one. In other cases, there is no will and the Wilmington court-appointed executor must handle all assets.
It is also possible that the deceased created a living trust instead. A living trust is a document that places all assets into a trust and that transfer to a designated trustee upon death. Living trusts do not require any probation or courts. For this reason, many parties elect to go this route for the sake of convenience and avoiding drawn-out Wilmington, DE court battles.
The New Castle County Register of Wills is in the Wilmington probate office and at a branch of the Delaware Chancery Court. To open the probate of a Wilmington estate, it is necessary to make an appointment with the New Castle County Register of Wills.
Notifying the Court
Notifying the court to open the estate is the next step. The Wilmington, Delaware probate law court clerk can handle this step, unless there is a named executor.
After the court receives notification, a scheduled hearing takes place. This officiates the executor appointee and grants him or her legal authority to operate on behalf of the last will and testament.
If there is no will and no designated executor, the court chooses the executor. Making this selection differs from state to state, but generally, the surviving spouse is first in line. After that, any adult children, parents, or siblings receive consideration.
Consolidating Assets
The executor must identify the decedent’s remaining assets. To do this, she or he reviews any related banking or financial documents and any other personal documents that could lead them toward recovering assets. Some examples of documents to collect are insurance records, titles, stock portfolios, and tax returns or filings.
To freeze and later close accounts, the executor must notify any financial institutions with outstanding accounts of the individual’s death in Wilmington. If there are any physical valuables in the decedent’s property, it is not uncommon for the executor to collect these items to prevent theft or damage.
The executor then determines the valuation of each item of the estate. This can be a lengthy process depending on the ease of locating all assets, including real estate, stocks, bonds, etc. Notifying creditors is the next step.
Notifying Creditors
Generally, the executor notifies creditors associated with the estate so they can make a claim if they have outstanding balances. Creditors have a specific time frame in which to file a claim, and this window can vary depending on state law.
Once the executor of a Wilmington estate has been appointed, the New Castle County Register of Wills will publish a Notice to Creditors. The Notice is published once a week for 3 successive weeks in a New Castle County newspaper. A creditor then has 8 months from the appointment of the executor to submit any claims against the Wilmington estate.
Squaring Away Final Payments
The executor pays any funeral expenses (unless the family covers them) and any debts or taxes from the estate. The executor determines which creditor claims are accurate. From there, the executor squares away any outstanding debts to clear the estate of all obligations before being dispersed according to the will.
Proceeding With the Court
After valuing all the decedent’s assets and paying all outstanding debts, the executor submits a report detailing all estate spending to the Wilmington, Delaware courts. At this point, a judge reviews the materials. Assuming everything was done correctly, they render a decision to clear the executor to move forward with the final step.
Executing the Last Will and Testament
At this point, the executor disperses the assets to the designated beneficiaries laid out in the will. Depending on how detailed the will is, this could either be a simple process or it may divide the remaining family. A Wilmington probate law attorney can help you or a loved one avoid these costly mistakes and counsel you on the best course in the event of a family estate battle.
According to the Newcastle County Register of Wills, an executor will have between 1-2 months to take account of the decedent’s assets. A probate bond may be ordered for the executor by the court to ensure proper handling of assets and debts. Once the assets are secured, the executor must examine all claims filed by creditors. The claims in good standing are paid, and the executor files and pays estate taxes as well. Finally, the remaining assets are distributed to the appropriate heirs and the estate is closed. Probate takes approximately one year, so it is best to work with an experienced Wilmington attorney to navigate this process successfully.
If there is no last will and testament, the executor assigns beneficiaries in accordance with Delaware state laws. Generally speaking, the surviving spouse is first in line to receive any remaining assets. After that, the decedent’s children come next. Any surviving siblings would be next. From there, the executor works down through the surviving family based on their direct relation.
Is Probate Law Necessary?
No. There are alternatives to probating a will, but this really depends on the circumstances surrounding the decedent. For example, the deceased may have established a living trust that circumvents the probate process. The individual may have not owned any assets, thus simplifying the Delaware process.
The Delaware General Assembly states that probate is only necessary in Wilmington if the decedent’s estate meets certain criteria. Specifically, a Wilmington estate must be probated if the decedent had more than $30,000 in personal property in their name alone. Probate is also mandatory if the decedent owned Delaware real estate held solely in their name.
What Are the Differences Between a Living Trust and a Will?
Living trusts are a way to avoid probation. However, this is one of the primary differences between a living trust and a will. Another main difference is that a living trust is only as good as the assets therein. This means that if you pass away without funding the trust with your assets, it is practically worthless. On the other hand, you do not have to fund a will. You merely choose where to transfer your assets upon your death.
Setting up where your assets go after you die is an important decision. This is why you should consult with a Wilmington probate law attorney to make the correct decision.
Work With an Experienced Local Probate Law Attorney in Wilmington, Delaware
Probate law attorneys assist with valuing your total assets and can provide insight into what the best move would be for you. Are you in need of a Wilmington probate law attorney who can help you and preserve the future of your family? We can even help you connect with an attorney across Delaware state lines.
Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced probate law lawyer in your area!
