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Delaware Estate Law Summary

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Note: This summary is not intended to be an all inclusive summary of the law of wills in Delaware but does provide basic and other information. Hand written wills or wills where the testator cannot sign are not included in this discussion.

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. 12 Del. C. § 201.

Requisites and execution of will: Every will, whether of personal or real estate, must be in writing and signed by the testator and attested and subscribed in testator's presence by 2 or more credible witnesses. Any will not complying with section shall be void. 12 Del. C. § 202.

Witnesses; persons competent: Any person generally competent to be a witness may act as a witness to a will. A will or any provision thereof is not invalid because the will is signed by an interested person. 12 Del. C. § 203.

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 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 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.12 Del. C. § 207.

Revocation of wills generally: A last will and testament, or any clause thereof, shall not be altered, or revoked, except by cancelling 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. 12 Del. C. § 208.

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. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. 12 Del. C. § 209.

Testamentary additions to trusts:
(a) A will may validly devise or bequeath property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument other than a will executed before, concurrently with or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable or because the trust was amended after the execution of the will or the testator's death.
(b) Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection (a) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised or bequeathed and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.
(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse. 12 Del. C. § 211.

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Separate writing identifying bequest of tangible property: A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, and securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator and must identify the items and the legatees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will. 12 Del. C. § 212.

Rules for construction or interpretation of will or trust: In the construction or interpretation of any will or trust, the following rules shall apply in the absence of any contrary expression of intent in such will or trust:
(1) The period of time during which an interest in trust is revocable pursuant to the uncontrolled volition of the person having such a power of revocation shall not be included in determining whether the trust is invalid under the rule against perpetuities.
(2) There shall be no presumption that a testator or trustor did or did not intend that any law apply to a will or trust which was not in effect on the date of execution of such will or trust instrument.
(3) Except where the will or trust instrument expressly provides to the contrary, the determination of a class shall be governed by the law in effect on the date the will or trust instrument becomes irrevocable. 12 Del. C. § 213.

Devolution of property; administration of decedents' estates: Solely for the purposes of determining the rights of any person to property of a decedent, it shall be presumed that tangible personal property acquired (a) by a decedent through gift or inheritance, or (b) solely with the funds of the decedent, or (c) acquired by the decedent before marriage to the surviving spouse, is the sole property of the decedent notwithstanding that such property consists of household goods or that any such property was subject to joint possession and use by a decedent and the surviving spouse. 12 Del. C. § 214.

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 of this State, and evidenced by the officer's certificate under official seal, attached or annexed to the will. The will you have found contains the required self proving affidavit. 12 Del. C. § 1305.

Choice of law as to execution of wills. 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 if executed in compliance with Delaware law, or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator, was the residence of the testator. 12 Del. C. § 1306.

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Description - Delaware Life Documents Planning Package, including Will, Power of Attorney and Living Will

The Legal Life Documents Personal Planning Package contains essential life documents, information on how to organize life documents and other products. The documents in this package are State Specific.

This package contains the following forms:

Last Will
General Durable Power of Attorney for Property and Finances Effective Immediately
Statutory Advance Health Care Directive
Estate Planning Questionnaire and Worksheets
Personal Planning Information and Document Inventory Worksheets

Last Will - Complete this form to detail in writing your wishes regarding who is to receive your property at death and who will administer your estate. It also enables you to appoint trustees or guardians, if applicable.
General Durable Power of Attorney for Property and Finances Effective Immediately - This General Durable Power of Attorney is a general, durable power of attorney which is effective IMMEDIATELY. The powers granted to an Agent in this Power of Attorney are very broad. This Power of Attorney does NOT provide for health care services. This form complies with all applicable state statutory laws.
Statutory Advance Health Care Directive - Health Care, Standby Guardian and Living Will Provisions - This is a statutory form that is provided for in the Delaware Statutes. This form allows you to express your wishes and desires regarding whether or not your life is prolonged by artificial means and to make any health care decisions for you.
Estate Planning Questionnaire and Worksheets - This Estate Planning Questionnaire and Worksheet is for completing information relevant to an estate. It contains questions for personal and financial information. You may use this form for client interviews. It is also ideal for a person to complete to view their overall financial situation for estate planning purposes.
Personal Planning Information and Document Inventory Worksheets - This form enables you to document matters relevant to your life and personal planning such as the location of your important legal documents, relatives names, contact information, medical information, financial asset inventory and more.

Delaware Estate and Personal Planning Forms

Delaware Estate Law Summary