General Provisions

Del. Code tit. 12, ch. 13

in effect

Del. Code tit. 12, § 1301 Production of will; liability.

(a) Any person, having the custody or possession of any instrument of writing purporting to be a last will and testament and intended to take effect upon the death of the testator therein named, shall produce and deliver the same to the Register of Wills for the county in which the person resides, within 10 days from the time the person receives information of the death of the testator. (b) Any person who wilfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Also, any person who wilfully fails to deliver a will after being ordered by the Court of Chancery in a proceeding brought for the purpose of compelling delivery is subject to penalty for civil contempt of Court.

Del. Code tit. 12, § 1302 Proving will.

(a) A will shall be proved before the Register of Wills of the county in which the testator was domiciled at the time of death. If the testator was not domiciled in this State, it may be proved before the Register of any county in this State wherein there are any goods or chattels, rights or credits, or lands or tenements of the deceased. (b) To be effective to prove a transfer of any property or to nominate an executor, a will must be declared to be valid by admission to probate.

Del. Code tit. 12, § 1303 Notice and subpoena to persons interested.

Proof of a will may be taken without notice to persons interested, unless such a person requests it by petition filed with the Court of Chancery. Upon receiving such petition, the Court shall, and in any case it may, appoint a time for taking the proof, and issue subpoena, requiring any person to be present at the taking of such proof. In respect to persons not within the State it may order such service or publication of notice as it deems proper.

Del. Code tit. 12, § 1304 Unavailability of witnesses.

(a) In case any attesting and subscribing witness to a will, at the time the will is presented for probate, is dead, is serving in the armed forces of the United States or is a merchant sailor, or is mentally or physically incapable of testifying or is not within the State, or is otherwise unavailable, proof of the signature of such witness shall be sufficient. Such proof shall be the testimony in person or by deposition of a credible disinterested person that the signature of the witness on the will is in the handwriting of the person whose signature it purports to be, or other sufficient proof of such handwriting. (b) If a will cannot be proven because the signature of 1 or more of the attesting and subscribing witnesses to it cannot be proven, then proof of the signature of the testator shall be sufficient. Where the signature of 1 witness can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of a credible disinterested person that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting. Where none of the signatures of the witnesses can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of 2 credible disinterested persons that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting. (c) The foregoing provisions of this section shall not preclude the Register of Wills from requiring, in addition, the testimony in person or by deposition of any subscribing witness, or proof of such other pertinent facts and circumstances as the Register deems necessary to admit the will to probate.

Del. Code tit. 12, § 1305 Self-proved will.

An attested will may at the time of its execution or at any subsequent date be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this State, and evidenced by the officer’s certificate, under official seal, attached or annexed to the will in form and content substantially as follows: STATE OF SS COUNTY OF Before me, the subscriber, on this day personally appeared, and known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn the testator, declared to me and to the witnesses in my presence that the instrument is the testator’s last will and that had willingly signed or directed another to sign for the testator, and that the testator executed it as a free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence and hearing of the testator, that the witness signed the will as witness and that to the best of the witness’ knowledge the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence. ________________________________________________________________________________________________________ ________________________________ Testator ________________________________________________________________________________________________________ ________________________________ Witness ________________________________________________________________________________________________________ ________________________________ Witness Subscribed, sworn and acknowledged before me by ________________ , the testator, subscribed and sworn before me by ________________ and ________________________ witnesses, this ________________ day of ________________________________ , A.D., ________________________. (SEAL) (SIGNED) __________________________________________________________________________________________ ________________________________________________________________ (OFFICIAL CAPACITY OF OFFICER)

Del. Code tit. 12, § 1306 Choice of law as to execution and proving of wills.

(a) A written will signed by the testator, or by some person subscribing the testator’s name in the testator’s presence and at the testator’s express direction, is valid provided that: (1) It is executed in compliance with § 202 of this title; (2) It is executed in compliance with the law at the time of execution of the place where the will is executed; or (3) It is executed in compliance with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national. (b) An attested will that is considered valid under the provisions of this section shall be considered self-proved provided that: (1) It is executed in compliance with the requirements of § 1305 of this title; (2) It is executed in compliance with requirements of the law necessary to create a self-proved will in the jurisdiction where such will is made self-proved, at the time such will is made self-proved; or (3) It is executed in compliance with requirements of the law necessary to create a self-proved will in the jurisdiction where the testator is domiciled, has a place of abode, or is a national at the time of death.

Del. Code tit. 12, § 1307 Will of nondomiciliary; admission, recording and evidence.

(a) The written will of a testator who died domiciled outside this State, but who owned real estate or personal property located in this State, may be admitted to probate and recorded in this State. If such will has been admitted to probate in the domiciliary jurisdiction, such admission and recording shall be accomplished by filing a verified copy of the will and a verified copy of the record admitting the same to probate as hereinafter provided. If such will has not been admitted to probate in the domiciliary jurisdiction, but has not been rejected from probate in the domiciliary jurisdiction except for a cause which is not grounds for rejection of a will of a testator who died domiciled in this State, and is valid under the laws of this State, such admission and recording shall be accomplished by proving such will in accordance with §§ 1302-1305 of this title. In either case, such will shall then have the same force and effect as if originally proved and allowed in this State. (b) A copy, to be duly verified, must be certified by the proper officer under the officer’s hand and seal of office, if there be a seal of office, and there must also be a certificate, either under the great seal of such state, territory or country or under the hand of the presiding judge of a court of record of the state, territory or country, that such copy is certified in due form and by the proper officer; and in case of a certificate under the hand of the presiding judge, there must be an attestation of the officer keeping the seal of the court, under the hand of the office and the seal, that the certificate is under the hand of the presiding judge entitled to full faith and credit. If the will shall have been proved in a foreign country, the certificate under the hand of a presiding judge, as hereinbefore required, may be attested by the resident United States Consul-General, or Consul-General’s deputy, under the seal of the United States Consulate General. (c) The will or a verified copy of it, and any verified copy of the record admitting the will to probate, shall be recorded in the office of the Register of Wills of any county where real estate or personal property of the testator is located, and the record, or an office copy thereof, shall be sufficient evidence. When the will or a verified copy of it, or any verified copy of the record admitting the will to probate is given in evidence, the Court of Chancery, on the application of the adverse party, may order it to be deposited and retained in the office of the Register of the county, and in that case an office copy thereof shall be sufficient evidence.

Del. Code tit. 12, § 1308 Caveat against allowance of instrument as will; procedure.

(a) A caveat against the allowance of an instrument as a will shall be received by the Court of Chancery at any time prior to the entry of an order of probate. The caveat having been received, the Court shall appoint a time for hearing and award citations for the parties interested, and order service or publication of notice to the parties not within the State in accordance with § 1303 of this title. If, when a caveat is received, a time be appointed and process issued, it shall not be necessary to adjourn the taking of the proof and hearing; but an adjournment may be decreed, and other process awarded, or order made. (b) The Court of Chancery may determine the costs occasioned by such caveat and decree the payment thereof.

Del. Code tit. 12, § 1309 Review of proof of will; procedure.

(a) Any person interested who shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in § 1303 of this title, shall, at any time within 6 months after the entry of the order of probate, have a right of review which shall on the person’s petition be ordered by the Court of Chancery. Upon such review, there shall be the same proceedings as upon a caveat, and the allowance of the will and granting of letters may be affirmed or the will rejected and the letters revoked. (b) The Court of Chancery may determine the costs occasioned by such review and decree the payment thereof.

Del. Code tit. 12, § 1310 Formal testacy proceedings; contested cases; testimony of attesting witnesses.

If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, and, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit, the will shall be admitted to probate subject to all other provisions of this title.

Del. Code tit. 12, § 1311 Pre-mortem will validation [For application of this section, see 80 Del. Laws, c. 153, § 5].

(a) No proceedings under § 1308 or § 1309 of this title may be commenced following the death of a testator, who resided in Delaware at the time of death, with respect to a will which has been validated pursuant to the pre-mortem will validation procedure of this § 1311 by any person who was duly notified pursuant to this section if the time period set forth in this section has expired as of the date of the death of the testator, and no such person may become a party to any such proceeding commenced by another person. If such time period has not expired as of the date of the death of the testator, the limitation of this § 1311 shall have no application to such testator’s will. The preceding provisions of this subsection shall apply with respect to the exercise of a power of appointment in a will only if the testator has followed the provisions of subsection (c) of this section and shall apply with respect to the exercise of a power of appointment only to the extent of proceedings which challenge the exercise of the power of appointment on the basis that a proceeding could be brought challenging the will itself under § 1308 or § 1309 of this title. (b) A testator may notify in writing any person named in a will as a beneficiary, any person who would be entitled to inherit under Chapter 5 of this title if the testator had died intestate on the date of such notification, and/or any other person the testator wishes to be bound as to the validity of the testator’s will. The notice shall include a copy of the testator’s will, and shall state that a person who wishes to contest the validity of the will must do so within 120 days of receipt of such notice, unless the testator dies before such 120-day period has elapsed. A person receiving such written notice who wishes to contest the will shall file a proceeding in the Court of Chancery no later than 120 days following receipt of such notice. Such proceeding shall follow procedures comparable to those under § 1308 of this title for the caveat of a will. (c) If the testator’s will includes a provision exercising a power of appointment, then in addition to complying with the provisions of subsection (b) of this section, the testator may notify in writing any person named in the exercise of the power of appointment as a beneficiary, any person who would be entitled to receive property over which the testator exercises the power of appointment if the testator failed to validly exercise the power of appointment, the trustees of a trust holding property subject to the power of appointment, and/or any other person the testator wishes to be bound as to the validity of the exercise of the power of appointment under the testator’s will. The notice shall include a copy of the testator’s will, a copy of the trust or other instrument which contains the power of appointment which the testator is exercising, and shall state that a person who wishes to contest the validity of the exercise of the power of appointment must do so within 120 days of receipt of such notice, unless the testator dies before such 120-day period has elapsed. A person receiving such written notice who wishes to contest the exercise of the power of appointment shall file a proceeding in the Court of Chancery no later than 120 days following receipt of such notice. Such proceeding shall follow procedures comparable to those under § 1308 of this title for the caveat of a will. (d) The failure of a testator to use the provisions of this section shall not be construed as evidence that a will is not valid. (e) Nothing in this section shall preclude a person who has provided notice under this section or with respect to whose will a proceeding has been commenced pursuant to subsection (b) of this section from executing a codicil to such person’s will, or from executing a later will, but the notice under this section or proceedings under this section shall not be deemed to determine the validity of such later will or codicil. (f) Nothing in this section shall be construed as abrogating the right or cutting short the period for a spouse to file an elective share petition under § 901 et seq. of this title or to claim the surviving spouse’s allowance. Nothing in this section shall be construed as abrogating the right or cutting short any time period for any person to claim an intestate share of a decedent’s estate to the extent that a will results in a complete or partial intestacy. (g) For purposes of this section, notice shall have been given when received by the person to whom the notice was given and, absent evidence to the contrary, it shall be presumed that notice mailed or delivered to the last known address of such person constitutes receipt by such person. (h) For purposes of this section, a person is deemed to have been given any notice that has been given to any other person who under § 3547 of this title may represent and bind such person.

Del. Code tit. 12, § 1312 Limitation on action contesting validity of exercise of power of appointment [For application of this section, see 80 Del. Laws, c. 153, § 5].

(a) A judicial proceeding to contest whether an exercise of a power of appointment by any written instrument other than a will, under which property is transferred pursuant to the exercise of the power of appointment only as of the death of the person exercising the power of appointment (the “exercisor”) may not be initiated later than the first to occur of: (1) One hundred twenty days after the date that the exercisor notified in writing the person who is contesting the exercise of the existence of the instrument exercising the power of appointment, the name and address of the exercisor, whether such person is a beneficiary, and of the time allowed under this section for initiating a judicial proceeding to contest the exercise of the power of appointment. The exercisor shall also provide to the person who is contesting the exercise a copy of the instrument which creates the power of appointment. For purposes of this subsection, notice shall have been given when received by the person to whom the notice was given and, absent evidence to the contrary, it shall be presumed that notice mailed or delivered to the last known address of such person constitutes receipt by such person. This paragraph (a)(1) shall be applicable only to a proceeding to contest whether an exercise of a power of appointment by any written instrument other than a will is valid to the extent that the basis for such contest is a failure to comply with formalities for the execution of the power of appointment, undue influence over the exercisor, or lack of capacity of the exercisor; (2) Two years after the death of the exercisor; or (3) The date the person’s right to contest was precluded by adjudication, consent, or other limitation. (b) For purposes of subsection (a) of this section, a person is deemed to have been given any notice that has been given to any person who under § 3547 of this title may represent and bind such person.

Del. Code tit. 12, § 1313 Restricted access to a decedent’s safe deposit box for the limited purpose of retrieving the decedent’s last will or declaration of disposition of last remains prior to the appointment of personal representative.

(a) After the death of the decedent but prior to the appointment of a personal representative for the decedent’s estate, access to the decedent’s safe deposit box located in a “financial institution,” as defined by § 101 of Title 5, and held in the decedent’s sole name shall be limited to only such person or persons who present to the financial institution all of the following: (1) A key or combination to the lock to the decedent’s safe deposit box. (2) A certified copy of the certificate of the decedent’s death or other satisfactory proof thereof. (3) Proof of identity of the person seeking access to the safe deposit box, with a photocopy of the proof of identity to be placed in the safe deposit box and to remain in the safe deposit box until retrieved by the personal representative of the decedent’s estate. (b) The financial institution has no duty to inquire into the truth of any statement, declaration, certificate, affidavit, or document offered as proof of the decedent’s death or proof of identity of the person seeking access. (c) If a person is unable to present a key or combination to the lock to the decedent’s safe deposit box, a court order is required for access to the safe deposit box. (d) Access to a safe deposit box under subsection (a) of this section must occur only under the supervision of an officer or employee of the financial institution, and must be restricted to the following: (1) Opening the safe deposit box with the key presented under subsection (a) of this section. (2) Making a photocopy of any wills or declarations of disposition of last remains located in the safe deposit box. (3) Removal of wills and declarations from within the safe deposit box only after placing in the safe deposit box the photocopies of such wills and declarations to be removed, with the photocopies remaining in the safe deposit box until removed by the personal representative of the decedent’s estate. (e) Any will removed from a safe deposit box under this section and appearing on its face to have been executed in Delaware or by a testator residing in Delaware shall be sent from the financial institution to the Register of Wills in accordance with § 1301(a) of this title if the decedent was domiciled in Delaware at the time of death. All declarations of disposition of last remains removed from the safe deposit box may be released to the person seeking access to the safe deposit box after compliance with subsection (d) of this section. (f) The financial institution may charge reasonable fees for any cost of sending the will to the Register of Wills and for photocopying any documents pursuant to subsections (a) and (d) of this section. Nothing herein shall preclude the person seeking access to the safe deposit box from seeking reimbursement of such costs from the decedent’s estate. (g) No financial institution shall be liable for the loss of any content of any safe deposit box for which access was granted pursuant to this section.

Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title12/c013/index.htmlFetched: 10/4/2026