Title 12 — Decedents’ Estates and Fiduciary Relations
35 chapters · 275 sections in this title.
12 Del. C. § 902. Elective estate defined.
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§ 902. Elective estate defined. (a) The elective estate means the amount of the decedent’s gross estate for federal estate tax purposes, regardless of whether or not a federal estate tax return is filed for the decedent, modified as follows: (1) Less those deductions allowable un…
12 Del. C. § 903. Transfers to surviving spouse by decedent.
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§ 903. Transfers to surviving spouse by decedent. The value of the property transferred to the surviving spouse by the decedent for purposes of § 901(a) of this title is an amount which equals the value of the property derived from the decedent by virtue of death. For purposes of…
12 Del. C. § 904. Right of election personal to surviving spouse.
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§ 904. Right of election personal to surviving spouse. The right of election of the surviving spouse may be exercised only during the spouse’s lifetime; provided the personal representative of the spouse’s estate shall succeed to the surviving spouse’s rights under a right of ele…
12 Del. C. § 905. Waiver of right to elect and of other rights.
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§ 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. Unless it provides to the contrary, a waiver of “…
12 Del. C. § 906. Proceeding for elective share; time limit.
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§ 906. Proceeding for elective share; time limit. (a) The surviving spouse may elect to take an 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 afte…
12 Del. C. § 907. Effect of election on benefits derived from decedent.
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§ 907. Effect of election on benefits derived from decedent. (a) The surviving spouse’s election of an elective share does not affect the share of the surviving spouse under any provisions made for the surviving spouse under the decedent’s will, any trust established by the deced…
12 Del. C. § 908. Liability for elective share.
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§ 908. Liability for elective share. (a) The liability for the amount of the elective share shall be apportioned among the recipients of “the decedent’s contributing estate” (as defined in subsection (b) of this section). Such apportionment shall be made in the proportion, as nea…
12 Del. C. § 1301. Production of will; liability.
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§ 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 Regi…
12 Del. C. § 1302. Proving will.
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§ 1302. Proving will. (a) A will shall be proved before the Register of Wills of the county in which the testator was domiciled at the time of death. If the testator was not domiciled in this State, it may be proved before the Register of any county in this State wherein there ar…
12 Del. C. § 1303. Notice and subpoena to persons interested.
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§ 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 ti…
12 Del. C. § 1304. Unavailability of witnesses.
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§ 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 sailor, or is mentally or physically incapable of testify…
12 Del. C. § 1305. Self-proved will.
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§ 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 acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws …
12 Del. C. § 1306. Choice of law as to execution and proving of wills.
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§ 1306. Choice of law as to execution and proving of wills. (a) A written will signed by the testator, or by some person subscribing the testator’s name in the testator’s presence and at the testator’s express direction, is valid provided that: (1) It is executed in compliance wi…
12 Del. C. § 1307. Will of nondomiciliary; admission, recording and evidence.
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§ 1307. Will of nondomiciliary; admission, recording and evidence. (a) The written will of a testator who died domiciled outside this State, but who owned real estate or personal property located in this State, may be admitted to probate and recorded in this State. If such will h…
12 Del. C. § 1308. Caveat against allowance of instrument as will; procedure.
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§ 1308. Caveat against allowance of instrument as 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 prior to the entry of an order of probate. The caveat having been received, the Court shall appo…
12 Del. C. § 1309. Review of proof of will; procedure.
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§ 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 § 1303 of this title, shall, at any time within 6 months after the entry of the or…
12 Del. C. § 1310. Formal testacy proceedings; contested cases; testimony of attesting witnesses.
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§ 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 testim…
12 Del. C. § 1311. Pre-mortem will validation [For application of this section, see 80 Del. Laws, c. 153, § 5].
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§ 1311. Pre-mortem will validation [For application of this section, see 80 Del. Laws, c. 153, § 5]. (a) No proceedings under § 1308 or § 1309 of this title may be commenced following the death of a testator, who resided in Delaware at the time of death, with respect to a will wh…
12 Del. C. § 1312. Limitation on action contesting validity of exercise of power of appointment [For application of this section, see 80 Del. Laws, c. 153, § 5].
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§ 1312. Limitation on action contesting validity of exercise of power of appointment [For application of this section, see 80 Del. Laws, c. 153, § 5]. (a) A judicial proceeding to contest whether an exercise of a power of appointment by any written instrument other than a will, u…
12 Del. C. § 1313. Restricted access to a decedent’s safe deposit box for the limited purpose of retrieving the decedent’s last will or declaration of disposition of last remains prior to the appointment of personal representative.
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§ 1313. Restricted access to a decedent’s safe deposit box for the limited purpose of retrieving the decedent’s last will or declaration of disposition of last remains prior to the appointment of personal representative. (a) After the death of the decedent but prior to the appoin…
12 Del. C. § 1701. Presumption of death.
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§ 1701. Presumption of death. (a) When the death of a person or the date thereof is in issue, the unexplained absence from the last known place of residence and the fact that the person has been unheard of for 7 years may be a sufficient ground for finding that the person died 7 …
12 Del. C. § 1702. Petition for adjudication of presumed death; notice of hearing.
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§ 1702. Petition for adjudication of presumed death; notice of hearing. (a) Whenever any person is presumed to be dead on account of absence for 7 years or more, exposure to specific peril or pursuant to a finding under Federal Missing Persons Act (37 U.S.C. § 551 et seq.), wheth…
12 Del. C. § 1703. Petition for ancillary letters on estate of nondomiciliary presumed decedent; notice of hearing.
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§ 1703. Petition for ancillary letters on estate of nondomiciliary 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 country, o…
12 Del. C. § 1704. Hearing; competency of witnesses.
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§ 1704. Hearing; competency of witnesses. At the hearing in either of the cases provided for in § § 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 establish…
12 Del. C. § 1705. Search for absentee.
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§ 1705. Search for absentee. The Court of Chancery, on its own motion or upon the application of any party in interest, may appoint a Magistrate, investigator or appropriate agency to search for the presumed decedent in any manner which the Court shall deem appropriate, and the e…
12 Del. C. § 1706. Decree of presumed death; admission of will to probate and grant of letters.
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§ 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 Magistrate, that the death of the presumed decedent has been established, the Court of Chancery shall so decree, and the Court shall de…
12 Del. C. § 1707. Title to real estate of presumed decedent; recording of decree.
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§ 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 de…
12 Del. C. § 1708. Duties of executor or administrator.
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§ 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 manner and with the same effect as the same would be administered under existing laws of this…
12 Del. C. § 1709. Security given by beneficiaries.
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§ 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 § 1707(b) of this title, the persons, other than creditors, ent…
12 Del. C. § 1710. Revocation of letters and vacation of decree of presumed death — Effect generally.
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§ 1710. Revocation of letters and vacation of decree of presumed death — Effect generally. 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 …
12 Del. C. § 1711. Revocation of letters and vacation of decree of presumed death — Effect upon pending actions and upon judgments rendered.
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§ 1711. Revocation of letters and vacation of decree of presumed death — 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 …
12 Del. C. § 1712. Probate of will produced after issuance of letters; effect upon prior administration.
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§ 1712. Probate of will produced after issuance of letters; 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 this chapter, the person having custody of an…
12 Del. C. § 1713. Costs.
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§ 1713. Costs. 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.16 Del. Laws, c. 132, §§ 1, 2; Code 1915,…
12 Del. C. § 1901. Personal property constituting assets of estate; exceptions; employee death benefit plans and insurance policies.
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§ 1901. Personal property constituting assets of estate; exceptions; employee death benefit plans and insurance policies. (a) Estates in lands, tenements and hereditaments held by the decedent for the life of another shall be chattels; and such estates, estates by elegit or for y…
12 Del. C. § 1902. Rents and profits of deceased’s real estate as estate assets; possession and repair of real estate.
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§ 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 into the hands of the executor or administrator shall be assets for the payment of debts, and …
12 Del. C. § 1903. Growing crops.
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§ 1903. Growing crops. When there is a crop growing or begun, the executor or administrator may finish or sell it as deemed best for the estate. If finishing the crop, the executor’s or administrator’s account shall comprehend the proceeds and expenses.Code 1852, § 1814; Code 191…
12 Del. C. § 1904. Appraisers; appointment.
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§ 1904. Appraisers; appointment. The personal representative may employ 1 or more qualified and disinterested appraisers to assist 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. Diff…
12 Del. C. § 1905. Inventory and appraisal; filing requirements, form, contents and supporting affidavits; notice of action affecting title.
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§ 1905. Inventory and appraisal; filing requirements, form, contents and supporting affidavits; notice of action affecting title. (a) Every executor or administrator shall, within 3 months after the granting of letters testamentary or of administration, file in the office of the …
12 Del. C. § 1906. Failure to file inventory; civil and criminal penalties.
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§ 1906. Failure to file inventory; civil and criminal penalties. (a) Any executor or administrator who fails to file the inventory, list and statement with the Register of Wills within 3 months after the granting of letters testamentary or of administration shall be subject, pers…
12 Del. C. § 1907. Refusal of a coexecutor or coadministrator to file inventory.
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§ 1907. Refusal of a coexecutor or coadministrator to file inventory. Where there are several executors or administrators, if either of them refuses or neglects to join in the inventory or list of debts, the Court of Chancery shall remove the person or persons from office, unless…
12 Del. C. § 1908. Affidavit of diligent inquiry.
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§ 1908. Affidavit of diligent inquiry. An affidavit, signed by the executor or administrator and declaring upon oath or affirmation that the executor or administrator has diligently inquired and can obtain no knowledge of any goods or chattels of the decedent, shall be a sufficie…
12 Del. C. § 1909. Executor’s debt to decedent.
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§ 1909. Executor’s debt to decedent. The making of a person executor shall not extinguish any demand of the decedent against said person, but the same shall be truly inserted in the list of debts.Code 1852, §§ 1807-1811; Code 1915, § 3365; Code 1935, § 3830; 12 Del. C. 1953, § 19…
12 Del. C. § 1910. Additional inventory; after discovered assets.
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§ 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, the executor or administrator shall cause a…
12 Del. C. § 1911. Power of Court to suppress, reject and order another inventory or list.
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§ 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 adjudge the same imperfect and order another to be made and filed in the office of the Register of Wills. No inventor…
12 Del. C. § 1912. Recording inventory and notation of inheritance tax status in Inheritance and Succession Docket.
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§ 1912. Recording inventory and notation of inheritance tax status in Inheritance and Succession Docket. (a) Every inventory, list and statement filed pursuant to § 1905 of this title, shall be recorded and indexed by the Register of Wills in the “Inheritance and Succession Docke…
12 Del. C. § 2101. Notice to creditors to present claims; publication.
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§ 2101. Notice to creditors to present claims; publication. (a) The Register of Wills shall give notice as provided in this section of the granting of letters. Said notice shall contain the date of grant of letters, the date of the decedent’s death and the name and address of the…
12 Del. C. § 2102. Limitations on claims against estate.
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§ 2102. Limitations on claims against estate. (a) All claims against a decedent’s estate which arose before or at 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…
12 Del. C. § 2103. Debts of which notice is presumed.
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§ 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 mort…
12 Del. C. § 2104. Manner of presentation of claims.
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§ 2104. Manner of presentation of claims. Claims against a decedent’s estate may be presented as follows: (1) 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 cla…
12 Del. C. § 2105. Order of preference of claims against estate.
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§ 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 § 2308 of this t…