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Estate plan requirements
Delaware
Everything your estate plan needs to be valid in Delaware: execution requirements, the documents we generate, statutory citations, and the exact wording our generators insert.
Requirements at a glance
Document
Witnesses
Notary
Will
2 required
Recommended
Living trust
1 required
Recommended
Power of attorney
1 required
Required
Healthcare directive
1 required
Not required
Your complete Delaware estate plan
Will, living trust, durable power of attorney, healthcare directive, and six more documents, all valid in Delaware once signed the way Delaware requires.
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12 Del. C. § 201 et seq. (execution requirements at 12 Del. C. § 202)
Witnesses: 2 required
At least two credible witnesses must sign in the presence of the testator (12 Del. C. § 202(a)(2) requires '2 or more credible witnesses')
Notarization: Recommended
Not legally required, but recommended for self-proving affidavit
Holographic will: Not valid
Delaware does not recognize handwritten wills without witnesses
Self-proving affidavit: Available
Allows the will to be admitted to probate without witness testimony
ViewSelf-proving affidavit wording▾
STATE OF DELAWARE
SS
COUNTY OF _______________
Before me, the subscriber, on this day personally appeared {testatorName}, and _______________ and _______________, known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn, the testator declared to me and to the witnesses in my presence that the instrument is the testator's last will and that the testator had willingly signed or directed another to sign for the testator, and that the testator executed it as a free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence and hearing of the testator, that the witness signed the will as witness and that to the best of the witness' knowledge the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence.
___________________________________
{testatorName}, Testator
___________________________________
Witness
___________________________________
Witness
Subscribed, sworn and acknowledged before me by {testatorName}, the testator, subscribed and sworn before me by _______________ and _______________ witnesses, this _______________ day of _______________, A.D., _______________.
(SEAL)
(SIGNED) ___________________________________
_______________________________________ (OFFICIAL CAPACITY OF OFFICER)
12 Del. C. §§ 202(a)(2), 203: a will must be signed by 2 or more credible witnesses. § 203(b) provides that a will or any provision thereof is not invalid because the will is signed by an interested person, so Delaware has no execution-blocking witness disqualifications and beneficial provisions to attesting witnesses are preserved.
2
Living Trust
Witnesses: 1 required
A trust provision under which someone other than the trustor acquires or is divested of an interest whose enjoyment is contingent on surviving the trustor is void unless it is in a writing executed by the trustor and witnessed in writing in the trustor's presence by at least 1 disinterested person or 2 credible persons, or in a writing executed by a trustee who is a disinterested person (12 Del. C. § 3545(a)). A disinterested person is one with no beneficial interest in the trust that the change would materially increase or decrease. A notary public or similar official may serve as the witness, whether signing as a witness or solely in a notarial capacity.
Notarization: Recommended
Not legally required for the trust document, but needed to transfer real property
Conditional execution: Special rule
1 disinterested witness OR 2 credible witnesses
Certification of trust: 12 Del. C. §3591
Delaware lets your trustee prove the trust to a bank, brokerage, title company, insurer, or transfer agent with a short certification instead of the trust itself. It states that the trust exists, who the trustee is, and what the trustee may do, and it leaves out who inherits and what each person receives. Will.com generates the Delaware Certification of Trust with your trust, built to the contents that section requires. Sign it in front of the same notary, at the same sitting as the trust. The same section also says what happens if someone demands the trust itself anyway. 12 Del. C. §3591(h) provides that a person making a demand for the trust instrument in addition to a certification of trust or excerpts is liable for damages, including attorneys' fees, if the court determines that the person did not act in good faith in requesting the trust instrument.
State-specific notes
•Delaware sets the witness rule as '1 disinterested or 2 credible persons,' not notary-plus-witness (12 Del. C. § 3545). Notarization is not required by the trust statute (though strongly recommended for real-property funding and for the §§ 901-908 elective-share spousal-waiver clause if applicable).
•The notary who acknowledges the trustor's signature may also serve as the disinterested or credible witness; the two roles need not be separated.
•Electronic execution changes the medium, not the formalities. Delaware permits a governing instrument or other document described in the trust-witnessing statute, other than a will or codicil, to be executed under the Uniform Electronic Transactions Act, but only 'if otherwise validly executed' (12 Del. C. § 3550(a)(1), referring to § 3545 and to Chapter 12A of Title 6). The disinterested-witness or 2-credible-witness requirement still applies, and there is no electronic route for a will or codicil.
•Delaware is a leading asset-protection-trust jurisdiction. The Qualified Dispositions in Trust Act permits a settlor to transfer assets to an irrevocable Delaware trust with a qualified Delaware trustee, retaining limited interests (income, special power of appointment, trustee-removal right), shielding the principal from most creditors subject to statutory limits: a creditor whose claim arose concurrent with or after the qualified disposition must bring an avoidance action within 4 years of the disposition and must prove actual intent to defraud, while a creditor whose claim pre-dated the disposition gets the Title 6 fraudulent-transfer limitations period. The creditor bears a clear-and-convincing burden and the Court of Chancery has exclusive jurisdiction. A creditor's rights against a qualified disposition are limited to those the statute provides (12 Del. C. §§ 3570-3576; the operative sections are §§ 3572, 3573 and 3574). This Delaware-specific regime is distinct from a standard revocable living trust.
•The asset-protection limits do not reach every creditor. A spouse, former spouse or child owed support or alimony under an agreement or court order, a spouse or former spouse owed a division of property incident to a separation or divorce, and a person whose death, personal injury or property damage was caused by the transferor on or before the disposition are all outside the protection, each to the extent of that debt or claim (12 Del. C. § 3573(a)). The support and property-division carve-out does not itself extend to a claim for forced heirship, legitime or elective share (12 Del. C. § 3573(b)). The protection applies against the transferor's own spouse only where the spouse gave written consent before the disposition, after being given the trust instrument, a list and reasonable valuation of the property, a copy of the Act, and the capital-letters warning the statute prescribes, signed by the spouse and witnessed by someone unrelated to the transferor (12 Del. C. § 3573(c)).
3
Durable Power of Attorney
Witnesses: 1 required
Delaware requires 1 witness for power of attorney execution
Notarization: Required
Notarization is required for a valid durable power of attorney
State-specific notes
•Requires one adult witness AND a notary. Del. Code tit. 12, § 49A-105(a)
•Durability is NOT presumed in Delaware. The instrument must contain affirmative durability language (e.g., 'This power of attorney shall not be affected by my subsequent disability or incapacity') or similar 'magic words' showing the principal's intent that authority continue despite incapacity; without those words the POA terminates on incapacity (12 Del. C. § 49A-104).
•The statutory notice to the principal is optional (12 Del. C. § 49A-105(b)). If omitted, the agent bears the burden on challenge of demonstrating the POA's validity; omission does not void the POA. The agent's certification is a separate document the agent executes when first acting under the POA (12 Del. C. § 49A-105(c)).
ViewWarning notice for the principal▾
As the person signing this durable power of attorney you are the Principal.
The purpose of this power of attorney is to give the person you designate (your "Agent") broad powers to handle your property, which may include powers to sell, dispose of, or encumber any real or personal property without advance notice to you or approval by you.
This power of attorney does not authorize your Agent to make health-care decisions for you.
Unless you specify otherwise, your Agent's authority will continue even if you become incapacitated, or until you die or revoke the power of attorney, or until your Agent resigns or is unable to act for you. You should select someone you trust to serve as your Agent.
This power of attorney does not impose a duty on your Agent to exercise granted powers, but when powers are exercised, your Agent must use due care to act for your benefit and in accordance with this power of attorney.
Your Agent must keep your funds and other property separate from your Agent's funds and other property.
A court can take away the powers of your Agent if it finds your Agent is not acting properly.
The powers and duties of an Agent under a durable power of attorney are explained more fully in 12 Del. C. §§ 49A-114 and 49A-201 through 49A-217.
If there is anything about this form that you do not understand, you should ask a lawyer of your own choosing to explain it to you.
I have read or had explained to me this notice and I understand its contents.
ViewAgent acknowledgment wording▾
Delaware makes this certification a precondition to the Agent's authority, not a courtesy. Under 12 Del. C. §49A-105(c), regardless of the method by which a person accepts appointment as an agent under a personal power of attorney, that agent "shall have no authority to act as agent under the personal power of attorney unless the agent has first executed and affixed to the personal power of attorney a certification in substantially the following form". Sign the certification below and keep it attached to this instrument; an Agent who presents this Power of Attorney without it is presenting an instrument under which Delaware gives the Agent nothing to do.
AGENT'S CERTIFICATION
I, {agentName}, have read the attached durable personal power of attorney and I am the person identified as the Agent or identified as the Agent for the Principal. To the best of my knowledge this power has not been revoked. I hereby acknowledge that, when I act as Agent, I shall:
Act in accordance with the principal's reasonable expectations to the extent actually known to me and, otherwise, in the Principal's best interest;
Act in good faith;
Act only within the scope of authority granted in the personal power of attorney; and
To the extent reasonably practicable under the circumstances, keep in regular contact with the principal and communicate with the principal.
In addition, in the absence of a specific provision to the contrary in the durable personal power of attorney, when I act as Agent, I shall:
Keep the assets of the Principal separate from my assets;
Exercise reasonable caution and prudence; and
Keep a full and accurate record of all actions, receipts and disbursements on behalf of the Principal.
ViewWitness disqualification recital▾
I am not related to the principal by blood, marriage, or adoption; nor am I entitled to any portion of the estate of the principal under the principal's then existing will or codicil or amendment thereto or trust instrument (12 Del. C. § 49A-105(a)(5)).
4
Advance Health-Care Directive
16 Del. C. §§ 2501-2530 (Uniform Health-Care Decisions Act 2023; 84 Del. Laws c. 467, eff. 2025-09-30); execution requirements at 16 Del. C. § 2508, optional statutory form at 16 Del. C. § 2511
Last verified: 2025-09-30
Witnesses: 1 required
Delaware requires 1 witness
Notarization: Not required
Notarization is not required but may be accepted
State-specific notes
•Chapter 25 was comprehensively replaced by SB 309 / 84 Del. Laws c. 467 (Uniform Health-Care Decisions Act 2023), effective September 30, 2025. Section pin-cites prior to this date no longer track operative law.
•The health-care power of attorney must be in a record, signed by the principal, and signed by 1 adult witness who reasonably believes the principal's act is voluntary and knowing; is not the agent, or the agent's spouse, domestic partner, or cohabitant; is not, where the principal resides or is receiving care in a nursing home or long-term care facility, an owner, operator, employee, or contractor of that facility; and is present when the principal signs or when the principal represents that the directive reflects the principal's wishes (16 Del. C. § 2508(d)). The facility bar has no relation-based exception; the family-member exception governs who may serve as agent, not who may witness (16 Del. C. § 2508(b)(2)).
•An advance mental-health-care directive with a non-revocation direction requires 2 adult witnesses (16 Del. C. § 2509(e)).
•A witness is present if physically in the same location as the principal, connected by real-time audio and visual transmission, or connected by real-time audio alone where the principal's identity is personally known to the witness or the witness can authenticate it from the principal's answers (16 Del. C. § 2508(e)). An advance mental-health-care directive containing a non-revocation direction is the exception: its 2 witnesses must be physically present in the same location (16 Del. C. § 2509(e)(6)).
•The statutory advance-directive form is set out by statute (16 Del. C. § 2511).
ViewWitness disqualification recital▾
16 Del. C. § 2508(d) (UHCDA 2023, eff. 2025-09-30) requires one adult witness: the witness must reasonably believe the principal's act is voluntary and knowing; must not be the agent, or the agent's spouse, domestic partner, or cohabitant; must not, where the principal resides or is receiving care in a nursing home or long-term care facility, be an owner, operator, employee, or contractor of that facility; and must be present when the principal signs or when the principal represents that the directive reflects the principal's wishes (§ 2508(d)(5)). Delaware attaches no relation-based exception to the facility bar. Presence is satisfied by physical presence, by real-time audio and visual transmission, or by real-time audio alone where the principal's identity is personally known to the witness or the witness can authenticate it from the principal's answers (§ 2508(e)). Delaware imposes no other witness restriction: it does not disqualify a witness who is related to the principal, who stands to inherit under any will or codicil or by operation of law, who is financially responsible for the principal's medical care, or who is the principal's attending physician or insurer.
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6 more documents with a subscription
$29/year unlocks the documents below alongside the four free ones above. Your answers and documents are saved privately to your account, encrypted in your browser, so you can revise them any time life changes.
Declaration of Disposition of Final Remains
Names the agent who controls funeral, burial, or cremation decisions, with optional preferences.
In this state: Delaware recognizes a statutory Declaration of Disposition of Final Remains; we follow that form. (12 Del. C. §§ 260-270)
HIPAA Authorization
Stand-alone PHI release that survives death for the period you specify, separate from the in-life authorization in your healthcare directive. The free packet includes it too whenever it has a healthcare directive.
Nomination of Guardian of the Person and Guardian of the Property
Pre-nominates the person you want a court to appoint if a conservator (or guardian of the estate) is ever needed.
Business Succession Declaration
Identifies your interests in any closely-held businesses and how they should be transferred or wound down.
Real-Estate Retitling Checklist
Step-by-step instructions for transferring real-property deeds into your trust so the trust actually controls those assets.
Letter of Instruction
Non-binding personal note to your executor and family: where to find documents, account access, funeral wishes, and other practical guidance.
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State-specific signing guide
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Covers real estate, business, digital, and funeral wishes
Delaware has not adopted electronic will legislation. A traditional paper will with physical signatures is required.
Digital assets access
Delaware has not adopted RUFADAA. Executor access to digital accounts may be limited by each provider’s terms of service. Consult a local attorney for guidance on digital asset planning.
Remote online notarization (RON)
Delaware authorized RON in 2023.
Will
Not allowed
Trust
Allowed
POA
Allowed
Remote online witnessing (ROW)
Delaware allows remote online witnessing for some estate planning documents. Witnesses can observe your signing over a live video call instead of being physically present. 16 Del. C. § 2508(e) (UHCDA 2023, eff. 2025-09-30) permits witnessing of the advance directive by real-time audio-visual transmission, and by real-time audio alone where the principal's identity is personally known to the witness or the witness can authenticate it. Delaware authorizes no remote witnessing of a will, a trust, or a power of attorney: 12 Del. C. § 202(a)(2) requires the will's witnesses to attest and subscribe in the testator's presence, § 3545(a)(1) requires the trust's witnesses to sign in the trustor's presence, and § 49A-105(a)(5) requires the power of attorney to be signed in the presence of one adult witness. Remote witnessing is a separate question from electronic execution: 12 Del. C. § 3550(a)(1) permits a governing instrument other than a will or codicil to be executed electronically under Delaware's Uniform Electronic Transactions Act if it is otherwise validly executed, so the presence requirements above continue to apply to an electronically executed trust.
Will
Not allowed
Trust
Not allowed
POA
Not allowed
HC Directive
Allowed
This information is general in nature and not legal advice. Laws change. Consult a licensed estate planning attorney in Delaware for guidance specific to your situation.