Delaware’s legal infrastructure for estate planning is both unusually deep and unusually quiet. The Court of Chancery, established in 1792, has produced more than two centuries of precedent on trust administration. The General Corporation Law is the reason most US public companies incorporate in Delaware. And the trust statutes — the Delaware Trust Act, the Qualified Dispositions in Trust Act, the directed-trust statute — make Delaware a default jurisdiction for families with material wealth even when none of them live in Delaware.
The four documents to have in place
These apply to any Delaware-resident parent regardless of wealth. Most cost between $400 and $1,500 through a Delaware-licensed attorney; a revocable trust adds another $1,500–$4,000 typically.
1. Durable Personal Power of Attorney (Title 12 Chapter 49A)
Delaware enacted the Delaware Durable Personal Power of Attorney Act in 2010, adopting much of the Uniform Power of Attorney Act framework.1The act distinguishes between general and specific authorities, and certain “hot powers” — the authority to make gifts, change beneficiary designations, create or amend a trust, or delegate authority — must be specifically granted in the document. A generic out-of-state POA may carry the general powers but lack these specific authorizations under Delaware law.
The POA should be durable (survives incapacity), in writing, signed by your parent in front of a notary. Delaware does not require witnesses in addition to the notary, but many practitioners include witnesses anyway for belt-and-suspenders enforceability. Banks may be cautious about older POAs; a Delaware-drafted current POA reduces friction at the moment of need.
2. Advance Health-Care Directive (16 Del. C. §2503)
Delaware combines what other states sometimes split into two separate documents: the living will and the health care power of attorney are both contained in the Delaware Advance Health-Care Directive form under 16 Del. C. §2503.2 The form names a healthcare agent (sometimes called a healthcare representative), specifies end-of-life treatment preferences, and addresses related topics like organ donation.
Execution requirements: signed by the principal in the presence of two adult witnesses, or notarized. The witnesses cannot be the named agent, the principal’s spouse, or an heir; Delaware also restricts witnesses who are providers of the principal’s health care.
3. Will, or Revocable Living Trust
Every Delaware adult should have a will, even if assets primarily pass outside probate (joint tenancy, beneficiary designations, transfer-on-death deeds). For families with material assets or with complex distribution wishes, a revocable living trust is often added on top of a pour-over will. The trust avoids the cost and timeline of formal probate while keeping the principal in full control during life.
4. DMOST (for those with serious illness)
The Delaware Medical Orders for Scope of Treatment (DMOST)form is Delaware’s POLST-equivalent. It is a medical order signed by a clinician that travels with the patient across care settings and is honored by EMS, hospitals, and long-term care facilities. DMOST is intended for patients with serious illness or advanced frailty — not for all adults.
Delaware’s trust law: why it matters even for out-of-state families
Delaware is one of a small number of states — along with Nevada, South Dakota, Alaska, and Wyoming — that actively compete for trust business. The reasons families and their attorneys often choose Delaware:
- The Court of Chancery. A specialized equity court with two-plus centuries of precedent on trust law. Disputes are resolved by experienced chancellors, not generalist judges or juries.
- Qualified Dispositions in Trust Act. 12 Del. C. §3570 et seq. authorizes self-settled asset protection trusts. A grantor can establish an irrevocable trust for their own benefit and, after a four-year statute of limitations, protect those assets from most future creditors.3
- Directed Trusts.Delaware law (12 Del. C. §3313) allows the trust to assign investment, distribution, and administrative functions to different parties — useful when the family wants a family-member trustee for some decisions but a corporate trustee for investments.
- No rule against perpetuities for personal property. Delaware abolished the rule against perpetuities for personal-property trusts in 1995. Dynasty trusts can run indefinitely.
- No state-level taxation of trust income for non-resident beneficiaries. A Delaware trust with out-of-state beneficiaries generally pays no Delaware income tax on accumulated income.
Establishing a Delaware-situs trust requires a Delaware trustee (a Delaware-licensed individual or bank trust company). For families whose parent lives in Delaware, domestic Delaware planning naturally takes advantage of these statutes. For families elsewhere with material wealth, a Delaware-situs trust through a Delaware trustee is an option worth discussing with counsel.
Probate in Delaware: small estates and the Register of Wills
Delaware probate is administered by the Register of Wills in each of the three counties (New Castle, Kent, Sussex). Estates fall into two broad tracks:
- Small estate affidavit (12 Del. C. §2306). Available for estates with personal property under approximately $30,000, excluding the surviving spouse’s allowance. A faster and less expensive process.
- Formal probate.Required for larger estates. Includes inventory, accounting, creditor claims period, and distribution. Timeline typically 6–12 months for uncontested estates.
Delaware does not impose statutory attorney fee schedules for probate; attorneys charge hourly or by flat fee. Costs are typically lower than in Florida and Pennsylvania for comparable estates.
No state estate or inheritance tax
Delaware repealed its state estate tax effective January 1, 2018 (HB 16, 149th General Assembly).4 Delaware has never imposed a state inheritance tax. The federal estate tax still applies to estates above the federal exemption (approximately $13.99M per individual in 2025; subject to scheduled adjustment).5 For most Delaware families, this means estate planning is focused on probate avoidance, incapacity, and family coordination rather than state-level tax planning.
Homestead protection in Delaware
Delaware’s homestead exemption is modest by national standards. The state exempts a limited amount of equity in the homestead from execution by creditors under 10 Del. C. §4914 — specific dollar amounts are statutory and subject to updates. This is well below the protection in states like Florida (constitutionally unlimited), Texas (constitutionally unlimited), or Arizona ($400,000 after Prop 209).
The practical implication: Delaware homeowners cannot rely on homestead protection for material creditor shielding the way Florida or Texas homeowners can. Asset protection in Delaware comes through other tools — trust structures, joint tenancy where appropriate, retirement-plan exemptions, and the broader Delaware trust statutes.
Elder abuse remedies in Delaware
Delaware’s elder-abuse statute appears at Title 31 Chapter 39 of the Delaware Code, which provides for mandatory reporting by certain professionals, immunity for good-faith reports, and criminal and civil penalties for adult abuse, neglect, and financial exploitation. The Division of Services for Aging and Adults with Physical Disabilities (DSAAPD) coordinates reports through the statewide ADRC at 1-800-223-9074. For emergency situations, 911. Civil remedies include compensatory damages, attorney fees, and in some cases punitive damages.6
What to do this quarter
- Locate (or create) your parent’s four documents: Durable POA, Advance Health-Care Directive, will, and (where applicable) DMOST.
- If documents exist but were drafted before 2010, have the POA reviewed — the Delaware Durable Personal Power of Attorney Act materially changed Delaware POA practice.
- If your parent has material assets, ask whether a revocable trust or a Delaware-situs irrevocable trust could be useful in their situation.
- For Medicaid planning context — including the interaction between estate planning and the 5-year look-back — see the Delaware Medicaid guide.