Last Will & Testament

What a will does

A last will and testament directs how probate property is distributed, nominates an executor, and may nominate guardians for minor children. Without one, intestacy law determines who receives probate property, while state administration and guardianship laws govern appointments.

A nominated executor petitions through the applicable probate process. After appointment, the personal representative inventories estate assets, addresses valid debts and taxes, and distributes what remains under the will and applicable law.

What makes a will valid

Formal requirements are set by state statute. Delaware requires the testator to be at least 18 and of sound and disposing mind, and the will must be in writing, signed by the testator (or by someone at their direction and in their presence), and attested by two credible witnesses (12 Del. C. §§ 201–202).

Delaware has no holographic-will exception to its two-witness rule for wills executed under Delaware law, although § 1306 can recognize a written will valid under another applicable jurisdiction's law. A Delaware will can also be made self-proved under Chapter 13.

What a will does not control

A will reaches assets that pass through probate. Assets with an effective nonprobate transfer mechanism — such as a valid beneficiary designation, POD/TOD registration, survivorship title, or trust ownership — commonly pass outside it.

A will and an account designation can point to different people. An effective designation generally controls under the governing plan or account terms and applicable law, so review forms after major life changes.

Dying without a will (intestacy)

If you die intestate, state law distributes probate property among statutory heirs and governs appointment of an administrator and any guardian. People who are not statutory heirs — often unmarried partners, unadopted stepchildren, and charities — generally receive nothing through intestacy, though state law varies.

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