To make a valid will in Delaware, you must put your wishes in writing, sign the document, and have two credible witnesses attest and subscribe the will in your presence under 12 Del. C. § 202. A will that does not meet these requirements is void under Delaware law.
Key Takeaways
- Delaware requires two credible witnesses who attest and subscribe the will while you are present.
- Delaware does not recognize handwritten holographic wills the way many other states do.
- A will that fails to meet the writing and witnessing requirements is void, not just voidable.
- A self-proving affidavit lets your executor avoid live witness testimony in probate.
What are the basic requirements to make a valid will in Delaware?
Under 12 Del. C. § 202, every will, whether it disposes of personal or real estate, must be in writing and signed by the testator, or by someone else signing the testator's name in the testator's presence and at the testator's express direction. The will must also be attested and subscribed in the testator's presence by two or more credible witnesses. Delaware's statute is blunt about the consequence of getting this wrong: a will that does not comply is void.
Credible in this context generally means the witnesses are competent adults capable of testifying to what they observed. As in most states, it is smart to choose witnesses who have nothing to gain under the will, even though Delaware does not automatically void a will because an interested party witnessed it.
Step-by-step: how do you make a will in Delaware?
- List your assets, debts, and the people or organizations you want to name as beneficiaries.
- Choose an executor to manage your estate and a guardian if you have minor children.
- Draft the will naming your executor, guardian, and beneficiaries, and state clearly that it is your last will and testament.
- Sign the will yourself, or direct someone else to sign your name in your presence.
- Have two credible witnesses attest and subscribe the will while you are present.
- Add a self-proving affidavit before a notary, ideally at the same signing, under Delaware's self-proved will statute.
- Store the signed original somewhere secure and tell your executor exactly where it is.
If you would rather not draft this language on your own, FastWill's online will builder walks through these steps and produces a Delaware-compliant will.
Does Delaware recognize handwritten (holographic) wills?
No. Delaware does not have a general holographic will statute that lets a completely handwritten, unwitnessed will stand on its own the way roughly half of U.S. states do. A will signed in Delaware still needs two credible witnesses under 12 Del. C. § 202 regardless of whether it is handwritten or typed. This makes it especially risky to rely on an informal, unwitnessed handwritten note as your will if you live in Delaware. Delaware law does address the validity of wills executed under the law of another jurisdiction, so a holographic will validly made elsewhere may still be recognized depending on the facts, but you should not count on that if you are signing your will while living in Delaware.
What is a self-proving affidavit and do you need one in Delaware?
Under 12 Del. C. § 1305, an attested will may be made self-proved, either at the time of execution or at any later date, through your acknowledgment and your witnesses' affidavits made before a notary and evidenced by the notary's certificate under seal. Once a will is self-proved, compliance with the signature requirements is conclusively presumed, and the other execution requirements are presumed valid without needing witness testimony, unless there is proof of fraud or forgery. That is a meaningful protection: it means your executor generally will not have to hunt down your witnesses years later to prove the will was signed correctly.
DIY will vs. hiring a lawyer in Delaware
Most Delaware estates, meaning a home, some savings, retirement accounts, and everyday personal property, do not require a custom will drafted by an attorney. Because Delaware voids a will outright for execution defects and does not fall back on a holographic will exception, getting the signing and witnessing steps exactly right matters even more here than in some other states. Talk to an estate planning attorney if you own a business, have a blended family with competing claims, own property outside Delaware, or need a trust for a beneficiary who cannot manage an outright inheritance. See our Delaware estate planning overview y Delaware estate planning checklist for what else your plan should include, along with our guide to making a power of attorney in Delaware.
How do you update or revoke a will in Delaware?
You can revoke a Delaware will by physically destroying it with intent to revoke, by executing a new will that revokes prior wills, or by a subsequent written instrument executed with the same formalities as a will. Marriage, divorce, a move, and the birth or adoption of a child are common reasons to update a will. Do not handwrite changes onto a will you have already signed. Because Delaware has no holographic will exception to fall back on, an informal handwritten change is at serious risk of being disregarded entirely, potentially reviving language you meant to replace. Execute a new will or a properly witnessed codicil instead.
A codicil amends a specific part of an existing will and, like the will itself, must be signed and witnessed under 12 Del. C. § 202. For most people, particularly after a divorce, a remarriage, or selling a major asset, executing a brand-new will that expressly revokes every earlier will and codicil is simpler and safer than stacking amendments. Every additional document is one more thing a probate court has to reconcile, and in a state that voids improperly executed wills outright, that reconciliation is not something you want to leave to chance.
Preguntas frecuentes
Do I need a lawyer to make a will in Delaware?
No. Delaware law does not require an attorney to draft or witness a will, but you must follow 12 Del. C. § 202 exactly, since Delaware voids wills that miss the mark on execution.
Can a beneficiary act as a witness in Delaware?
Delaware does not automatically void a will because an interested party witnessed it, but choosing two witnesses who receive nothing under the will avoids inviting a challenge later.
Is a will made in another state valid once I move to Delaware?
Generally yes, if it was validly executed under the law of the state where it was signed or where you were domiciled at the time. Have it reviewed after your move, since Delaware's strict execution rules and lack of a holographic will exception can matter if the document ever needs to be probated here.
What happens if I die without a will in Delaware?
Delaware's intestacy statutes decide who inherits, typically your spouse and children in shares set by law rather than your own preference. See our guide on what happens if you die without a will in Delaware for the full breakdown.
Do I need to notarize my will in Delaware?
No, notarization is not required for the will itself to be valid. It is required only for the optional self-proving affidavit, which is still worth doing to speed up probate.
Ready to put your wishes in writing the right way? Build a Delaware-compliant will with FastWill's will package, and see our general guide to writing your own will for concepts that apply nationwide.
