Delaware Small Estate Affidavit

The Register affidavit (§ 2306(a)): seven attestations

A member of the broad class above is entitled to the personal estate for distribution under the will or under Chapter 5, without letters or probate, on an affidavit under oath attesting all seven:

1. No personal representative petition is pending or has been granted;
2. Thirty days have elapsed since death;
3. The value of the personal estate other than § 1901(b)/(c) property and other than jointly owned property does not exceed $50,000 — no lien or encumbrance deduction is stated; debts are handled by attestation (4), never netted into the test;
4. All known debts are paid or provided for;
5. The § 2308 spouse allowance is paid, provided for, waived, or expired under § 2308(b);
6. The decedent did not own real estate in Delaware, either solely or as a tenant in common;
7. The affidavit has been furnished to the debtor, custodian, registrar, or transfer agent.

The Register may issue an affidavit where appropriate (§ 2306(d)). The § 1901 exclusions from the test are: (b) the family Bible, the decedent's clothes, and family stores laid in before death; and (c) designated-beneficiary insurance, pension, bonus, stock-option, and employee-benefit death benefits, which belong to the designee against the personal representative, creditors, legatees, and next of kin.

Preference order (§ 2306(b)) and possession rights (§ 2306(c))

The preference order is distinct from the entitled class: named executor, spouse, child, parent, sibling, grandchild, grandparent, funeral director — with no preference among the remaining class members. The possession rights in § 2306(c) run to a qualified named executor and the next of kin: (1) take possession of motor vehicle(s); (2) enter premises solely to remove burial and viewing clothing; (3) enter a sole-tenant rental unit to remove and take possession — not ownership — of all belongings. The rights are exercised in business hours at mutually agreeable times, within 30 days of death or they expire; the executor is preferred; a funeral director has a clothing-only fallback where no qualified executor or next of kin exists. The Register form must be obtained before acting.

Effect and enforcement (§ 2307) and the spouse allowance (§ 2308)

A holder that pays or delivers is released as if dealing with a personal representative, with no duty of inquiry. Distributees are answerable to persons with prior rights and accountable to intestate distributees and any later personal representative. Refusal is compellable in the Court of Chancery on proof of the affidavit facts — Chancery, not the Register, enforces a refusal.

The spouse allowance (§ 2308) is cash up to $7,500, in the § 2105 claim order, on written demand within nine months of death or six months from the granting of letters, whichever is shorter, and it is a debt of the estate. Where no letters are ever granted, the letters limb may never run — this guide states the words and does not resolve the expiry.

History, and the staleness trap

$12,500 in pre-2010 text, then $30,000 by 77 Del. Laws c. 302 (HB 296, approved June 22, 2010), then the real-estate bar widened from solely-owned to solely-owned-or-tenancy-in-common by 2015 SB 16 SS1, then $50,000 by HB 333, 85 Del. Laws c. 281 — a figure-only change, approved and effective June 10, 2026. Justia (2025), LawServer, Notarize, TemplateRoller, and the Kent County FAQ all still state $30,000: total secondary unanimity on a dead figure. County practice diverges from the statute and must never be merged into it: New Castle and Kent fee schedules ($10/$5 and $5/$10-by-mail, Kent spousal allowance $30) and county mail forms narrow the affiant class, state a notarized death certificate, and still state $30,000 — none of which appears in the text of § 2306, which states no death-certificate requirement at all.

What this guide does not state

No statewide fee is stated: there is none in the statute, and county fees differ. No valuation basis or date is stated for the § 2306(a)(3) test: the fair-market-value-at-death rule of § 1905(a) governs administered estates and is at most a flagged analogy. No death-date applicability is asserted for the $50,000 cap: HB 333 is silent on applicability, its effective date is confirmed, and which deaths the new cap covers is a first-open owed. Out-of-state real estate is not stated to disqualify: § 2306(a)(6) reaches Delaware real estate only.

For small-estate procedures in other states, see the Small Estate Affidavits by State directory. For the questions each state's procedure answers, see Small Estate Affidavit Questions.

Source

Sources: 12 Del. C. §§ 2306, 2307, 2308 and § 1901 (Delaware Code Online, fresh crawls 2026-11-01 05:20–05:21 UTC); HB 333, 85 Del. Laws c. 281, session-law text in full (approved and effective June 10, 2026) and bill detail. Facts verified 2026-10-31. Open flags: (1) HB 333 death-date applicability is unestablished — never assert which deaths the $50,000 cap covers; (2) valuation basis and date for the § 2306(a)(3) test are unestablished — § 1905(a) is analogy only; (3) § 1508 executor qualifications unopened; (4) current county forms and fees unopened for currency (Sussex unopened; no statewide fee); (5) death-certificate and notarization requirements exist only in the county form lane; (6) out-of-state real estate is Delaware-only in the bar; (7) the § 2308 demand window with no letters is unresolved; (8) intermediate history chapters (79 c. 65, 78 c. 151) unopened.

This page explains how the process works and what the official rules say. It is general information, not legal advice. For a dispute about your specific situation, talk to the Delaware Register of Wills or a lawyer.