Will requirements in Delaware
Delaware requires two or more credible witnesses and asks for a sound and disposing mind and memory, a slightly fuller capacity formulation than most states use — but it does not accept handwritten wills.
Delaware phrases its capacity requirement more fully than most states: you must be of sound and disposing mind and memory. The extra words point at something real — not merely understanding, but the ability to form and hold a plan for disposing of your property.
Delaware is strict about form in one respect that catches people out. It does not recognise holographic wills at all. A will written entirely in your own hand has no effect here without two credible witnesses, which makes Delaware unforgiving of informal arrangements.
Who can make a will in Delaware
At a glance
18 or older, and of sound and disposing mind and memory
12 Del. C. § 201
Delaware requires you to be at least 18 and of sound and disposing mind and memory. The phrasing is fuller than the plain sound mind used in most states, and it points at the capacity to form a coherent plan for your property rather than simply understanding that you are signing something.
In practice Delaware courts apply a test comparable to other states: whether you understood the nature of the act, the extent of your property, and the people who would naturally expect to inherit.
Witness requirements
How many witnesses
Two or more credible witnesses, attesting and signing in your presence
12 Del. C. §§ 202, 203
No purge — the gift survives
Delaware provides that a will is not invalid merely because an interested person signed it, which points toward the gift surviving — but this classification is drawn from a reading of the statute rather than settled authority
Confirm this with a Delaware attorney, who can confirm whether any separate provision affects a gift to a witness.
Delaware requires two or more credible witnesses who attest and sign in your presence. The phrase two or more matters: Delaware sets a floor rather than a fixed number, so a third witness is permitted and occasionally sensible.
On interested witnesses, Delaware provides that a will is not invalid merely because it was signed by an interested person. Read plainly, that suggests a beneficiary-witness does not lose the gift. We flag it rather than state it flatly because this classification rests on a reading of the statutory text rather than on settled authority, and older secondary sources point the other way.
The practical answer does not depend on resolving that question. Use two disinterested witnesses and the issue never arises.
Whatever Delaware allows, the safe practice is the same everywhere: use two disinterested witnesses who inherit nothing under the will.
Notarization and self-proving affidavits
At a glance
Notarization is not required for validity; a self-proving affidavit is available
A Delaware will is valid without a notary. Notarization is used to create the self-proving affidavit, sworn by you and your witnesses at execution, which lets the will be admitted without the witnesses testifying.
Because Delaware offers no holographic fallback, the formal execution is the only thing standing between your wishes and intestacy. Taking the self-proving affidavit is a small step that protects a document you cannot afford to have fail.
Handwritten (holographic) wills
At a glance
Not recognized
Delaware does not recognise holographic wills. A handwritten, unwitnessed document is not a valid will here regardless of how clearly it sets out your intentions or how obviously the handwriting is yours.
If you die leaving only a handwritten note, Delaware treats you as having died intestate and distributes your property under its default rules, not according to what the note said.
Small estate procedure
At a glance
Delaware offers a simplified small-estate affidavit procedure below a statutory threshold
Confirm this with the Register of Wills in the relevant county.
Delaware allows a small estate to be settled by affidavit rather than full administration where it falls below a statutory limit.
Delaware administers probate through the Register of Wills in each county, which is where to confirm the current threshold and obtain the affidavit form.
Community property or common law
At a glance
Common law (separate property) state
Delaware is a common law property state. Ownership follows title rather than being automatically shared between spouses because assets were acquired during the marriage.
Delaware provides a surviving spouse with an elective share, so a spouse generally cannot be entirely disinherited by will alone.
Advance directives and powers of attorney
At a glance
Statutory advance health-care directive; statutory durable power of attorney
16 Del. C. § 2503
Delaware's advance health-care directive lets you record treatment preferences and appoint an agent to make medical decisions if you cannot. It operates during your lifetime, covering the period a will never reaches.
Delaware also has a statutory durable power of attorney for financial matters, with its own execution requirements including a notary. Signing one alongside your will avoids the need for a guardianship proceeding if you later lose capacity.
Frequently asked about Delaware wills
- Is a handwritten will valid in Delaware?
- No. Delaware does not recognise holographic wills, so a handwritten and unwitnessed document has no effect here no matter how clear it is or how plainly the handwriting is yours. If that note is all you leave, Delaware treats you as having died without a will and distributes your property under its intestacy rules. You need two credible witnesses.
- What does sound and disposing mind and memory mean in Delaware?
- It is Delaware's fuller phrasing of the capacity requirement, and it points at the ability to form and hold a plan for disposing of your property rather than merely understanding that you are signing a document. In practice Delaware courts apply a test similar to other states: whether you understood the nature of the act, the extent of your property, and who would naturally expect to inherit. Capacity is judged as at the moment you signed.
- Can a beneficiary witness my Delaware will?
- Delaware's statute says a will is not invalid merely because an interested person signed it, which suggests the gift survives. We would not want you to rely on that without checking, because the classification rests on a reading of the statutory text rather than settled authority and older secondary sources point the other way. The reliable answer either way is to use two witnesses who inherit nothing, which removes the question entirely.
- Does Delaware need more than two witnesses?
- No. Delaware requires two or more credible witnesses, so two is sufficient. The two or more phrasing sets a floor rather than a target, and a third witness is permitted. Some people add one where a will might be contested or where a witness is elderly, but two disinterested witnesses who sign in your presence satisfies the statute.
This is not legal advice
This page is general information about Delaware law, not legal advice, and reading it does not create an attorney-client relationship. Statutes change, courts interpret them differently, and the right answer depends on facts this page cannot know. Legacy Suite is not a law firm — before you sign or rely on anything, consult an attorney licensed in Delaware.
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