The most common mistakes that invalidate or weaken a will in Delaware are witness errors, a missing testator signature, no residuary clause, and failing to update the will after a marriage, divorce, or new child. A DIY will is legal in Delaware, but it has to follow the state's exact signing and witness rules.
Key Takeaways
- Delaware law requires a specific signing and witnessing sequence, and skipping a step can invalidate the entire will.
- A self-proving affidavit is optional, but leaving it out slows probate and can force witnesses to appear in court later.
- Ambiguous language, no residuary clause, and improper amendments are common drafting mistakes that create disputes among heirs.
- A DIY will is valid in Delaware when executed correctly. The risk is skipping or misapplying a formality, not the DIY format itself.
For the full picture of what a complete plan looks like in Delaware, see the Delaware estate planning guide.
Witness mistakes that can invalidate the whole will
Delaware requires a will to be in writing, signed by the testator, and attested and subscribed in the testator's presence by at least two credible witnesses (12 Del. C. Section 202). The most common errors are using only one witness instead of two, having a witness sign outside the testator's presence, or letting a beneficiary act as one of the two witnesses. An interested witness does not always void a Delaware will, but it invites a challenge from an heir who was left out.
If you have not started your will yet, walk through the how to make a will in Delaware guide first, then come back to these mistakes before you sign.
A missing or misplaced testator signature
The signature has to appear where Delaware law requires it, usually at the end of the document. A will signed on the wrong page, left unsigned because the testator ran out of room, or signed before all terms were added is vulnerable to a challenge. Read the entire document after signing to confirm nothing was added below the signature line.
Assuming a handwritten will skips the witness rule
Delaware does not recognize a purely handwritten, unwitnessed will as valid. Writing out your wishes by hand and signing the page is not enough on its own. Delaware still requires the signature and witness formalities under Delaware Code Title 12, Section 202 regardless of whether the document is typed or handwritten.
Skipping the self-proving affidavit
A self-proving affidavit is not required, but skipping it is still a mistake. Delaware also honors a will executed outside the state if it complied with the law of the state where it was signed (12 Del. C. Section 1306), which matters if you moved to Delaware with an out-of-state template. Without it, the probate court may need to track down the original witnesses, which adds time and cost for the family.
Ambiguous bequests and no residuary clause
A will that leaves "my jewelry to my daughters" without naming which daughter gets which piece forces the executor and the court to guess at intent. Name beneficiaries specifically and describe significant assets clearly. Also include a residuary clause covering anything not specifically listed. Without one, any forgotten or later-acquired asset passes under Delaware's intestacy statute instead of to the people actually chosen.
Skipping a will entirely carries its own risk. See what happens if you die without a will in Delaware for what happens to an estate with no valid will at all.
Improper amendment or revocation
Crossing out a name on an already-signed will and writing in a new one by hand does not update it; it just raises a question about tampering. To change a Delaware will, execute a formal codicil that follows the same signing and witness formalities as the original, or revoke the old will and sign a completely new one.
DIY-form errors and stale wills
A template built for a different state's execution rules is one of the most common reasons a DIY will fails. Use a will builder that applies Delaware-specific rules automatically rather than a generic form. Then review the will after every marriage, divorce, birth, adoption, or death of a named beneficiary or executor, since a will signed before one of those events often no longer reflects what the testator actually wants.
Getting the will done right the first time
None of these mistakes mean you need a lawyer to write a basic will. They mean the will has to be built around Delaware's actual execution rules and reviewed carefully before signing. FastWill's will builder walks you through Delaware's witness and signature requirements step by step, and you can update the document any time your circumstances change. A will is not the only document most Delaware residents need: pair it with a how to make a living trust in Delaware if you want to avoid probate on real property, and a how to make a power of attorney in Delaware so someone can manage your finances if you become incapacitated.
For a broader look at these pitfalls across every state, see FastWill's guide to common will mistakes and how to avoid them.
Preguntas frecuentes
Is a DIY will legal in Delaware?
Yes. Delaware does not require a lawyer to draft or witness a will. It has to meet the signing and witness requirements under Delaware Code Title 12, Section 202, but a self-prepared will that follows those rules is just as valid as one drafted by an attorney.
Do I need a self-proving affidavit for my Delaware will?
No, but it is worth doing. A self-proving affidavit under Delaware Code Title 12, Section 1306 lets the probate court accept the will without contacting the witnesses, saving the family time and expense.
Can I cross out a name and rewrite it on my existing will?
No. Handwritten changes to an already-signed will usually do not count as a valid amendment and can raise questions about tampering. Execute a formal codicil or a new will instead.
What happens if my Delaware will has no residuary clause?
Any asset not covered elsewhere in the will passes under Delaware's intestacy law instead of to the people chosen, even if the rest of the will is valid.
Can a beneficiary witness my will in Delaware?
It is not recommended. An interested witness does not automatically invalidate a Delaware will, but it puts that witness's gift at risk of challenge and gives an excluded heir an easy argument to contest the will.
