Delaware Estate Planning Guide — Wills, Trusts & More
Wills, trusts, powers of attorney, and advance directives — protecting your family and your wishes
Estate planning serves two groups of people at once. If you are planning ahead, it is about making sure your wishes are followed and your family is protected — through a will, trust, powers of attorney, and healthcare directives. If someone in your family has recently passed away, these same documents (or the absence of them) control what happens next. Either way, the starting point is the same: understanding what tools exist and which ones apply to your situation.
Making a valid will in Delaware
To make a valid will in Delaware, you must be at least 18 years old and of sound mind. The will must be in writing, signed by the Testator, and witnessed by 2 competent witnesses. A self-proving affidavit §12-1305 allows the will to be admitted to probate without requiring witnesses to testify.
Delaware does not recognize holographic (handwritten, unwitnessed) wills — a valid will requires 2 witnesses.
Delaware does not recognize holographic wills. A valid will must be in writing, signed by the testator, and attested by two witnesses. Delaware is known for its trust-friendly laws and is a leading jurisdiction for dynasty trusts.
Trusts and avoiding probate
Delaware has adopted the Uniform Trust Code §12-3301, providing a comprehensive framework for creating and administering trusts.
A revocable living trust is the primary tool for avoiding Probate in Delaware. Property transferred into the trust during your lifetime passes to beneficiaries according to the trust terms — without court involvement, publication, or the delays associated with probate.
Delaware does not currently allow transfer-on-death (TOD) deeds for real estate — a trust or other planning method is needed to avoid probate on real property.
Will vs. trust: which do you need?
| Will | Revocable trust | |
|---|---|---|
| Takes effect | After death | Immediately (you manage it while alive) §12-3301 |
| Avoids Probate | No — goes through probate court | Yes — assets in trust skip probate §12-3301 |
| Privacy | Public record once filed | Remains private |
| Incapacity planning | No — only covers death | Yes — successor Trustee steps in §12-3301 |
| Cost to create | Lower | Higher |
| Ongoing maintenance | None | Must transfer assets into the trust |
| Who needs it | Everyone — baseline document | Homeowners, larger estates, privacy-focused |
Powers of attorney
In Delaware, a Power of attorney is durable by default — it remains effective even if the principal becomes incapacitated §12-49A-4901.
A financial Power of attorney lets someone you choose manage your finances, pay bills, and handle property if you become unable to do so. Without one, your family may need to petition the court for a conservatorship — a costly and time-consuming process §12-3901.
Healthcare directives
Delaware recognizes advance healthcare directives §16-2501 that let you state your wishes for medical treatment if you cannot speak for yourself. A agent §16-2508 designates someone to make healthcare decisions on your behalf.
Delaware recognizes advance healthcare directives under the Uniform Health-Care Decisions Act (2023), tit. 16, § 2501 et seq. A power of attorney for health care must be in a record signed by the individual and by one adult witness (§ 2508); a health-care instruction may be made with or without a record (§ 2507). Delaware provides an optional statutory form combining health-care instructions and agent designation (§ 2511). An advance mental health-care directive that includes an irrevocability direction must be in a separate record signed by at least two adult witnesses (§ 2509).
Power of attorney vs. healthcare directive
| Financial Power of attorney | advance healthcare directive | agent | |
|---|---|---|---|
| Purpose | Manage finances and property §12-49A-4901 | State treatment preferences §16-2501 | Name a healthcare decision-maker §16-2508 |
| When it activates | Immediately or upon incapacity §12-49A-4901 | When you cannot communicate | When you cannot make medical decisions |
| Who acts | Your chosen agent | No one — it speaks for you | Your chosen proxy |
| Scope | Bank accounts, bills, property, taxes | End-of-life treatment, life support | All medical decisions on your behalf |
| Ends | Death or revocation | Death or revocation | Death or revocation |
| Required? | Not legally, but practically essential | Recommended for everyone | Recommended for everyone |
Guardianship for minor children
If you have children under 18, your will is the primary way to nominate a guardian §12-3901. Without a nomination, the court decides — and the result may not match your wishes. Naming a guardian in your will does not guarantee the appointment, but it carries significant weight with the court.
Estate and inheritance taxes
Delaware does not impose a separate state estate tax or inheritance tax. Only the federal estate tax (currently $13.61 million per person §26 U.S.C. § 2010) applies.
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Frequently Asked Questions
General answers to common questions. Specific outcomes depend on your facts and timing.
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