How to Make a Valid Will in Delaware

Who Can Make a Will in Delaware?

You must be at least 18 years old to make a will in Delaware. No statutory exceptions for minors. The testator must be of sound and disposing mind and memory

Signing Requirements

Must be in writing. Can be typed, printed, or handwritten. If you are physically unable to sign, Another person may subscribe the testator's name at the testator's express direction and in the testator's presence (12 Del. C. § 202).

Witness Requirements in Delaware

Delaware requires 2 witnesses. 2 or more credible witnesses; any person generally competent to be a witness may act as a witness to a will (12 Del. C. §§ 202(a)(2), 203(a)). Sections 202–203 state no minimum witness age.. The will must be in writing and signed by the testator, or by some person subscribing the testator's name in the testator's presence and by the testator's express direction, and (subject to § 1306) attested and subscribed in the testator's presence by 2 or more credible witnesses. A will not complying with § 202(a) is void (12 Del. C. § 202)..

Interested witnesses: A will or any provision thereof is not invalid because the will is signed by an interested person (12 Del. C. § 203(b)). The statute does not void a bequest to an interested witness.

Notarization in Delaware

Notarization is not required for a will to be valid in Delaware. Not required for validity; used for self-proving affidavit

Self-Proving Affidavit

Delaware allows a self-proving affidavit, which simplifies probate by eliminating the need for witnesses to testify in court. An attested will may be made self-proved at the time of its execution or at any later date, by the testator's acknowledgment and the witnesses' affidavits, each made before an officer authorized to administer oaths under the laws of Delaware. The officer's certificate, under official seal, must be attached or annexed to the will in form and content substantially as the statutory form sets out (12 Del. C. § 1305). Under that form the testator and witnesses are first duly sworn. The witnesses state that the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence. A will executed in another jurisdiction is also treated as self-proved if it meets that jurisdiction's self-proving requirements (12 Del. C. § 1306(b)).

Handwritten (Holographic) Wills

Delaware does not recognize holographic wills. Delaware has no holographic-will exception. Every will must be in writing, signed by the testator, and attested and subscribed in the testator's presence by 2 or more credible witnesses. A will that does not comply is void (12 Del. C. § 202). Exception: under 12 Del. C. § 1306(a), a written will signed by the testator is also valid if it complies with the law, at the time of execution, of the place where it was executed. It is also valid if it complies with the law of the place where the testator, at execution or at death, was domiciled, had a place of abode, or was a national. So an unwitnessed handwritten will made in Delaware is void, but one validly executed under another jurisdiction's holographic-will law can be valid in Delaware.

Electronic Wills

Delaware does not currently recognize electronic wills. Delaware does not currently have an electronic wills statute

How to Revoke a Will in Delaware

In Delaware, a will can be revoked by:

• •Canceling by the testator, or by some person in the testator's presence and by the testator's express direction
• •A valid last will and testament
• •A writing signed by the testator, or by some person subscribing the testator's name in the testator's presence and by the testator's express direction, and attested and subscribed in the testator's presence by 2 or more credible witnesses
• •Divorce or annulment after executing the will revokes any disposition or appointment of property to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, guardian or other fiduciary, unless the will expressly provides otherwise (12 Del. C. § 209)

12 Del. C. § 208 applies to the will 'or any clause thereof'. It names 'canceling' as the only physical act. The words burning, tearing and obliterating do not appear in § 208. § 208 'shall not preclude nor extend to an implied revocation.' Under 12 Del. C. § 209, provisions revoked solely by divorce or annulment are revived if the testator remarries the former spouse. A decree of separation that does not end the marriage is not a divorce for this purpose. No changes or circumstances other than those described in § 209 revoke a will or any part of it.

Special Provisions in Delaware

Delaware is a separate property/common law state. Surviving spouse has an elective share right of one-third of the elective estate (12 Del. C. § 901). Delaware has no state estate tax for deaths after 2017

Relevant Delaware Statutes

• 12 Del. C. § 201 (Who may make a will)
• 12 Del. C. § 202 (Execution of wills)
• 12 Del. C. § 208 (Revocation)
• 12 Del. C. § 901 (Elective share)
• 12 Del. C. § 1305 (Self-proved wills)