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DELAWARE LEGAL INFORMATION
Last Will and Testament Statutes
Link to the Delaware Statutes online, See Title 12, Sections 201 through 259 which contains the Probate Code.
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected Delaware Statutes
- 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.
Delaware Probate Code Section 201.
- Execution and signature of will; witnesses.
(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.
Delaware Probate Code Section 202.
- 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.
Delaware Probate Code Section 203.
- 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.
Delaware Probate Code Section 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. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No changes or circumstances other than as described in this section revokes a will or any part thereof.
Delaware Probate Code Section 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.
Delaware Probate Code Section 211.
- 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 in form and content substantially as follows:
STATE OF
SS
COUNTY OF
Before me, the subscriber, on this day personally appeared, .............. and .......... known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn ........... the testator, declared to me and to the witnesses in my presence that the instrument is the testator's last will and that had willingly signed or directed another to sign for the testator, and that the testator executed it as a free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence and hearing of the testator, that the witness signed the will as witness and that to the best of the witness' knowledge the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence.
........................................................................
Testator
........................................................................
Witness
........................................................................
Witness
Subscribed, sworn and acknowledged before me by ...... , the testator, subscribed and sworn before me by ........ and ............ witnesses, this . . . . . . . . day of ............. , A.D., .............
(SEAL)
................................................................
(SIGNED)
(OFFICIAL CAPACITY OF OFFICER)
Delaware Probate Code Section 1305.
Library of Informational Legal Articles
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