SENATE BILL NO. 305
AS AMENDED BY SENATE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 12 OF THE DELAWARE CODE BY REPEALING AND REVISING CERTAIN LAWS RELATING TO THE PROBATE OF WILLS AND THE ADMINISTRATION OF DECEDENTS' ESTATES AND THE FUNCTIONS OF THE REGISTER OF WILLS AND REGISTER IN CHANCERY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend §207, Title 12. Delaware Code, by striking said section in its entirety and inserting in lieu thereof a new §207 to read as follows:
"§207. Power of sale to executor or trustee: liability of purchaser
(a) Where by the terms of a will or trust instrument, an express power to sell real property is granted to a trustee, such trustee may sell or exchange such real property as is not specifically required to be distributed in kind to any beneficiary and it shall not be necessary for any beneficiary of the trust to join in the instrument transferring or conveying such property.
(b) Where by the terms of a will an express power to sell real property Is granted to an executor, such executor may sell or exchange such real property as is not specifically devised and as is necessary to be sold in order to pay the debts of the decedent or the expenses of administration (Including estate and inheritance taxes and taxes imposed on the income of the estate) of the estate and it shall not be necessary for any beneficiary of the estate to Join in the instrument transferring or conveying such property.
(c) In any sale made by an executor, administrator or other personal representative or by a trustee pursuant to this section there shall be no liability upon the purchaser to see to the application of the purchase money, unless the will or trust expressly imposes such liability and the purchaser shall be entitled to rely without liability therefor upon the representation by the executor in the deed of conveyance that any sale of real property is for the purposes set forth in subsection (b) of this section.
(d) No conveyance by an executor prior to the effective date of this act of real property not specifically devised shall be invalid or ineffective solely because one or more devisees of such property failed to Join in the instrument of conveyance."
Section 2. Amend §1905(a), Title 12, Delaware Code, by striking the words "and also with the Division of Revenue, an inventory and appraisal on forms furnished by the Division of Revenue" from said subsection (a) and inserting in lieu thereof the words "an inventory and appraisal and shall also file a copy of said inventory and appraisal in the office of the Register of Wills of any county in which the decedent owned real estate".
Section 3. Amend §1905, Title 12, Delaware Code, by adding thereto a new subsection (d) to read as follows:
"(d) Every executor or administrator shall, in the event any action affecting title to real estate of the decedent in Delaware is brought in any court, whether by way of caveat, petition for review, petition for instructions or otherwise, within 10 days after such action, file a notice of the pendency of such action in the office of the Register of Wills of any county in which the decedent owned real estate other than the county in which letters had been granted. Nothing in this subsection shall affect any other notice that may be filed concerning such an action."
Section 4. Amend §1906(a), Title 12, Delaware Code, by striking from the first sentence of said subsection (a) the words "and with the Division of Revenue" and by striking the words "Division of Revenue" from the second sentence thereof and inserting in lieu thereof the words "Register of Wills".
Section 5. Amend §2306. Title 12, Delaware Code, by striking said section in its entirety and inserting in lieu thereof a new §2306 to read as follows:
"§2306. Distribution of decedent's promty without &ant of letters where estate assets do not exceed $12,500
(a) The spouse of a decedent or any person who is a grandparent of the decedent, a lineal descendant of a grandparent of the decedent, the personal representative of any of the foregoing who may be deceased. or the guardian or trustee of any of the foregoing who may be incapacitated. or the trustee of a trust created by the decedent, shall be entitled to the personal estate of the decedent for the purpose of making distribution thereof in accordance with the decedent's will, or if there be no will, with the provisions of Chapter 5 of this Title without awaiting the appointment of a personal representative or probate of a will when:
(1) No petition for the appointment of a personal representative is pending or has been granted; and
(2) Thirty days have elapsed since the death of the decedent; and
(3) The value of the personal estate of the decedent other than property described in subsections (b) and (c) of §1901 of this title and other than jointly owned property, does not exceed $12,500; and
(4) All known debts of the decedent are paid or provided for; and
(5) The surviving spouse's allowance, pursuant to §2308 of this title, has been paid, provided for, waived or has expired by lapse of time pursuant to subsection (b) of §2308 of this title; and
(1) Decedent did not own solely owned real estate located in Delaware; and
(2) 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 of the decedent, an affidavit showing the existence of the foregoing conditions and the right of the affiant to receive such money or property or to have such evidence transferred for the purpose set forth in subsection (a) of this section.
(b) Preference for receiving the personal estate of the decedent under this section for the purpose of making distribution thereof shall be given to the spouse, any child, any parent, any sibling, any grandchild or any grandparent of the decedent in that order. There shall be no order of preference among the remaining persons or entities entitled to receive the personal estate pursuant to subsection (a) of this section."
Section 6. Amend §2304, Title 12, Delaware Code, by striking the second sentence in its entirety and inserting in lieu thereof the following:
"A certificate of the Division of Revenue shall be filed with the Register of Wills of the county in which letters have been granted and, in addition, with the Register of Wills of the county or counties in which the decedent owned real property and shall be proof of such payment."
Section 7. Amend §2317 (a), Title 12, Delaware Code, by striking form the first sentence of said subsection (a) thereof the words "without any preference or priority as between real and personal property" and inserting in lieu thereof the words "with personal property to be abated prior to real property within each class".
Section 8. Amend §2502, Title 12, Delaware Code, by striking said section in its entirety and substituting in lieu thereof a new §2502 to read as follows:
(a) The Register of Wills shall have power to take acknowledgements, administer oaths, issue notices, certify and authenticate copies of Instruments, documents and records of the Court and perform the usual function of his office.
(b) If a matter is one with respect to which no notice is required by statute or rule of court to be given to any person then, except as otherwise provided in this title or by rule of court, the Register of Wills may hear and determine it and make all orders, adJudgments and decrees in connection therewith which the Court of Chancery could make, subject to being 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.
(c) All Actions commenced in the Court of Chancery shall be filed with the Register in Chancery, who shall have custody of the records thereof, as provided by the Rules of the Court of Chancery, notwithstanding that such action may be brought upon a cause of action previously within the cognizance of the Register of Wills.
(d) Without limiting the generality of the foregoing, the Register of Wills shall have such further powers and duties as may be specifically conferred upon him by statute or by rule of the Court of Chancery."
Section 9. 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 10. This act shall be effective January 1, 1985, and shall apply to the estates of decedents dying on or after that date and shall not apply to the estates of decedents dying before that date even though one or more beneficiaries thereof are to be ascertained at some later date.
Approved May 13, 1984.