delaware wills and trusts

8/12/2019 Delaware Wills and Trusts

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WILLS

A. Generally1. Terms

a. Testator: person who has written will that is in effect at his time of deathb. Decedent: person who has diedc. Issue: persons children or other lineal, direct bloodline descendentsd. Devise: gift of real property

e. Bequest/ legacy: gift of personal property by willi. Legacy = $$, bequest = anything other than money

f. Inheritance: property recorded under laws of intestate descent and distributiong. Heir: one who acquires property under laws of intestateh. Per stirpes: by representation, equally

B. General Execution Issues1. Testamentary capacity

a. T is at least 18 years old and has sound and disposing mind and memory

b. Facts and circumstances analysisc. BoP on contester/ challengerd. Note: insane delusion: false belief in facts may only invalidate will in part

2. Execution formalitiesif exist, will presumed gooda. In writing and signed by testator

i. OR as directed by T in Ts presenceb. 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 signaturec. Self-proving: Can cure defect in signature requirement (substantial compliance)

i. T declares instrument is his/her willii. Ws make statement re: Ts age and capacityiii. 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 formalitiesb. 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 codicilii. By divorce: automatically removes grants in will ONLY! (not trust, etc.)iii. Conditional revocation: if Ts intent is cleariv. 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 referencea. Tangible personal property listeither in Ts handwriting or signed by T; created before OR after

willb. Pour-over will: T leaves property to trust created before/ after will or to be created at time of

deathc. Common law allowance: will may reference writing that exists at the time the will is executed

5. Future acts of independent significancea. Identity of beneficiariesper subsequent acts

C. Construction1. Testamentary Intent


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a. Rebuttable presumption as to Ts intentb. IF ambiguous, court decides

2. Fraud, undue influence, mistakea. If existswill denied probate or held ineffectiveb. Fraud: burden lies with contestant to prove

i. T deceived by, andii. relied upon,

iii. intentional misrep. of material factc. Mistake: if mistake as tolegal effectof Ts words, court will give effect to Ts intenti. IF mistake ofextrinsic fact, courts have refused to alter

d. Undue influencei. Contestant must prove

Susceptible testator

Opportunity to exert influence

Actual exertion of influence

Result demonstrating such effectii. 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 relationship special scrutinyi. 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 benefitii. If shown, burden shifts to proponent

D. Limits on Testation1. Spousal elective share

a. Statute: share = 1/3 of elective estate less transfers to surviving spouse by decedenti. Transfer to surviving spouse = jointly owned property; beneficial interest in trust; property

subject to power of appointment; insurance proceeds

ii. Personalmay be waivediii. Procedure: elect per chancery court petition w/in 6 months of letters, copy to personal

representativeiv. Spouse gets $7500 cash immediately, that is also subtracted from elective share

b. Marriage/ divorce after willi. Marriage: surviving spouse gets intestate shareii. 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 kidsiii. Posthumous children: same share as if living at time of Ts death

e. TOD (transfer on death) or POD (pay on death) transfersi. Permits transfer of property to named beneficiary upon death of account holderii. Multiple beneficiaries become tenants in commoniii. Revocable designationiv. Can designate trustv. NOT testamentary transfer (no probate)

f. Resulting trust: remedial device to effectuate Ts presumed intentg. Constructive trust: remedial device to prevent unjust enrichment


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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 childE. Intestate Descent and Distribution

1. Surviving spousea. Share determined based on whether there are also surviving children or parents of Db. No issue or parent entire estate

c. Surviving issue of D & spouse or parent of D

first $50K + balance + life estate in realtyd. Surviving issue not of spouse of estate + life estate in realty2. Other kin

a. Issue of D take on per stirpes basisb. No issue Ds parents take in equal sharesc. No issue, no parents surviving brothers and sisters in equal sharesd. No issue, no parents or issue of parents next of kin in equal shares

i. To determine next of king: count degrees of relationshipe. More than 1 heir tenants in common

3. Other Rulesa. Heir must survive D by 120 hours (5 days)b. Half-blood kin treated as whole bloodc. Debt owed to D charged against debtors shared. Children:

i. Adopted children treated as natural childii. No distinction between adoption of minor or adultiii. Illegitimate children treated as child of mother, father must be asserted (establish paternity) or

openly support child, otherwise cannot inheritiv. Posthumous heirstreated 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. Escheat1. Procedure:

a. State brings suit in court of chanceryb. Notice of hearing for claimants to file claimc. Court determinationescheat or distribution

2. Presumption of death: person absent from state for 7 consecutive years and no proof of life is made inhearing

3. Property dispositiona. Personalwrit to sheriff who seizes, obtains inventory and appraisal, and sells in public auctionb. Realty may lease, maintain, or sell at public auction, subject ot governors approval

G. Probate and Estate Administration1. Administration

a. Locate and value Ds assetsb. Pay Ds debts and administrative expensesc. Filing necessary tax returnsd. Distribute remaining estate

2. Proving the Will = STEP 1a. Admit to probate in county Register of Willsb. If D not domiciled in DEwill probated in any county where D had propertyc. Person with custody of will must deliver it to the Register w/in 10 days of learning of Ds deathd. Unless self-provedsignatures of Ws or T must be proven

i. Notice to interestesd persons not required UNLESS such person requests via petition to courte. Foreign willscomply with state of execution


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f. Caveatagainst allowance of will (prevent probate) may be filed at any time before the will isprovedi. Only can be filed by person w/ pecuniary interestii. 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 Chanceryi. 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 willi. Generally enforceable unless beneficiary is determined by court to prevailed substantially3. Appointment of Personal representative:

i. Responsible for administering estateii. Executor: person named in williii. Administrator: personal rep appointed by Register for an intestate decedentiv. Authority: letters testamentary or administration granted by Register of Wills

To get letters:o Petition Courto Give oath that will perform duties with honesty and integrity

v. Removal: by Chancery

vi. Resignation: petition Chanceryvii. Bond: only submitted if will or Court requires, or if demand by person w/ interest > $2K4. Administration of Estate under $30K

i. Priority in making affidavitspouse, grandparent, lineal descendants of grandparentii. Priority in receiptspouse, child, parent sibling, grandchild, grandparent, funeral directoriii. 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 2a. File inventory of estate assetsPR must file w/ register of wills w/in 3 months of grant of letters

i. PR must also file affidavit of diligent inquiryii. Value assets at FMV as of date of death

b. Actions affecting real estatePR must file notice of any action affecting Ds real estate w/registeri. Real estate deemed to pass at deathii. PR must also file death certificate w/ register in each county in which D had an interest in real

estateiii. Jointly-owned realtyPR or surviving joint tenant must file affidavit w/ Register in county of

propertys locationc. Creditors claimsi. Claim period: if D died on or after July 14, 1988, period is 8 months from date of deathii. 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 < $30,000iii. Claims presentedone 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


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Credit makes claim w/in claim period OR

Notice is presumedo Recorded mortgages and judgments which would be liens against Ds real estate at

time of deathv. Limits on post-death claims

If arose after death, claim barred unlesso Claim based on contract w/ PR filed w/in 6 months of performance due

o Any other claim w/in 6 months after arisesvi. No letters granted w/in 10 years claims of most creditors and other beneficial interests arebarred

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 passedby courti. Register may extend time; notifies court if estate inactive for 2 yearsii. Chancery enforces filing requirementiii. Notice given to beneficiaries when account filed; have 90 days to inspect and except to the

accountiv. Court considers all exceptions and, if non filed, approves accounting absent fraud, illegality or

breach of fiduciary obligationse. Disclaimer

i. Effect: treats disclaimant as having predeceased Dii. Who: any person, broadly definediii. Form:

In writing

Declare disclaimer and extent

Describe property interest

Signed

Delivery --timely filing rules of IRSiv. Disclaimer of portion: fractional share or any limited interest in estate in property, including

an interest limited by spendthrift provisionf. Investment responsibility

i. Standard: prudent person rule: what fiduciary knew or should have known at time of decisionre:

Inherent nature and expected performance

Attributes of portfolio

General economy

Needs and objectives of beneficiaries of the accountii. Based on who trustee ismore experience, higher standardiii. Fiduciary not liable for good faith reliance on instruments terms and/or investment advisor,

but still has duty to monitor


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6. Distributiona. Time for distribution

i. When: unless circumstances justify longer, PR has ONE YEAR from grant of letters to settleestate

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 interestii. To creditor: legacy not deemed in satisfaction of debt due from T unless will expressesotherwise

iii. In-kind distributions: if authorized, assets valued on date of distribution unless will statesotherwise

b. Decree of distributioni. 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. Ademptioni. 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 itemd. Abatement

i. Unless will expresses a contrary order, if estate insufficienty to meet bequests, estate isabated/ 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 classe. Anti-lapse statute

i. Applies: if legatee or devisee predeceases T and will fails to specify if bequest should go toissue

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 Tiii. 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 theypredecease you, the other two still take

f. Simultaneous deathi. Applies: situations in which title holders or beneficiaries die simultaneouslyii. 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 Tsurvived

Insurance: proceeds distributed as if insured survived beneficiaryg. Absentees; presumed decedents


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i. Rule: if death of a person is in issue, her/ his unexplained absence from the last knownresidence and not heard of for 7 years grounds for finding person died 7 years after last heardof

Exposure to peril: sufficient grounds

Federal missing persons act: if written finding, prima facie evidence of deathii. 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. Generally1. Terms

a. Trust: entity created to hold assets for benefit of ercatin persons or entities; managed by a trusteepursuant to trust instrument; created by a lifetime transfer or by willi. 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 lawd. Beneficiary: holds equitable title to trust property

2. Typesa. 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 enrichmentii. Resulting: remedial device to effectuate Ts presumed intent (e.g. when express trust fails)

B. Creation of Express Trust1. Required:

a. Execution requirements: as to its creation, modification, or revocation, trust VOID unlessi. In writing executed by Tii. Witnessed by at least 1 disinterested person OR 2 credible persons ORiii. 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 ofthe creation, modification, or revocation

iv. Tangible personal property list allowed

b. Capacity of T: no legal incapacityi. Testamentary trust: must have testamentary capacity

c. Intent: T must manifest present intent to create a trust/ fiduciary relationship; similar to creating awilli. T must intend that enforceable duties be imposed on TT to hold legal title to, and manage,

trust property for the benefit of the beneficiaryii. 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


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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 definitelygoing in at instant of death

If property held as tenants by the entirety put in intervivos revocable trust, treated liketenancy by entirety until death of 1st of the owners

e. Beneficiaries: w/ right to enforce duties imposed on TTi. Must be ascertainable at time of creation

ii. Class designation sufficient if ascertainable by some objective standardiii. 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 policyg. Trustee: trust will NOT fail for lack of trusteeh. Merger:

i. If trustee, beneficiary, and trustor = same person merger and no trust created

UNLESS revocable intervivos trust so long as have successor trustee and namedbeneficiaries

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 liabilityi. FREEDOM of DISPOSITION! Policy of this section to give maximum effect to theprinciple of freedom of disposition and to the enforceability of governing instruments .

b. Interpretation: Ts intent controls interpretation of documenti. Parol evidence admissible to prove trusts existence

C. Trust Administration1. Transfer of property to TT

a. Trust only effective as to property legally titled in TTs name; becomes non-probate2. Trustees powers

a. Delineated in trust instrument as well as those enumerated in statute, subject to fiduciary dutiesb. Sale ordered by court: unless contrary to trust terms, TT may petition Chancery to order ale of

real/ personal property in trustc. Incur reasonable expenses in trust administrationd. Unless allowed by trust terms, TT cannot encumber or lease trust propertye. Powers transfer to succeeding trustee

3. Dutiesa. 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 standardsiii. Duty to make property productive while preserving corpus

b. Duty of loyalty: TT obligated to administer trust property for the benefit of all beneficiaries, NOself dealing OR conflicts of interesti. Interested transaction voidable UNLESS

transaction entirely fair, and

beneficiary consented upon TTs full disclosure of termsc. Duty to segregate property: cant commingle trust assets with TTs personal assets or those of

another trusti. 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 beneficiariese. 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 yearsi. Inter vivos: TT need not file accounting except by court order


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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 dealingii. 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 reliefiii. Damages for breach

Damages restoring value of trust and distributions to what they would have been w/obreach OR

TTs profit from breachiv. Damages where no breach

TT accountable for any profit arising from trust administration, but not for los sin value orfailure to make a profit

v. Limitations period: 2 years from receipt of report disclosing facts constitution claim

IF no report 5 yearsvi. No liability IF beneficiary consent, release, or ratification unless improperly obtainedvii. Limit on personal liability

TT NOT personally liable on K entered into in TTs fiduciary capacity IF discloses suchcapacity

Not liable for debts, obligations incurred against property held in fiduciary capacity

IS liable for torts committed in trust administrationviii. Indemnification by trust

At common law, for any personal liability TT incurs w/ respect to acts w/in officialcapacityo N/A if acts outside of powers or intentional torto Exculpatory clauses construed strictly against TT

ix. Can have trust protector

Separately named person in trust document that keeps eye on trusteeo IF trust document orders TT to follow investment advisor, only liable for willful

misconductg. Limitation on action contesting validity of trust

i. Judicial proceeding to contest whether a trust was validly createdii. 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 andaddress, and beneficiary status

2 years after Ts death

If trust revocable and specifically referenced in Ts will, time in which petition for reviewof will can be filed OR

Date of persons right to contest was precluded by adjudication, consent or limitationh. Allocation between principal and income

i. Fiduciarys discretionary standard

If trust instrument provide standardtrust controls


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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 reasonablestandard

D. Modification, termination, failure of trust1. Failure of trustee

a. Trust will not fail due to no TT

b. Trust can provide for/designate successor TTsc. Chancer may appoint TT for limited purpose/ periodd. A successor TT (designated or appointed) is not obligated to inquire into acts/ omissions, or

examine the accounts and records, of its predecessor TT2. Resignation of TT

a. TT may resign IFi. Trust permitsii. Trust is silent, but establishes procedure for successor TT, ORiii. w/ approval of Chancery

3. Removal of TTa. Chancery may remove TT on its own or upon petition of T, co-TT, or beneficiary IF

i. TT committed breach of trustii. Lack of cooperation among co-TTs substantially impairs trust administration ORiii. Court finds substantial change in circumstances, inability of TT to properly administer trust

property, hostility between TT and beneficiaries threatening trust adminb. Upon appointment of new TT, all trust property is vested in new or succeeding TT w/o act or

deed4. Spendthrift provisions

a. T may restrain beneficiarys ability to transfer his interest under trusti. Any attempt by beneficieary to assign such an interst is voidii. 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 charityb. Spendthrif ineffective againsti. Support of spouse (child support unclear)ii. Self-settled trustsT = beneficiary

5. Modificationa. By T: may retain right to modify revoke, trust name must say revocable

i. IF silent as to right irrevocableii. DE lawincorporation by reference allows pour over to trust revised after execution of will

b. By consent: of T and all beneficiariesc. 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 trusts1. Totten trustsavings acct trust

a. Title acct in your name for benefit of another2. Resulting trust: court finding based on Ts presumed intent, very fact determinative

a. Express trust fails to dispose of entire interest in propertyb. Express trust purpose satisfied; disposition of corpus unclear under trusts terms

3. Constructive trusta. Equitable remedy in circumstances in which fuad or unjust enrichment have occurredb. Simply moves title from person who possesses it to another who shouldc. Does NOT turn on intent


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4. Total return unitrusta. DE code provides for conversion of an income trust to a total return unitrust

i. Unitrust amount computed as to % of trusts FMVii. Unitrust cannot be less than new income of trust and is limited to 3-5% , taking into account

various factorsb. 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 writtenpolicy and sends notice to certain parties

ii. Interested TT: may convert w/o court approval but in addition to above requirements, mustappoint a disinterested person to determine unitrust amount

iii. Any TT may petition Chancery for conversiond. Limit on liability: TT or disinterested person actin in GF protected from liability, evan as to

persons who fail to receive written noticeF. Charitable TrustsBenefit to public at large

1. Charitable purpose: relief of poverty, advancement of education or religion, promotion of healtha. If purpose too limitednot charitable trust

2. Beneficiaries:a. Cant have definite beneficiariesb. Must convey significant benefit to community at large, cant be too narrowly definedc. NOT subject to RAP

3. T can maintain action to enforce charitable trust and may designate a person to enforce the trust buttypically enforcement lies with AG

4. Split interests (charitable remainder) trusta. Provide some benefit to specific beneficiary as well as charitable beneficiary

5. Cy Pres doctrinea. DE has codifiedb. 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 bedistributed in a manner consistent with Ts charitable purposes

G. Other trusts1. Asset protection trust

a. Statute allows Ts to transfer assets into an irrevocable trust to protect assets fromfuture creditorsi. Exception to no spendthrift provision in self-settled trustii. Can shield asstes from creditors even if you are beneficiary w/ this device

b. Statutory requirementsi. T creates irrevocable trust under DE lawii. At least one TT must be a DE resident individual or entityiii. T may retain certain rights as to trust income and principaliv. 4 year SOL as to creditor claimv. Creditor protection N/A as to child support, alimony, property division pursuant to divorce,

forced heirs, or tort claims for injuries before creation of trust2. DE statutory trustused by businesses

a. Unincorporated business association created pursuant to trust instrument, indwer which propertyis managed or business activities for profit are carried on, by a TT for benefit of beneficiearies

b. Requirementsi. At least one TT must be DE resident or businessii. Busienss and affaires of trust managed by TTsiii. Beneficial owners have limited liability in share in proifts and losses of entire undivided

beneficial interest in same proportion as their ownership


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iv. Trust has perpetual existencev. DE trust law governsvi. Trust files certificate of trust w/ Sec. of State

H. Trust Substitutes1. Durable Power of Attorney

a. Permits principal (P) to give power of atty that becomes effective upon, but is not affected by, Pssubsequent disability

i. Does not end at incapacitationii. Death of principal revokes power, but if in good faith w/o knowledge, action valid untilreasonable person would know you are dead

iii. Creates fiduciary duty of loyalty in attorney in factb. Rqmets

i. Must be written and contain certain languageii. Atty in fact given preference by court if a guardian is appointediii. Death of P revokes the power when death is knowniv. Revocable by P if P is competentv. If used to sell real estate, must be recordedvi. Statute silent as to lapse of power

2. Durable Personal Power of Attorneya. Overview: applies to any personal, non-commercial power of atty

i. Ensures P grants only intended authorities to Aii. Individuals MUST use this law to create power of atty

b. Differences from commercial durable poweri. Distinguishes between As general authority and specific authorityii. P must initial individually to grant authorities and powersiii. Notice to P explaining the form and grant of authorityiv. A must execute an agent certification acknowledging scope of authority granted and

responsibilitiesc. Agents certification

i. Need not be signed when POA is signed by Pii. POA is effective even if agent hasnt signediii. Agent has no power under POA until he/she signsiv. Signed certification and personal POA must be presented to 3rd party

3. Advanced health-care directive (i.e. living will)a. Defined-written declaration directing medical treatment, or withdrawal thereof, if individual

becomes incompetentb. Rqmts:

i. Writtenii. Signed and dated by person making declaration ANDiii. 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 residentc. Surrogate (agent) delcarant may appoint agent to accept or refuse medical treatment; if no one is

named, priorty given to family members in orderi. Spouse, unless petition of divorce filedii. Adult childiii. Parentiv. Adult sibling, adult grandchild, adult neice/nephew


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d. Statute provides safeguards and gives HCP immunity from liabilitiye. Declarant may revokef. Copies of directive have same effect as original

4. Uniform transfers to minors acta. Avoid need for creation of trust where transfer made to minorsb. Irrevocable and gives monor indefeasibly vested interest in title to custodial propertyc. Custodian has fiduciary duty to invest property and expend it to minor and for minors use/

benefitd. Accounting may be ordered by court upon petition of minor or his/her representative5. Guardianship

a. Purpose: if no other provision made and person is incapacitated, guardianship may be establishedupon petition to Chancery

b. May be separate guardians for person and propertyc. Court will give preference to designation of guardian made by surviving parent in a writing or last

willd. At 14, child can name own guardian

delaware wills and trusts

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