Delaware Estate Planning Considerations
Delaware is a Common Law State, which means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage hold that subject to various qualifications, each spouse owns and has complete control over their or her income and property.
Last Will and Testament and Trusts
Will Creation, The minimum age of a person competent to make a will, is 18.
The number of witnesses necessary to execute a will is two.
Uniform Transfers to Minors Act (UTMA)
The custodial arrangement terminates when:
The minor child reaches age 21 for custodial transfers made by irrevocable lifetime gift, will, trust, or exercise of a power of appointment.
The minor child reaches age 18 concerning other custodial transfers.
The minor child dies.
Dying without a Last Will, the Delaware laws of Intestacy.
The estate goes to the surviving spouse, as follows:
- If there are no surviving descendants or parents, —100% of the estate
- If the parent(s) survive, but there is no surviving descendant—the first $50,000 of the personal estate, plus 50% of the balance of the personal estate, plus a life estate in the real estate
- If surviving descendants are all also descendants of the spouse—the first $50,000 of the personal estate, plus 50% of the balance of the personal estate, plus a life estate in the real estate
- If there are surviving descendants, at least one of whom is not also a descendant of the spouse—50% of the personal estate, plus a life estate in the real estate
If there is no surviving spouse, or if a portion of the estate does not go to the spouse:
- 100% to the descendants per stirpes (see 12 Del. C. §503(5)—any property passing to two or more persons is taken as tenants in common)
- If there is no surviving spouse or descendant:
- 100% to surviving parent or parents equally (see 12 Del. C. §503(5)—any property passing to two or more persons is taken as tenants in common)
- If there is no surviving spouse, descendant, or parent:
- 100% of the estate goes to siblings and the descendants of each deceased sibling, per stirpes (see 12 Del. C. §503(5)—any property passing to two or more persons is taken as tenants in common)
If none of the above:
- Intestacy laws outline further distribution steps to next of kin and related individuals. See 12 Del. C. §503(4).
- If no legally described recipient can be found, estate assets go to the state of Delaware.
- Click here for more information on Intestacy.
Delaware follows the Fiduciary Access to Digital Assets and Digital Accounts Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
Delaware does not impose an inheritance tax.
Credit Estate Tax
Delaware does not impose an estate tax.
Generation-Skipping Transfer Tax (GST Tax)
Delaware does not impose a GST tax.
Delaware does not impose a gift tax.