Best Will & Testament Lawyers in Delaware

About Will & Testament Law in Delaware, United States

A Will and Testament is a legal document that allows an individual, known as the testator, to state how their property and assets should be distributed upon their death. In Delaware, as in other states, having a valid Will ensures that your wishes are honored and that your estate is handled according to your specific instructions. Without a Will, your estate will be distributed according to Delaware’s intestacy laws, which may not always reflect your preferences. Delaware law sets out specific requirements for creating, updating, and executing a valid Will, aiming to protect the interests of both the testator and their beneficiaries.

Why You May Need a Lawyer

There are several situations where seeking legal assistance for a Will and Testament in Delaware can be particularly important. Some people have complex family circumstances, such as blended families, minor children, or estranged relatives, which can make estate planning more challenging. Others may own businesses, have significant assets, or want to establish special trusts to care for loved ones with disabilities or pets. A Will and Estate lawyer helps ensure that your documents comply with all legal requirements, reduces the potential for disputes among heirs, and can offer guidance on related matters such as tax implications, powers of attorney, and health care directives. Even if your estate appears simple, a lawyer can help you avoid common pitfalls and ensure your intentions are clearly documented and legally enforceable.

Local Laws Overview

Delaware’s Will and Testament laws are guided by state statutes and the Delaware Code, mainly found in Title 12. The key aspects include:

• The testator must be at least 18 years old and of sound mind.
• The Will must be in writing and signed by the testator or by someone else in the testator’s presence and by their direction.
• Two credible witnesses must be present at the same time to witness the signing of the Will, and must also sign the Will themselves.
• Delaware does not recognize oral (nuncupative) Wills.
• Handwritten (holographic) Wills may be accepted if they meet all other statutory requirements.
• Wills can be self-proved with the proper affidavit, making the probate process simpler.
• Delaware law allows for certain spousal and child rights that may override a Will in some situations.
• Probate proceedings generally occur in the county where the testator resided at the time of death.

Understanding these basic legal requirements and nuances can help ensure your Will is valid and enforceable in the state.

Frequently Asked Questions

What happens if I die without a Will in Delaware?

If you pass away without a Will, known as dying intestate, Delaware’s intestacy laws decide who inherits your property. Typically, your spouse, children, and other close relatives will inherit according to a specific order set by law, which may not reflect your personal wishes.

Do I have to use a lawyer to write my Will in Delaware?

No, you are not legally required to use a lawyer to draft a Will in Delaware. However, legal professionals can help you avoid costly mistakes, ensure your Will meets all statutory requirements, and address complex situations that do-it-yourself solutions may overlook.

Can I change or revoke my Will after it is made?

Yes, you can alter or completely revoke your Will at any time as long as you are mentally competent. Changes are typically made using a codicil or by drafting a new Will that explicitly revokes the previous one.

Are handwritten Wills valid in Delaware?

Delaware may recognize a handwritten Will if it complies with all legal requirements, including being signed by the testator and witnessed by two credible witnesses. Simply writing your wishes without proper execution may render the Will invalid.

What is a self-proved Will?

A self-proved Will includes a sworn affidavit from the witnesses and the testator, typically notarized, affirming the validity of the execution. This can help simplify the probate process by eliminating the need for witnesses to appear in court to verify the Will.

Who can serve as a witness to my Will in Delaware?

Any competent person can act as a witness to a Will in Delaware, but it is generally best practice to select individuals who are not named as beneficiaries to avoid potential conflicts of interest or legal challenges.

How do I ensure my Will is properly executed?

To ensure your Will is properly executed, sign the document in the presence of at least two competent witnesses who also sign in your presence. Consider having a lawyer review the document, and think about adding a self-proving affidavit for added security.

What is probate, and does every Will need to go through probate in Delaware?

Probate is the legal process of validating a Will, settling debts, and distributing property under court supervision. In Delaware, most Wills must go through probate unless the assets are non-probate, such as those held in joint tenancy or with designated beneficiaries.

Can I disinherit a spouse or child in my Delaware Will?

While you can attempt to disinherit a spouse or child, Delaware law provides them with certain rights to elective shares or allowances that may override your Will. It is wise to consult a lawyer if you wish to exclude close family members, as this can lead to legal challenges.

What should I do with my original Will?

Store your original Will in a safe, accessible place and tell your executor or trusted family member where to find it. Do not keep it in a locked box that only you can access, as it may be difficult for your representatives to retrieve it after your passing.

Additional Resources

Several organizations and government bodies can assist Delaware residents with Will and Testament matters:

• Delaware Courts - New Castle, Kent, and Sussex County Probate Courts
• Delaware State Bar Association
• Delaware Office of the Public Guardian
• American Bar Association - Estate Planning Resources
• Legal aid organizations, such as Delaware Volunteer Legal Services

These resources offer educational materials, legal assistance, and support for individuals navigating the estate planning process.

Next Steps

If you are considering drafting or updating your Will in Delaware, start by compiling a list of your assets, considering your beneficiaries, and outlining your wishes. Review the legal requirements summarized above, and consider consulting an experienced estate planning attorney to ensure your Will is valid and reflects your intentions. If you have a complex estate or anticipate family disputes, professional legal advice is especially critical. You can reach out to local bar associations or legal aid organizations if you need help finding reputable legal professionals. Finally, remember to communicate your plans with your loved ones and keep your documents updated to reflect any significant life changes.