Letters Testamentary and Letters of Administration

Del. Code tit. 12, ch. 15

in effect

Del. Code tit. 12, § 1501 Necessity for letters testamentary or of administration.

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.

Del. Code tit. 12, § 1502 Grant of letters testamentary.

(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.

Del. Code tit. 12, § 1503 Grant of letters to one under an incapacity.

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.

Del. Code tit. 12, § 1504 Grant of letters of administration.

(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.

Del. Code tit. 12, § 1505 Persons entitled to letters of administration.

(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 (b)(1) of this section, 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 (b)(1) of this section 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.

Del. Code tit. 12, § 1506 Power of attorney by nondomiciliary executor or administrator.

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.

Del. Code tit. 12, § 1507 Successor administrator; personal representative of executor or administrator; administration during pendency of litigation.

(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.

Del. Code tit. 12, § 1508 Persons not qualified to receive letters testamentary or of administration.

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.

Del. Code tit. 12, § 1509 Oath of executor or administrator.

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

Del. Code tit. 12, § 1510 Personal representatives of deceased guardians.

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.

Del. Code tit. 12, § 1521 Requirement.

Prior to receiving letters, a personal representative shall qualify by filing with the Register of Wills any required bond.

Del. Code tit. 12, § 1522 Exception to bond requirement.

No bond shall be required of a personal representative prior to receiving letters, except: (1) When an executor or other personal representative is appointed to administer an estate under a will containing an express requirement of bond; or (2) When bond is required by order of the Court of Chancery under § 1524 of this title. A bond otherwise required by any will may be dispensed with upon determination by the Court of Chancery that it is not necessary or desirable.

Del. Code tit. 12, § 1523 Amount; security; execution; excusing requirement.

If bond is required and the provisions of the will or court order do not specify the amount, the amount of the bond shall be fixed by the Register of Wills in an amount which shall not be less than the best estimate that can be made of the decedent’s personal estate. The personal representative shall execute and file with the Register a bond with surety, or with other suitable security in an amount not less than the bond. The Register shall determine that the bond is duly executed by a corporate surety, or 1 or more individual sureties whose performance is secured by pledge of personal property, mortgage on real estate or other adequate security. On petition of the personal representative or other interested persons, the Court of Chancery may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties or permit the substitution of another bond with the same or different sureties. In increasing or decreasing the amount of the bond the Court shall take into account, inter alia, whether the will excuses the requirement of bond.

Del. Code tit. 12, § 1524 Demand that representative be bonded.

Any person apparently having an interest in the estate worth in excess of $2,000, or any creditor having a claim in excess of $2,000, may make a written demand that a personal representative give bond. The demand must be filed with the Court of Chancery and a copy mailed to the personal representative, if appointment and qualification have occurred. Upon finding that bond is necessary or desirable the Court may order bond but the requirement ceases without order of Court if the person demanding bond ceases to be interested in the estate, or if bond is excused as provided in this section or § 1523 of this title. After bond has been ordered and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of office except as necessary to preserve the estate. Failure of the personal representative to meet the requirement of bond by giving suitable bond within 10 days from notice is cause for removal and appointment of a successor personal representative.

Del. Code tit. 12, § 1525 Conditions.

(a) The following requirements and provisions apply to any bond required by this subchapter: (1) Bonds shall name the State as obligee for the benefit of the persons interested in the estate including without limitation the legatees, devisees and other beneficiaries thereof, and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law; (2) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond; (3) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the Court of Chancery in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceedings shall be delivered to the surety or mailed to the surety by registered or certified mail at the surety’s address as listed with the Register of Wills where the bond is filed; (4) On petition of a successor personal representative, any other personal representative of the same decedent or any interested person, a proceeding in the Court may be initiated by a surety for breach of the obligation of the bond of the personal representative; (5) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted. (b) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligator is barred by adjudication or limitation.

Del. Code tit. 12, § 1526 Objection to amount or condition.

If any interested person objects to the amount of the bond as provided in § 1523 of this title or the condition of the bond as provided in § 1525 of this title, such person may petition the Court of Chancery and the Court shall fix the amount and condition of the bond.

Del. Code tit. 12, § 1527 Liability for estate taxes and duties related thereto.

The bond of a personal representative shall be liable for all money received for taxes of this State or the United States or for any penalty assessed against the personal representative for failure to file a tax return of this State or the United States within the period prescribed by law.

Del. Code tit. 12, § 1528 Certificate of approval; preservation.

(a) The execution of the required bond shall be sufficient without any certificate of approval by the Register of Wills. (b) The Register shall provide safekeeping for every bond.

Del. Code tit. 12, § 1541 Removal for neglect of duties.

(a) If an executor or administrator neglects official duties, the Court of Chancery may remove the executor or administrator from office. (b) If any executor or administrator fails to perform any of the duties imposed upon the executor or administrator under Chapter 15 of Title 30 [repealed], the Court of Chancery may, upon petition of the Division of Revenue, revoke the same, and the executor’s or administrator’s bond shall be liable, and the same proceedings shall be had as if the executor’s or administrator’s administration had been revoked for other cause.

Del. Code tit. 12, § 1542 Removal of executor or administrator upon subsequent probate of will.

If, after the grant of letters testamentary or the grant of letters of administration, a will of the deceased is admitted to probate and letters testamentary or of administration with the will annexed are thereupon granted, the prior executor or administrator shall by such grant be removed from office. All the previous lawful acts of the removed executor or administrator shall be valid as provided in § 1545 of this title.

Del. Code tit. 12, § 1543 Rights of coexecutor, coadministrator or successor upon death or removal.

Whenever an executor or administrator is removed or dies before the estate of the deceased is closed, a coexecutor or coadministrator, or if there be none such, a successor, shall be entitled to receive all the unadministered effects, including books and papers, which, at the time of such removal or death, shall be in the executor’s or administrator’s hands, or for which the executor or administrator is answerable, just allowances being made.

Del. Code tit. 12, § 1544 Commissions; allowance and apportionment.

When part of the effects of the deceased passes from 1 executor or administrator to another under § 1543 of this title, commissions shall not be twice allowed, but may be apportioned or the whole may be allowed to the one who, according to the circumstances, ought to have the same. When commissions have been once allowed, there shall be no more allowed upon the same subject matter, except in cases of apportionment, unless the first allowance is annulled.

Del. Code tit. 12, § 1545 Validity of acts of removed or deceased executor or administrator.

Any act done by an executor or administrator in the due course of administration, and any payment made by the executor or administrator on account of a legacy or distributive share shall be valid, until it appears to have been erroneously or unlawfully done or made although the executor or administrator shall be removed from office or shall die before closing the estate.

Del. Code tit. 12, § 1546 Refusal to deliver unadministered assets.

(a) If any executor or administrator who has been removed refuses to deliver to a coexecutor or coadministrator, if there be such, and if not, to a successor, all the unadministered effects belonging to the deceased, which shall be in the executor’s or administrator’s hands, the Court of Chancery may, in a summary proceeding, upon the petition of such coexecutor, administrator or successor, hear the parties, and make an order for such delivery, and enforce the same by attachment, sequestration or any other process. (b) The Court of Chancery may also proceed, in like manner, against the personal representative of a deceased executor or administrator, refusing to deliver, according to law, any such effects belonging to the estate of the first testator or intestate which shall come to personal representative’s hands.

Del. Code tit. 12, § 1547 Discharge of executor or administrator upon petition; procedure; appeal.

(a) An executor or administrator may, by petition to the Court of Chancery, apply to be discharged from the office of executor or administrator. Upon such petition and upon it appearing to the Court that the discharge of the executor or administrator will be for the benefit of the parties interested in the estate of the deceased, the Court may grant such discharge and revoke the letters testamentary or of administration, upon such terms and conditions as the Court deems necessary for the security of the estate of the decedent. Notice of such application and of the time and place of hearing the same shall be given to parties interested, by citation served on such as reside within this State, and as to nonresident parties by such publication as the Court directs. (b) The provisions of law relating to the acts of a removed executor or administrator, the delivery of unadministered effects, books and papers, the remedies for enforcing such delivery and the apportionment of commissions and the fees of the Register of Wills in the proceedings for the removal of an executor or administrator, shall apply to the case of an executor or administrator discharged under this section. (c) The Court of Chancery may make any order upon a discharged executor or administrator which may be necessary to carry into effect this section, and may enforce such order by attachment, sequestration or any other process.

Del. Code tit. 12, § 1551 Appointment of trustee upon petition of executor or administrator; bond, duties and release of trustee.

(a) When any person, other than the person who during life shall be entitled under the will of any deceased testator to the income on the personal estate of such deceased testator or any part thereof, shall be the executor or administrator with the will annexed of the estate of such deceased testator, such executor or administrator with the will annexed may, if no trustee is named in such will, after having passed a final account of administration on the estate before the Register of Wills, petition the Court of Chancery for the appointment of a trustee to receive from such executor or administrator with the will annexed, the fund to which the person named in the will is entitled during the person’s life. (b) The Court of Chancery, upon petition being presented to it as provided in subsection (a) of this section, shall appoint a trustee to receive, manage and invest the fund, and the trustee shall give bond as the Court may order and direct. (c) The trustee shall manage and invest the fund, and pay over to the person entitled for life to the fund the profits and income arising thereout; and after the death of the person entitled for life, shall pay the fund to the person entitled absolutely. (d) The trust shall terminate upon the death of the person entitled during life to the fund, and the release of the person entitled absolutely to the fund shall discharge and release the trustee from all liability for or concerning the same.

Del. Code tit. 12, § 1552 Receipt of trustee.

The receipt of the trustee, appointed under § 1551 of this title, to the executor or administrator with the will annexed for the fund shall release and discharge the executor or administrator with the will annexed of and from all liability for or concerning the fund.

Del. Code tit. 12, § 1553 Personalty in possession of life tenant; discharge of executor or administrator with will annexed; liability of life tenant.

When the executor or administrator with the will annexed, in cases where the will so provides, leaves in the possession of the person entitled for life, perishable personal property, livestock, household goods, family stores and farming implements, together with the crops saved for the maintenance of such stock, the receipt of such person entitled for life to such executor or administrator with the will annexed shall discharge the executor or administrator with the will annexed of and from all liability for or concerning the goods and chattels and crops so devised and the appraised value thereof. The Register of Wills shall allow the amount of the appraisement of the goods and chattels in the account of the executor or administrator as a credit upon the production, at the time of passing the account, of the receipt; but such release shall not discharge the person so entitled for life, the person’s executor or administrator from liability to the person entitled to such personal property absolutely, after the death of the person entitled thereto for life, or prevent such action at law or in equity as is necessary to secure the delivery of such personal property or payment therefor, at its appraised value, to the person entitled thereto absolutely, after the death of the person entitled to such property for life.

Del. Code tit. 12, § 1561 Definitions.

As used in this subchapter, the following definitions shall apply: (1) “Local administration” means administration by a personal representative appointed in this State pursuant to appointment proceedings described in this title. (2) “Local personal representative” includes any personal representative appointed in this State pursuant to appointment proceedings described in this title and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to § 1566 of this title. (3) “Personal representative” includes executor, administrator, administrator with the will annexed and successor personal representatives and persons who perform substantially the same function under the law governing their status. (4) “Resident creditor” means a person domiciled in, or doing business in this State, who is, or could be, a claimant against an estate of a nonresident decedent.

Del. Code tit. 12, § 1562 Payment of debt and delivery of property to domiciliary foreign personal representative without local administration.

At any time after the expiration of 60 days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of property of such nonresident decedent or having possession or control of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the property or the instrument evidencing the debt, obligation, stock or chose in action to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of appointment and an affidavit made by or on behalf of the representative stating: (1) The date of the death of the nonresident decedent; (2) That no local ancillary administration, or application or petition therefor, is pending in this State; (3) That the domiciliary foreign personal representative is entitled to payment or delivery.

Del. Code tit. 12, § 1563 Payment or delivery discharges.

Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.

Del. Code tit. 12, § 1564 Resident creditor notice.

Payment or delivery under § 1562 of this title may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.

Del. Code tit. 12, § 1565 Proof of authority and bond.

If no local ancillary administration or application or petition therefor is pending in this State, a domiciliary foreign personal representative may file with the Register of Wills in this State in a county in which property belonging to the decedent is located exemplified copies of the domiciliary foreign personal representative’s appointment and of any official bond given.

Del. Code tit. 12, § 1566 Powers.

A domiciliary foreign personal representative who has complied with § 1565 of this title may exercise as to assets in this State all powers of a local personal representative and may maintain actions and proceedings in this State subject to any conditions imposed upon nonresident parties generally and provided that such domiciliary foreign personal representative complies with § 1905 of this title governing the filing of an inventory and appraisal of estate assets consisting of tangible personal property and real estate actually situated within this State.

Del. Code tit. 12, § 1567 Power of representatives in transition.

The power of a domiciliary foreign personal representative under § 1562 or § 1565 of this title shall be exercised only if there is no administration or application therefor pending in this State. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under § 1566 of this title, but the Court of Chancery may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for the foreign personal representative in any action or proceeding in this State.

Del. Code tit. 12, § 1568 Ancillary and other local administrations; provisions governing.

In respect to the local administration of the estate of a nonresident decedent, the provisions of this title govern: (1) Proceedings, if any, before a Register of Wills or the Court of Chancery in this State, for probate of the will, appointment, removal, supervision and discharge of the local personal representative, and any other order concerning the estate; and (2) The status, powers, duties and liabilities of any local personal representative and the rights of claimants, purchasers, distributors and others in regard to a local administration.

Del. Code tit. 12, § 1569 Jurisdiction by act of foreign personal representative.

A foreign personal representative submits to the jurisdiction of the courts of this State by: (1) Filing exemplified copies of appointment as provided in § 1565 of this title, (2) Receiving payment of money or taking delivery of personal property under § 1562 of this title, or (3) Doing any act as a personal representative in this State which would have given the State jurisdiction over the person as an individual. Jurisdiction under paragraph (2) of this section is limited to the money or value of personal property collected.

Del. Code tit. 12, § 1570 Jurisdiction by act of decedent.

In addition to jurisdiction conferred by § 1569 of this title, a foreign personal representative is subject to the jurisdiction of the courts of this State to the same extent that the decedent was subject to jurisdiction immediately prior to death.

Del. Code tit. 12, § 1571 Service on foreign personal representative.

(a) Service of process may be made upon the foreign personal representative by certified mail, addressed to the last reasonably ascertainable address, requesting a return receipt signed by the addressee only. Notice by ordinary first-class mail is sufficient if certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this State on either the foreign personal representative or the decedent immediately prior to death. (b) If service is made upon a foreign personal representative as provided in subsection (a) of this section, the foreign personal representative shall be allowed at least 30 days within which to appear or respond.

Del. Code tit. 12, § 1572 Effect of adjudication for or against personal representative.

In the absence of fraud or collusion, an adjudication rendered in the domiciliary jurisdiction or any ancillary jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if the representative were a party to the adjudication.

Del. Code tit. 12, § 1573 Authentication and recognition of acknowledgements.

The authentication and recognition of the acknowledgement of a foreign notary public or other officer on an instrument necessary under this chapter shall be in accordance with subchapter II of Chapter 43 of Title 29.

Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title12/c015/sc01/index.htmlFetched: 10/4/2026