Legal Requirements of Wills in Delaware

by Joseph Nicholson
    A will made in Delaware must be in writing, signed before witnesses.

    A will made in Delaware must be in writing, signed before witnesses.

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    Delaware will laws are set forth in the Delaware Code. To be recognized as valid in Delaware, a will need not be executed in the state, nor convey assets located in the state, but only need to be valid according to the laws of the place in which it was executed at the time of execution or in the state in which the testator lived at the time of death. Any person over the age of 18 of sound mind can execute a will in Delaware.

    Writing Required

    Unlike some states, which may recognize oral wills in certain situations, a will must be in writing to be validly executed in Delaware. According to the Delaware Code, a valid will can be written by hand or in any other written format. It can also be in any language, so long as it is fixed in a written form. The statement of the witnesses must also be in writing. The testator -- the person the will belongs to -- must sign the document or have someone in her presence sing her name according to her express direction.

    Witnesses

    A will executed in Delaware must be signed before two credible witnesses who must themselves sign brief attestations that they witnessed the testator's signature. Unlike many states, however, any person generally capable of serving as a witness can do so, even if those who are entitled to receive property under the will. The Delaware Code states that, at probate, the witnesses must come forth and verify the validity of the will, but if the witnesses are unavailable, verification of their signatures will be sufficient. If one of the witnesses’ signature cannot be verified, but the other can, verification of the testator’s signature is good enough.

    Revocation

    The testator can legally revoke a will -- in whole or in part -- at any time. This can be done by striking through the relevant portions or the entire document, or by a separate signed writing by the testator with two or more witnesses. Divorce or annulment automatically revokes any assignment of power or property to the former spouse in a will, but remarriage to the same spouse reinstitutes those provisions of the will unless the testator has taken one of the formal steps of revocation described above.

    Self-Proving Wills

    A will is considered self-proving and presumed valid if it meets certain statutory requirements. To be self-proving, the witnesses must complete an affidavit and have it notarized. The text of the affidavit is contained in section 1305 of Title 12 of the Delaware Code. The affidavits may be executed by the witnesses before a notary public either at the time the will is executed or any time afterward.

    Scope of Testamentary Disposition

    With few exceptions, a will in Delaware allows the person making the will to dispose of personal and real property in any manner she desires. Real estate interests acquired after the will is made are distributed consistent with the terms of the will. A testator can dispose of personal property not included in the will in a separate writing if it is signed and witness in the general manner required for wills, and if it is not inconsistent with another valid will. Under Delaware law, a will may establish a testamentary trust consisting of estate assets held on behalf of one or more beneficiaries.

    About the Author

    Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.

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