TITLE 12

Decedents' Estates and Fiduciary Relations

Administration of Decedents' Estates

CHAPTER 15. LETTERS TESTAMENTARY AND LETTERS OF ADMINISTRATION

Subchapter I. General Provisions


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 in accordance with this title.

Code 1852, § 1775; Code 1915, § 3340; Code 1935, § 3805; 12 Del. C. 1953, § 1502; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

(a) If a will of a domiciliary or nondomiciliary decedent is admitted to probate in accordance with this title, letters testamentary shall be granted by the Register of Wills of the county in which the decedent was domiciled, or in the case of a nondomiciliary in which the decedent owned real or personal property, to the executor or executors thereof, upon their giving bond in accordance with this title.

(b) 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 this title.

Code 1852, §§ 1773, 1774; Code 1915, § 3339; Code 1935, § 3804; 12 Del. C. 1953, § 1501; 59 Del. Laws, c. 384, § 1; 65 Del. Laws, c. 422, § 4.;

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 upon the removal of the incapacity and upon the giving of bond in accordance with this title. In the meantime, letters testamentary shall be granted to the coexecutor or coexecutors of the person under a disability, if there is 1 or more named who qualify in accordance with this title, but if there is none, or if the coexecutor or coexecutors all fail to qualify, letters of administration, with the will annexed, shall be granted in accordance with this title.

59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

(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 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 this title, shall be granted by the Register of Wills of the county in which the decedent was domiciled.

(b) Letters of ancillary administration, with the will annexed, of a nondomiciliary decedent for whom a will has been admitted to probate in accordance with this title, and letters of ancillary administration of the estate of a nondomiciliary decedent for whom no will has been admitted to probate in accordance with this title, shall be granted by the Register of Wills 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.

Code 1852, §§ 1777, 1778; Code 1915, § 3342; Code 1935, § 3807; 12 Del. C. 1953, § 1504; 59 Del. Laws, c. 384, § 1.;

(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 to such person or persons as shall be entitled to such letters under this section upon their giving bond in accordance with 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 1 person living in the first qualifying class mentioned in paragraph (1) of this subsection, 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 paragraph (1) of this subsection shall fail to give the necessary bond, renounce or are incapacitated, a Register of Wills 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 paragraph (b)(1) of this section 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 paragraph (b)(3) of this section, 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 paragraph (b)(1) of this section who is not under an incapacity, or if no petition for administration is filed within 60 days from the date of death, then the Register of Wills shall grant letters of administration to such person or persons as the Register, in the Register's discretion, shall determine.

(e) Any interested person may petition the Register of Wills of a proper county for the appointment of an administrator.

Code 1852, § 1779; Code 1915, § 3343; Code 1935, § 3808; 47 Del. Laws, c. 352, § 1; 12 Del. C. 1953, § 1505; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

In case of the grant of letters testamentary or of administration, the person designated as an executor or administrator, if a nondomiciliary, or if a corporation not incorporated under the laws of Delaware, shall file in the office of the Register of Wills granting such letters, before the issuance of the letters, an irrevocable power of attorney designating that Register and the Register's 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.

Code 1915, § 3343(a); 38 Del. Laws, c. 180, § 1; Code 1935, § 3808; 12 Del. C. 1953, § 1506; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

(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 1, all of them, administration shall be granted to a successor administrator or administrators in accordance with 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 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 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 nondomiciliary decedent, as such Register, in the Register 's discretion, may deem appropriate. In the case of a nondomiciliary 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.

Code 1852, §§ 1780-1782; Code 1915, § 3344; Code 1935, § 3809; 12 Del. C. 1953, § 1507; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

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 the person from taking an oath.

Code 1852, § 1783; Code 1915, § 3345; Code 1935, § 3810; 12 Del. C. 1953, § 1508; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

Every executor or administrator shall take and subscribe an oath, to be affixed to the bond, to perform the duties of office with fidelity.

Code 1852, § 1791; Code 1915, § 3347; Code 1935, § 3812; 12 Del. C. 1953, § 1509; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;

Upon appointment, every executor or administrator of the estate of a guardian who dies in office shall notify the Court of Chancery of the guardian's death, and thereafter perform the duties of the guardian as specified in § 3941 of this title.

69 Del. Laws, c. 109, § 3.;