WILLS

A. Generally
1. Terms
a. Testator: person who has written will that is in effect at his time of death
b. Decedent: person who has died
c. Issue: persons children or other lineal, direct bloodline descendents
d. Devise: gift of real property
e. Bequest/ legacy: gift of personal property by will
i. Legacy = $$, bequest = anything other than money
f. Inheritance: property recorded under laws of intestate descent and distribution
g. Heir: one who acquires property under laws of intestate
h. Per stirpes: by representation, equally
B. General Execution Issues
1. Testamentary capacity
a. T is at least 18 years old and has sound and disposing mind and memory
b. Facts and circumstances analysis
c. BoP on contester/ challenger
d. Note: insane delusion: false belief in facts may only invalidate will in part
2. Execution formalitiesif exist, will presumed good
a. In writing and signed by testator
i. OR as directed by T in Ts presence
b. Attested to, and subscribed by 2 credible Ws in Ts presence
i. BUT T does not have to sign in their presence so long as verifies signature
c. Self-proving: Can cure defect in signature requirement (substantial compliance)
i. T declares instrument is his/her will
ii. Ws make statement re: Ts age and capacity
iii. Notarized signatures
d. Holographic will:
i. Entirely in Ts handwriting and signed, still need 2 Ws
3. Revocation:
a. Cancel existing will or sign new will that complies with required formalities
b. Partial revocations:
i. By codicil: amendment to will that does not entirely revoke prior will
extreme inconsistencies w/ will
can fix deficieny w/ original will if have valid codicil
ii. By divorce: automatically removes grants in will ONLY! (not trust, etc.)
iii. Conditional revocation: if Ts intent is clear
iv. Dependent relative revocationinferred from circumstances that T intended conditional
revocation
i.e. would not have executed if you had known new will invalid
4. Incorporation by reference
a. Tangible personal property listeither in Ts handwriting or signed by T; created before OR after
will
b. Pour-over will: T leaves property to trust created before/ after will or to be created at time of
death
c. Common law allowance: will may reference writing that exists at the time the will is executed
5. Future acts of independent significance
a. Identity of beneficiariesper subsequent acts
C. Construction
1. Testamentary Intent
a. Rebuttable presumption as to Ts intent
b. IF ambiguous, court decides
2. Fraud, undue influence, mistake
a. If existswill denied probate or held ineffective
b. Fraud: burden lies with contestant to prove
i. T deceived by, and
ii. relied upon,
iii. intentional misrep. of material fact
c. Mistake: if mistake as to legal effect of Ts words, court will give effect to Ts intent
i. IF mistake of extrinsic fact, courts have refused to alter
d. Undue influence
i. Contestant must prove
Susceptible testator
Opportunity to exert influence
Actual exertion of influence
Result demonstrating such effect
ii. If shown, burden shifts to proponent of will to show NO undue influence by showing 1)
testamentary capacity and absence of undue influence
e. IF confidential relationshipspecial scrutiny
i. Will contestant must establish by clear and convincing evidence that
Will executed by testator of weakened intellect
Will drafted by person in confidential relationship w/ testator
Drafter received substantial benefit
ii. If shown, burden shifts to proponent
D. Limits on Testation
1. Spousal elective share
a. Statute: share = 1/3 of elective estate less transfers to surviving spouse by decedent
i. Transfer to surviving spouse = jointly owned property; beneficial interest in trust; property
subject to power of appointment; insurance proceeds
ii. Personalmay be waived
iii. Procedure: elect per chancery court petition w/in 6 months of letters, copy to personal
representative
iv. Spouse gets $7500 cash immediately, that is also subtracted from elective share
b. Marriage/ divorce after will
i. Marriage: surviving spouse gets intestate share
ii. Divorce: revokes only testamentary dispositions
c. Slayers Act:
i. Deems slayers as having predeceased decedent
d. After-born child (after T will executed)
i. Same share as if parent died intestate
ii. Includes adopted kids
iii. Posthumous children: same share as if living at time of Ts death
e. TOD (transfer on death) or POD (pay on death) transfers
i. Permits transfer of property to named beneficiary upon death of account holder
ii. Multiple beneficiaries become tenants in common
iii. Revocable designation
iv. Can designate trust
v. NOT testamentary transfer (no probate)
f. Resulting trust: remedial device to effectuate Ts presumed intent
g. Constructive trust: remedial device to prevent unjust enrichment
2. Gifts:
a. General rule: not presumed gift unless establish donors intent (BoP on person claimin gift) BUT
does not apply to transfer to spouse or child
E. Intestate Descent and Distribution
1. Surviving spouse
a. Share determined based on whether there are also surviving children or parents of D
b. No issue or parent entire estate
c. Surviving issue of D & spouse or parent of D first $50K + balance + life estate in realty
d. Surviving issue not of spouse of estate + life estate in realty
2. Other kin
a. Issue of D take on per stirpes basis
b. No issue Ds parents take in equal shares
c. No issue, no parents surviving brothers and sisters in equal shares
d. No issue, no parents or issue of parents next of kin in equal shares
i. To determine next of king: count degrees of relationship
e. More than 1 heir tenants in common
3. Other Rules
a. Heir must survive D by 120 hours (5 days)
b. Half-blood kin treated as whole blood
c. Debt owed to D charged against debtors share
d. Children:
i. Adopted children treated as natural child
ii. No distinction between adoption of minor or adult
iii. Illegitimate children treated as child of mother, father must be asserted (establish paternity) or
openly support child, otherwise cannot inherit
iv. Posthumous heirs treated as living at parents death
e. Advancementspart of estate, subtracted from recipients share (unless recipient predeceases D)
i. Must be declared or acknowledged as advancement
F. Escheat
1. Procedure:
a. State brings suit in court of chancery
b. Notice of hearing for claimants to file claim
c. Court determination escheat or distribution
2. Presumption of death: person absent from state for 7 consecutive years and no proof of life is made in
hearing
3. Property disposition
a. Personal writ to sheriff who seizes, obtains inventory and appraisal, and sells in public auction
b. Realty may lease, maintain, or sell at public auction, subject ot governors approval
G. Probate and Estate Administration
1. Administration
a. Locate and value Ds assets
b. Pay Ds debts and administrative expenses
c. Filing necessary tax returns
d. Distribute remaining estate
2. Proving the Will = STEP 1
a. Admit to probate in county Register of Wills
b. If D not domiciled in DE will probated in any county where D had property
c. Person with custody of will must deliver it to the Register w/in 10 days of learning of Ds death
d. Unless self-provedsignatures of Ws or T must be proven
i. Notice to interestesd persons not required UNLESS such person requests via petition to court
e. Foreign willscomply with state of execution
f. Caveatagainst allowance of will (prevent probate) may be filed at any time before the will is
proved
i. Only can be filed by person w/ pecuniary interest
ii. Upon receipt, court will order hearing
g. Right of review: any interested person not presenta t will proving or served w/ notice of caveat,
has 6 months after proof of will to petition for review by Chancery
i. IF will self proved- 6 months begin to run when letters testamentary are granted
h. In terrorem/ no contest clause: condition in will that voids bequest to anyone contesting the will
i. Generally enforceable unless beneficiary is determined by court to prevailed substantially
3. Appointment of Personal representative:
i. Responsible for administering estate
ii. Executor: person named in will
iii. Administrator: personal rep appointed by Register for an intestate decedent
iv. Authority: letters testamentary or administration granted by Register of Wills
To get letters:
o Petition Court
o Give oath that will perform duties with honesty and integrity
v. Removal: by Chancery
vi. Resignation: petition Chancery
vii. Bond: only submitted if will or Court requires, or if demand by person w/ interest > $2K
4. Administration of Estate under $30K
i. Priority in making affidavitspouse, grandparent, lineal descendants of grandparent
ii. Priority in receipt spouse, child, parent sibling, grandchild, grandparent, funeral director
iii. Affidavit: requirements met; used to transfer title
No pending petition for appt of personal rep
30 days since death
all known debts paid
surviving spouses allowance paid, waived, or expired
D has no solely-owned real estate in DE
5. Inventory and appraisal ---STEP 2
a. File inventory of estate assets PR must file w/ register of wills w/in 3 months of grant of letters
i. PR must also file affidavit of diligent inquiry
ii. Value assets at FMV as of date of death
b. Actions affecting real estate PR must file notice of any action affecting Ds real estate w/
register
i. Real estate deemed to pass at death
ii. PR must also file death certificate w/ register in each county in which D had an interest in real
estate
iii. Jointly-owned realty PR or surviving joint tenant must file affidavit w/ Register in county of
propertys location
c. Creditors claims
i. Claim period: if D died on or after July 14, 1988, period is 8 months from date of death
ii. NoticeIF posed w/in 40 days of grant of letters in county courthouse; published newspaper
notice in the county at least 3 times during claim period
Register may waive newspaper notice if estate < $30,000
iii. Claims presented one of two means:
Deliver/ mail written statement (name, basis, amount) to PR or file w/ Register
Bring action against PR (not reqd if proceeding against D at time of death)
iv. Limits on pre-death claims: if arose before death, barred unless
Credit makes claim w/in claim period OR
Notice is presumed
o Recorded mortgages and judgments which would be liens against Ds real estate at
time of death
v. Limits on post-death claims
If arose after death, claim barred unless
o Claim based on contract w/ PR filed w/in 6 months of performance due
o Any other claim w/in 6 months after arises
vi. No letters granted w/in 10 years claims of most creditors and other beneficial interests are
barred
vii. Preference of claimsafter payment of administrative expenses
Surviving spouse allowance ($7500)
Funeral expenses
Child support arrearages
Medical/ nursing bills
Wages due to servants/ laborers
State taxes
Rent
Judgments against D
Contracts & other demands
d. Accounting: PR must file annual account of estate admin. w/ Register until final account passed
by court
i. Register may extend time; notifies court if estate inactive for 2 years
ii. Chancery enforces filing requirement
iii. Notice given to beneficiaries when account filed; have 90 days to inspect and except to the
account
iv. Court considers all exceptions and, if non filed, approves accounting absent fraud, illegality or
breach of fiduciary obligations
e. Disclaimer
i. Effect: treats disclaimant as having predeceased D
ii. Who: any person, broadly defined
iii. Form:
In writing
Declare disclaimer and extent
Describe property interest
Signed
Delivery --timely filing rules of IRS
iv. Disclaimer of portion: fractional share or any limited interest in estate in property, including
an interest limited by spendthrift provision
f. Investment responsibility
i. Standard: prudent person rule: what fiduciary knew or should have known at time of decision
re:
Inherent nature and expected performance
Attributes of portfolio
General economy
Needs and objectives of beneficiaries of the account
ii. Based on who trustee ismore experience, higher standard
iii. Fiduciary not liable for good faith reliance on instruments terms and/or investment advisor,
but still has duty to monitor
6. Distribution
a. Time for distribution
i. When: unless circumstances justify longer, PR has ONE YEAR from grant of letters to settle
estate
Not required to make distribution for 1 year
PR must account for interest earned
Pecuniary legacies bear 4% per year beginning 13 months after grant of letters unless will
indicates contrary interest
ii. To creditor: legacy not deemed in satisfaction of debt due from T unless will expresses
otherwise
iii. In-kind distributions: if authorized, assets valued on date of distribution unless will states
otherwise
b. Decree of distribution
i. Chancery: PR or any person claimin interest in estate may apply for decree after an account
has been filed
Statute provides for notice and hearing
Decree appealed to SCt w/in 30 days
If not appealed, binding on PR and all parties of interst
c. Ademption
i. If specific bequest and property not owned at time of death, beneficiary does not receive
No substitution unless will provides otherwise
DE: substantial identity test: must be able to substantially identify the item
d. Abatement
i. Unless will expresses a contrary order, if estate insufficienty to meet bequests, estate is
abated/ reduced in the following order
Non-probate transfers
Residuary bequests and devises
General bequests and devises
Specific bequests and devises
ii. Personal property abated before real in each class
e. Anti-lapse statute
i. Applies: if legatee or devisee predeceases T and will fails to specify if bequest should go to
issue
ii. Rule: 1) relationship test: grandparent or issue of Ts grandparent; 2) predecease T; 3)
deceased beneficiary must have issue
Is dead at time of will execution
Fails to survive T
Is treated as predeceasing T
iii. Issue of deceased beneficiary who survive T by 120 hours take per stirpes
New rule: class gift rule as to shares of residue: if three residuary beneficiaries, and they
predecease you, the other two still take
f. Simultaneous death
i. Applies: situations in which title holders or beneficiaries die simultaneously
ii. General Rule: property of each person is disposed of as if he/she has survived
Joint tenants and tenants by entirety: distributed as if one T survived and as if other T
survived
Insurance: proceeds distributed as if insured survived beneficiary
g. Absentees; presumed decedents
i. Rule: if death of a person is in issue, her/ his unexplained absence from the last known
residence and not heard of for 7 years grounds for finding person died 7 years after last heard
of
Exposure to peril: sufficient grounds
Federal missing persons act: if written finding, prima facie evidence of death
ii. Procedure: regardless of where D lived, action may be brought in Chancery for adjudication
of death by any person entitled under will
Upon court decree, estate administration can begin
TRUSTS
A. Generally
1. Terms
a. Trust: entity created to hold assets for benefit of ercatin persons or entities; managed by a trustee
pursuant to trust instrument; created by a lifetime transfer or by will
i. A way to bifurcate interests in property
b. Trustor/ grantor/ settlorcreator of trust; transfers property to trustee/ co trustees
i. No real equitable rights, i.e. cant force payments, etc.
c. Trustee (TT)holds legal title to property for benefit of beneficiaries per trust terms, subject to
fiduciary duties provided by state law
d. Beneficiary: holds equitable title to trust property
2. Types
a. Express Trust:
i. Intervivos: established during Ts lifetime
Oralat common law, created by declaration of a trust
Writtennow required by DE law!!!!!!!
ii. Testamentary: established to take effect at Ts death pursuant to Ts will
b. Implied Trusts:
i. Constructive: remedial device imposed by court to address fraud or prevent unjust enrichment
ii. Resulting: remedial device to effectuate Ts presumed intent (e.g. when express trust fails)
B. Creation of Express Trust
1. Required:
a. Execution requirements: as to its creation, modification, or revocation, trust VOID unless
i. In writing executed by T
ii. Witnessed by at least 1 disinterested person OR 2 credible persons OR
iii. In writing executed by TT who is a disinterested person
No beneficial interest in trust that would be materially increased or decreased as a result of
the creation, modification, or revocation
iv. Tangible personal property list allowed
b. Capacity of T: no legal incapacity
i. Testamentary trust: must have testamentary capacity
c. Intent: T must manifest present intent to create a trust/ fiduciary relationship; similar to creating a
will
i. T must intend that enforceable duties be imposed on TT to hold legal title to, and manage,
trust property for the benefit of the beneficiary
ii. it is my wish, I hope not enough
d. Corpus: trust must have ascertainable property; something for TT to hold, protect and manage
(note: rights to stock dividends OK)
i. Mere expectancy cannot be the corpus of the trust
ii. Except: recovable intervivos trust referenced in pour-over will
Nothing goes in the trust right away, but ok b/c w/ pour-over will, property definitely
going in at instant of death
If property held as tenants by the entirety put in intervivos revocable trust, treated like
tenancy by entirety until death of 1
st
of the owners
e. Beneficiaries: w/ right to enforce duties imposed on TT
i. Must be ascertainable at time of creation
ii. Class designation sufficient if ascertainable by some objective standard
iii. RAP: abolished as to property held in trusts110 year limit as to real property held in trust,
does not apply to charitable trust
f. Purpose: no illegal/ contrary to public policy
g. Trustee: trust will NOT fail for lack of trustee
h. Merger:
i. If trustee, beneficiary, and trustor = same personmerger and no trust created
UNLESS revocable intervivos trust so long as have successor trustee and named
beneficiaries
2. Misc.
a. Terms of governing instrument: may expand, restrict, eliminate, or otherwise vary rights and
interests of beneficiaries and fiduciarys powers duties, rights, and liability
i. FREEDOM of DISPOSITION! Policy of this section to give maximum effect to the
principle of freedom of disposition and to the enforceability of governing instruments.
b. Interpretation: Ts intent controls interpretation of document
i. Parol evidence admissible to prove trusts existence
C. Trust Administration
1. Transfer of property to TT
a. Trust only effective as to property legally titled in TTs name; becomes non-probate
2. Trustees powers
a. Delineated in trust instrument as well as those enumerated in statute, subject to fiduciary duties
b. Sale ordered by court: unless contrary to trust terms, TT may petition Chancery to order ale of
real/ personal property in trust
c. Incur reasonable expenses in trust administration
d. Unless allowed by trust terms, TT cannot encumber or lease trust property
e. Powers transfer to succeeding trustee
3. Duties
a. Duty of care: reasonable care and skill in investing trust property
i. Prudent person rule: as to acquiring, investing, and managing
ii. DE statutes permit greater latitude as to investing standards
iii. Duty to make property productive while preserving corpus
b. Duty of loyalty: TT obligated to administer trust property for the benefit of all beneficiaries, NO
self dealing OR conflicts of interest
i. Interested transaction voidable UNLESS
transaction entirely fair, and
beneficiary consented upon TTs full disclosure of terms
c. Duty to segregate property: cant commingle trust assets with TTs personal assets or those of
another trust
i. If assets depreciate, BoP on TT to show depreciated assets were trusts, not his
d. Duty of impartiality: difficult weighing of interests of income v. remainder beneficiaries
e. Duty to account: unless exempted by will, TTs named under a will or appointed by court must
file an accounting at least once every 2 years
i. Inter vivos: TT need not file accounting except by court order
f. Liability:
i. Breach of trust: any violation of TT of a duty owed to beneficiary
Good faith: honesty in fact and observance of reasonable standards of fair dealing
ii. Remedies
Compel TT to perform duties
Order TT to compensate
Enjoin TT from breaching
Require accounting
Remove TT
Appoint another TT
Reduce or deny TTs compensation
Recover property wrongfully disposed; void TTs acts
Grant other appropriate relief
iii. Damages for breach
Damages restoring value of trust and distributions to what they would have been w/o
breach OR
TTs profit from breach
iv. Damages where no breach
TT accountable for any profit arising from trust administration, but not for los sin value or
failure to make a profit
v. Limitations period: 2 years from receipt of report disclosing facts constitution claim
IF no report5 years
vi. No liability IF beneficiary consent, release, or ratification unless improperly obtained
vii. Limit on personal liability
TT NOT personally liable on K entered into in TTs fiduciary capacity IF discloses such
capacity
Not liable for debts, obligations incurred against property held in fiduciary capacity
IS liable for torts committed in trust administration
viii. Indemnification by trust
At common law, for any personal liability TT incurs w/ respect to acts w/in official
capacity
o N/A if acts outside of powers or intentional tort
o Exculpatory clauses construed strictly against TT
ix. Can have trust protector
Separately named person in trust document that keeps eye on trustee
o IF trust document orders TT to follow investment advisor, only liable for willful
misconduct
g. Limitation on action contesting validity of trust
i. Judicial proceeding to contest whether a trust was validly created
ii. Action may not be initiated later than the first to occur
120 days after date TT notified the person in writing of the trusts existence, name and
address, and beneficiary status
2 years after Ts death
If trust revocable and specifically referenced in Ts will, time in which petition for review
of will can be filed OR
Date of persons right to contest was precluded by adjudication, consent or limitation
h. Allocation between principal and income
i. Fiduciarys discretionary standard
If trust instrument provide standardtrust controls
Discretionary power may be conferred by trust instrument or by local law
If instrument does not provide standardstatute controls
Whether under trust or statuteadminister impartially based on fair and reasonable
standard
D. Modification, termination, failure of trust
1. Failure of trustee
a. Trust will not fail due to no TT
b. Trust can provide for/designate successor TTs
c. Chancer may appoint TT for limited purpose/ period
d. A successor TT (designated or appointed) is not obligated to inquire into acts/ omissions, or
examine the accounts and records, of its predecessor TT
2. Resignation of TT
a. TT may resign IF
i. Trust permits
ii. Trust is silent, but establishes procedure for successor TT, OR
iii. w/ approval of Chancery
3. Removal of TT
a. Chancery may remove TT on its own or upon petition of T, co-TT, or beneficiary IF
i. TT committed breach of trust
ii. Lack of cooperation among co-TTs substantially impairs trust administration OR
iii. Court finds substantial change in circumstances, inability of TT to properly administer trust
property, hostility between TT and beneficiaries threatening trust admin
b. Upon appointment of new TT, all trust property is vested in new or succeeding TT w/o act or
deed
4. Spendthrift provisions
a. T may restrain beneficiarys ability to transfer his interest under trust
i. Any attempt by beneficieary to assign such an interst is void
ii. IF TT given discretion as to distributions, beneficieary or assignee/creditor cannot compel TT
to transfer property
iii. Income beneficiary may make written assignment of up to of income to charity
b. Spendthrif ineffective against
i. Support of spouse (child support unclear)
ii. Self-settled trustsT = beneficiary
5. Modification
a. By T: may retain right to modify revoke, trust name must say revocable
i. IF silent as to right irrevocable
ii. DE lawincorporation by reference allows pour over to trust revised after execution of will
b. By consent: of T and all beneficiaries
c. By courtmay direct/ permit TT to deviate from terms of trust if compliance would defeat or
substantially impair trusts purpose, amy terminate nad distribute property after written notice
E. Non-express trusts
1. Totten trustsavings acct trust
a. Title acct in your name for benefit of another
2. Resulting trust: court finding based on Ts presumed intent, very fact determinative
a. Express trust fails to dispose of entire interest in property
b. Express trust purpose satisfied; disposition of corpus unclear under trusts terms
3. Constructive trust
a. Equitable remedy in circumstances in which fuad or unjust enrichment have occurred
b. Simply moves title from person who possesses it to another who should
c. Does NOT turn on intent
4. Total return unitrust
a. DE code provides for conversion of an income trust to a total return unitrust
i. Unitrust amount computed as to % of trusts FMV
ii. Unitrust cannot be less than new income of trust and is limited to 3-5% , taking into account
various factors
b. Combines interest and remainder beneficiaries into one, get fixed % of trust corpus annually
i. Helps eliminate difficulty in allocating trust assets between income and long term growth
c. Approval:
i. TT who is not an interested TT may act w/o court approval, provided TT adopts written
policy and sends notice to certain parties
ii. Interested TT: may convert w/o court approval but in addition to above requirements, must
appoint a disinterested person to determine unitrust amount
iii. Any TT may petition Chancery for conversion
d. Limit on liability: TT or disinterested person actin in GF protected from liability, evan as to
persons who fail to receive written notice
F. Charitable TrustsBenefit to public at large
1. Charitable purpose: relief of poverty, advancement of education or religion, promotion of health
a. If purpose too limitednot charitable trust
2. Beneficiaries:
a. Cant have definite beneficiaries
b. Must convey significant benefit to community at large, cant be too narrowly defined
c. NOT subject to RAP
3. T can maintain action to enforce charitable trust and may designate a person to enforce the trust but
typically enforcement lies with AG
4. Split interests (charitable remainder) trust
a. Provide some benefit to specific beneficiary as well as charitable beneficiary
5. Cy Pres doctrine
a. DE has codified
b. If charitable purpose becomes unlawful, impracticable, impossible to achieve or wasteful
i. Chancer has power to modify or terminate the trust, and direct that trust property to be
distributed in a manner consistent with Ts charitable purposes
G. Other trusts
1. Asset protection trust
a. Statute allows Ts to transfer assets into an irrevocable trust to protect assets from future creditors
i. Exception to no spendthrift provision in self-settled trust
ii. Can shield asstes from creditors even if you are beneficiary w/ this device
b. Statutory requirements
i. T creates irrevocable trust under DE law
ii. At least one TT must be a DE resident individual or entity
iii. T may retain certain rights as to trust income and principal
iv. 4 year SOL as to creditor claim
v. Creditor protection N/A as to child support, alimony, property division pursuant to divorce,
forced heirs, or tort claims for injuries before creation of trust
2. DE statutory trustused by businesses
a. Unincorporated business association created pursuant to trust instrument, indwer which property
is managed or business activities for profit are carried on, by a TT for benefit of beneficiearies
b. Requirements
i. At least one TT must be DE resident or business
ii. Busienss and affaires of trust managed by TTs
iii. Beneficial owners have limited liability in share in proifts and losses of entire undivided
beneficial interest in same proportion as their ownership
iv. Trust has perpetual existence
v. DE trust law governs
vi. Trust files certificate of trust w/ Sec. of State
H. Trust Substitutes
1. Durable Power of Attorney
a. Permits principal (P) to give power of atty that becomes effective upon, but is not affected by, Ps
subsequent disability
i. Does not end at incapacitation
ii. Death of principal revokes power, but if in good faith w/o knowledge, action valid until
reasonable person would know you are dead
iii. Creates fiduciary duty of loyalty in attorney in fact
b. Rqmets
i. Must be written and contain certain language
ii. Atty in fact given preference by court if a guardian is appointed
iii. Death of P revokes the power when death is known
iv. Revocable by P if P is competent
v. If used to sell real estate, must be recorded
vi. Statute silent as to lapse of power
2. Durable Personal Power of Attorney
a. Overview: applies to any personal, non-commercial power of atty
i. Ensures P grants only intended authorities to A
ii. Individuals MUST use this law to create power of atty
b. Differences from commercial durable power
i. Distinguishes between As general authority and specific authority
ii. P must initial individually to grant authorities and powers
iii. Notice to P explaining the form and grant of authority
iv. A must execute an agent certification acknowledging scope of authority granted and
responsibilities
c. Agents certification
i. Need not be signed when POA is signed by P
ii. POA is effective even if agent hasnt signed
iii. Agent has no power under POA until he/she signs
iv. Signed certification and personal POA must be presented to 3
rd
party
3. Advanced health-care directive (i.e. living will)
a. Defined-written declaration directing medical treatment, or withdrawal thereof, if individual
becomes incompetent
b. Rqmts:
i. Written
ii. Signed and dated by person making declaration AND
iii. In presence of 2+ adult Ws who are NOT
Related to delcarant by blood, marriage or adoption;
Entitled to any portion of declarants estate
Person with direct financial responsibility for declarants medical care; or
Employee, owner, health care facility where delcarant is a patient or resident
c. Surrogate (agent) delcarant may appoint agent to accept or refuse medical treatment; if no one is
named, priorty given to family members in order
i. Spouse, unless petition of divorce filed
ii. Adult child
iii. Parent
iv. Adult sibling, adult grandchild, adult neice/nephew
d. Statute provides safeguards and gives HCP immunity from liabilitiy
e. Declarant may revoke
f. Copies of directive have same effect as original
4. Uniform transfers to minors act
a. Avoid need for creation of trust where transfer made to minors
b. Irrevocable and gives monor indefeasibly vested interest in title to custodial property
c. Custodian has fiduciary duty to invest property and expend it to minor and for minors use/
benefit
d. Accounting may be ordered by court upon petition of minor or his/her representative
5. Guardianship
a. Purpose: if no other provision made and person is incapacitated, guardianship may be established
upon petition to Chancery
b. May be separate guardians for person and property
c. Court will give preference to designation of guardian made by surviving parent in a writing or last
will
d. At 14, child can name own guardian