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Title 12 Decedents' Estates and Fiduciary Relations

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Title 12 Decedents' Estates and Fiduciary Relations Title 12 Decedents' Estates and Fiduciary Relations NOTICE: The Delaware Code appearing on this site is prepared by the Delaware Code Revisors and the editorial staff of LexisNexis in cooperation with the Division of Research of Legislative Council of the General Assembly with the assistance of the Government Information Center, and is considered an official version of the State of Delaware statutory code. This version includes all acts effective as of January 1, 2016, up to and including 80 Del. Laws, c. 194. DISCLAIMER: With respect to the Delaware Code documents available from this site or server, neither the State of Delaware nor any of its employees, makes any warranty, express or implied, including the warranties of merchantability and fitness for a particular purpose, or assumes any legal liability or responsibility for the usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately-owned rights. Please seek legal counsel for help on interpretation of individual statutes. Title 12 - Decedents' Estates and Fiduciary Relations Part I General Provisions Chapter 1 DEFINITIONS § 101 Definitions [For application of this section, see 79 Del. Laws, c. 352, § 6] For the purpose of wills, intestate succession and for all other purposes under this title, the following definitions shall apply: (1) "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. (2) "Good faith" means honesty in fact and the observance of reasonable standards of fair dealing. (3) "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. (4) "Issue" of a person means all of the person's 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. (5) "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. (6) "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. (7) 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. (59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 352, § 1.) Page 1 Title 12 - Decedents' Estates and Fiduciary Relations Part II Wills Chapter 2 GENERAL PROVISIONS Subchapter I Tenets and Principles § 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. (Code 1852, § 1644; 14 Del. Laws, c. 550, § 5; 15 Del. Laws, c. 165, § 5; Code 1915, § 3240; Code 1935, § 3704; 45 Del. Laws, c. 233, § 1; 12 Del. C. 1953, § 101; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.) § 202 Requisites and execution of will. (a) Every will, whether of personal or real estate, must be: (1) In writing and signed by the testator or by some person subscribing the testator's name in the testator's presence and by the testator's express direction; and (2) Subject to § 1306 of this title, attested and subscribed in testator's presence by 2 or more credible witnesses. (b) Any will not complying with subsection (a) of this section shall be void. (Code 1852, § 1645; Code 1915, § 3241; Code 1935, § 3705; 12 Del. C. 1953, § 102; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.) § 203 Witnesses; persons competent. (a) Any person generally competent to be a witness may act as a witness to a will. (b) A will or any provision thereof is not invalid because the will is signed by an interested person. (Code 1852, § 1646; Code 1915, § 3242; Code 1935, § 3706; 12 Del. C. 1953, § 103; 59 Del. Laws, c. 384, § 1.) § 204 Devise of real estate generally. Lands, tenements and hereditaments are devisable by last will and testament. (Code 1852, § 1643; Code 1915, § 3239; Code 1935, § 3703; 12 Del. C. 1953, § 105; 59 Del. Laws, c. 384, § 1.) § 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. (Code 1852, § 1667; Code 1915, § 3243; Code 1935, § 3707; 12 Del. C. 1953, § 106; 59 Del. Laws, c. 384, § 1.) § 206 After-acquired real estate. Any estate, right or interest in lands, acquired by a testator after the making of a will, shall pass thereby in manner as if possessed at the making of the will, unless a contrary intention appears by the will. (Code 1852, § 1668; 18 Del. Laws, c. 671, § 1; Code 1915, § 3244; Code 1935, § 3708; 12 Del. C. 1953, § 107; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.) § 207 Power of sale of 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 executor is expressly directed to sell real property, such executor may sell or exchange such real property and it shall not be necessary for any beneficiary of the estate to join in the instrument transferring or conveying such property. (c) 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 the executor reasonably believes, at the time of such sale or exchange, 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 upon 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. In any sale of real estate authorized by this subsection (c) of this section, it shall not be necessary for the executor to obtain an Order from the Court of Chancery authorizing the sale pursuant to Chapter 27 of this title. Page 2 Title 12 - Decedents' Estates and Fiduciary Relations (d) 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 (c) of this section. (e) No conveyance by an executor, prior to January 1, 1985, of real property not specifically devised shall be invalid or ineffective solely because 1 or more devisees of such property failed to join in the instrument of conveyance. (f) For purposes of this section, the term "executor" shall include any personal representative of a testate estate. (Code 1915, § 3244-A; 30 Del. Laws, c. 208, § 1; Code 1935, § 3709; 12 Del. C. 1953, § 108; 59 Del. Laws, c. 384, § 1; 64 Del. Laws, c. 252, § 1; 74 Del. Laws, c. 272, §§ 1-3.) § 208 Revocation of wills generally. A last will and testament, or any clause thereof, shall not be altered, or revoked, except by canceling by the testator, or by some person in the testator's presence and by the testator's 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 the testator's presence and by the testator's express direction, and attested and subscribed in the testator's presence by 2 or more credible witnesses; but this clause shall not preclude nor extend to an implied revocation. (Code 1852, § 1652; Code 1915, § 3250; Code 1935, § 3715; 12 Del. C. 1953, § 109; 59 Del. Laws, c. 384, § 1; 70 Del Laws, c. 186, § 1.) § 209 Revocation by divorce; no revocation by other changes or circumstances. If after executing a will, the testator is divorced or the testator's 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.
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