FAQ

Under real estate law in Delaware, an attorney licensed in Delaware is required to conduct the closing of real property. The primary responsibilities of a real estate attorney include ensuring the buyer is granted a clear, marketable title, serving as the escrow agent, preparing and reviewing the closing documents, and conducting settlement.

Title insurance is a type of insurance that protects buyers and lenders from financial loss due to defects or issues with the property’s title. These issues can include things like unpaid liens, ownership disputes, or errors in public records. Title insurance is a one-time fee, paid at settlement, and lasts for as long as the buyer or their heirs own the property. Examples of covered claims include: a deed or mortgage made by forgery, an incompetent person or under a power of attorney after its termination, or undisclosed or missing heirs from title.

If you die without a will (intestate), Delaware state law will determine how your assets are distributed, which may not align with your wishes. Many people mistakenly believe that their spouse will automatically inherit everything, but this is not true under Delaware's intestate laws. For instance, if you die without a will and have children, your spouse will only inherit a life estate in real property, the first $50,000 of the estate, and 50% of the remaining assets.

Yes, you still need a will even if you have a trust. A trust only governs the assets that are transferred or retitled into it. Any new or existing assets that are not transferred to the trust will likely need to go through probate. As a result, your Last Will and Testament will manage any assets not included in the trust. This is known as a pour-over will, which ensures that any remaining assets are transferred into your trust through the probate or small estate process.

It's a good idea to review your estate plan every 3 to 5 years or after any significant life event, such as marriage, divorce, birth of a child, or the death of a loved one. Changes in your financial situation or the law may also require updates to your estate plan.

The presence or absence of a will after death does not determine whether a probated estate must be opened. A probated estate must be opened if the decedent owned more than $30,000 in personal property in his/her name alone or the decedent owned real estate in his/her name alone. If the decedent did not own real estate solely in their name and had less than $30,000 in solely owned personal property (such as a car, boat, or bank account), a "small estate affidavit" may be used instead.

Yes. If the home was co-owned as tenants by the entirety or joint tenants with the right of survivorship, the surviving joint tenant or spouse can transfer the title by filing an Affidavit of Jointly Held Real Property with the Register of Wills. However, if the property was co-owned as tenants in common, there is no right of survivorship, and probate will be necessary to transfer the decedent’s share of the property.

When real property is inherited though a will or intestacy, the title passes to the beneficiaries immediately upon death. As long as the estate's debts, expenses, and inheritance taxes are paid, the title transfers without the need for further action from the personal representative. No new deed is required or recorded; ownership is reflected in documents filed with the Register of Wills and forwarded to the County Assessment Office. However, if the estate’s assets are insufficient to cover debts, expenses, and taxes, the personal representative may need to sell the property to raise the necessary funds. If there is an outstanding mortgage, the beneficiaries will need to continue making payments to avoid foreclosure by the lender.

To form a corporation or LLC, you must file the appropriate formation documents with the state, such as the Articles of Incorporation for a corporation or the Certificate of Formation for an LLC. You will also need to create an operating agreement (LLC) or bylaws (corporation) that outlines how the business will be run. Our team at Adkins Law Firm can guide you through the entire formation process and ensure compliance with state regulations.

Once your business is established with the State of Delaware, the next step is to apply for a Federal Employer Identification Number (FEIN) through the IRS. You will also need to register with the Delaware Division of Revenue by obtaining a business license. If your business has employees, you must register with both the Delaware Division of Unemployment Insurance and the Division of Workers' Compensation. Additionally, depending on where your business operates, certain counties and municipalities may require a local business license. Delaware Corporations must file an annual report and pay franchise taxes, while Delaware limited liability companies are not required to file an annual report but still need to pay an annual franchise tax.

Business succession planning is the strategy for ensuring that a business continues to operate smoothly when an owner or key leader steps down, retires, or passes away. It involves preparing and selecting future leadership, determining the value of the business, and planning for the transfer of ownership. The goal is to minimize disruptions, address legal and financial considerations, and ensure the long-term success of the business.