TITLE 12

Decedents' Estates and Fiduciary Relations

Fiduciary Relations

CHAPTER 39. GUARDIANSHIP

Subchapter IV. Sale of Real Estate of Person with a Disability


(a) If the guardian of the property of a person with a disability wishes to sell real estate owned by the person with a disability, then the guardian shall apply to the Court of Chancery for the authority to sell the property. For purposes of this section, the term "real estate'' shall encompass any ownership interest in real estate, including, but not limited to real estate held in fee simple, in severalty, as a joint tenancy, as a tenant in common, as a tenant in possession, or as a reversionary or remainder interest.

(b) The guardian shall give notice of the application to all potentially interested parties, including those identified in the Petition for the Appointment of a Guardian. The notice shall inform the interested parties that they may appear and object to the application or otherwise participate in the proceeding. Any party who does not appear or object within 20 days after the date of the notice will be deemed to have waived any objection to the disposition of the application as determined by the Court.

(c) If there appears preliminarily to be good cause to sell the real estate, then the Court shall enter an order appointing an appraiser of real estate, licensed and certified pursuant to Delaware law, to perform an appraisal of the real property to be sold. The appraiser shall be independent of the parties to the sale and disinterested as to any proposed transaction.

(d) Based on the appraisal and all other relevant information, the Court shall determine in its discretion whether the requested sale is in the best interest of the person with a disability. The appraised value shall be considered by the Court as a guideline and is not determinative of the outcome of the application or the fairness of the price.

(e) If the Court approves a sale, then the guardian shall be authorized to make a deed for the benefit of the purchaser which may convey as full a title to the land as the person with a disability had at the time of sale, unless the Court determines it is in the interest of the person with a disability to convey a lesser estate.

(f) The Court may order that the real estate be sold free and clear of any lien or encumbrance existing at the time of sale created by or against the person with a disability. Any such order may be entered only if reasonable notice of the application and the sale has been given to the holder of the affected lien or encumbrance. The lien or encumbrance shall, without change of priority, be transferred to the proceeds of sale.

(g) If the Court approves a sale, the guardian shall submit a return of sale within 30 days after the sale of the property or as otherwise directed by the Court.

(h) The Court may appoint a trustee to conduct the sale in lieu of the guardian.

(i) The Court may rule on the application in whole or part after holding a hearing or based on the documents submitted.

Code 1852, §§ 1988-1992; Code 1915, § 3934; Code 1935, § 4441; 12 Del. C. 1953, § 3951; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 74 Del. Laws, c. 410, § 1; 78 Del. Laws, c. 119, § 1; 78 Del. Laws, c. 179, §§ 115, 116; 80 Del. Laws, c. 54, § 1.;

If a trustee is appointed to sell real estate of the person with a disability, the trustee may be required to give security in such sum as the Court directs.

Code 1852, § 1995; Code 1915, § 3937; Code 1935, § 4444; 12 Del. C. 1953, § 3952; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, § 117.;

In any order granted by the Court of Chancery for the sale of real estate owned by a person with a disability, the Court may direct such sale to be made upon credit, either as to the whole or part of the purchase money, the payment of the purchase money to be at such time or times and to be secured in such manner as the Court by the order of sale or otherwise prescribes. The Court may order and direct all such acts and proceedings touching the premises as it deems necessary to better effectuate the object of this section.

13 Del. Laws, c. 458, § 1; Code 1915, § 3935; Code 1935, § 4442; 12 Del. C. 1953, § 3953; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, § 118.;

The proceeds of the sale shall be personal property. Such proceeds, after deducting all expenses allowed by the Court, may be ordered to be paid to the guardian of the property to be accounted for as personal property of the person with a disability in the regular course of the guardianship or such proceeds may be ordered to be deposited in a bank to the credit of the person with a disability, to be invested, loaned or disposed of for the benefit of the person with a disability.

Code 1852, §§ 1988-1992; Code 1915, § 3934; Code 1935, § 4441; 12 Del. C. 1953, § 3955; 69 Del. Laws, c. 109, § 2; 78 Del. Laws, c. 179, § 119.;

(a) When the proceeds shall be ordered to be paid to or shall otherwise come to the hands of a guardian they shall be within the condition of the guardian's bond and the guardian and the guardian's sureties, both in the original bond and in any additional bond which may be taken, shall be liable for the proceeds in the same manner as for other property of the person with a disability.

(b) In every case of the sale of the real estate of a person with a disability and in every case where the guardian's liability is or may be increased, the Court of Chancery may require the guardian to give such additional security as may be deemed necessary, by obligation, with surety or sureties, in the same manner and form as original security.

Code 1852, §§ 1988-1993; Code 1915, §§ 3934-3936; Code 1935, §§ 4441, 4443; 12 Del. C. 1953, § 3956; 57 Del. Laws, c. 402, § 3; 69 Del. Laws, c. 109, § 2; 70 Del Laws, c. 186, § 1; 78 Del. Laws, c. 179, § 120.;

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