Like most states, Delaware requires that a person be older than 18 years of age and of sound mind to write a legally binding will. The will must be in writing; nuncupative, or oral, wills are not accepted. Wills and matters of probate are governed by the Chancery Court.
A will must be signed by the testator, the person making it, and by two witnesses. The testator can ask someone else to sign her will for her, but it must occur in her presence and the request must be heard by the witnesses. Delaware does not bar beneficiaries from witnessing a will.
Effect of Divorce
Divorce voids any provisions made to an ex-spouse in a will under Delaware law. Any bequests made to the ex-spouse are revoked and he is barred from serving as executor if the will named him to the position. However, if the couple remarries, the provisions of the will are reinstated as though the divorce never happened.
Delaware is a community property state for purposes of divorce. Therefore, a testator can only bequeath his personal property in a will, not anything that was acquired during the marriage. The exceptions are property that was received by way of an inheritance or a gift during the marriage or property that can be proven to have been purchased with the testator’s separate money. Community property is owned 50/50 between spouses, so the surviving spouse automatically retains her half when the testator dies and his will applies only to his half of the community property.
Delaware gives a surviving spouse the right to take an elective share of the testator’s estate if she attempts to leave him out of her will or leaves him only a nominal amount. He can renounce or reject the terms of the will and accept a one-third share of the estate instead. If a nominal bequest was made, it is deducted from the one-third share. However, a spouse can only make an elective share claim against the separate property of the testator, not the testator’s half of the community property. To make such a claim, the surviving spouse must file a request with the Chancery Court within six months of the executor taking office.
Under Delaware law, the executor of a will does not need the court’s approval or the participation of any of the beneficiaries to sell or transfer the testator’s real estate as long as his will grants that power. An executor may dispose of real property as necessary to pay the debts and expenses of the estate as long if it has not been expressly bequeathed to any beneficiary.
Delaware’s statutes do not assume that a missing will has been revoked by the testator. If a will is revoked by tearing it up or otherwise destroying it, the act must be witnessed by two people who can later attest to it, if necessary. A will can also be revoked by the creation of a new one that nullifies the old one or by a written statement signed by the testator, but the statement must also be witnessed by two people.