Insolvent Probate Estate Claim-Payment Priority in Delaware
At a glance
| Statutory payment order | Administration paid first; twelve ordered claim classes follow (§ 2105(a)). |
|---|---|
| Administration costs | All administration expenses, fees, and commissions precede claims (§ 2105(a)). |
| Funeral and last illness | Funeral expenses class 2; reasonable last-sickness medicine, care, nursing, and necessaries class 4 (§ 2105(a)(2),(4)). |
| Family and homestead allowances | Surviving spouse’s statutory allowance is claim class 1 (§§ 2105(a)(1), 2308(a)). |
| Taxes and public claims | Delaware-imposed taxes are class 6 (§ 2105(a)(6)). |
| Secured claims | Mortgages and other recorded money obligations class 9; mortgage foreclosure survives the bond-claim bar (§§ 2105(a)(9), 2102(e)). |
| Support and special debts | Child support arrears/retroactive support class 3; qualifying household/farm wages class 5; rent class 7; judgments class 8 (§ 2105(a)). |
| General claims | Sealed obligations class 10; written money/goods contracts class 11; other demands class 12 (§ 2105(a)(10)–(12)). |
| Underfunded class | No same-class preference, including currently due over not-yet-due claims (§ 2105(b)). |
Requirements one by one
Administration and twelve claim classes
Under § 2105(a), executors and administrators pay “all administration expenses, fees and commissions” before claims. Its twelve classes start with the surviving spouse's allowance, funeral expenses, and child support arrears or retroactive support due at death. Reasonable last-sickness bills come fourth, qualifying household or farm wages fifth, Delaware taxes sixth, and up to one year's rent seventh.
Record-based and residual debts
Under § 2105(a), judgments are eighth; recognizances, mortgages, and other recorded money obligations ninth; sealed obligations tenth; written money or goods contracts eleventh; and other demands twelfth. Under § 2106, the representative may petition the Court of Chancery to resolve an uncertain preference between creditors.
Spouse allowance and mortgage claims
The surviving spouse's cash allowance is placed in the § 2105 order by § 2308(a). Under § 2102(e), a late bond claim secured by a real-property mortgage cannot be asserted against the estate, but the failure to present it does not invalidate mortgage foreclosure. Section 2103 separately deems the representative to have notice of specified recorded mortgages and judgment liens, but not the bonds accompanying mortgages (see § 2103).
What trips people up
Under § 2105(b), claims of the same class have equal rank and a due claim has no advantage over a not-yet-due claim. The wage class covers household or farm work and limits the preference to one year's wages; the rent class covers no more than one year and lets the creditor choose rent in arrears or coming due.
Common questions
Does Delaware put funeral and last-sickness bills together? No. Section 2105(a)(2),(4) puts them in separate second and fourth claim classes.
Is the mortgage's place in the claim ladder the whole lien rule? No. Section 2102(e)(2) expressly preserves real-property mortgage foreclosure after the bond-claim presentation period, while barring the late claim against the estate.
Statutes and sources
- 12 Del. C. §§ 2105, 2102, 2103, 2106, and 2308. Verbatim official text, section URLs, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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