Last Will and Testament in Delaware: Requirements & Cost (2026)

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Without a will, a Delaware surviving spouse never owns the family home — they get a life estate in it, and the children own the remainder. Delaware’s intestacy statute splits real estate from personal property and hands the spouse only a life interest in the land whenever children or parents survive, plus $50,000 of the personal estate and half the balance. That $50,000 figure was set in 1976 and has never been raised. Delaware is also unusually blunt about defective wills: 12 Del. C. § 202(b) says a will that doesn’t comply “shall be void.” No handwritten wills, no electronic wills, no harmless error. Every rule below cites the Delaware Code.

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Delaware Will Requirements (2026)

Section 202(b) is the sentence to remember. Many states describe what a valid will looks like and leave the consequences of a defect to the courts. Delaware states the consequence directly: void. There is no harmless-error provision in the Delaware Code, so a court cannot admit a defective document on proof that you meant it as your will — unlike in Montana, Hawaii or Oregon.

Who can make a will: “Any person of the age of 18 years, or upwards, of sound and disposing mind and memory” — and the section adds the negative for emphasis: “No person under the age of 18 years shall be capable of making a will either of real or personal estate” (§ 201).

A beneficiary may witness your will in Delaware. Section 203 provides that any person generally competent to be a witness may act as a witness, and that a will “is not invalid because the will is signed by an interested person.” That is markedly more forgiving than New Hampshire, which voids the gift to an interested witness unless two other witnesses signed. It is still poor practice — an interested witness invites a challenge even where the statute forgives it.

Handwritten and Electronic Wills Are Both Invalid in Delaware

Handwritten wills. The word “holographic” does not appear anywhere in 12 Del. C. chapter 2. Section 202 requires two credible witnesses for every will, and § 202(b) voids anything that falls short. A will written entirely in your own hand and signed is not valid in Delaware.

Electronic wills. Delaware has not adopted the Uniform Electronic Wills Act — chapters 2 and 13 of Title 12 contain no reference to electronic wills or electronic records — and Delaware’s Uniform Electronic Transactions Act carves wills out from the other direction:

“This chapter does not apply to a transaction to the extent it is governed by: (1) A law governing the creation and execution of wills or codicils…” — 6 Del. C. § 12A-103(b)(1)

So general electronic-signature law cannot be used to argue an electronically signed will into validity in Delaware.

The one route in: a will validly made somewhere else

Section 202(a)(2) is expressly “Subject to § 1306 of this title,” and § 1306 is generous. A written will signed by the testator (or by another subscribing the testator’s name in the testator’s presence and at their express direction) is valid in Delaware if it was executed:

• in compliance with § 202; or
• in compliance with the law, at the time of execution, of the place where the will was executed; or
• in compliance with the law of the place where, at execution or at death, the testator was domiciled, had a place of abode, or was a national.

A handwritten unwitnessed will you validly made while living in a holographic state can therefore be admitted in Delaware, even though you could not make one here. Section 1306(b) does the same for self-proved status.

Note the word “written.” Section 1306(a) validates a foreign-executed written will. That wording is narrower than Nebraska’s choice-of-law rule, and it is not obviously wide enough to carry an out-of-state electronic will into Delaware probate. If you made an electronic will while living in Nevada, Idaho or Utah and have since moved to Delaware, that is a question worth putting to a Delaware attorney rather than assuming.

Dying Without a Will in Delaware: Your Spouse Gets a Life Estate, Not the House

Delaware’s intestacy statute does something almost no other state does: it treats real estate and personal estate as two different problems.

Read the right-hand column again. In every case where you leave children or a surviving parent, your spouse receives a life estate in the real estate — the right to live there and use it for life — and never outright ownership. The remainder belongs to your children (or your parents) from the day you die.

The practical consequences are the ones families discover too late:

• Your spouse cannot sell the house free of the children’s interest. Every remainder owner has to agree and sign.
• The children cannot realize anything while your spouse lives, which is often decades.
• Downsizing becomes a negotiation with adult stepchildren at exactly the moment it should be simple.
• Under § 503(b), property passing to two or more people passes as tenants in common — so a remainder interest splits among the children individually.

And note the $50,000. It comes from 60 Del. Laws, c. 199 — enacted in 1976 — and has never been increased. Delaware home values have moved somewhat more than that since 1976. Against a modern estate it is close to a rounding error, which means the operative rule for most Delaware families is simply “half the personal property and a life estate in the land.”

A will fixes all of this in a sentence: leave the real estate to your spouse outright. Delaware also has a spousal elective share, and § 504 imposes a 120-hour survival requirement.

Delaware Has No Estate Tax and No Inheritance Tax

Delaware repealed its estate tax for individuals dying on or after January 1, 2018 (81 Del. Laws, c. 52, § 1). Title 30, chapter 15 of the Delaware Code is now captioned “Estate Tax [Repealed],” and chapter 14 is “Gift Tax [Repealed].” Delaware has no inheritance tax either.

Only the federal estate tax can reach a Delaware estate, and it applies to very few. Compare the states in our state-by-state comparison.

What a Will Costs in Delaware

Online pricing verified against Trust & Will’s published rates (August 2026). The Delaware State Bar Association publishes no fee survey, so we quote no attorney figures we can’t source. See how Delaware compares with the rest of the country for national cost ranges and a state-by-state table of will requirements.

What a Delaware Will Does Not Do

1. A will does not avoid probate. Delaware probate runs through the Register of Wills in each county, on the public record. Note also 12 Del. C. § 1301: anyone holding a will must deliver it to the Register of Wills within 10 days of learning of the death, and is liable for damages for willfully failing to do so. For the comparison, see what a living trust costs in Delaware and our guide to avoiding probate.

2. A will does not remove your spouse’s elective share. Delaware gives a surviving spouse a statutory claim against the estate regardless of what the will says.

3. A will does not cover incapacity, and does not override beneficiary designations. Pair it with a durable power of attorney and an advance health-care directive — see the five documents every family needs — and keep your beneficiary forms current.

Will vs. Trust for Delaware Families

Every Delaware adult needs a will, and homeowners with children need one urgently — the life-estate rule is the single most consequential default in Delaware succession law, and one sentence in a will avoids it entirely. There is no fallback format either: no handwritten will, no electronic will, no harmless error, and § 202(b) voiding anything defective.

With no state death tax, the Delaware trust question is about probate avoidance, privacy, and the state’s unusually deep trust law — Delaware is a jurisdiction people choose for trusts from elsewhere, which is a different conversation from whether you need one. Start with Trust vs. Will: Which Does Your Family Need? and the numbers in our Delaware living trust cost guide.

If the will is what you need today, Trust & Will’s Delaware package includes the witness pages, guardianship nominations, and healthcare documents — build your Delaware will here.

FAQ

Does a will have to be notarized in Delaware?

No. Validity takes your signature and 2 or more credible witnesses attesting and subscribing in your presence (12 Del. C. § 202). A notary appears only in the optional self-proving affidavit.

Are handwritten wills legal in Delaware?

No. “Holographic” appears nowhere in 12 Del. C. chapter 2, § 202 requires two credible witnesses for every will, and § 202(b) provides that a non-complying will “shall be void.” The one exception is § 1306, which honors a written will validly executed under the law of the place of execution or of the testator’s domicile, abode or nationality.

Can I make an electronic will in Delaware?

No. Delaware has not adopted the Uniform Electronic Wills Act, and 6 Del. C. § 12A-103(b)(1) expressly removes wills and codicils from the scope of Delaware’s Uniform Electronic Transactions Act.

Can a beneficiary witness my will in Delaware?

Yes — 12 Del. C. § 203 provides that a will is not invalid because it is signed by an interested person. It is still worth using disinterested witnesses, because an interested witness invites a contest even where the statute permits it.

What happens to my house if I die without a will in Delaware?

Your surviving spouse receives a life estate in the real estate — not ownership — whenever you leave issue or a surviving parent, with your children or parents holding the remainder (§ 502). Your spouse also takes the first $50,000 of the personal estate plus half the balance, or half with no $50,000 if any of your children are not theirs.

Does Delaware have an estate or inheritance tax?

No. Delaware’s estate tax was repealed for individuals dying on or after January 1, 2018, and Delaware has no inheritance tax. Title 30 chapter 15 now reads “Estate Tax [Repealed].”

Delaware Law Cited on This Page

• 12 Del. C. § 201 — who may make a will
• 12 Del. C. § 202 — requisites and execution of a will; void clause
• 12 Del. C. § 203 — witnesses; persons competent
• 12 Del. C. §§ 502–504 — intestate shares; tenants in common; 120-hour survival
• 12 Del. C. § 1306 — choice of law as to execution and proving of wills
• 6 Del. C. § 12A-103 — Uniform Electronic Transactions Act, scope
• 30 Del. C. ch. 15 — Estate Tax [Repealed]

Update log — August 2026: page created. Execution, holographic, electronic-record, choice-of-law, intestacy and estate-tax rules verified against the official Delaware Code published by the State of Delaware. Reviewed when Delaware law changes.