SENATE BILL NO. 450
AN ACT AMENDING TITLE 12 OF THE DELAWARE CODE BY REPEALING AND REVISING CERTAIN LAWS RELATING TO THE PROBATE OF WILLS AND ADMINISTRATION OF DECENDENTS' ESTATES, THE JURISDICTION AND FUNCTIONS OF THE REGISTER OF WILLS, AND THE JURISDICTION OF THE COURT OF CHANCERY.
Be it enacted by the General Assembly. of the State of Delaware:
Section 1. Amend Chapters 1, 5, 9, 13, 15, 17, 19, 21, 23, 25 and 27, Title 12 of the Delaware Code by striking said chapters in their entirety and inserting in lieu thereof the following new chapters:
For the purpose of wills, intestate succession and for all other purposes under this title, the following definitions shall apply:
"Child" includes any individual entitled to take as a child under this Title by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild or any more remote descendant.
"Issue" of a person means all his lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this Title.
"Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this Title by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
The definitions of "Child", "Issue" or "Parent" contained in this section shall not limit the right of a testator to provide by will for a definition different from those contained in this section.
"Personal Representative" includes executor, administrator, successor administrator and administrator with will annexed, and persons who perform substantially the same function under the law governing their status.
"Heir" means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent and shall include kin and kindred.
PART I WILLS
CHAPTER 2 GENERAL PROVISIONS
§201. Who may make a Will
Any person of the age of 18 years, or upwards, of sound and disposing mind and memory, may make a will of real and personal estate. No person under the age of 18 years shall be capable of making a will either of real or personal estate.
§202. Requisites and execution of Will
(a) Every will, whether of personal or real estate must be:
In writing and signed by the testator or by some person subscribing the testator's name in his presence and by his express direction; and
Subject to the provisions of section 1306, attested and subscribed in testator's presence by two or more credible witnesses.
(b) Any will not complying with the provisions of subsection (a) of this section shall be void.
§203. Witnesses; persons competent
Any person generally competent to be a witness may act as a witness to a will.
A will or any provision thereof is not invalid because the will is signed by an interested person.
§204. Devise of real estate
Lands, tenements and hereditaments are devisable by last will and testament.
§205. Devise of real estate without limitation
A devise of real estate, without words of limitation, shall be construed to pass the fee simple, or other whole estate, or interest, which the testator could lawfully devise in such real estate, unless a contrary intention appears by the will.
§206. After-acquired real estate
Any estate, right or interest, in lands acquired by a testator after the making of his will, shall pass thereby in manner as if possessed at the making of the will, unless a contrary intention appears by the will.
§207. Power of sale to executor or trustee; liability of purchaser
Where by the terms of a will a power of sale is granted to an executor or trustee such executor or trustee may sell both real and personal property of the estate not specifically devised or bequeathed and it shall not be necessary for the beneficiary of the property to join in the instrument transferring or conveying such property. In a sale made pursuant to this section there shall be no liability upon the purchaser to see to the application of the purchase money, unless the will shall expressly impose such liability.
§208. Revocation of Wills
A last will and testament, or any clause thereof, shall not be altered. or revoked, except by cancelling by the testator, or by some person in his presence and by his express direction, or by a valid last will and testament, or by a writing signed by the testator, or by some person subscribing the testator's name in his presence and by his express direction, and attested and subscribed in his presence by two or more credible witnesses; but, this clause shall not preclude nor extend to an implied revocation.
§209. Revocation by divorce; no revocation by other changes or circumstances
If after executing a will, the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse, as executor, trustee, guardian or other fiduciary, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change or circumstances other than as described in this section revokes a will or any part thereof.
§210. Alteration, theft or destruction of will; Class E Felony
Whoever willfully adds to, alters, defaces, erases, obliterates, mutilates, blots, blurs, hides, conceals, destroys, misplaces with intent to conceal or commits an act of theft of any instrument of writing purporting to be or in the nature of a last will and testament and intended to take effect upon the death of the testator, whether the person shall have been given custody or possession thereof by the testator, or shall have obtained custody or possession of the purported last will and testament in any other manner whatsoever, shall be guilty of a class E felony.
§211. Bequests or devises by will to trusts which are subject to amendment, modification or revocation
Whenever a testator bequeaths or devises property to the trustee of an inter-vivos trust which is evidenced by a written instrument in existence prior to the making of the will and identified in the will, and which may be subject to amendment, modification or revocation, the property so bequeathed or devised, unless the will provides otherwise, shall be governed by the provisions, effective at the testator's death, of the instrument creating such trust as the same may have been amended, even though any such amendment may have been made subsequent to the making of the will.
§212. Separate writing identifying bequest of tangible property
A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must identify the items and the legatees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no signifiance apart from its effect upon the dispositions made by the will.
PART II DESCENT AND DISTRIBUTION: ESCHEAT
CHAPTER 5. Intestate Succession
§501. Intestate Estate
Any part of the real or personal estate of a decedent not effectively disposed of by will passes to the decedent's heirs as prescribed in the following sections of this Chapter.
§502. Share of Spouse
The intestate share of the surviving spouse is:
If there is no surviving issue or parents of the decedent, the entire intestate estate;
If there is no surviving issue but the decedent is survived by a parent or parents, the first $50,000.00 of the intestate personal estate, plus one-half of the balance of the intestate personal estate, plus a life estate in the intestate real estate;
If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000.00, plus one-half of the balance of the intestate personal estate, plus a life estate in the intestate real estate;
If there are surviving issue, one or more of whom are not issue of the surviving spouse, one-half of the intestate personal estate, plus a life estate in the intestate real estate.
§503. Share of Heirs other than Surviving Spouse
The part of the intestate estate not passing to the surviving spouse under Section 502, or the entire intestate estate if there is no surviving spouse, passes as follows;
To the issue of the decedent per stirpes;
If there is no surviving issue, to the decedent's parent or parents equally;
If there is no surviving issue or parent, to the brothers and sisters and the issue of each deceased brother or sister, per stirpes;
If there is no surviving issue, parent or issue of a parent, then to the next of kin of the decedent, and to the issue of a deceased next of kin, per stirpes;
Any property passing under this section to two or more persons passes to such persons as tenants in common.
§504. Requirement that Heir Survive Decedent for 120 Hours
Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the State under this title.
§505. Posthumous Children
Posthumous children, born alive, shall be considered as though living at the death of their parent.
§506. Kindred of Half Blood
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
§508. Meaning of Child and Related Terms
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,
(a) An adopted person is the child of an adopting parent and not of the natural parent except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.
(b) In cases not covered by (a), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
(1) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(2) the paternity is established by an adjudication before the death of the father or is established thereafter by preponderance of the evidence, except that the paternity established under this subparagraph (2) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgement provides otherwise.
§510. Debts owed to Decedent
A debt owed to the decedent is charged against the intestate share of the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.
§511. Dower and courtesy abolished
The estates of dower and courtesy are abolished.
§512. Renunciation of Interstate Estate
(a) Any person or his personal representative entitled to the distribution of personal property as to which a decedent died intestate or the descent of real property as to which a decedent died intestate may renounce all right, title and interest or any part thereof in said intestate property which shall then descend or be distributed, pursuant to the provisions of this "hapter, as if the person so renouncing had failed to survive the decedent.
(b) A renunciation described in subparagraph (a) of this section shall be valid only if (1) the same be irrevocable and unconditional and (2) it is filed with the Register of Wills and Estates for the county in which the decedent was domiciled within one hundred and twenty days subsequent to the death of the decedent or such greater period as may be allowed by the Court of Chancery.
CHAPTER 9 ELECTIVE SHARE
§901. Right to Elective Share
(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of $20,000 or one-third of the elective estate, whichever is less, less the amount of all transfers to the surviving spouse by the decedent, under the limitations and conditions hereinafter stated.
(b) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent's domicile at death.
§902. Elective Estate
The elective estate means the amount of the decedent's adjusted gross estate for federal estate tax purposes, whether or not a federal estate tax return is filed for the decedent, from which is subtracted the sum of all transfers made by the decedent during his lifetime which are included for purposes of determining his federal adjusted gross estate and which were made with the written consent or joinder of the surviving spouse.
§903. Transfers to the Surviving Spouse by the Decedent
The value of the property transferred to the surviving spouse by the decedent for purposes of subsection (a) of section 901 is an amount which equals the value of the property derived from the decedent by virture of his death. For purposes of this section:
(a) Property derived from the decedent by virtue of his death shall be: property which is part of the decedent's estate which passes to the surviving spouse by testate or intestate succession and which has not been renounced, any property jointly owned with the decedent to the extent the surviving spouse did not contribute to the value of the property, any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime, any property appointed to the spouse by the decedent's exercise of a general or special power of appointment, any proceeds of insurance (including accidental death benefits) on the life of the decedent attributable to premiums paid by him, any lump sum immediately payable and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant attributable to premiums paid by him, the commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent, and the value of the share of the surviving spouse resulting from rights in community property in this or any other state formerly owned with the decedent. Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.
(b) Property owned by the spouse at the decedent's death is valued as of the date of death. Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.
§904. Right of Election Personal to Surviving Spouse
The right of election of the surviving spouse may be exercised only during his lifetime by him. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending, after finding that exercise is necessary to provide adequate support for the protected person during his probable life expectancy. For purposes of this section a "protected person" is a minor or other person for whom a guardian or trustee has been appointed or other protective order has been made.
§905. Waiver of Right to Elect and of Other Rights
The right of election of a surviving spouse may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to the elective share by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
§906. Proceeding for Elective Share; Time Limit
(a) The surviving spouse may elect to take his elective share in the elective estate by filing in the Court of Chancery and mailing or delivering to the personal representative a petition for the elective share within 6 months after the grant of Letters Testamentary or of Administration. The Court upon petition may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expire
(b) The surviving spouse shall give at least 10 days notice by certified mail of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the elective estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the Court of Chancery.
(d) After notice and hearing, the Court of Chancery shall determine the amount of the elective share and shall order its payment from the assets of the elective estate or by contribution as appears appropriate under §908. Except as provided in §908 (b), if it appears that a fund or property included in the elective estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the Court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
(e) The order or judgment of the Court of Chancery may be enforced as necessary in suit for contribution or payment in other courts of this State or other jurisdictions.
§907. Effect of Election on Benefits by Will of Statute
(a) The surviving spouse's election of his elective share does not affect the share of the surviving spouse under the provisions of the decedent's will or intestate succession unless the surviving spouse also expressly renounces in the petition for an elective share the benefit of all or any of the provisions. If any provision is so renounced, the property or other benefit which would otherwise have passed to the surviving spouse thereunder is treated, subject to contribution under subsection (a) of §908, as if the surviving spouse had predeceased the testator.
(b) A surviving spouse is entitled to the surviving spouse's allowance whether or not he elects to take an elective share and whether or not he renounces the benefits conferred upon him by the will.
§908. Liability of Others for Elective Share
(a) The property of the decedent's contributing estate, other than the property which passes to the surviving spouse by testate or intestate succession and which has not been renounced, is so applied that liability for the elective share of the surviving spouse is apportioned among the recipients of the decedent's contributing estate in proportion to the value of their interests therein.
(b) For purposes of this section, the decedent's contributing estate constitutes only that portion of the elective estate of which the decedent was the sole legal owner at his death, and does not include any property of which he was a joint owner, any insurance proceeds which are payable other than to his estate, or any property held in trust.
(c) A person who would otherwise have received a portion of the elective estate but for the elective share of the surviving spouse may choose to give up the property he would have otherwise received or to pay its value as of the time it is valued in computing the elective estate.
PART III ADMINISTRATION OF DECEDENTS' ESTATES
§1301. Production of Will; Liability
(a) Any person, having the custody or possession of any instrument of writing purporting to be a Last Will and Testament and intended to take effect upon the death of the Testator therein named, shall produce and deliver the same to the Register of Wills and Estates for the County in which he resides, within ten days from the time he receives information of the death of the Testator.
(b) Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Also, any person who willfully fails to deliver a Will after being ordered by the Court of Chancery in a proceeding brought for the purpose of compelling delivery is subject to penalty for civil contempt of Court.
§1302. Proving Will
(a) A will shall be proved before the Register of Wills and Estates of the County in which the testator was domiciled at the time of his death. If he was not domiciled in this State, it may be proved before the Register of any County in this State wherein are any goods or chattels, rights or credits, or lands or tenements of the deceased.
(b) To be effective to prove a transfer of any property or to nominate an Executor, a will must be declared to be valid by admission to Probate.
§1303. Notice and Subpoena to Persons Interested
Proof of a will may be taken without notice to persons interested, unless such a person requests it by petition filed with the Court of Chancery. Upon receiving such petition, the Court shall, and in any case it may, appoint a time for taking the proof, and issue subpoena, requiring any person to be present at the taking of such proof. In respect to persons not within the State it may order such service or publication of notice as it deems proper.
§1304. Unavailability of Witnesses
(a) In case any attesting and subscribing witness to a will, at the time the will is presented for probate, is dead, is serving in the Armed Forces of the United States or is a merchant seaman, or is mentally or physically incapable of testifying or is not within the State, or is otherwise unavailable, proof of the signature of such witness shall be sufficient. Such proof shall be the testimony in person or by disposition of a credible disinterested person that the signature of the witness on the will is in the handwriting of the person whose signature it purports to be, or other sufficient proof of such handwriting.
(b) If a will cannot be proven because the signature of one or more of the attesting and subscribing witnesses to it cannot be proven, then proof of the signature of the testator shall be sufficient. In the case where the signature of one witness can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of a credible disinterested person that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting. In the case where none of the signatures of the witnesses can be proven, the proof of the signature of the testator shall be the testimony in person or by disposition of two credible disinterested persons that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting.
(c) The foregoing provisions of this section shall not preclude the Register of Wills and Estates from requiring, in addition, the testimony in person or by disposition of any subscribing witness, or proof of such other pertinent facts and circumstances as the Register deems necessary to admit the will to probate.
§1305. Self-Proved Will
An attested will may at the time of its execution or at any subsequent date be made self-proved, by the acknowledgement thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this State, and evidenced by the officers' certificate, under official seal, attached or annexed to the Will in form and content substantially as follows:
Before me, the subscriber, on this day personally appeared _____ 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 his last will and that he had willingly signed or directed another to sign for him, and that he executed it as his 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 he signed the will as witness and that to the best of his knowledge the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence.
Subscribed, sworn and acknowledged before me by ______ the testator, subscribed and sworn before me by ______ and _______, witnesses, this____ day of ______, A.D., _______
(SEAL) (Signed) _________ (Official Capacity of Officer)
§1306. Choice of Law as to Execution of Wills
A written will signed by the testator, or by some person subscribing the testator's name in his presence and at his express direction, is valid if executed in compliance with Section 202 or if its execution complies with the law at the time of execution of the place where the will is executed, or of law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.
§1307. Will of Non-Domiciliary; Recording and Evidencing
(a) Any last will and testament in writing of a person not domiciled in this State at the time of his death, signed by the testator, and duly admitted to probate or admitted to record in the place of the testator's domicile, may be duly admitted .to probate and recorded in this State by filing a copy of the will and a copy of the record admitting the same to probate, or if probate is not required, or cannot be had, under the law of the state of the testator's domicile, then by a 'copy of the record; of, the mere filing of the will in conformity to the laws of such domicile, as hereinafter provided, and such will shall then have the same force and effect as if originally proved and allowed in this State.
(b) A copy, to be duly verified, must be certified by the proper officer under his hand and seal of office, if there be a seal of office, and there must also be a certificate, either under the great seal of such state, territory, or country or under the hand of the presiding judge of a court of record of the state, territory, or county, that such copy is certified in due form and by the proper officer; and in case of a certificate under the hand of the presiding judge, there must be an attestation of the officer keeping the seal of his court, under the hand of the office and the seal, that the certificate is under the hand of the presiding judge entitled to full faith and credit. If the will shall have been proved in a foreign country, the certificate under the hand of a presiding judge, as hereinbefore required, may be attested by the resident United States Consul-General, or his deputy, under the seal of the United States Controller General.
(c) A copy, verified as herein prescribed, may be recorded in the 'office of the Register of Wills and Estates of the county wherein are any lands, tenements or hereditaments of the testator, and in that case it shall be retained in the office, and the record, or an office copy thereof, shall be sufficient evidence. When a copy, so verified, is given in evidence;' the Court of Chancery, on the application of the' adverse party, may order it to be deposited and retained in the office of the Register of the county, and in that case an office copy thereof, shall be sufficient evidence.
§1308. Caveat Against Allowance of Instrument as a Will; Procedure
(a) A caveat against the allowance of an instrument as a will shall be received by the Court of Chancery at any time before its proof; but unless the caveator or caveators shall, within ten days after the filing of such caveat, give bond to the State, jointly, and severally -if more. than' one caveator, with such sureties and in such sum as the Court determines, conditioned for the payment of any and all costs occasioned by such caveat which may be decreed against such caveator or caveators, such caveat shall be considered as abandoned and shall be dismissed and proceedings may be had in all respects as though no such caveat had been filed. The bond having been given, the Court shall appoint a time for hearing and award citations for the parties interested, and order service or publication of notice to the parties not within the State in accordance with Section 1303 of this title. If, when a caveat is received, a time be appointed and process issued, it shall not be necessary to adjourn the taking of the proof and hearing; but an adjournment may be decreed, and other process awarded, or order made.
(b) The Court of Chancery may determine the costs occasioned by such caveat and decree the payment thereof.
§1309. Review of proof of Will; procedure
(a) Any person interested who shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in section 1303 of this title, shall, at any time within six months after such proof or after delivery to the Register of Wills and Estates of self-proved will, have a right of review which shall on his petition be ordered by the Court of Chancery; but unless the petitioner or petitioners shall, within ten days after such review shall have been ordered by the court,
give bond to the State, jointly, and severally if more than one petitioner, with such sureties and in such sum as the Court determines, condition for the payment of any and all costs occasioned by such review which may be decreed against such petitioner or petitioners, such petition shall be considered as abandoned and shall be dismissed and proceedings may be had in all respects as though no such review had been ordered. Upon such review there shall be the same proceedings as upon a caveat, and the allowance of the will and granting of letters may be affirmed or the will rejected and the letters revoked.
(b) The Court of Chancery may determine the costs occasioned by such review and decree the payment thereof.
§1310. Formal testacy proceedings; contested cases; testimony of attesting witnesses
If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, and, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit the will shall be admitted to probate subject to all other provisions of this Title.
CHAPTER 15 LETTERS TESTAMENTARY AND LETTERS OF ADMINISTRATION
§1501. Necessity for letters testamentary or of administration
No one shall act as the executor or administrator of a domiciliary decedent's estate within this State without letters testamentary or of administration being granted to him or her in accordance with the provisions of this title.
§1502. Grant of letters testamentary
If a will of a domiciliary decedent is admitted to probate in accordance with the provisions of this Title, letters testamentary shall be granted by the Register of Wills and Estates of the county in which the decedent was domiciled to the executor or executors thereof, upon their giving bond in accordance with the provisions of this title. If several are named as executors, and any are deceased, or fail to give the necessary bond, or renounce, or are incapacitated, letters testamentary shall be granted to the others so named. If all of them, or a sole executor, is deceased, or fails to give the necessary bond, or renounces, or is incapacitated, administration, with the will annexed, shall be granted in accordance with the provisions of this title.
§1503. Grant of letters to one under an incapacity who is named executor
If a person named executor shall be under an incapacity, either by reason of minority, physical disability or mental disability, letters testamentary shall be granted to him or her upon the removal of the incapacity and upon his or her giving bond in accordance with the provisions of this title. In the meantime, letters testamentary shall be granted to the co-executor or coexecutors of the person under a disability, if there is one or more named who qualify in accordance with the provisions of this title, but if there is none, or if the co-executor or co-executors all fail to qualify, letters of administration, with the will annexed, shall be granted in accordance with the provision of this title.
§1504. Grant of letters of administration
(a) Letters of administration, with the will annexed, of the estate of a domiciliary decedent for whom a will has been admitted to probate in accordance with the provisions of this title, and letters of administration of the estate of a domiciliary decedent for whom no will shall have been admitted to probate in accordance with the provisions of this title, shall be granted by the Register of Wills and Estates of the county in which the decedent was domiciled.
(b) Letters of ancillary administration, with the will annexed, of a non-domiciliary decedent for whom a will has been admitted to probate in accordance with the provisions of this title, and letters of ancillary administration of the estate of a non-domiciliary decedent for whom no will has been admitted to probate in accordance with the provisions of this title, shall be granted by the Register of Wills and Estates for any county. The administration which shall first be lawfully granted in either case shall extend to all the estate of the decedent within Delaware, and shall exclude the jurisdiction of the Register for any other county.
§1505. Persons entitled to letters of administration
(a) Letters of administration, with the will annexed; letters of administration; letters of ancillary administration, with the will annexed; and letters of ancillary administration shall be granted by a Register of Wills and Estates to such person or persons as shall be entitled to such letters under the provisions of this section upon their giving bond in accordance with the provisions of this title.
(b) (1) The persons entitled to letters of administration shall be those in the first of the following classes of persons which shall have a member of that class living and not under an incapacity: spouse of the decedent, children of the decedent, parents of the decedent, siblings of the whole blood and half blood of the decedent.
(2) If there shall be more than one person living in the first qualifying class mentioned in (1) above, letters of administration shall be granted to all of those persons in the class who give the necessary bond, do not renounce, or who are not incapacitated.
(3) If all of the persons in the first qualifying class mentioned in (1) above shall fail to give the necessary bond, renounce, or are incapacitated, a Register of Wills and Estates shall grant letters of administration to such person or persons as all of them in that class who are not under an incapacity shall have agreed to in writing.
(c) If all of the persons specified in the first class in (b) (1) above which shall have a member of that class living and not under an incapacity shall fail to give the necessary bond, renounce, or are incapacitated, and if all of them who are not under an incapacity fail to agree in writing on a person or persons to whom letters of administration shall be granted as provided in (b) (3) above, then any or all of those who fail to agree may petition the Court of Chancery for the grant of letters of administration to their nominee or nominees, and the Court shall grant letters of administration to such person or persons as it, in its discretion, shall determine.
(d) If there shall be no person living in any of the classes specified in (b) (1) above who is not under an incapacity, or if no petition for adminigration is filed within 60 days from the date of death, -then the Register of Wills and Estates shall grant letters.Of administration to such person or persons as he, in his discretion, shall determine.
(e) Any interested person may petition the Register of Wills and Estates of a proper county for the appointment of an administrator.
§1506. Power of attorney by non-domiciliary executor or administrator
In case of the grant of letters testamentary or of administration, the person designated as an executor or administrator, if a non-domiciliary, or if a corporation not incorporated under the laws of Delaware, shall file in the office of the Register of Wills and Estates granting such letters, before the issuance of the letters, an irrevocable power of attorney designating that Register and his successors in office as the person upon whom all notices and process issued by any Court in this State may be served, with like effect as personal service in relation to any suit, matter, cause or thing affecting or pertinent to the estate in which the letters are issued. The Register shall forward forthwith, by certified mail, return receipt requested, to the address of such executor or administrator, which shall be stated in the power of attorney, any notices or process served upon the Register.
§1507. Successor administrator; personal representative of an executor or administrator; administration during the pendency of litigation
(a) Upon the removal or resignation from office, or upon the death or incapacity of a sole executor or administrator, or if there are more than one, all of them, administration shall be granted to a successor administrator or administrators in accordance with the provisions of this title as though such administration were an original administration.
(b) A personal representative of a deceased executor or administrator shall not represent (unless expressly appointed) and shall have no personal liability or responsibility with respect to the estate being executed or administered by such decedent, other than to notify the Register of Wills and Estates of the death of the decedent's executor or administrator.
(c) Administration during the pendency of litigation concerning proof of a will or the right to administer, or during the absence of a personal representative appointed in accordance with the foregoing provisions of this title, may be granted by the Register of Wills and Estates of the county in which the decedent was domiciled, in the case of a domiciliary decedent, or by the Register of any county, in the case of a non-domiciliary decedent, as such Register, in his discretion, may deem appropriate. In the case of a non-domiciliary decedent, the administration which shall first be lawfully granted shall extend to all the estate of the decedent within Delaware, and shall exclude the jurisdiction of the Register for any other county during the pendency of such litigation or during the absence of such a personal representative.
§1508. Persons not qualified to receive letters testamentary or of administration
Letters testamentary, or of administration, shall not be granted to a minor, to a person who is mentally incapacitated, or to a person convicted of a crime disqualifying him from taking an oath.
§1509. Oath of executor or administrator
Every executor or administrator shall take and subscribe an oath, to be affixed to his bond, to perform the duties of his office with fidelity.
SUBCHAPTER H. BOND
§1521. Requirement of bond
Upon being granted letters, each executor or administrator shall, with sufficient surety, become bound to the State in a joint and several bond to be in an amount and form as provided in Sections 1522, 1523 and 1524 of this title.
§1522. Amount of bond; where no bond exemption, where will exempts executor from bond; additional bond; minimum bond; reduction of amount of bond
(a) The amount of the security of the bond required in Section 1521 shall be fixed by the Register of Wills and Estates in an amount which shall not be less than the best estimate that can be made of the decedent's personal estate.
(b) Whenever a testator shall, by his will, signify it to be his desire that any executor or executors thereof shall not be required to give bond with surety before receiving letters testamentary, as by law is required, the Register shall, upon the grant of letters testamentary to such executor or executors, require of him or them only a bond with surety in an amount which is the lesser of (1) the testator's personal estate, or (2) double the amount of the indebtedness incurred by the testator, as such amount shall be estimated by the Register upon the best information he can obtain, for which purpose he may take the affidavit of the executor or executors as to the amount of such indebtedness, to the best of his or their knowledge or belief.
(c) If in any case it appears that the bond or security originally was or has since become insufficient, the Register, in whose office the letters were granted, shall order other bond, with sufficient surety to be given, observing all of the following requirements with respect to bonds; except that the Register may omit the clause concerning the inventory and appraisement and list of debts. The taking of another bond shall not affect that before taken. In the case of refusal or neglect to comply with the order requiring additional bond, the Court of Chancery shall remove the executor or administrator from office.
(d) In no event shall the amount of bond provided in Sections 1522 and 1524 of this title be less than the sum of $1,000.
(e) Upon the renewal of the premium payable on any bond required under Section 1521 of this title, if there has been a reduction in the amount of indebtedness of the decedent, or a reduction in the amount of the personal estate chargeable to the executor or administrator, such executor or administrator may petition the Register for an appropriate reduction in the amount of the bond.
§1523. Forms of bond; scope; modification of bond where will exempts executor from bond
(a) The condition of an executor's or administrator's bond shall be substantially in the following form:
"The condition of this obligation is such, that if the above named ______, (executor of the will of _____ deceased, or administrator of the goods and chattels, rights and credits of , deceased, or as the case may be), shall cause a true and perfect inventory and appraisement to be made of all and singular the goods and chattels of the deceased, whereof the said _____, or either of them shall have knowledge, and the same, with a true and perfect list of all his debts and credits, whereof the said _____ or either of them shall have knowledge, to be delivered into the Office of the Register of Wills and Estates of _______ County, in the State of Delaware, on or before the _____ day of______, next, and shall well and faithfully administer according to law, all the goods and chattels, rights and credits of the deceased, which shall have come to the possession, or knowledge of the said , or either of them, and shall render a just and true account of such administration by the day of next, and shall distribute and pay all the residue of said goods and chattels, rights and credits, after all demands and charges to which they are subject, are deducted, to the person or persons entitled to receive the same; and also in case the said , or either of them, shall be removed from office, or before closing the concerns of the estate of the deceased, shall die, then if the said ______, or either of them, respectively, in case of such removal, or the executors or administrators of the said ______ or either of them, respectively, in case of such death, shall without delay, deliver to the person or persons, entitled to receive the same, all the unadministered goods and chattels, rights and credits, money, securities, books and papers, belonging to the estate of said deceased, or with which the said _____, or either of them, respectively, at the time of such removal, or decease, shall be chargeable, all just allowances being made, then this obligation shall be void; or otherwise it shall remain in force."
If but one person is executor, or administrator, the words "or either of them", wherever they occur in said form, shall be omitted; and also the words "or either of them respectively."
(b) If letters are granted to several, all or any number may join in the bond, or they may execute separate bonds; but joint executors, or administrators, shall not be deemed sufficient sureties of a co-executor or administrator, unless they have renounced.
(c) Payment of and assent to legacies, as well as payment of debts and demands against the deceased, shall be a part of the administration; and accordingly the clause in the foregoing form, "shall well and faithfully administer according to law," shall bind to a faithful application of the assets to such demands and legacies as the law prescribes.
(d) The condition of the bond shall, in all cases, extend to the rents and profits of real estate of the deceased received by the executor or administrator; but this provision shall not require him to collect them, nor vest him with any right of possession of such estate.
(e) In the entry of the grant of letters, the Register shall state the giving of the bond, the names of the sureties, and the penalty.
(f) In the taking of bond of an executor exempted under will, there shall be omitted from the form prescribed by this section of this title, the words "and shall distribute and pay all the residue of said goods and chattels, rights and credits, after all demands and charges to which they are subject are deducted, to the person or persons entitled to receive the same," and such bond, when taken, shall be for the use of creditors of the testator, and for the use of no other person interested in his estate.
§1524. Objection to amount or form of bond determined by Court of Chancery
If any person, including a creditor, having an interest in the estate objects to the amount of the bond as provided in Section 1522 or the conditions of the bond as provided in Section 1523, such person may petition the Court of Chancery and the Court shall fix the amount and condition of the bond.
§1525. Liability on bond for inheritance taxes and duties related thereto
The bond of an executor or administrator shall be liable for all money he may receive for taxes, for any penalty assessed against him for failure to file an inventory of goods and chattels, list of debts and credits and statement of real estate with the Division of Revenue and with the Register of Wills and Estates within the three-month period prescribed by law, or for the proceeds of the sale of any estate or interest received by him under Chapter 13 of Title 30.
§1526. Grant of letters without proper bond
If letters be granted without proper bond, the Register of Wills and Estates and his sureties shall be liable for all damages thence arising.
§1527. Certificate of approval, the required bond preservation
(a) The execution of the required bond shall be sufficient, without any certificate of approval by the Register of Wills and Estates.
(b) The Register shall provide safekeeping for every bond.
SUBCHAPTER HI. DEATH, REMOVAL OR DISCHARGE OF EXECUTOR OR ADMINISTRATOR
§1541. Removal for neglect of duties
(a) If an executor or administrator neglects his duties, the Court of Chancery may remove him from his office.
(b) If any executor or administrator fails to perform any of the duties imposed upon him under the provisions of Chapter 13 of Title 30, the Court of Chancery may, upon petition of the Division of Revenue, revoke the same, and his bond shall be liable, and the same proceedings shall be had as if his administration had been revoked for other cause.
§1542. Removal of executor or administrator upon subsequent probate of will
If after the grant of letters testamentary or the grant of letters of administration, a will of the deceased is admitted to probate and letters testamentary or of administration with the will annexed are thereupon granted, the prior executor or administrator shall by such grant be removed from office. All the previous lawful acts of the removed executor or administrator shall be valid as provided in Section 1545 of this title.
§1543. Rights of co-executor, co-administrator or successor upon death or removal of an executor or administrator
Whenever an executor or administrator is removed or dies before he closes the estate of the deceased, his co-executor or co-administrator, or if there be none such, his successor shall be entitled to receive all the unadministered effects, including books and papers, which, at the time of such removal or death, shall be in his hands, or for which he is answerable, just allowances being made.
§1544. Commissions; allowance and apportionment
When part of the effects of the deceased passes from one executor or administrator to another under the provisions of Section 1543 of this title, commissions shall not be twice allowed, but may be apportioned or the whole may be allowed to the one who, according to the circumstances, ought to have the same. When commissions have been once allowed, there shall be no more allowed upon the same subject matter, except in cases of apportionment, unless the first allowance is annulled.
§1545. Validity of acts of removed or deceased executor or administrator
Any act done by an executor or administrator in the due course of administration, and any payment made by him on account of a legacy or distributive share shall be valid, until it appears to have been erroneously or unlawfully done or made although he shall be removed from office or shall die before closing the estate.
§1546. Refusal of removed executor or administrator or of personal representative of a deceased executor or administrator to deliver unadministered assets
(a) If any executor or administrator who has been removed refuses to deliver to his co-executor or co-administrator, if there be such, and if not, to his successor, all the unadministered effects, belonging to the deceased, which shall be in his hands, the Court of Chancery may, in a summary proceeding, upon the petition of such co-executor, administrator, or successor, hear the parties, and make an order for such delivery, and enforce the same by attachment, sequestration or any other process.
(b) The Court of Chancery may also proceed, in like manner, against the personal representative of a deceased executor or administrator, refusing to deliver, according to law, any such effects belonging to the estate of the first testator or intestate which shall come to his hands.
§1547. Discharge of executor or administrator upon his petition; procedure; appeal
(a) An executor or administrator may, by petition to the Court of Chancery, apply to be discharged from his office of executor or administrator. Upon such petition and upon it appearing to the Court that the discharge of the executor or administrator will be for the benefit of the parties interested in the estate of the deceased, the Court may grant such discharge and revoke the letters testamentary or of administration, upon such terms and conditions as he deems necessary for the security of the estate of the decedent. Notice of such application and of the time and place of hearing the same shall be given to parties interested, by citation served on such as reside within this State, and as to non-resident parties by such publication as the Court directs.
(b) The provisions of law relating to the acts of a removed executor or administrator, the delivery of unadministered effects, books, and papers, the remedies for enforcing such delivery and the apportionment of commissions and the fees of the Register of Wills and Estates in the proceedings for the removal of an executor or administrator, shall apply to the case of an executor or administrator discharged under this section.
(c) The Court of Chancery may make any order upon a discharged executor or administrator which may be necessary to carry into effect the provisions of this section, and may enforce such order by attachment, sequestration or any other process.
SUBCHAPTER IV. LIFE INTEREST IN PERSONALTY WHERE WILL APPOINTS NO TRUSTEE TO ADMINISTER
§1551. Appointment of trustee upon petition of executor or administrator; bond, duties and release of trustee
(a) When any person, other than the person who during life, shall be entitled under the will of any deceased testator to the income on the personal estate of such deceased testator or any part thereof, shall be the executor or administrator with the will annexed of the estate of such deceased testator, such executor or administrator with the will annexed, may, if no trustee is named in such will, after having passed his or her final account of administration on the estate before the Register of Wills and Estates, petition the Court of Chancery for the appointment of a trustee to receive from such executor or administrator with the will annexed, the fund to which the person named in the will is entitled during his or her life.
(b) The Court of Chancery, upon petition being presented to it as provided in subsection (a) of this section, shall appoint a trustee to receive, manage and invest the fund, and the trustee shall give bond as the Court may order and direct.
(c) The trustee shall manage and invest the fund, and pay over to the person entitled for life to the fund, the profits and income arising thereout; and after the death of the person entitled for life, shall pay the fund to the person entitled absolutely.
(d) The trust shall terminate upon the death of the person entitled during life to the fund, and the release of the person entitled absolutely to the fund shall discharge and release the trustee from all liability for or concerning the same.
§1552. Receipt of trustee
The receipt of the trustee, appointed under Section 1551 of this title, to the executor or administrator with the will annexed for the fund, shall release and discharge the executor or administrator with the will annexed of and from all liability for or concerning the fund.
§1553. Personalty in possession of life tenant; discharge of executor or administrator with the will annexed; liability of life tenant
When the executor or administrator with the will annexed, in cases where the will so provides, leaves in the possession of the person entitled for life, perishable personal property, live stock, household goods, family stores and farming implements, together with the crops saved for the maintenance of such stock, the receipt of such person entitled for life to such executor or administrator with the will annexed, shall discharge the executor or administrator with the will annexed of and from all liability for or concerning the goods and chattels and crops so devised and the appraised value thereof. The Register of Wills and Estates shall allow the amount of the appraisement of the goods and chattels in the account of the executor or administrator as a credit to him upon the production, at the time of passing the account, of the receipt; but such release shall not discharge the person so entitled for life, his or their executor or administrators, from liability to the person entitled to such personal property absolutely, after the death of the person entitled thereto for life, or prevent such action at law or in equity as is necessary to secure the delivery of such personal property or payment therefor, at its appraised value, to the person entitled thereto absolutely, after the death of the person entitled to such property for life.
SUBCHAPTER V. FOREIGN REPRESENTATIVES
(a) "Personal representative" includes executor, administrator, administrator with the will annexed and successor personal representatives and persons who perform substantially the same function under the law governing their status.
(b) "Local administration" means administration by a personal representative appointed in this state pursuant to appointment proceedings described in this title.
(c) "Local personal representative" includes any personal representative appointed in this state pursuant to appointment proceedings described in this title and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to Section 1566.
(d) "Resident creditor" means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a non-resident decedent.
§1562. Payment of debt and delivery of property to domiciliary foreign personal representative without local administration
At any time after the expiration of sixty days from the death of a non-resident decedent, any person indebted to the estate of the non-resident decedent or having possession or control of property of such non-resident decedent or having possession or control of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the non-resident decedent may pay the debt, deliver the property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:
(1) the date of the death of the non-resident decedent,
(2) that no local ancillary administration, or application or petition therefor, is pending in this state,
(3) that the domiciliary foreign personal representative is entitled to payment or delivery.
§1563. Payment or delivery discharges
Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
§1564. Resident creditor notice
Payment or delivery under Section 1562 may not be made if a resident creditor of the non-resident decedent has notified the debtor of the non-resident decedent or the person having possession of the personal property belonging to the non-resident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
§1565. Proof of authority-bond
If no local ancillary administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with the Register of Wills and Estates in this State in a county in which property belonging to the decedent is located, exemplified copies of his appointment and of any official bond he has given.
A domiciliary foreign personal representative who has complied with Section 1565 may exercise as to assets in this State all powers of a local personal representative and may maintain actions and proceedings in this State subject to any conditions imposed upon non-resident parties generally and provided that such domiciliary foreign personal representative:
(1) Complies with the provisions of Section 2101 of this title governing publication of notice to creditors, and
(2) Complies with the provisions of Section 1905 of this title governing the filing of an inventory and appraisal of estate assets consisting of tangible personal property and real estate actually situated within this State.
§1567. Power of representatives in transition
The power of a domiciliary foreign personal representative under Section 1562 or 1565 shall be exercised only if there is no administration or application therefor pending in this State. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 1566, but the Court of Chancery may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceeding in this State.
§1568. Ancillary and other local administrations; provisions governing
In respect to the local administration of the estate of a nonresident decedent, the provisions of this title govern (1) proceedings, if any, before a Register of Wills and Estates or the Court of Chancery in this State, for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties and liabilities of any local personal representative and the rights of claimants, purchasers, distributees and others in regard to a local administration.
§1569. Jurisdiction by act of foreign personal representative
A foreign personal representative submits himself to the jurisdiction of the Courts of this State by (1) filing exemplified copies of his appointment as provided in Section 1565, (2) receiving payment of money or taking delivery of person& property under Section 1562, or (3) doing any act as a personal representative in this State which would have given the State jurisdiction over him as an individual. Jurisdiction under (2) is limited to the money or value of personal property collected.
§1570. Jurisdiction by act of decedent
In addition to jurisdiction conferred by Section 1569, a foreign personal representative is subject to the jurisdiction of the Courts of this State to the same extent that his decedent was subject to jurisdiction immediately prior to death.
§1571. Service on foreign personal representative
(a) Service of process may be made upon the foreign personal representative by certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this State on either the foreign personal representative or his decedent immediately prior to death.
(b) If service is made upon a foreign personal representative as provided in subsection (a), he shall be allowed at least thirty (30) days within which to appear or respond.
§1572. Effect of adjudication for or against personal representative
In the absence of fraud or collision, an adjudication rendered in the domiciliary jurisdiction or any ancillary jurisdiction in favor of or against any personal representative of the estate is as binding on the local person representative as if he were a party to the adjudication.
CHAPTER 17. ABSENTEES AND PRESUMED DECEDENTS
§1701. Presumption of death from absence, exposure to specific peril or finding pursuant to Federal Missing Persons Acts
(a) When the death of a person or the date thereof is in issue, his unexplained absence from his last know place of residence and the fact that he has been unheard of for seven years may be a sufficient ground for finding that he died seven years after he was last heard of.
(b) The fact that a person was exposed to a specific peril of death may be sufficient ground for finding that he died less than seven years after he was last heard of.
(c) A written finding of missing in action or presumed death made by the Secretary of the Army, the Secretary of the Navy, or other officer or employee of the United States authorized to make such finding pursuant to the Federal Missing Persons Act, as now or hereafter amended, or a duly certified copy of such finding shall be received in any court, office or other place in this State as prima facie evidence of the death of the person therein found to be missing in action or dead, and the date, circumstances and place of his disappearance.
§1702. Petition for adjudication of presumed death; notice of hearing
(a) Whenever any person is presumed to be dead an account of absence for seven years or more, exposure to specific peril or pursuant to a finding under Federal Missing Persons Act, whether such person was domiciled within this State or in some other state, territory or possession of the United States or in any foreign, country, any person entitled under the last will and testament of such presumed decedent or under the intestate laws to any share of his estate within this State, or under any deed, will or other instrument in writing or in any other way, method or manner to any share or interest in any estate held by or for such presumed decedent for years or for the term of his natural life, or the escheator for the State, or any creditor of the presumed decedent may present a petition to the Court of Chancery, setting forth the facts which raise the presumption and praying for an adjudication thereon declaring such person to be presumed to be deceased.
(b) The Court of Chancery, if satisfied as to the interest of the petitioner, shall cause to be advertised in a newspaper of general circulation in the County of the principal residence of the presumed decedent (or if non-resident then in such County as the Court shall direct), once a week for three consecutive weeks, together with such other advertisement as the Court, according to the circumstances of the case, deems expedient or advisable, the fact of such application, together with notice that on a day certain, which shall be at least two weeks after the last appearance of the advertisement, the Court shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof.
§1703. Petition for ancillary letters on estate of non-domiciliary presumed decedent; notice of hearing
(a) Whenever letters of administration or letters testamentary have been granted in any other state, territory, or possession of the United States, or in any foreign county, on the estate of a domiciliary thereof, presumed to be dead, the person to whom such letters have been granted, may present a petition to the Court of Chancery, accompanied by a complete exemplification of the record of the grant of such letters, praying for the grant of ancillary letters testamentary or of administration upon the estate of such presumed decedent, situate, owing, or belonging to him within this State.
(b) The Court of Chancery, if satisfied that the person proposed in such petition would be a fit person to whom such letters might be issued, shall cause publication to be made, in the manner and for the period as provided in section 1702 of this title, of the fact of such application, together with notice that on a day certain, which shall be at least two weeks after the last appearance of the advertisement, the Court of Chancery shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration thereof.
§1704. Hearing; competency of witnesses
At the hearing in either of the cases provided for in sections 1702 and 1703 of this title, the Court of Chancery shall take such legal evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established; or he may appoint a master to take such testimony, and report his findings thereon. No person shall be disqualified to testify by reason of his or her relationship as husband or wife to the presumed decedent, or of his or her interest in the estate of the presumed decedent.
§1705. Search for absentee
The Court of Chancery, on its own motion or upon the application of any party in interest, may appoint a master, investigator or appropriate agency to search for the presumed decedent in any manner which the Court shall deem appropriate, and the expenses of such search shall be paid out of the property of the absentee.
§1706. Decree of presumed death; admission of will to probate and grant of letters
(a) If satisfied, upon the hearing, or upon the report of a master, that the death of the presumed decedent has been established, the Court of Chancery shall so decree, and the Court shall determine in such decree the date of such death.
(b) The Register of Wills and Estates shall issue letters of administration to the person thereto entitled; or receive for probate the last will and testament of such presumed decedent, and, if duly proved, admit the same to probate and issue letters testamentary thereunder. The letters, until revoked, and all acts done in pursuance thereof and in reliance thereon, shall be as valid as if the presumed decedent were actually dead.
§1707. Title to real estate of presumed decedent; recording of decree
(a) Whenever the Court of Chancery enters a decree that the presumption of death of any person has been established, the real estate of the presumed decedent shall pass and devolve as in the case of actual death, and the person entitled by will or under the intestate laws may enter and take possession. In case the presumption of death is thereafter rebutted by adequate proof that the presumed decedent is in fact alive, and the decree is vacated, the real estate shall revert to him as fully as though such decree had never been entered, subject, however, to the provisions of subsection (b) of this section and to payment of the costs and expenses of the proceedings and advertisement.
(b) The decree may be recorded in the Office of the Recorder of Deeds of the proper county, in the deed book, and shall be indexed by the Recorder in the grantors' index under the names of the persons taking the real estate; and if so recorded, and the persons taking the real estate sell or mortgage the same, the purchaser or mortgagee shall take a good title or security interest, free and discharged of any interest or claim of the presumed decedent.
§1708. Duties of executor or administrator
The executor or administrator to whom letters have been issued upon the estate of a presumed decedent shall administer the estate in the same ma liner and with the same effect as the same would be administered under existing laws of this State if the presumed decedent were in fact dead.
§1709. Security given by beneficiaries
(a) Before any distribution is made of the assets of the estate of the presumed decedent or before the decree is recorded in the Office of the Recorder of Deeds as provided in section 1707 (b) of this Chapter, the persons, other than creditors, entitled to receive the same, shall, respectively, give sufficient real or personal security, to be approved by the Court of Chancery, in such sum and form as the Court directs, with condition that, if the presumed decedent shall in fact be at the time alive, they will respectively refund the assets received by each, on demand.
(b) If any person entitled to receive assets refuses or neglects, or is unable to enter such security, the Court of Chancery may, upon petition of any person interested, and upon due notice to all persons interested, so far as such notice can reasonably be given, appoint a suitable person or corporation as trustee to receive and hold the share of the distributee refusing or neglecting, or being unable to enter security until further order of the Court. Such trustee shall not be an insurer of the trust fund, and shall be liable to the person interested therein only for such care, prudence and diligence in the execution of the trust as trustees are liable for.
(c) If the Court of Chancery shall be satisfied, from the evidence at the hearing to ascertain whether the presumption of death is established, or from the report of the master, that there is no likelihood of the presumed decedent's being still alive, then the court may accept refunding bonds from the distributees of the presumed decedent's estate without requiring sureties thereon.
§1710. Revocation of letters and vacation of decree of presumed death; effect
The Court of Chancery may revoke the letters and vacate the decree that the presumption of death has been established, at any time, on due and satisfactory proof that the presumed decedent is in fact alive. After such revocation all the powers of the executor or administrator shall cease, but all receipts or disbursements of assets, and other acts previously done by him, shall remain as valid as if the letters were unrevoked. The executor or administrator shall settle an account of his administration down to the time of such revocation, and shall transfer all assets remaining in his hands to the person as whose executor or administrator he has acted, or to his duly authorized agent or attorney. Nothing contained in this chapter shall validate the title of any person to any money or property received as surviving spouse, next of kin, heir, legatee, or devisee of such presumed decedent, but the same may be recovered from such person in all cases in which such recovery would be had if this chapter had not been passed.
§1711. Same; effect upon pending actions and upon judgments rendered
After revocation of the letters, and vacation of the decree that the presumption of death has been established, the person erroneously presumed to be dead may, on the suggestion filed of record of the proper facts, be substituted as plaintiff or petitioner in all actions or preceedings at law or in equity brought by the executor or administrator, whether prosecuted to judgment or decree, or otherwise; he may, in all actions or proceedings previously brought against the executor or administrator, be substituted as defendant or respondent, on proper suggestion filed by himself, or by proper service of writ or other process, but shall not be compelled to go to trial in less than three months from the time of such suggestion filed or process served. Judgments or decrees recovered against the executor or administrator before revocation and vacation of the letters and decree may be opened on application by the presumed decedent, made within three months from the revocation, and supported by affidavit denying specifically, on the knowledge of the affiant, the cause of action, or specifically alleging the existence of facts which would be a valid defense; but, if within three months, such application shall not be made, or being made the facts exhibited shall be adjudged an insufficient defense, the judgment or decree shall be conclusive to all intents, saving the defendant's right to have it reviewed as in other cases on appeal. Notwithstanding the substitution of the presumed decedent as defendant in any judgment or decree, it shall continue as a lien upon his real estate in the county, as other judgments.
§1712. Probate of will produced after issuance of letters upon estate of presumed decedent; effect upon prior administration
(a) Whenever letters testamentary or of administration shall be issued upon the estate of any person presumed to be dead, in accordance with the provisions of this chapter, the person having custody of any will which may have been left by such presumed decedent, in case letters of administration have been issued, or of any later will, in case letters testamentary have been issued, or any creditor of any person interested in the estate, may file a petition with the Court of Chancery in which the proceedings to establish the death by presumption have been held, setting forth the facts of the case, a copy of the will or later will, or an averment that such will exists, and the names of all persons interested in the estate of the presumed decedent.
(b) Upon the filing of such petition the Court of Chancery shall issue a citation to the person to whom letters of administration or letters testamentary have been issued, and to all persons interested in the estate of the presumed decedent, to appear upon a day fixed, and to show cause why the alleged will or later will should not be admitted to probate.
(c) Upon the return of the citation, if the Court of Chancery shall be satisfied from all the evidence that may be adduced that the proposed will was, in fact, the last will and testament made by the presumed decedent before his departure or disappearance from his residence, the will shall be admitted to probate as if the testator were in fact dead. If, upon such probate, it appears that an executor is named in the will, the letters of administration previously granted shall be revoked, and letters testamentary shall be issued to the executor, in the same manner and form as if the testator were in fact dead; but, if no executor shall be named in such will, then a certified copy of the will shall be attached to the letters of administration theretofore issued, or to a certified copy of such letters. Thereafter the executor or administrator shall execute the will according to its terms, and all property of the decedent shall be distributed and passed as provided by the will to the several legatees and devisees named therein. In case an earlier will shall have been admitted to probate, the letters testamentary issued thereunder shall be revoked, and letters shall be issued under the last will, or if no executor shall be named in the last will, then letters of administration with the will annexed shall be issued to the person entitled thereto. All the previous lawful acts of the removed executor or administrator shall be valid as provided in Section 1545 of this Title.
The costs attending the issuance or revocation of letters shall be paid out of the estate of the presumed decedent, and costs arising upon an application for letters which shall not be granted shall be paid by the applicant.
Chapter 19. Assets of estates: inventory and appraisal
§1901. Personal property constituting assets of estate; exceptions, including rights of beneficiaries of employee death benefit plans and insurance policies
(a) Estates in lands, tenements and heraditaments held by the decedent for the life of another shall be chattels; and such estates, estates by elegit or for years, the crop of the decedent growing or begun (except on lands devised by him), bank and other stock, money (whether in hand or deposited), and all goods and chattels shall be assets and included in the inventory.
(b) The following articles shall not be included in the inventory: the family Bible, clothes of the decedent, and the family stores laid in before the death of the decedent.
(c) If, under the terms of any insurance policy or contract, pension, bonus, stock option, or other employee benefit or incentive plan, a person, trust or corporation, other than the decedent or his estate's personal representative, is designated to receive, upon or after the death of the decedent, any property or other death benefit, such property or death benefit shall not be included in the inventory of the decedent as chargeable to his personal representative; and such person, trust or corporation shall be entitled to such property or death benefits as against the claim of any personal representative, creditor, legatee or next-of-kin of the decedent.
(d) The provision of subsection (c) of this section shall apply to designations whether made prior to or subsequent to the enactment of this section with respect to decedents dying after June 30, 1969. This section shall have no effect on the validity of other designations, nor shall it affect the calculations of inheritance or estate taxes with respect to any decedent.
§1902. Rents and profits of deceased's real estate as estate assets; possession and repair of real estate
(a) The rents and profits of the real estate of the deceased which shall come to the hands of the executor or administrator shall be assets for the payment of debts, and he shall be chargeable therewith accordingly; and upon a demand of the heir or devisee for such rents and profits it shall be a sufficient answer that the same have been applied to debts against the deceased, or that there are such debts to which they are applicable.
(b) Nothing in this section shall give to the executor or administrator any right of possession of the real estate; but if he be in possession, he shall, with the rents and profits, keep the premises in tenable repair.
§1903. Growing crops
When there is a crop growing or begun the executor or administrator may finish or sell it as he deems best for the estate. If he finish the crop, his account shall comprehend the proceeds and expenses.
§1904. Appraisers; appointment
The personal representative may employ one or more qualified and disinterested appraisers to assist him in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised.
§1905. Inventory and appraisal; filing requirements, form contents and supporting affidavits
(a) Every executor or administrator shall, within three months after the granting of letters testamentary or administration, file in the office of the Register of Wills and Estates of the county in which the letters have been granted, and also the Division of Revenue, an inventory and appraisal, on forms furnished by the Division of Revenue, which shall contain an inventory of all goods and Chattels of the decedent, a list of all debts and credits due or belonging to the decedent or to his estate, and a statement setting forth a general description of every parcel of real estate in this State of which the decedent died seized, and the name of each party entitled to any estate or interest in any part of such real or personal estate and the relationship, if any, of each such party to the decedent. Each item of property included in such inventory, list and statement, shall be separately valued at its fair market value as of the date of death of the decedent and such value shall be stated in the inventory and appraisal.
(b) The inventory and appraisal shall be supported by an affidavit of each executor or administrator.
(c) The executor's or administrator's affivadit shall be as follows: "______, makes solemn oath (or affirmation), that he has made due inquiry concerning the goods, chattels and money of, and the debts and credits due or belonging to _____, deceased, and that this inventory and list contains all the goods, chattels and money of, and debts or credits due or belonging to the said _______, which have come to the knowledge of the deponent (or affirmant) and that the information contained in the statement of real estate and the information pertaining to transfers of property, powers of appointment, entireties and jointly owned real and personal property and annuity contracts is true to the best of deponent's (or affirmant's) knowledge and belief."
§1906. Failure to file inventory, etc.; civil and criminal penalties; removal
(a) Any executor or administrator who fails to file the inventory, list and statement with the Register of Wills and Estates and with the Division of Revenue within three months after the granting of letters testamentary or of administration shall be subject, personally and individually, to a penalty of $1.00 per day for each day delinquent. This penalty shall not apply until one month after notice by the Division of Revenue of such delinquency.
(b) Any executor or administrator who fails to file the inventory, list and statement as required by section 1905 of this title, after being ordered to do so by the Court of Chancery, shall be subject to penalty for contempt of court.
§1907. Refusal of a co-executor or co-administrator to file inventory
Where there are several executors or administrators, if either of them refuse or neglect to join in the inventory or list of debts, the Court of Chancery shall remove him from office, unless he shall cause an inventory or list to be made and delivered on his own behalf.
§1908. Affidavit of diligent inquiry
An affidavit, signed by the executor or administrator and declaring upon oath or affirmation that he has diligently inquired and can obtain no knowledge of any goods or chattels of the decedent, shall be a sufficient excuse for not delivering an inventory; and a like affidavit that he has diligently inquired and can obtain no knowledge of any debts or credits due or belonging to the decedent, shall be a sufficient excuse for not delivering a list. Such affidavit shall be certified by the Register of Wills and Estates and filed with the bond.
§1909. Executor's debt to decedent
The making of a person executor shall not extinguish any demand of the decedent against him, but the same shall be truly inserted in the list of debts.
§1910. Additional inventory; after discovered assets
If, after the return of an inventory or list of debts, personal estate or debts due the decedent, not included therein, shall come to the knowledge of the executor or administrator he shall cause an additional inventory or list to be made and returned into the Register of Wills and Estates' office.
§1911. Power of Court to suppress, reject and order another inventory or list
The Court of Chancery may order an inventory or list of debts to be suppressed, or adjudged the same imperfect and other another to be made and filed in the Office of the Register of Wills and Estates. No inventory or list of debts shall be suppressed or adjudged imperfect because of any defect in the affidavit or in any certificate of any oath or affirmation.
§1912. Recording inventory and notation of inheritance tax status in Inheritance and Succession Docket
(a) Every inventory, list and statement filed pursuant to section 1905 of this title, shall be recorded and indexed by the Register of Wills and Estates in the "Inheritance and Succession Docket."
(b) Whenever any parcel or real estate or any estate or interest therein, described in the statement of the executor or administrator, shall be subject to inheritance or estate taxes under Title 30, the Register of Wills and Estates shall make an entry in the Inheritance and Succession Docket that the real estate is subject to tax; and in the event of an appeal to the Superior Court from a determination by the State Tax Appeal Board of the amount of inheritance or estate taxes to be paid, shall further note in said docket the fact of appeal'. When any inheritance or estate tax due this State shall be paid and discharged, the Register shall make a note thereof in the docket, upon notice from the Division of Revenue of payment.
CHAPTER 21. DEBTS OF AND CLAIMS AGAINST ESTATE §2101. §2101. Notice to creditors to probate claims; publication
(a) The Register of Wills and Estates shall give notice as provided in this section of the granting of letters and the date thereof, and requiring all persons having claims against the decedent to exhibit the same to the executor or administrator or abide by the law in this behalf.
(b) Such notice shall be given in all cases by advertisements to be posted within 40 days from the grant of letters in the County Court House in the county in which the decedent resided at the time of his death, or, in the case of non-resident decedents, in the county in which letters testamentary or of administration shall have been granted; and such notice shall also be published in any one or more newspapers approved by the Register of Wills and Estates published in such county at least three times within the same period not less frequently than once a week for three successive weeks; except that if the Register of Wills and Estates at the time of granting of letters shall determine from evidence satisfactory to him that the gross personal estate of the decedent does not exceed $7,500, and also that the gross real and personal estate of the decedent does not in the aggregate exceed $10,000, the Register may give such notice solely by the posting of advertisements as aforesaid, and not by publication in a newspaper or newspapers.
(c) The Register of Wills and Estates may require that the actual costs and expenses of such posting and publication be advanced to him prior to the grant of letters. The Register shall note or record in his docket the giving of notice and the form of notice given.
(d) The Register of Wills and Estates shall send a copy of the notice, described in this section, to the State Treasurer, within 40 days from the grant of letters. The State Treasurer, within 40 days from the receipt of notice, and at least monthly, shall send the information included therein in a convenient or summary form to each state agency which requests the information, without charge.
§2102. Limitations on claims against estate
(a) All claims against a decedent's estate which arose before the death of the decedent, including claims of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if the Register of Wills and Estates observes the requirements of §2101 of this title, are barred against the estate, if not barred earlier by other statute of limitations, the personal representative and the heirs and devisees of the decedent, unless within six months from the date of granting of letters to the executor or administrator notice is given in compliante with §2104 of this title or unless notice is presumed under §2103 of this title.
(b) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the state or any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, unless presented in accordance with the provisions of §2104 of this title, are barred against the estate, the personal representative and the heirs and devisees of the decedent, as follows:
(1) A claim based on a contract with the personal representative, within six months after performance by the personal representative is due;
(2) Any other claim, within six months after it arises.
(c) Any claim not barred under subsection (a) and (b) of this section, which has been rejected by an executor or administrator shall be barred forever unless an action or suit be commenced thereon within three months after the executor or administrator has notified the claimant of such rejection by writing delivered to him in person or mailed to his last address known to the executor or administrator; provided, however, in the case of a claim which is not presently due or which is contingent or unliquidated, the executor or administrator may consent to an extension of the three month period, or to avoid injustice the Court of Chancery, on petition, may order an extension of the three month period, but in no event shall the extension run beyond the applicable statute of limitations.
(d) The provisions of subsection (a), (b) and (c) of this section shall not apply to claims for legacies or shares of an estate of a decedent.
(e) No claim for a deficiency or otherwise, based on a bond which has been secured by a mortgage on real estate, shall be entertained against a decedent's estate unless such claim has been presented to the executor or administrator within six months after the date of the granting of letters to the executor or administrator.
The failure to present a claim on a bond secured by a mortgage on real estate, in accordance with the foregoing provisions, shall not invalidate the bond so as to prevent the foreclosure of the mortgage on real estate at any time thereafter, but no claim may be asserted against the decedent's estate on or by reason of the bond.
(f) Nothing in this section affects or prevents, to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance.
(g) No claim against the estate of any decedent in which letters were granted prior to the effective date of this Act, shall be in any wise affected by this section, but as to all such claims the provisions of §2102 of this title as they existed prior to the effective date of this Act shall apply.
§2103. Debts of which notice is presumed
An executor or administrator shall be deemed to have notice only to mortgages (but not of the bonds accompanying such mortgages) and of such judgments as would be liens against real estate at the date of death of the decedent, which mortgages and judgments are of record in the county of this State in which letters were granted upon the estate of the decedent, unless there has been a failure to insert them in the general indicies of the office wherein it is proper that they be recorded.
§2104. Manner of presentation of claims
Claims against a decedent's estate may be presented as follows:
(a) The claimant may deliver or mail to the personal representative a written statement of claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of claim, in the form prescribed by rule of the Court of Chancery, with the Register of Wills and Estates. The claim is deemed presented on the first to occur of the receipt of the written statement of claim by the personal representative, or the filing of the claim with the Register of Wills and Estates. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.
(b) The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subject to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death.
§2105. Order of preference of claims against estate
(a) Executors and administrators after payment of all administration expenses, fees and commissions shall pay claims against the decedent in the following order:
(1) Surviving spouse's allowance as provided in section 2307 of this title;
(2) Funeral expenses;
(3) The reasonable bills for medicine and medical attendance during the last sickness and for nursing and necessaries for the last sickness of the decedent;
(4) Wages of servants and labors employed in household affairs or in the cultivation of a farm; but no servant or laborer shall be allowed this preference for more than one year's wages;
(5) Taxes imposed by the State of Delaware;
(6) Rent for not exceeding one year; and this, at the election of the party entitled, may be of rent in arrear or rent growing due;
()7) Judgments against the decedent, which shall include judgments before justices of the peace and decrees of a court of equity against him for the payment of money;
(8) Recognizances, mortgages, and other obligations of record, for the payment of money;
(9) Obligations and contracts under seal;
(10) Contracts under hand for the payment of money, or delivery of goods, wares or merchandise;
(11) Other demands.
(b) No preference shall be given in the payment of any claims over any other claims of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
§2106. Petition to Court of Chancery to determine order of preference
Whenever an executor or administrator is unable to determine between two or more creditors the order of preference to be given to their respective demands, he may, upon petition to the Court of Chancery, have the parties in interest summoned to appear in the Court, and upon hearing duly had the Court shall determine the order of preference to be given to the respective demands of the creditors who may have been made parties to the proceeding. Upon compliance with such determination the petitioner and his sureties shall be discharged from all further liability in respect to the preference made by the Court.
§2107. Payment of Claims after three months without notice of claim of higher priority
If an executor or administrator, after the expiration of three months from the grant of letters, pays a claim of lower preference, before presentation pursuant to §2104 of this title of a claim of a higher preference, such payment shall be allowed him.
§2108. Report of deductions for inheritance tax purposes
Every executor or administrator shall file with the Division of Revenue a report of deduction for inheritance tax purposes. The report shall be filed within the time and shall contain the information prescribed by Chapter 13 of Title 30.
§2109. Barring of claims against estates when no letters have been granted within ten years from death
If no letters have been granted upon the estate of any person within ten years from the date of his or her death, all claims of creditors and persons otherwise beneficially interested in the estate, except those evidenced by mortgage or judgment which shall be controlled by the law applicable to mortgages and judgments as heretofore, shall be thereafter barred.
CHAPTER 23. ACCOUNTING AND DISTRIBUTION
Subchapter I. General
§2301. Rendering of accounts; extension of time; appeal; authority of Register of Wills and Estates and Court of Chancery
(a) Every executor or administrator shall render an account of his administration to the Court of Chancery, in money, every year from the date of his letters until the estate is closed and a final account passed by the Court.
(b) If an executor or administrator fails to perform this duty, the Court of Chancery shall issue process of attachment against him, and may enforce his compliance by imprisonment.
(c) The Register of Wills and Estates may, for sufficient cause, extend the time for accounting, not to exceed six months; and he may, upon the affidavit of an executor or administrator, and on its appearing to him that there are no transactions or matters for an account in any year, dispense with an account; but from his determination in this respect an appeal may be taken by any interested party to the Court of Chancery.
(d) The Register of Wills and Estates shall receive all accountings filed for approval by the Court of Chancery but shall have no power to deny any debt, expense or other item for which allowance is sought. The Court may, however, refuse to allow any item indicative of fraud, illegality or negligent failure to fulfill fiduciary obligations or, may further refuse to allow any item representing a debt or expense incurred solely for the purpose of avoiding any tax.
§2302. Notice of filing of account; waiver; exceptions
(a) Every account filed by an executor or administrator shall be accompanied by a statement of the names and mailing addresses of each beneficiary entitled to share in the distribution of the estate. In addition, such statement shall indicate (i) the name and address of any beneficiary who is subject to a legal incapacity and the name and address of the guardian or trustee for such beneficiary, if any, and if none, the name and address of a parent, natural or adoptive, of such beneficiary, and (ii) the name and address of any beneficiary who has waived the notice to beneficiary as provided in subparagraph (c) of this Section.
(b) Upon the filing of an account with the statement of names and addresses of beneficiaries as provided in subparagraph (a) of this Section, the Register of Wills and Estates shall forthwith mail to such beneficiaries or to the guardian, trustee or parent of any legally incapacitated beneficiary, a notice in writing of the filing of the account and that the same shall be open for inspection and exception for sixty (60) days from the mailing of the notice. Such notice need not be mailed to any beneficiary who has waived the notice to beneficiary as provided in subparagraph (c) of this Section. The Register shall certify on the account that he did mail the notices required by this subparagraph and the date of such mailing.
(c) Any beneficiary entitled to share in the distribution of an estate may waive in writing any notice of the filing of an account to which such beneficiary is entitled. The beneficiary by such waiver shall consent that the account be approved by the Court. The waiver of a beneficiary subject to a legal incapacity shall be executed by the guardian, trustee or parent, natural or adoptive, of such beneficiary.
(d) Within sixty (60) days of the mailing of such notice, any beneficiary entitled to share in the distribution of the estate, who has not waived the notice of the filing of the account pursuant to subparagraph (c) of this Section may file in the Office of the Register of Wills and Estates exceptions in writing to the account of an executor or administrator. Exceptions not filed within such sixty-day period shall not be considered by the Court. If no exception to the account is filed within such sixty-day period, the account shall, subject to the power of the Court to disallow items of the account pursuant to Section 2301 (d) of this Title, be approved.
§2303. Recording of Account; fees; evidence
(a) All accounts and settlements of executors and administrators as the same shall be passed by the Court of Chancery shall be recorded by the Register of Wills and Estates of the several counties in uniform books. The Register shall also maintain an alphabetical index of all such settlements and accounts.
(b) The cost of recording and indexing the settlements and accounts shall be paid out of the funds of the estate to which they relate. The Register shall receive for recording and indexing the accounts and settlements the fees provided by this Title.
(c) A certified copy of such record of settlement and accounts of executors and administrators shall be received as evidence in the several courts of the State of Delaware.
§2304. Payment of Inheritance tax before final approval
No final approval of the account of any executor or administrator shall be granted by the Court of Chancery until the Court has ascertained that all taxes imposed under the provisions of Chapter 13 of Title 30 with interest, if any is due, have been paid. A certificate of the Division of Revenue filed with the Register shall be proof of such payment.
§2305. Allowance of commissions and attorney's fees
(a) Commissions and attorney's fees shall be allowed as provided by Rule of the Court of Chancery.
(b) No commission shall be allowed by the Court of Chancery to any executor or administrator who has not complied with the requirements of Chapter 13 of Title 30. This penalty shall not apply until one month after notice by the Division of Revenue of such delinquency.
(c) The Court of Chancery may reduce commissions and attorney's fees if the accounts required to be filed by this Chapter are not filed within the required time period.
§2306. Distribution of decedent's property without grant of letters where estate assets do not exceed $7500.00
The following classes of distributees of an estate: wife or husband, children, father or mother, brother or sister (preference being given each class of distributees in the order named) shall be entitled to the personal estate without awaiting the appointment of a personal representative or the probate of a will when:
(1) no petition for the appointment of a personal representative is pending or has been granted, and
(2) thirty clays have elapsed since the death of the decedent, and
(3) the value of the entire assets of the personal estate, not including exempt property and jointly owned 'property, does not exceed $7,500, and
(4) all known debts have been paid or provided for, and
(5) decedent did not own solely owned real estate, and
(6) there is furnished to any person owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right, an affidavit showing the existence of the foregoing conditions and the right of the distributees to receive such money or property or to have such evidence transferred.
§2307. Effect of payment pursuant to Section 2306; actions by distributees
(a) The person making payment, delivery, transfer or issuance pursuant to the affidavit described in Section 2306 of this title, shall be released to the same extent as if made to the personal representative of the decedent and he shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit, but the distributees to whom payment, delivery, transfer or issuance is made, shall be answerable therefor to any person having a prior right and be accountable to any intestate distributee or to any personal representative thereafter appointed.
(b) If the person to whom an affidavit is delivered pursuant to section 2306 refuses to pay, deliver, transfer or issue the property, it may be recovered or compelled in an action brought in the Court of Chancery for such purposes by or on behalf of the distributees entitled thereto, upon proof of the facts required to be stated in the affidavit.
§2308. Surviving spouse's allowance
(a) The surviving spouse of any decedent shall be entitled to receive and the executor or administrator shall pay to such spouse as soon as convenient, in the manner provided in this section, cash up to the amount of $2000 out of the estate of the decedent, which payment shall be made in the order of preference of claims against the estate in section 2105 of this Title, as amended. The foregoing provision shall not affect any other rights to which such spouse may be entitled, either under the will of the decedent or the provisions of the intestacy laws of this State.
(b) The allowance to the surviving spouse of a decedent provided for in subsection (a) of this section, shall be of no effect unless and until such spouse shall, within six months from the date of the granting of letters testamentary or of administration, notify in writing the Register of Wills and Estates of the county wherein the letters were granted and the executor or administrator of such spouse's demand that a specific sum not exceeding $2000 be so set aside out of the proceeds of the estate of the decedent.
(c) The allowance provided for in subsection (a) of this section, shall be considered to be a debt of the estate, and the executor or administrator may sell so much of the property of the decedent as will enable him to pay the allowance in the same manner as he may be enabled to do by law for the payment of other debts of the decedent or of the estate.
SUBCHAPTER H Payment of Legacies or Distributive Shares
§2311. Time for settling estate; accounting for interest or earnings pending settlement
Except where circumstances justify a longer period, an executor or administrator shall have one year from the date of letters for settling the estate of the decedent; and until the expiration of that time, he shall not be required to make distribution, nor be chargeable with interest upon the assets in his hands; but if any part of the estate carry interest or be productive he shall account for the interest or produce.
§2312. Payment of legacies; refusal to pay or deliver; bond; interest
(a) Any legacy, if no time is appointed, shall be payable one year from the date of the first appointment of a personal representative.
(b) Payment or delivery of any legacy may be refused if it is apparent that there are not assets for the purpose; and a personal representative, if he knows of any demand, whether outstanding or potential, shall not be obliged to pay or deliver a legacy or distributive share unless the person entitled shall, with sufficient security, become bound to the executor or administrator by a joint and several obligation, in a penalty double the value of the legacy or share, with condition- to be void if the person receiving the legacy or share, or his executors or administrators, in case of a deficiency of assets of the decedent for the payment of all the just demands and charges his estate and all legacies by him duly given, without such share or legacy or part thereof, shall refund and pay to the executor or administrator, or his executors, administrators, or assigns, the sum or value of the legacy or distributive share, with interest, or such portion thereof as justly and lawfully ought to be contributed on occasion of such deficiency.
(c) Except where circumstances justify a longer period, pecuniary legacies shall bear interest at the rate of 4 percent per annum payable from the estate beginning 13 months after the first appointment of a personal representative until payment unless a contrary interest is indicated by the Will.
(d) If a legacy is to be paid before the expiration of the first year from the date of the first appointment of a personal representative, security may be required, although no claim against the estate is known.
§2313. Anti-lapse; deceased devisee; class gifts
If a devisee or legatee who is a grandparent or lineal descendant of a grandparent of the testator is dead at the time of the execution of the will, fails to survive the testator, or is treated as if he precedeased the testator, the issue of the deceased devisee or legatee who survived the testator by 120 hours take in plate. of the deceased devisee or legatee, per stirpes. One who would have been a devisee or legatee under a class gift if he had survived the testator is treated as a devisee or legatee for purposes of this section whether his death occurred before or after the execution of the will.
This section shall not apply in the case of wills wherein provisions have been made for distribution of property different from the provisions of this section.
§2314. Legacy to creditor of testator
A legacy shall not be deemed to be in satisfaction of a debt due from the testator to the legatee, unless the intention of the testator that it shall be so accepted shall appear upon the will expressly or by manifest implication.
§2315. Payment of legacies or distributive shares to minors or persons absent from the State
(a) If an executor or administrator cannot pay over money in his hands as such because of the infancy or absense from the State of a person entitled to a legacy or distributive share of personal estate, or any part thereof, he may deposit the same in the Farmers Bank of this State to the credit of the person so entitled; and he shall take from the cashier a certificate of the deposit, and deliver the same to the Register of Wills and Estates for the county where the deposit is made, to be by him recorded in accordance with section 2320 of this Title; and the record of the certificate, or a certified copy thereof, shall be evidence.
(b) Whenever the party entitled to any deposit under subsection (a) of this section is a minor, the executor or administrator shall, in respect to him, make a report to the Court of Chancery in the county where the deposit is made of his proceedings under subsection (a) of this section, and shall exhibit to and file in the Court, the original certificate of deposit, which shall be recorded in the Court.
(c) A deposit under this section and a compliance with its provisions shall be a sufficient discharge of the executor or administrator, and of his sureties, for the money so deposited.
§2316. Payment of legacy, distributive share or trust fund where person entitled is out of State, unknown, incompetent or shares uncertain; proceedings
(a) If an executor, administrator or trustee cannot pay over a legacy, residue of intestate personal estate, distributive share, or trust fund in his hands, because the person entitled to the same, or any part thereof, is absent from the State, unknown or incompetent to receive the same or because the shares of the persons entitled to the same are unknown, such executor, administrator or trustee may present to the Court of Chancery a petition setting forth the facts and praying relief. The Court, upon being satisfied that it is a proper case for relief, shall order the petitioner to pay into the Court of Chancery the amount in his hands, with the interest which may have accrued thereon, less such costs, expenses and counsel fees as may be allowed by the Court. Upon compliance with such order the petitioner and his sureties shall be discharged from all further liability in respect to the money so paid.
(b) Any money so paid into Court may, by order of the Court, be deposited in the name of the Court, in the Farmers Bank of this State, or in any savings bank in this State, or invested in the name of the State in the funded debt of this State or of the United States, or upon bond or mortgage or both for the benefit of the parties entitled to the same. The costs of such investment shall be payable out of the fund.
(c) The Court may direct such proceedings, issue such writs, and make such orders as it deems expedient for ascertaining the parties entitled to the money paid into Court, and for the payment and distribution of the same: and for this purpose the Court may cause notice to parties interested, residing out of this State or whose residences are unknown, to be given by publication or otherwise as it directs and may appoint an auditor to investigate and report to the Court as to any matter necessary to be determined in the premises. Any proceeding, writ, or order authorized by this section may be taken, directed, issued, returned or made as well in vacation at chambers as at term time.
(d) Any payment or distribution of money paid into Court and made by order of the Court under the provision of this section, shall be final and conclusive as to the right of the parties interested therein.
(a) Except as provided in subsection (b) and except as provided in connection with the elective share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
(1) property not disposed of by the will;
(2) residuary bequests and devises;
(3) general bequests and devises;
(4) specific bequests and devises.
For purposes of abatement, a general bequest or devise charged on any specific property or fund is a specific bequest or devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general bequest or devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred bequest or devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
§2318. Proportional contribution of legatees
If there are several legacies, and a return of part of a legacy which has been paid becomes necessary, the legatee shall only be required to return a proportional part of his legacy towards making up the whole sum wanting.
§2319. Transfer to guardian or trustee of investments or other property in payment of specific legacy or distributive share; receipt
Whenever an executor or administrator makes an assignment of any investment or transfers or delivers any personal property of any testator or intestate to a guardian or trustee as payment in whole or in part of a specific legacy or of a distributive share, such guardian or trustee shall give to the executor or administrator, for the purpose of accounting by the executor or administrator, for the purpose of accounting by the executor or administrator in the settlement of estate only, a receipt therefor at the valuation fixed in the appraisement of the estate of such testator or intestate. The receipt, when filed with the Court of Chancery, shall be a sufficient discharge of such executor or administrator and of his sureties for any property so transferred or delivered, and such guardian or trustee may take over such property and may, without liability for any loss or depredation therein, continue to hold the same, until in the exercise of due care it shall become no longer wise so to do. Nothing herein contained shall permit or require a guardian or trustee to take over in settlement of a distributive share of an estate property at a value less than the distributive portion of the estate to which such guardian or trustee would otherwise be entitled. In case a guardian or trustee is acting under authority of an instrument or a court order, the terms and provisions of such instrument or court order shall be controlling as to the powers and duties of such guardian or trustee.
§2320. Release, acquittance or receipt to executor or administrator; form, execution, recording and evidence
(a) Any release, acquittance, or receipt, being executed under hand and seal by any legatee, next of kin, or interested person, of full age, to an executor or administrator, for any property or sum of money due by virtue of a will or upon a testamentary or administration account passed before the Register of Wills and Estates, and acknowledged before any justice or judge, Register of Wills, justice of the peace, notary public of any state or territory of the United States or of the District of Columbia, or before any consul general, consul, vice-consul, consular agent or commercial agent of the United States duly appointed in any foreign country, and certified under the hand of such officer and the seal of his office, shall upon being filed with the Court of Chancery in and for the County in which such Will or Account is recorded or filed, be recorded in a book for that purpose, which shall have direct and reversed alphabetical indices. Such record or a duly certified copy thereof under the hand and official seal of the Register of Wills and Estates shall be competent evidence in all cases.
(b) The following form of acknowledgment shall be sufficient in all cases:
"State of ________
County of ________
Acknowledged by ________ to be his voluntary act and deed, before me (here state the official character of the person before whom the acknowledgment is made) this _____ day of ______, 19_____
Witness my hand and seal."
Justices of the Peace of this State need only sign their name, there being no seal of office.
§2321. Distributions by fiduciaries in satisfaction of pecuniary bequests
(a) Where a will or a trust agreement authorizes the executor or trustee (hereinafter called the "fiduciary") to satisfy wholly or partly in kind a pecuniary bequest or transfer in trust of a pecuniary amount, unless the will or trust agreement otherwise expressly provides, the assets selected by the fiduciary for that purpose shall be valued at their respective values on the date or dates of their distribution.
(b) Where a will or a trust agreement authorizes the fiduciary to satisfy wholly or partly in kind a pecuniary bequest or a transfer in trust of a pecuniary amount, and the will or trust agreement requires the fiduciary to value the assets selected for such distribution by a formula using a date other than the date or dates of their distribution, unless the will or trust agreement otherwise expressly provides, the assets selected by the fiduciary for distribution, together with any cash to be distributed, shall
have an aggregate value on the date or dates of their distribution equal to the amount of such bequest or transfer in trust as determined by the formula stated in the will or trust agreement.
SUBCHAPTER III. DECREE OF DISTRIBUTION
§2331. Jurisdiction of Court of Chancery
The jurisdiction of the Court of Chancery shall extend to and embrace the distribution of the assets and surplusage of the estates of decedents among the persons entitled thereto in all cases where such jurisdiction is invoked as provided in this subchapter.
§2332. Petition for decree of distribution; notice required by constitution
(a) An executor or administrator or any person claiming to have an interest in the estate to be distributed may, at any time after any account has been filed by an executor or administrator, apply to the Court of Chancery in the county in which letters testamentary or of administration were granted upon the estate to be distributed, by a written petition filed in the Court for a decree of distribution of the estate among the person entitled thereto. Such petition shall have attached to it a certified copy of all accounts that have been theretofore filed by the executor or administrator in the office of the Register of Wills and Estates for the county. The petition shall contain the names of all persons known to the petitioner who claim or may claim an interest in the estate to be distributed, together with their post office addresses so far as known, and shall state whether the executor or administrator of the estate has given the notice required to be given by section 32 of Article IV of the Constitution of this State, and shall be duly verified.
(b) If at the time the petition is filed the executor or administrator of the estate shall not have given the notice required to be given by section 32 of Article IV of the Constitution, the Court shall forthwith order such notice to be given by such executor or administrator within such time as shall be fixed by the Court.
§2333. Order fixing hearing date and providing for notice
(a) Upon the filing of the petition provided for under section 2332 of this title, the Court of Chancery, after having satisfied itself of the sufficiency of the petition, shall make an order
(1) Taking jurisdiction of the proceeding;
(2) Setting the application for a decree of distribution down for a hearing before the Court, at a time fixed in such order;
(3) Providing for written notice and delivery of a copy of the petition by certified mail to each person who is named in the petition as a person who claims or may claim an interest in the estate to be distributed, and each such person of whom the Court otherwise has knowledge, and also to the personal representative of the decedent, if he is not the petitioner in the proceeding;
(4) Providing for the publication of the notice in a newspaper published in the county, at least once a week for at least four weeks before the date of such hearing.
(b) The notice shall be mailed and published by and in the name of the Register of Wills and Estates of the county in which the proceeding is pending, and shall be in substantially the following form:
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR ______ COUNTY
TO ALL PERSONS CLAIMING TO HAVE INTEREST IN
THE DISTRIBUTION OF THE ESTATE OF ________ DECEASED, INCLUDING PERSONS CLAIMING TO BE HEIRS, LEGATEES, BENEFICIARIES OR OTHER DISTRIBUTEES OF SAID ESTATE.
YOU ARE HEREBY NOTIFIED that an application has been made to the Court of Chancery of the State of Delaware, in and for _____ County, for a decree of distribution of the estate of said decedent and that the application has been set down for a hearing before the Court on the _____ day of ___ A.D. 19___ , at _____ M, in the court room of the Court of Chancery in the County Court !louse in the City of _____ Delaware.
You are further notified that if you desire to make any claim to an interest in the distribution of the estate, or to all or any part of the distributable amount of the estate, you must appear before the Court at the time and place aforesaid and present such claim together with any evidence you desire to present to sustain such claim.
Your failure to appear and present your evidence at the time and place aforesaid will be at your peril. Register of Wills and Estates County.
§2334. Hearing and evidence
At the hearing of the application or any adjournment thereof, the Court of Chancery shall consider the sworn petition of the applicant and any sworn answer or answers that have been filed in the proceeding and shall take and receive any and all pertinent evidence, that may be offered by the petitioner or by the personal representative of the decedent or by any person appearing and claiming to have an interest in the estate to be distributed. The evidence so taken shall be recorded stenographically and, if required by the Court or if an appeal is taken from any decree of distribution that may be made on the application, shall be transcribed.
§2335. Decree of distribution; reservation for contingent liabilities
If, upon the hearing, the Court of Chancery shall be satisfied that the estate or any part thereof may then be distributed, the Court shall make a decree determining the distribution of the estate then available for distribution to the person or persons who are by law entitled to the same. If it appears that a portion of the estate may then be distributed and the balance of the estate should be reserved for contingent liabilities against the estate, such decree may, if the Court deems proper, determine the distribution of such balance if and to the extent that the same may thereafter become available for distribution.
§2336. Distribution of assets in kind
Whenever it appears in any proceeding under this subchapter, that the balance of the estate, after the payment of debts,
includes stocks, bonds or other securities, the Court may direct distribution of such assets in kind to and among those lawfully entitled thereto, including fiduciaries. Such distribution in kind shall specify what stocks, bonds or other securities shall be distributed to each distributee separately. Any fiduciary to whom such a distribution in kind has been made may accept the stocks, bonds or other securities so distributed, but, with respect to the retention thereof after such distribution, such fiduciary shall be governed by the general law applicable thereto.
§2337. Appointment of master; exceptions to master's report
The Court of Chancery, instead of hearing in the first instance an application for a decree of distribution under this subchapter, may appoint a master to hear the same who shall thereafter proceed in accordance with the provisions of this subchapter, and thereupon he shall make a report to the Court recommending the decree to be entered in the proceeding. Such report shall be subject to exceptions by the personal representative of the estate or any person claiming to have an interest therein and such exceptions shall be heard by the Court and thereafter a decree shall be entered by the Court in the proceeding.
§2338. Finality of decree; appeal to Supreme Court; record on appeal
(a) Every decree of distribution made by the Court of Chancery in a proceeding initiated under this subchapter shall be a final decree, but the personal representative of the decedent or any person claiming to have an interest in the estate thereby decreed to be distributed shall have the right, at any time within 30 days after the making and entry of such decree, to take an appeal therefrom to the Supreme Court. After the expiration of the period of 30 days such decree of distribution, with respect to all matters contained therein, if no appeal has been taken therefrom, shall become and be conclusive and binding upon the executor or administrator of the estate of the decedent and upon every person claiming to have an interest in the estate thereby distributed.
(b) If an appeal is taken from any such decree, the decree or judgment made and entered by the Supreme Court on such appeal shall
likewise be conclusive and binding upon the executor or administrator and every person claiming as aforesaid, from the date of the making and entry of the decree or judgment by the Supreme Court.
(c) Any appeal taken to the Supreme Court shall be heard by that Court upon the record of the proceeding in the Court of Chancery and the procedure on such appeal shall be in accordance with the rules of the Supreme Court.
§2339. Rule-making power of Court of Chancery
The Court of Chancery may make all necessary rules of procedure before the master and other rules governing the proceeding not inconsistent with the provisions of this subchapter.
SUBCHAPTER IV. NON-DOMICILIARY DECEDENTS' ESTATES §2351. Definitions
As used in this subchapter
"Death tax" and "death taxes," include inheritance and estate taxes and any taxes levied against the estate of a decedent upon the occasion of his death;
"Domiciliary state" means the jurisdiction in which the decedent was domiciled at the time of his death.
§2352. Proof of payment of domiciliary death taxes
At any time before the expiration of 18 months after the qualification before any Register of Wills and Estates in this State of any executor of the will or administrator of the estate of any non-domiciliary decedent, such executor or administrator shall file with such Register proof that all death taxes, together with interest or penalties thereon, which are due to the domiciliary state of such decedent, or to any political subdivision thereof, have been paid or secured, or that no such taxes, interest or penalties are due, as the case may be, unless it appears that letters testamentary or of administration have been issued on the estate of such decedent in the domiciliary state. The proof may be in the form of a certificate issued by the official or body charged with the administration of the death tax laws of the domiciliary state.
§2353. Notice to the domiciliary state
If the proof required by section 2352 of this title has not been filed within the time prescribed by that section, and if within such time it does not appear that letters testamentary or of administration have been issued in the domiciliary state, the Register of Wills and Estates shall forthwith upon the expiration of such time notify by mail the official or body of the domiciliary state charged with the administration of the death tax laws thereof with respect to such estate, and shall state in such notice so far as is known to him (a) the name, date of death and last domicile of such decedent, (b) the name and address of each executor or administrator, (c) a summary of the values of the real estate, tangible personalty, and intangible personalty, wherever situated, belonging to such decedent at the time of his death, and (d) the fact that such executor or administrator has not filed theretofore the proof required by section 2352 of this title. The Register shall attach to such notice a plain copy of the will and codicils of such decedent, if he died testate, or, if he died intestate, a list of his heirs and next of kin so far as is known to such Register.
§2354. Accounting and decree of Court of Chancery upon petition of domiciliary state
Within 60 days after the mailing of the notice required by section 2353 of this title, the official or body charged with the administration of the death tax laws of the domiciliary state may file with the Court of Chancery in this State a petition for an accounting in such estate, and such official or body of the domiciliary state shall, for the purposes of this section, be a party interested for the purpose of petitioning the Court for such accounting. If such petition be filed within said period of 60 days, the Court shall decree such accounting, and upon such accounting being filed and approved shall decree either the payment of any such tax found to be due to the domiciliary state or subdivision thereof or the remission to a fiduciary appointed or to be appointed by the probate court, or other court charged with the administration of estates of decedents, of the domiciliary state, of the balance of the intangible personalty after the payment of creditors and expenses of administration in this State.
§2355. Prerequisites of approval of final account
No fin& account of an executor or administrator of a non-domiciliary decedent shall be approved unless either (1) proof has been filed as required by section 2352 of this title or (2) notice under section 2353 of this title has been given to the official or body charged with the administration of the death tax laws of the domiciliary state, and such official or body has not petitioned for an accounting under section 2354 of this title within 60 days after the mailing of such notice, or (3) an accounting has been had under section 2354 of this title, a decree has been made upon such accounting and it appears that the executor or administrator has paid such sums and remitted such securities, if any, as he was required to pay or remit by such decree, or (4) it appears that letters testamentary or of administration have been issued by the domiciliary state and that no notice has been given under section 2352 of this title.
§2356. Applicability of subchapter
This subchapter shall apply to the estate of a non-domiciliary decedent, only in case the laws of the domiciliary state contain a provision, of any nature or however expressed, whereby this State is given reasonable assurance, as finally determined by the Division of Revenue, of the collection of its death taxes, interest and penalties from the estates of decedents dying domiciled in this State, when such estates are administered in whole or in part by a probate court, or other court charged with the administration of estates of decedents, in such other state.
§2357. Construction of subchapter
The provisions of this subchapter shall be liberally construed in order to ensure that the domiciliary state of any non-domiciliary decedent whose estate is administered in this State shall receive any death taxes, together with interest and penalties thereon, due to it from the estate of such decedent.
CHAPTER 25 REGISTER OF WILLS AND ESTATES
§2501. Register of Wills and Estates is a Clerk of Court of Chancery
In performing the functions of his office, the Register of Wills and Estates of each County shall act only as a Clerk of the Court of Chancery.
§2502. Powers of Register of Wills and Estates
(a) The Register of Wills and Estates shall have power to take acknowledgments, administer oaths, certify and authenticate copies of instruments, documents and records of the Court, and perform the usual functions of his office.
(b) Subject to control of the Court of Chancery, the Register of Wills and Estates shall have power to issue notices and to make all necessary orders for the hearing of any petition or other matter to be heard in the Court.
(c) If a matter is not contested, except as otherwise provided in this title, the Register of Wills and Estates may hear and determine it and make all orders, adjudgments and decrees in connection therewith which the Court of Chancery could make, subject to be set aside or modified by the Court at any time within 30 days thereafter; and if not so set aside or modified such orders, adjudgments and decrees shall have the same effect as if made by the Court.
(d) Without limiting the generality of the foregoing, the Register of Wills and Estates shall have such further powers and duties as may be specifically conferred upon him by statute or by Rule of the Court of Chancery.
§2503. Commission to take deposition
If the attendance of a witness to a will cannot be procured because of his sickness, age, infirmity, imminent departure from the State, being beyond the reach of process, or any other reason deemed satisfactory to the Register of Wills and Estates, the Register may award a commission to take the deposition of such witness.
The commission may be issued on interrogatories filed, or the Register may make any order he deems proper concerning the issuance or execution of the commission.
The Registers of Wills and Estates in respective Counties shall receive the following annual salaries
(1) New Castle County, $12,000.00.
(2) Kent County, $6,000.00.
(3)Sussex County, $6,000.00.
§2505. Register's bond
The official bond of every Register of Wills and Estates of this State shall embrace and include the faithful performance by the Register of all the duties imposed upon the Register by law.
§2506. Deputy Register; powers; recording appointment
In all cases where, in the administration of the affairs of the Office of Register of Wills and Estates in several Counties of the State, it is necessary or proper to administer an oath of affirmation, such oath of affirmation may be administered by a Deputy Register; and, where the Register might have done so, such Deputy Register may probate Wills and grant Letters Testamentary and of Administration. The appointment of each Deputy shall be recorded in the Office of the Recorder of Deeds of the County for which the Deputy shall be appointed.
§2507. Deputies and Clerks
(a) The Chancellor shall name a chief deputy Register of Wills and Estates for each county who shall perform such duties as shall from time to time be assigned by the Court of Chancery. The Chancellor shall set the annual compensation of such chief deputy, but such compensation shall not exceed the statutory compensation of the Register of Wills and Estates in that county or $7,200.00 per year, whichever is greater. A chief deputy Register of Wills and Estates when appointed and qualified shall not be removed from office except for good and sufficient cause.
(b) The Register of Wills and Estates in each county may employ such number of deputies and clerks at such salaries as shall be fixed by the governing body of such county.
§2508. Report of real estate transfers to Board of Assessments
Each Register of Wills and Estates shall furnish to the Board of Assessments of each county a description of each parcel of real estate devised or descending by virtue of Will or by operation of law insofar as the records of his office enable him. He shall also furnish the date of the transfer, the name of the deceased and the name and the address of the transferee. The Register shall furnish such information promptly after the filing in his office of an inventory and appraisement.
§2509. Delivery of record to Public Archives Commission, photostats; evidence
(a) Each Register of Wills and Estates upon the advice and approval of the Court of Chancery, may deliver to the Division of Archives and Cultural Affairs of the Department of State any volume of probate records in his official custody, the aging condition of which render its continued use by the public inadvisable, and the Register shall take the receipt for the same and the receipt shall be recorded in the Office from which such volume or record is taken.
(b) Within a reasonable time after any such volume or record has been delivered to the Commission, the State Archivist shall make a photostat copy of its contents and shall certify that such contents are complete and correct, and such certificate shall be included in such photostat copy. Such photostat copy shall be substantially bound, shall match the current volumes of probate records so far as is practicable, and shall be delivered to the Register of Wills and Estates from whom the original volume was received, and the Register may issue certified copies of any photostat copy of any records contained in such volume, and any such certified copy shall be admissible evidence in any judicial or administrative proceeding in the same manner and entitled to the same weight as certified copies made from the original volume.
§2510. Fees of the Registers of Wills and Estates
The fees of the Registers of Wills and Estates shall be uniform throughout the State and such fees shall be as follows:
For filing petition for granting letters of
administration or testamentary $ 1.00
For granting letters of administration under seal,
taking bond and making registry thereof, if the
estate is under $100 1.25
Over $100 and less than $500 2.00
Over $500 and less than $1,000 3.00
Over $1,000 and less than $5,000 5.00
Over $5,000 and less than $10,000 8.00
Over $10,000 and less than $20,000 12.00
Over $20,000 and less than $50,000 15.00
Over $50,000 and less than $75,000 20.00
Over $75,000 and less than $100,000 25.00
Each additional $100,000 over the first $100,000 10.00
Taking and registering probate of will 2.00
For granting letters testamentary under seal,
same as for letters of administration
Copy of will annexed to letters testamentary 1.00
Entering renunciation 1.00
Making and registering order for advertising
letters of administration or testamentary 2.00
Hand bills 2.00
Filing inventory, and making registry of such filing
and of appraised value of goods and chattels therein 1.00
For recording and indexing accounts 2.00
For adjusting, settling and certifying accounts, 1% of
the amount of net personal estate (disregarding all disbursements made, or to be made, for legacies, bequests or distributive shares due to legatees, heirs
at law, or persons otherwise entitled)
Entering caveat 1.00
Issuing citation 1.00
Issuing subpoena to give evidence, all witnesses named
before the issuing of the subpoena to be named therein .50
Issuing an attachment 1.00
Entering sentence or decree upon the actual litigation
of a cause 1.00
Filing petition or application for revoking letters of
administration or testamentary 1.00
For sitting in trial of cause, per day 5.00
For recording release, acquittance or receipt 1.00
For acknowledging an acquittance, or any paper necessary
to have acknowledgment thereto .50
For recording will and probate, or any other writing
proper to be recorded, and not provided for in this
Affixing seal of office to any writing not hereinbefore
mentioned, and for which no other fee is allowed 1.00
Making search 1.00
Copy not before provided for 1.00
§2511. Posting of fee list
Every Register of Wills and Estates shall keep for public inspection in his office a printed or written list of the fees then in effect.
§2512. Refusal to pay fees; penalty
Whoever neglects or refuses to pay the fees provided for in this Chapter, for any service performed, within thirty days after written demand from the Register of Wills and Estates to whom such fees are due, shall be fined $20.00 besides costs of suit unless the Court of Chancery, upon application within such thirty-day period for good cause shown, grants an extension of time for payment of such fees.
CHAPTER 27 SALE OF LANDS BY EXECUTORS AND ADMINISTRATORS
§2701. Petition for sale of realty to pay decedent's debts; notice
(a) When the personal estate of a decedent is not sufficient to pay his debts, his executor or administrator may present to the Court of Chancery of the county wherein there is any real estate of the decedent, a petition stating the facts, and praying an order for the sale of the whole, or such part thereof for that purposes if the personal estate is not sufficient to pay.
(b) Written notice
of intention to present such petition, and of the day and place of doing so, shall be given by the executor or administrator at least ten days in advance to the parties interested or if any of the parties be minors and have guardians, to such guardians if such parties and guardians reside in the State, and also to the tenants in possession of the premises intended to be sold. If any of the parties or guardians do not reside in the State, there shall, in such case, be such publication or service of notice in respect to them, as shall be prescribed by the Court of Chancery, by general rule, or specially directed in any case.
(c) Where the decedent has real estate in more than one of the counties of this State the petition may be presented to the Court of Chancery of any of the counties wherein such real estate is located. The Court may, in such action, make an order in relation to any real estate of the decedent located within this State. The Court shall order the part of the proceedings which relates to real estate in a county other than that where the petition is presented, to be certified and recorded in the Court of Chancery in that county; and the record shall have all the effect of an original record. The sale of any such real estate shall be conducted only in the county wherein such real estate is located.
§2702. Application by creditor to compel sale of realty; procedure
A creditor of the decedent may apply to the Court of Chancery of the county wherein the letters were granted, to issue a citation to an executor or administrator to appear before it, on a day to be therein mentioned, to show cause why he shall not present a petition to the Court for the purpose mentioned in section 2701 of this title. The citation shall be served at least ten days before its return. If upon a hearing, it appears that there is a deficiency of assets for the payment of the decedent's debts, and that the creditor will be remediless without the sale of the real estate, or part thereof, then the Court may order the executor or administrator to present such petition to it on or before such date to be fixed by the Court as will enable the notice required by section 2701 of this title to be given.
§2703. Proof in action to compel sale of realty
In cases of a petition for an order for sale of realty, the executor or administrator shall exhibit to the Court of Chancery, on oath, a true account of all the personal estate of the decedent, and of all debts outstanding against the estate of the decedent which shall have come to his knowledge, stating therein the amount of the inventory and appraisal, the amount of the debts due to the decedent, and all other property, rights and credits belonging to the decedent's personal estate of which the executor or administrator has knowledge; and he shall also exhibit the inventory, list and statement filed pursuant to section 1905 of this title, or certified copies thereof.
§2704. Order of sale; realty to be sold
The Court of Chancery may, if it appears that there is a deficiency of personal estate for the payment of the decedent's debts, order that the executor or administrator, shall sell the real estate, or a part thereof to be specified in the order, for the purpose of supplying the deficiency. No more shall be sold than the Court deems sufficient for that purpose, unless the Court considers that the condition of any premises is such that a part thereof, merely sufficient, could not be laid off and sold without injury to the whole, in which case the Court may order the whole, or any part of such premises to be sold, as may be deemed best for the parties interested.
§2705. Partition no bar to sale
The fact that partition has been made of the real estate shall be no bar to an order for sale.
§2706. Manner of sale; notice and adjournment in case of public auction
Every sale under this chapter shall be by public auction or by private sale with the approval of the Court of Chancery. If the sale is by public auction, the Court shall direct the executor or administrator to give notice thereof by advertisements, made and signed by the clerk, describing the land to be sold and appointing the day, hour and place of such sale, posted, as least ten days before the day of sale, at such places in the country as the order specifies, and also in such other manner as may be deemed proper in a particular case. The executor or administrator may adjourn the sale.
§2707. Effect of contribution in advance of sale by devisee or other person in interest to payment of debts; contribution to equalize burden after sale
If any devisee, or person holding any part of the real estate, contributes so much as the Court of Chancery adjudges to be his proportionable part towards payment of the outstanding debts, no order shall be made for the sale of the premises owned or held by him. A devisee or other owner of premises which shall be sold pursuant to an order under this chapter may compel contribution to equalize the burden from any other owner if more than his proportionate share towards payment of the debts is raised by the sale.
§2708. Return of sale; deed
(a) An executor or administrator shall return his proceedings to any adjourned or regular term of the Court of Chancery after the making or renewing of an order of sale; and if the return is approved, he shall make a deed to the purchaser for the premises sold.
(b) If an order is made to several executors or administrators, upon the death of any, it shall survive.
(c) A successor administrator may return a sale made by a former executor or administrator and make a deed to the purchaser, if the Court of Chancery approves the sale and orders him to make a deed. He may, under order of the Court, make a deed pursuant to a sale returned by such former executor or administrator and duly approved.
(d) A deed may also be made, by order of the Court of Chancery, to the heirs or to the assigns of a deceased purchaser.
(e) The Court of Chancery shall not order a deed to be made in any case, unless the purchase money is first paid.
§2709. Title of purchaser
The grantee in any deed made in pursuance of this chapter, shall take all the estate, title and claim which the decedent, at the time of his death, had to the real estate thereby conveyed, either at law or in equity, with the benefit of all acts and matters done after his death for perfecting or securing the title, and shall hold the same paramount to all incumbrances created or suffered by, and all right and title of the devisees or heirs of the decedent, and all persons claiming through them, and also discharged from the lien of all judgments against decedent, or his executors or administrators, and also of all the mortgages and recognizances entered into or executed by the decedent for the payment of money or interest, absolutely and not dependent on a contingency. But neither the sale nor the deed shall impair or affect the lien of any recognizance or obligation entered into or executed by the decedent with condition for the performance of any official duties, or of any recognizance or mortgage, entered into or executed by him with any other condition than for the absolute payment of money, or interest.
§2710. Application of proceeds of sale; order of payment of debts
The purchase money of a sale, made by authority of this chapter, (all just charges to be allowed by the Court of Chancery, being first deducted) shall be applied to outstanding debts against the decedent in the following order:
FIRST CLASS: To judgments against the decedent, which, before the sale, were liens on the premises sold, and to recognizances and mortgages entered into or executed by him with condition for the payment of money or interest, absolutely, and not dependent on a contingency, and which, before the sale, were liens on the premises sold; such judgments, recognizances and mortgages shall be of equal grade, but shall be preferred in payment according to the legal priority of their lien respectively; and if in an action or proceeding upon a recognizance, obligation, or mortgage entered into or executed by the decedent with other condition than for the absolute payment of money or interest (but which was by its own force or legal effect, without judgment thereon, a lien on the premises sold), a sum shall have been assessed or ascertained as payable or recoverable by virtue thereof, and judgment or decree, at the time of the sale, has been thereupon given or pronounced the sum so assessed or ascertained with the costs, shall stand in priority, according to the date of the obligation or recognizance, or of the depositing of the mortgage duly acknowledged or proved in the proper Recorder's office to be recorded, and shall be preferred in payment according to such priority; but in no other case, shall the proceeds of such sale be applied or retained for the purpose of being applied to any recognizance, obligation or mortgage entered into or executed by the decedent with other condition than for the absolute payment of money or interest, in preference to, or to the postponement of, any debt outstanding against the decedent.
But no debt shall be regarded as within this class unless it was before the sale a lien on the premises sold; a sum assessed or ascertained, as mentioned, under this class, being here understood to be demandable by virtue of the mortgage, recognizance, or obligation, upon which the action or proceeding was instituted.
SECOND CLASS: To other debts outstanding against the decedent, observing the same rule of priority as prescribed by section 2105 of this title.
§2711. Disposition of surplus after paying debts
If there is any surplus of the sale, after paying all the debts, it shall belong to the person to whom the premises sold belonged at the time of the sale, who shall have the same proportion, quantity, and manner of interest in the surplus, as he had in the premises sold; and an executor or administrator shall not detain the surplus, or any part of it, on account of any mortgage, obligation, or recognizance entered into or executed by the decedent with other condition than for the absolute payment of money or interest and which was a lien on the premises sold.
§2712. Order for disposition of surplus
The Court of Chancery, upon the petition of an executor or administrator, shall give direction for the payment or disposal of the surplus.
§2713. Bond to be given by executor or administrator before executing order of sale
Every executor or administrator before proceeding to execute an order of sale, in the Court of Chancery, with one or more sufficient sureties to be approved by the Court, enter into bond to the State in a penal sum to be determined by the Court, with condition, in substance to account truly for all money to arise from the sale, and (the just charges to be allowed by the Court being first deducted) to apply all the balance thereof to the payment of the outstanding debts against the decedent, according to their legal priority, and to pay the surplus, if any, according to law, and to perform his duty in the premises with fidelity.
§2714. Purchase money payable to a successor administrator
If a sale, made by an executor or former administrator, shall be returned by a successor administrator, the purchase money shall be payable to the latter, but such payment shall not be made nor the sale approved, until he gives bond in the Court of Chancery as prescribed in section 2713 of this title; and in that case, the Court may discharge the bond of the executor or former administrator upon such terms as may be deemed proper.
§2715. Refund of purchase money when sale not returned or not approved
If the purchase money arising from any sale under this chapter, shall be paid to the executor or administrator before the sale is approved, he shall refund the same without delay if such sale is not returned or shall not be approved. If he does not refund the money, it shall be a breach of the condition of the bond prescribed in section 2713 of this title, although he shall have died before the time for returning such sale, for such death shall not excuse him from the strict performance of his duty.
§2716. Charges of sale; taxing and payment
All the charges of any sale under this chapter, whether under the name of commissions or otherwise, shall be taxed by the Court of Chancery and paid to the clerk before approving the sale; and no other charges shall be allowed on account of the sale, or of receiving or paying the purchase money, but the account shall be passed before the Register of Wills and Estates, as other accounts.
§2717. Power to refuse order for sale or to approve a sale
The Court of Chancery may refuse an order for sale of real estate or may refuse to approve a sale, if under the circumstances it is considered improper that such sale should be made, although it should sufficiently appear that the personal estate is not sufficient for the payment of the debts, or that the sale was regularly conducted.
§2718. Appeal to Supreme Court
Any person aggrieved by an order or decree of the Court of Chancery made in any proceeding under this chapter, may appeal therefrom to the Supreme Court; and no such order or decree shall be drawn in question except upon appeal.
§2719. Power of sale in will; execution; liability of purchaser for application of purchase money
(a) If, by any will, authority is given to several executors, or other persons, to sell real estate, and, if one or more of them die before the complete execution of the authority, such authority . shall survive.
(b) If, by any will, real estate is devised to be sold, and no person is authorized to make the sale, the person, or persons, having the execution of the will, or the survivor or survivors of them, if several, may sell the real estate in execution of the devise.
(c) If, by any will, real estate is devised to a person or persons for life and after the death of such life tenant or life tenants to be sold, and no person is authorized to make the sale, the person or persons who have the execution of said will at the period when such sale is directed to be made, or the survivor or survivors of them, if several, may sell the real estate in execution of the devise.
(d) If, by any will, authority is given to an executor to sell real estate, and the person so named as executor therein dies, or is removed or discharged from his office of executor before the execution of the authority, or .refuses or neglects to give bond, or renounces, or is incapable, the person or persons having the execution of the will, or the survivor or survivors of them, if several, may sell the real estate in execution of the devise.
(e) Whenever real estate is sold and conveyed in any such case as mentioned and provided for in this section, the purchaser or purchasers thereof shall take the same free and discharged from any liability as to the application, misapplication or non-application of the purchase money or any part thereof. Nothing in this section shall contravene any express direction contained in any will.
Section 2. If any clause, sentence, paragraph or part of this Act or the application thereof to any person or circumstances, shall, for any reason, be adjudged by a court of competent jurisdiction, to be invalid, such judgment shall not affect, impair or invalidate the remainder of this Act.
Section 3. The provisions of this Act shall become effective 6 months after enactment and shall apply to decedents dying on or after the effective date of this Act.
Approved June 25, 1974.