In the Matter of Estate of Lila May Childres

• Court: Court of Chancery of Delaware
• Decided: August 2, 2021
• Docket: 2018-0462-PWG
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN THE MATTER OF THE ESTATE OF : C.A. No.: 2018-0462-PWG LILA MAY CHILDRES, deceased : 2020-0928-PWG : Register of Wills No: 16219

MASTER’S REPORT

Date Submitted: June 28, 2021 Draft Report: July 16, 2021 Final Report: August 2, 2021

Mitchell W. May, MAY & PERZA, P.A., Dover, Delaware, Attorney for Charisse S. Stanley

Rodney Lee Kirk, 4843 LeRoy Street, Rapid City, South Dakota, 57701, Pro Se

Cynthia Anne Goertz, n/k/a Cynthia Anne Kirk, 75 Greenview Drive, Dover, Delaware 19901, Pro Se

Kelli Childres Walton, 509 Sunnybrook Circle East, Ormond Beach, Florida 32174, Pro Se

GRIFFIN, Master Pending before me are four related estate matters – exceptions to inventory

and first accounting, exceptions to second accounting, petition for accurate

accounting, and petition to sell real estate to pay debts. Four siblings are

beneficiaries of their deceased mother’s estate. Exceptions to the estate inventory

and first accounting were filed jointly by a sister and brother. Exceptions to the

second accounting were filed by the sister who filed the first exceptions and

separately by another sister. The petition for accurate accounting was filed jointly

by the brother and sister who filed the first exceptions against a third sister, the

estate’s personal representative. Finally, the estate filed the petition to sell the

decedent’s real property to pay estate debts, including a large expenditure for

attorney’s fees, which is opposed by the brother and sister who filed the first

exceptions. The matters were consolidated for the purpose of trying them together.

The factual and procedural background in this report covers all of the matters but

findings in each matter are addressed separately below. I recommend that the Court

grant the exception to the inventory related to decedent’s coin collection and deny

the remaining exceptions to the inventory. I also recommend that the Court deny

the exceptions to the first and second accountings, and deny the petition for an

accurate accounting. Finally, I recommend that the Court grant the petition to sell

real estate to pay debts, and order that the real property and mobile home be sold

1 together and that the sister with a life estate be compensated proportionately for that

interest. This is a final report.1

I. Background2

Lila May Childres (“Decedent”) executed her Last Will and Testament

(“Will”) on August 20, 2014.3 In her Will, Decedent devised a life estate in her real

property located at 3514 Irish Hill Road, Magnolia, Delaware (“Property”) to her

daughter, Charisse Stanley (“Charisse”), with proceeds from any sale of the Property

by Charisse being shared equally by Decedent’s children – Rodney Kirk (“Rodney”),

Cynthia Kirk (“Cynthia”), Kelli Walton (“Kelli”), and Charisse. 4 Decedent devised

her residuary estate, including real and personal property, to Rodney, Cynthia, Kelli,

and Charisse, per capita.5 She appointed Charisse as executor of her estate

(“Estate”). 6 Decedent died on February 26, 2018.7

1 This report makes the same substantive findings and recommendations as my July 16, 2021 draft report. Exceptions were filed by Charisse Stanley requesting minor clarifications to the draft report and appropriate changes have been made in this final report. No other exceptions were filed. 2 I refer to Charisse Stanley and the Estate’s trial exhibits as “Est. Tr. Ex.” and Rodney Kirk and Cynthia Kirk’s trial exhibits as “Kirk Tr. Ex.” Citations to the trial transcript are noted as “Trial Tr.” 3 Est. Tr. Ex. A. 4 Id., ¶ 2. I use first names in pursuit of clarity and intend no familiarity or disrespect. 5 Id., ¶ 5. 6 Id., ¶ 7. I use “executor” and “personal representative” interchangeably in this report. 7 In re Lila May Childres, Kent County Register of Wills No. 16219 [hereinafter “ROW Action”], Docket Item (“D.I.”) 1.

2 On June 27, 2018, Rodney and Cynthia filed the Petition for an Accurate

Accounting (“Petition for Accounting”) claiming that Charisse had breached her

fiduciary duties as the personal representative and asking that she secure and account

for all of the Decedent’s assets which she controlled before and after Decedent’s

death.8 On August 14, 2018, Charisse filed an answer to the Petition for Accounting,

denying the claims.9 On August 30, 2018, Rodney and Cynthia filed a reply in

opposition to the answer, and Charisse moved to strike the reply on September 25,

2018. 10 The Court denied the motion to strike on November 2, 2018, 11 and on

November 9, 2018, Charisse filed another answer addressing new items of concern

contained in the reply. 12

On October 31, 2018, Rodney filed a motion claiming Charisse’s liability

because of her late production of the Will to the Kent County Register of Wills and,

on November 9, 2018, Charisse responded. 13 The parties initially agreed to engage

in mediation but, on May 1, 2019, Charisse advised the Court that mediation had not

8 In re Estate of Childres,, C.A. No. 2018-0462-PWG, [hereinafter “Pet. for Acct.”], D.I. 1. They asked that she provide proof of fire insurance on the Property. Id., at 4. 9 In her answer, Charisse noted that she never acted as an agent for Decedent through a power of attorney and that she would file an accounting within the required period. Id., D.I. 8. 10 Id., D.I. 9; Id., D.I. 10. 11 Id., D.I. 13. 12 Id., D.I. 14. 13 Id., D.I. 12; Id., D.I. 15.

3 occurred. 14 On May 8, 2019, Rodney and Cynthia filed a motion to compel

discovery, and Charisse responded to that motion on May 28, 2019.15 On July 30,

2019, Rodney and Cynthia filed a motion to grant relief on claims they filed against

the Estate, with Charisse providing a response on August 9, 2019.16 In addition,

Charisse filed a motion to compel discovery against Rodney and Cynthia on August

9, 2019.17 A hearing was held on the four outstanding motions on September 12,

2019, and the Court denied Rodney’s motion for production of the Will, and Rodney

and Cynthia’s motions to compel discovery and to grant relief on claims against the

Estate. 18 The Court granted Charisse’s motion to compel discovery, ordering that

Rodney and Cynthia comply with discovery requests for production of documents

and interrogatories within 30 days.19

On February 10, 2020, the parties participated in mediation, which was

unsuccessful. 20 On February 20, 2020, Rodney filed a motion to amend the Petition

for Accounting to add claims of embezzlement and fraud against Charisse and

14 Id., D.I. 17. Rodney and Cynthia separately confirmed that the mediation did not occur because they could not agree to the terms of the mediation set by the mediator. Id., D.I. 19. 15 Id., D.I. 20; Id., D.I. 24. 16 Id., D.I. 31; Id., D.I. 33. 17 Id., D.I. 34. 18 Id., D.I. 36. 19 Id. The Court, however, denied Charisse’s requests that Rodney and Cynthia pay her attorney’s fees related to all of the motions. Id. 20 Id., D.I. 43.

4 Decedent and to challenge the Will. 21 The Court denied the motion to amend as

futile on March 25, 2020.22

Charisse filed the Estate inventory (“Inventory”) on May 16, 2018, and the

first accounting for the Estate (“First Accounting”) on May 31, 2019. 23 On August

5, 2019, Rodney and Cynthia filed exceptions to the Inventory and, on August 9,

2019, they filed exceptions to the First Accounting. 24 Charisse responded to the

exceptions to the Inventory on September 4, 2019, and to the exceptions to the First

Accounting on September 9, 2019.25 Charisse filed the second accounting for the

Estate (“Second Accounting”) on April 24, 2020. 26 Cynthia filed exceptions to the

Second Accounting on July 21, 2020 and Kelli filed exceptions to the Second

Accounting on July 22, 2020.27 Charisse filed responses to both exceptions on

August 19, 2020.28

21 Id., D.I. 44. 22 Id., D.I. 47. 23 ROW Action, D.I. 3; Est. Tr. Ex. C. 24 ROW Action, D.I. 22; Id., D.I. 23. 25 Id., D.I. 24; Id., D.I. 25. At the September 12, 2019 hearing, the Court determined that there would be a joint hearing on the Petition for Accounting and on the Exceptions for the Inventory and First Accounting. Pet. for Acct., D.I. 36. 26 Est. Tr. Ex. D. 27 ROW Action, D.I. 27; Id., D.I. 28. 28 Id., D.I. 29; Id., D.I. 30. The third accounting for the Estate was filed on April 4, 2021 but was not at issue during trial. Id., D.I. 40.

5 On October 29, 2020, Charisse filed a Petition to sell the Property to Pay

Estate Debts (“Petition to Sell Property”). 29 She also filed a motion to consolidate

the Petitions for Accounting and to Sell Property on October 30, 2020. 30 On

November 20, 2020, having received no responses to the motion to consolidate, the

Court ordered the consolidation of the Petitions for Accounting and to Sell Property,

as well as the exceptions to the Inventory and First and Second Accountings, for the

purpose of trying the matters together but kept the cases separate. 31 On November

25, 2020, Rodney filed a motion to reject the Petition to Sell Property and, on

December 1, 2020, he moved to reject the motion for consolidation. 32 On December

1, 2020, Cynthia filed an answer to the Petition to Sell Property. 33 On December 7,

2020, Rodney filed a letter with the Court asking that the consolidation be rescinded

and objecting to the conduct of the trial remotely by Zoom. 34 On December 17,

2020, the Court considered the merits of Rodney’s untimely motion to reject

consolidation, and declined to rescind the consolidation of the matters for the limited

29 In re Estate of Childres, C.A. No. 2020-0928-PWG [hereinafter “Pet. to Sell Real Est.”], D.I. 1. 30 Id., D.I. 3. 31 Id., D.I. 4. 32 Id., D.I. 6; Id., D.I. 8. 33 Id., D.I. 9. 34 Id., D.I. 10.

6 purpose of trying them together.35 And, noting that Rodney did not provide specific

reasons for his objection to a remote hearing, the Court confirmed the hearing would

be conducted remotely unless the judicial emergency due to COVID-19 was no

longer in place and the proceeding could be conducted safely in the courthouse.36

A two-day trial on all of the matters was held by Zoom on May 19 and 20,

2021. On May 28, 2021, Charisse filed a statement detailing attorney’s fees and

costs incurred.37 Cynthia responded to the statement reiterating her position that the

attorney’s fees should be charged to Charisse and not the Estate, and Charisse replied

on June 28, 2021.38 On June 22, 2021, Charisse submitted an appraisal of

Decedent’s coin collection. 39

II. Analysis

Findings and recommendations regarding each matter are detailed separately

below.

A. Exceptions to the Inventory

35 Id., D.I. 11. 36 Id. 37 Pet. for Acct., D.I. 65. 38 Id., D.I. 66; Id., D.I. 71. 39 Pet. to Sell Real Est., D.I. 24.

7 Court of Chancery Rule 198 specifies the burden of proof in exceptions to an

inventory or accounting.40 Once exceptions are filed in compliance with Rule 198,

the burden of proof falls on the personal representative to demonstrate that the

inventory or accounting was properly prepared.41 Exceptions are addressed below.

1. Value of real estate: The Inventory lists the Property, including the 1987

mobile home, as real estate with a $50,000.00 value under Schedule A, and the

mobile home again, with a value of $20,000.00, as personal property under Schedule

E. 42 In their exceptions, Rodney and Cynthia contend that the $50,000.00 value for

the real property listed on the Inventory is not a true market value, 43 and provided a

desktop appraisal (“Desktop Appraisal”) valuing the Property at $165,000.00 as of

May 17, 2021. 44 They originally asserted that the mobile home is part of the real

40 Ct. Ch. R. 198. 41 In re Est. of Stepnowski, 2000 WL 713769, at *1 (Del. Ch. May 2, 2000) (this “burden of proof reflects the fact that the administrator of the estate stands in a fiduciary capacity to the beneficiaries”); see also In re Est. of Rich, 2013 WL 5966273, at *1 (Del. Ch. Oct. 29, 2013). 42 ROW Action, D.I. 3. 43 Id., D.I. 22; Id., D.I. 27. 44 Kirk Tr. Ex. A. The Desktop Appraisal was designated a “limited appraisal analysis” and prepared without an internal or external inspection of the Property. It was based on the presumption that the mobile home had been retired and was classified as real estate by the Kent County Assessor’s office. Id. In addition, the Property was valued as of May 17, 2021 and not February 26, 2018 (the date of Decedent’s death).

8 property but, at trial, Cynthia claimed the mobile home was personal property.45

Charisse originally argued that the mobile home on the Property was still titled

through the Division of Motor Vehicles (“DMV”) and, therefore, would be

considered personal property under Schedule E.46 But, at trial, she concluded that

selling the Property and the mobile home together would maximize the overall

value.47 She further claims that the Inventory states her “best guess” of the value of

the Property and the mobile home at the time the Inventory was filed, and that the

Inventory will be amended to reflect the accurate value of the Property, including

the mobile home, through the Estate’s final accounting after the Property is sold.48

The first issue is whether the mobile home on the Property is personal property

and should be listed on Schedule E or considered as part of the Property on Schedule

A. Delaware law requires that an estate inventory value each parcel of real estate

separately at its fair market value as of the date of death of the decedent.49

45 Cynthia originally argued there was no title for the mobile home at Division of Motor Vehicles and it was on permanent foundation. ROW Action, D.I. 27, at 3. At trial, she claimed the mobile home was not part of the Property. Trial Tr. 98:5-7; Trial Tr. 99:3-5. 46 ROW Action, D.I. 24, at 1. 47 Trial Tr. 326:18-327:10. 48 Trial Tr. 22:19-21; Trial Tr. 62:21-24; Trial Tr. 267:24-268:3. 49 12 Del. C. §1905(a).

9 In determining whether the mobile home is part of the real property, I focus

on the Kent County Property Information for the Property (“KCPI”), which denotes

the mobile home/improvement on the Property as a manufactured home and does

not designate it as subject to a Class C assessment or with a retired title.50 I am not

persuaded by the opinion of Charisse’s expert, Kevin Baird, Esquire, that the KCPI

shows that the mobile home had been converted into real property. 51 I interpret the

KCPI differently. In two separate places the KCPI designates the mobile home as a

“MANUF HM” improvement on the Property and does not use the alternate

designations of “MANUFCC,” (which the KCPI improvement key indicates means

that it is a “Manufactured Home Class C Assessment”), or “MNFHMRT” (which

the KCPI improvement key indicates means it is a “Manufactured Home Retired

Title,” and has become part of the real property with its title retired by DMV).52

Further, Charisse provided evidence of a DMV title to the mobile home that was

issued to Decedent and Dennis on October 19, 1987 and remains in Charisse’s

possession. 53 The evidence does not show that the mobile home has become part of

the real property. Therefore, the mobile home remains personal property of the

50 Est. Tr. Ex. K. 51 Trial Tr. 298:8-21. 52 Est. Tr. Ex. K. 53 ROW Action, D.I. 47, Est. Tr. Ex. Impeachment Ex. G. The title to a mobile home is typically returned to DMV when a mobile home is retired. See Trial Tr. 120:9-17.

10 Estate and should be listed in Schedule E of the Inventory. However, the

practicalities of the situation (including the difficulty, if not impossibility, of moving

an almost 35-year-old mobile home off of the Property in order to sell it) make it

appropriate that any sale of the mobile home should be made in conjunction with the

sale of the Property.

Second, I consider whether the Property was “valued at its fair market value

as of the date of death of the decedent” in the Inventory. Given the lack of evidence

before me concerning the value of the Property at the time of Decedent’s death, I

cannot infer, at this time, that the value of the Property on Schedule A is inaccurate,

although it may be undervalued. The Desktop Appraisal assigns a value of

$165,000.00 to the Property, including the mobile home, while the Inventory values

the Property as $50,000.00.54 The difference is substantial; however, the Desktop

Appraisal’s drawbacks – in particular, the absence of an inspection of the Property,

the inclusion of the mobile home’s value, and the focus on the Property’s current

value – limit its usefulness in determining the Property’s value at Decedent’s death

more than three years prior to the appraisal. Based on the evidence before me, I

decline to find that the Property’s value listed on the Inventory did not represent its

54 See Kirk Tr. Ex. A; ROW Action, D.I. 3. 11 fair market value at Decedent’s death. 55 Therefore, I recommend that the Court deny

the exception claiming the value of the Property on the Inventory is inaccurate.

2. Stocks and bonds: The Inventory lists no stocks or bonds on Schedule B.56

Rodney and Cynthia claim that there should be stocks and bonds.57 Charisse testified

that Decedent owned no stocks or bonds at her death.58 At trial, Rodney and Cynthia

presented no proof that Decedent owned any stocks or bonds at her death. I

recommend that the Court deny this exception.

3. Money in banks and owed to Decedent, gold bars: The Inventory lists no

mortgages, notes or cash, including money in banks or owed to Decedent, in

Schedule C. 59 Rodney and Cynthia claim that Decedent had significant amounts of

money in accounts at Discover Bank, Tyndall Federal Credit Union and Dover

Federal Credit Union (“DFCU”) at her death, and that Charisse owed Decedent

money.60 Charisse contends that Decedent did not have any mortgages, notes, gold

bars, or cash at the time of her death and that Decedent’s accounts in Discover Bank,

55 Since the Estate’s administration will not be completed until after the sale of the Property to pay Estate debts (as discussed below), Charisse has the opportunity to amend the Inventory, if needed, to reflect the fair market value of the Property and the mobile home prior to the closing of the Estate. 56 ROW Action, D.I. 3. 57 Id., D.I. 22; Id., D.I. 27, at 3. 58 Trial Tr. 24:6-8. 59 ROW Action, D.I. 3. 60 Id., D.I. 22; Id., D.I. 27, at 3.

12 Tyndall Federal Credit Union, and DFCU had named beneficiaries that were payable

on death (“POD”).61 The evidence shows that the three accounts had named POD

beneficiaries, so the money in those accounts passed to the beneficiaries outside of

the Estate.62 And, at trial, Rodney and Cynthia presented no evidence that Decedent

had other cash, money in her banks accounts not accounted for, or monies owed to

her. I recommend that the Court deny this exception.

4. Jointly owned property: The Inventory lists no jointly owned property on

Schedule D.63 Rodney and Cynthia argue that Decedent jointly owned the Property

and the DFCU account with Dennis Childres (“Dennis”), her deceased husband. 64

Charisse responds that the Property and the DFCU account were jointly owned by

Decedent and Dennis, but passed to her by operation of law upon his death on

February 17, 2008. 65 Dennis’ name may have remained on the deed to the Property

61 Id., D.I. 24; Trial Tr. 25:12-26:17; Trial Tr. 50:8-17. 62 See Est. Tr. Exs. L, M, N; 12 Del. C. §1901(c) (“If, under the terms of any . . . contract [such as a bank account], . . . a person . . . other than the decedent or the decedent’s estate’s personal representative, is designated to receive, upon or after the death of the decedent, any property or other death benefit, such property or death benefit shall not be included in the inventory of the decedent as chargeable to the decedent’s personal representative”). 63 ROW Action, D.I. 3. 64 Id., D.I. 22. Cynthia questions the validity of the account ownership and designations form, executed on October 11, 2016, adding Charisse as a joint owner and POD beneficiary of the DFCU account since the form does not include Dennis’ name. Id., D.I. 27. Charisse placed a letter from a DFCU employee into evidence confirming that Charisse was the sole POD beneficiary of that account from October 11, 2016 until the account was closed. Est. Tr. Ex. L. 65 ROW Action, D.I. 24.

13 and on the DFCU account after his death, but legal ownership of the jointly owned

Property and DFCU account passed to Decedent when Dennis died, so Decedent

was sole owner of both at the time of her death.66 I recommend that the Court deny

this exception.

5. Miscellaneous property: The Inventory lists the mobile home (valued at

$20,000.00), a car (valued at $8,000.00), and household furniture and appliances,

paintings, jewelry box, riding lawn mower, and outdoor furniture and tools, totaling

$34,650.00, on Schedule E.67 Rodney and Cynthia argue that the car should not be

included because it is a liability, not an asset, of the Estate; life insurance should

have been included on the Inventory; other items, including jewelry, watch, doll and

coin collections, china, sterling silverware, and flea market stock, were not included;

and all items should have been valued by an appraiser.68 Charisse counters that

Decedent’s car was repossessed and the remaining amount owed on the car loan is

66 “It is well settled in Delaware that the title to real estate descends to the heirs or vests in the devisees immediately upon the death of the testator subject to be divested if it be necessary to sell it for the payment of debts of the deceased.” In re Est. of Morrell, 1995 WL 783075, at *4 (Del. Ch. Dec. 26, 1995)) (citation omitted); see also Dixon v. Joyner, 2014 WL 3495904, at *4 (Del. Ch. July 14, 2014) (“title to real property passes by operation of law upon an owner’s death”). There is no evidence that Decedent’s interest in the Property was divested after Dennis’ death. And Dennis and Decedent’s joint bank account would have passed directly to Decedent on his death. See In re Est. of Kelter, 1994 WL 698634, at *5 (Del. Ch. Sept. 19, 1994). Further, Dennis’ Last Will and Testament, dated May 3, 1996, devised all of his real and personal property and estate to Decedent. Kirk Tr. Ex. E. 67 ROW Action, D.I. 3. 68 Id., D.I. 22; Id., D.I. 27, at 4.

14 $4,444.17, as reflected in the August 7, 2018 claim filed by Wells Fargo Bank

against the Estate.69 She states that the elimination of the car’s $8,000.00 value was

addressed through the first accounting and the remaining car loan debt will be

addressed in the final accounting.70 Charisse further responds that any life insurance

owned by Decedent had named beneficiaries and are not Estate assets, and denies

that Decedent had jewelry other than costume jewelry at the time of her death, or

other personal property not accounted for, or that she is required to obtain formal

appraisals of Estate property.71 Charisse submitted into evidence a complete list of

Decedent’s personal property, which she indicated she has retained, except for

Decedent’s clothes. 72

(a) Coin Collection: Rodney and Cynthia claim Decedent’s coin

collection is Estate property, while Charisse contends Decedent gave her the coin

collection to hold to give to Decedent’s grandchildren.

“Under Delaware law, to enforce an inter vivos gift, the plaintiff must

establish (1) an intent, manifested by the donor, to make a gift, and (2) an actual or

69 Ext. Tr. Ex. G. Charisse testified that she surrendered Decedent’s 2016 Kia Soul to Wells Fargo Bank because of the $13,000.00 outstanding loan on the car, which exceeded the car’s value by approximately $5,000.00. Trial Tr. 30:17-31:10. 70 ROW Action, D.I. 24, at 2. 71 Id. 72 Est. Tr. Ex. J; Trial Tr. 46:22-47:5; Trial Tr. 49:13-50.

15 constructive delivery of the subject of the gift to the donee.” 73 “A gift causa

mortis is usually defined as a gift of personal property made in expectation of the

donor’s death but which may be revoked by [her], upon condition that the donee

shall be entitled to the property if the donor dies as expected and the donee survives

[her].”74 “[T]here must be an actual or constructive delivery of the property to the

donee, in order for a gift inter vivos or causa mortis to be valid and effective.”75

“[D]elivery must occur during the donor’s lifetime.” 76 “The donee has the burden

of establishing, by clear and convincing evidence, all facts essential to the validity

of a purported gift.”77

73 Honaker v. Est. of Haas, 2013 WL 1459196, at *2 (Del. Ch. Apr. 11, 2013); see also Bothe v. Dennie, 324 A.2d 784, 787 (Del. Super. 1974); Coladonato v. Watkins, 2007 WL 1874760, at *12 (Del. Super. June 5, 2007) (“The essential elements of a gift inter vivos seem to be a donor competent to make it; freedom of will on his or her part; an intention to make it; a donee capable of taking the gift; the gift must be complete and nothing left undone; the property must be delivered by the donor and accepted by the donee; the gift must go into immediate and absolute effect, must be gratuitous and irrevocable.”) (citations omitted). 74 Coladonato, 2007 WL 1874760, at *12 (citing Hill v. Baker, 102 A.2d 923, 926 (Del. Super. 1953). See also Conforti v. Ignudo, 1981 WL 318276, at *3 (Del. Ch. July 27, 1981) (“A gift causa mortis is the transfer of property made with a view of impending death.”); Trout v. Farmers’ Tr. Co. of Newark, 168 A. 208, 210 (Del. Ch. 1933) (“[T]here are certain necessary requisites for the validity of [a gift causa mortis]. The first and probably the most important of these is that it must be made in ‘peril of death.’”). 75 Coladonato, 2007 WL 1874760, at *12 (citing Hill, 102 A.2d at 926); see also Trout, 168 A. at 210 (for a gift causa mortis, “actual delivery of the property must be made”). 76 Bothe, 324 A.2d at 787; see also Conforti, 1981 WL 318276, at *3 (“Like a gift inter vivos, a gift causa mortis must be delivered to the donee prior to death.”). 77 Est. of Reed ex rel. Reed v. Grandelli, 2015 WL 1778073, at *3 (Del. Ch. Apr. 17, 2015).

16 Charisse testified that Decedent, prior to her death, asked Charisse to give the

coin collection to her grandchildren after she passed. 78 Charisse admitted that she

did not notify the grandchildren about the gift or take steps towards delivering the

gift to the grandchildren. 79 The evidence does not clearly show whether the gift was

intended as a inter vivos gift or a gift causa mortis, which was revocable by Decedent

during her lifetime. Regardless, for either an inter vivos gift or a gift causa mortis,

there must be delivery to the donee(s) during the donor’s lifetime for the gift to be

valid. Here, the evidence is insufficient to show actual or constructive delivery of

the coin collection to the donees – Decedent’s grandchildren – during Decedent’s

lifetime. The grandchildren had no knowledge of the gift. The gift’s validity has

not been established by clear and convincing evidence, and I find that the gift is

ineffective. The coin collection is Estate property and must be included in the

Inventory.80

(b) Other: With regard to Decedent’s car, circumstances that occurred

after the Inventory was filed (the car was surrendered to the bank holding the car

loan) have eliminated Decedent’s car as an asset of the Estate, and its elimination

has been addressed through the First Accounting.81 The remaining car loan debt will

78 Trial Tr. 47:20-21; Trial Tr. 142:24-143:1; see also Est. Tr. Ex. I. 79 Trial Tr. 143:5-14. 80 The value of the coin collection was appraised at $823.10. Pet. to Sell Real Est., D.I. 24. 81 Trial Tr. 30:17-31:18; Trial Tr. 36:18-37:3; Est. Tr. Ex. C.

17 need to be satisfied prior to the closing of the Estate, and the debt accounted for in

the final accounting. 82 In addition, payouts on Decedent’s life insurance policies

typically pass outside of the estate directly to the named beneficiary.83 With regard

to the allegations of missing property, the evidence shows that the Estate property

that Rodney and Cynthia claim are missing was either included on the supplemental

Estate list provided during trial (such as silverware and some dolls), 84 or Charisse

testified that Decedent had sold or given away the property prior to her death (such

as the flea market stock and personal jewelry to family members).85 And, Estate

property may be appraised, but so long as the item’s fair market value in the

inventory is not subject to reasonable doubt (and keeping in mind the cost of

82 As indicated by Mr. Baird, a personal representative frequently negotiates with the bank to reduce the amount owed. Trial Tr. 294:15-18. Once the final amount owed is determined and paid, then the claimant files a satisfaction to its claim against the Estate with the Register of Wills. Trial Tr. 294:18-20. It is anticipated that Charisse will try to negotiate with Wells Fargo Bank concerning the remaining car loan amount due. 83 See In re Est. of Bernstein, 17 A.3d 1172, 1175, n. 7 (Del. Ch. 2011) (“Life insurance proceeds are not part of the testamentary estate, and therefore do not pass through the testamentary estate, unless made payable to the estate.”) (citations omitted), aff’d, 31 A.3d 76 (Del. 2011) (TABLE); In re Est. of Kelter, 1994 WL 698634, at *5 (Del. Ch. Sept. 19, 1994) (“insurance policies . . . pass outside the estate directly to the named beneficiary”). Charisse testified that she was the named beneficiary on two of Decedent’s life insurance policies and a cousin on another. Trial Tr. 26:19-27:8. 84 See Est. Tr. Ex. J. 85 Trial Tr. 205:4-11; Trial Tr. 206:10-22; Trial Tr. 208:6-14.

18 obtaining an appraisal as compared to the value of the property in dispute), there is

no requirement that appraisals be obtained for all property. 86

In summary, I recommend that the Court grant the exception regarding

Decedent’s coin collection and require that Schedule E of the Inventory be amended

to include the coin collection as an Estate asset prior to the closing of the Estate

(through the final accounting/amendment to the Inventory). I recommend that the

Court deny the remaining exceptions to the Inventory.

B. Exceptions to the First Accounting

1. Breach of Fiduciary Duty: In their exceptions to the First Accounting,

Rodney and Cynthia claim that Charisse acted in her own self-interest as personal

representative and request that, because of her self-dealing, Charisse be required to

produce all documents and receipts related to Estate matters.87 “The [personal

representative]’s duty is to carry out the wishes of the decedent as expressed in the

will.” 88 “The Personal Representative has a duty of loyalty requiring [her] to act, at

all times, in the best interests of the estate.” 89 And, “[t]he Personal Representative

86 See 12 Del. C. §1904 (“[t]he personal representative may employ 1 or more qualified and disinterested appraisers to assist in ascertaining the fair market value as of the date of the decedent’s death of any asset the value of which may be subject to reasonable doubt.”) (emphasis added). 87 ROW Action, D.I. 23, at 3. 88 In re Est. of Reichert, 2001 WL 1398579, at *2 (Del. Ch. Oct. 31, 2001). 89 Est. of Chambers, 2020 WL 3173032, at *2 (Del. Ch. June 12, 2020) (internal quotation marks and citation omitted).

19 is held only to a standard of ‘ordinary care, prudence, skill and diligence’ [in her]

duties.”90 There is no evidence of self-dealing by Charisse, or that she has failed to

act with ordinary care, prudence, skill and diligence in fulfilling her duties as

personal representative. I find that she has provided sufficient supporting

documentation of Estate matters. 91 Accordingly, I do not find that Charisse has

breached her fiduciary duty.

2. Funeral Expenses: The First Accounting lists $9,218.40 in funeral

expenses as an obligation of the Estate. 92 Rodney and Cynthia contest the inclusion

of the funeral expenses as an obligation of the Estate in the First Accounting and

assert that there were life insurance policies to pay those expenses.93 Charisse

responds that she paid Decedent’s funeral expenses from her personal funds and

seeks reimbursement from the Estate for those expenditures.94 The Will provides

that Decedent’s funeral expenses “shall be paid out of my residuary estate, without

apportionment and with no right of reimbursement from any recipient of any such

90 Id. (citations omitted). 91 See Est. Tr. Exs. H-J. 92 Est. Tr. Ex. C. 93 ROW Action, D.I. 23; Id., D.I. 27, at 5. 94 Id., D.I. 25. Charisse testified that she used funds from two of Decedent’s life insurance policies payable to her as the named beneficiary to pay the funeral expenses. Trial Tr. 37:7- 22; Trial Tr. 42:14-23. Charisse assigned $6,300.00, out of a total of $6,355.68, in one of the policy’s proceeds to the funeral home for Decedent’s funeral expenses. See Est. Tr. Ex. F.

20 property.”95 It obligates the Estate to pay Decedent’s funeral expenses from the

residuary estate and protects recipients of Estate property by preventing them from

being required to pay any of the funeral expenses or to return Estate property they

have already received to pay those costs. 96 In addition, funeral expenses are

statutorily authorized claims against an estate.97 I find that Decedent’s funeral

expenses are properly charged against the Estate and that Charisse may seek

reimbursement from the Estate for personal funds she spent on funeral expenses. I

3. Decedent’s Car: The First Accounting lists the $8,000.00 value of the

Decedent’s car included on the Inventory as a debt against the Estate because the car

was surrendered. 98 Rodney and Cynthia argue that the Decedent’s car was valued

as an asset on the Inventory and its return was Charisse’s decision and should not be

95 Est. Tr. Ex. A, ¶ 1. 96 Rodney alleges that the language “with no right of reimbursement from any recipient of any such property” precludes reimbursement to Charisse for her payment of the funeral expenses. Trial Tr. 58:15-20. For that interpretation to apply, the prohibition on reimbursement would need to be “to” any property recipient, not “from” them. 97 12 Del. C. §2105(2). See also In re Est. of Sexton, 2007 WL 2303915, at *4 (Del. Ch. Aug. 8, 2007) (alterations in original) (“The funeral of a deceased person is a work of necessity, as well as of charity and piety. It is the duty of an executor or administrator to bury the deceased in a manner suitable to his degree and the circumstances of the estate; and if this duty is performed by the personal representative, . . . the law implies a promise of reimbursement out of the assets of the estate for the reasonable expenses incurred and paid[.]” (quoting Smolka v. James T. Chandler & Son, Inc., 20 A.2d 131, 133-34 (Del. 1941))). 98 Est. Tr. Ex. C.

21 assessed against the Estate. 99 Charisse explains that the amount of the car loan

exceeded its value when it was surrendered, leaving an additional $4,444.17 due on

the loan. 100 In the First Accounting, she included the car’s value as an $8,000.00

Estate debt. 101 As discussed related to exceptions to the Inventory above, when the

car was surrendered, it was no longer an Estate asset and the First Accounting

excluded the value of the car from consideration as an Estate asset. I recommend

that the Court deny this exception.

4. Attorney’s fees: The First Accounting includes $12,088.00 in attorney’s

fees as expenses of the Estate.102 Rodney and Cynthia claim that the attorney’s fees

should not be charged to the Estate because the Estate attorney acted in an untimely

manner, was hired by Charisse without their approval, and worked on Charisse’s

behalf.103 Charisse replies that she is not obligated to consult with the beneficiaries

before hiring an attorney, and that she only hired a lawyer after Rodney and Cynthia

filed the Petition for Accounting, and the legal fees were incurred because of Rodney

and Cynthia’s “frivolous” filings.104 Since exceptions were filed regarding

99 ROW Action, D.I. 23, at 3. 100 Id., D.I. 25. 101 Est. Tr. Ex. C. 102 Id. 103 ROW Action, D.I. 23. 104 Id., D.I. 25.

22 additional attorney’s fees included in the Second Accounting, all attorney’s fees

exceptions are addressed in the exceptions to the Second Accounting below. 105

C. Exceptions to the Second Accounting 106

1. Attorney’s fees: The Second Accounting includes $13,156.00 in additional

attorney’s fees as expenses of the Estate. 107 In her exceptions, Cynthia claims that

Charisse hired the Estate attorney for her own interests, and that the fees are

unreasonable.108 Charisse asserts that the substantial legal fees are the result of

105 Est. Tr. Ex. D. 106 Kelli filed exceptions to the Second Accounting but failed to appear at trial to pursue her exceptions. Kelli’s exceptions questioned: (1) Decedent’s funeral expenses, (2) value of Decedent’s car, (3) attorney’s fees, (4) missing monies in Decedent’s bank accounts, and (5) cable and electric charges to the Estate. ROW Action, D.I. 28. With regard to Kelli’s exceptions regarding funeral expenses and the value of Decedent’s car, those expenses were addressed in the First Accounting. Est. Tr. Ex. C. Exceptions to those expenses needed to have been filed within three months of the date that notice of the First Accounting was sent out. See 12 Del. C. §2302(b). Kelli filed her exceptions more than a year after notices were sent out, so those exceptions were untimely. Similar exceptions, however, are considered, and denied, as part of Rodney and Cynthia’s exceptions to the First Accounting. Exceptions regarding attorney’s fees in the First and Second Accountings are addressed in this report, and are denied. Finally, Kelli’s claims objecting to payment of cable and electric charges by the Estate were also untimely, but are addressed in this report as a part of Cynthia’s similar (and also untimely) exceptions to the Second Accounting. Accordingly, even if Kelli had appeared to pursue her exceptions at trial, they would have been denied. 107 Est. Tr. Ex. D. 108 ROW Action, D.I. 27, at 2. Cynthia also contends that the Court denied Charisse’s attorney’s fees in the September 12, 2019 hearing so her attorney’s fees cannot be included as Estate expenses in the accountings. Id., at 1. At that hearing, the Court did not declare that Charisse’s attorney’s fees would not be paid by the Estate but, instead, declined to award attorney’s fees to Charisse (to be paid by Rodney and Cynthia) related to the motions at issue. Pet. for Acct., D.I. 36. Because attorney’s fees were included in the First Accounting, Cynthia also disagrees with the Second Accounting’s calculation of $5,551.21 as the total probate assets remaining after the First Accounting. ROW Action, D.I. 27, at 23 Rodney and Cynthia’s numerous “frivolous” filings and are an “unfortunate”

expense of the Estate. 109

The general rule is that “fees paid to the attorney for the personal

representative are considered an expense of the estate.”110 “The rational[e] behind

this rule is that the personal representative and his or her attorney is providing a

service to the estate and its beneficiaries by properly and efficiently administering

the estate.” 111 If a personal representative breaches her fiduciary duty, she may be

found to be acting in her own best interest rather than to benefit the estate, and

ordered to pay her own attorney’s fees. 112 As discussed above, there is no evidence

that Charisse breached her fiduciary duty or that the attorney’s services were not

benefitting the Estate. It is appropriate that Charisse’s attorney’s fees be charged to

the Estate. However, “the Personal Representative still bears the burden of proving

the attorneys’ fees and expenses were relevant, reasonable, and timely.”113

1. As stated on the ROW accounting form, the figure listed on the Second Accounting as total probate assets after First Accounting must match the ending balance of assets on the First Accounting, and $5,551.21 complies with that requirement, since that is the amount listed as the ending balance on the First Accounting. Est. Tr. Exs. C, D. 109 ROW Action, D.I. 29, at 2. 110 Est. of Chambers, 2020 WL 3173032, at *3 (Del. Ch. June 12, 2020) (citing In re Est. of Pusey, 1997 WL 311503, at *3 (Del. Ch. May 23, 1997)). 111 Id. 112 In re Est. of Rose, 2019 WL 2996887, at *7 (Del. Ch. July 9, 2019). 113 Est. of Chambers, 2020 WL 3173032, at *3.

24 At first blush, the attorney’s fees charged to the Estate, including related to

the First Accounting, are very high when considered in relation to the size of

the Estate.114 The difficulty is that there have been multiple, highly litigious disputes

involving the Estate, most of which were not initiated by the Estate. The disputes

have extended over a three-year period. Except for the Petition to Sell Property and

three motions, the actions and the multiple motions were filed by Charisse’s

siblings. 115 Charisse’s attorney’s fees were incurred, in large part, responding to

those filings and related to regular estate administration duties. The attorney’s fees

and costs were relevant to Estate administration and incurred by Charisse in her

fiduciary capacity. The attorney provided a service to the Estate by permitting its

administration to proceed. It would be inequitable to assess attorney’s fees against

Charisse when those fees were incurred in furtherance of her duties as personal

representative. Further, Charisse has presented sufficient documentation of the

attorney’s fees and costs incurred.116 Neither Rodney nor Cynthia pointed to any

114 The Inventory shows the Estate’s total value as $84,650.00, including $50,000.00 in real estate and $34,650.00 in the personal estate. See ROW Action, D.I. 3. 115 In the Petition for Accounting action, the Estate filed a September 25, 2018 motion to strike Rodney and Cynthia’s reply in opposition to the answer, which was denied; an August 9, 2018 motion to compel discovery, which was granted; and an October 30, 2020 motion for consolidation, which was granted. See Pet. for Acct., D.I. 10; Id., D.I. 34; Id., D.I. 48. 116 I recognize the Estate attorney and/or paralegal spent significant amounts of time on preparing and responding to various motions and other aspects of the litigation. See Pet. for Acct., D.I. 65. I note that the attorney discounted his hourly rate from $350.00 to $245.00, and his paralegal’s hourly rate from $100.00 to $70.00. Id. To determine the 25 specific attorney’s fees that were unnecessary or unreasonable. Attorney’s fees and

costs included in the First and Second Accountings were properly charged to the

estate. I recommend that the Court deny these exceptions.

2. Cable and electric charges: Cynthia, in her exceptions to the Second

Accounting, objected to the cable and electric charges included as debts to the Estate

since Charisse resided with Decedent on the Property. 117 Charges of $195.07 (cable)

and $129.27 (electric) were included as debts of the Estate in the First Accounting.118

Although this exception is untimely,119 for purposes of completeness, I address it.

Charisse testified that the cable and electric charges were incurred during Decedent’s

lifetime and that she has paid all subsequent house-related costs personally.120 I find

these charges are properly paid by the Estate and recommend that the Court deny

reasonableness of amounts of attorney’s fees sought, the Court is not required “to assess independently whether counsel appropriately pursued and charged for a particular motion, line of argument, area of discovery, or other litigation tactic.” Danenberg v. Fitracks, Inc., 58 A.3d 991, 997 (Del. Ch. 2012). “For a Court to second-guess, on a hindsight basis, an attorney’s judgment . . . is hazardous and should whenever possible be avoided.” Id. (omission in original) (citation omitted). 117 ROW Action, D.I. 27, at 5. 118 Est. Tr. Ex. C. 119 This exception was filed on July 21, 2020, more than a year after notice of the filing of the First Accounting was sent out on May 31, 2019. Est. Tr. Ex. C. Exceptions need to be filed within three months of the date that notice is sent out. 12 Del. C. §2302(b). 120 Trial Tr. 36:1-10.

26 3. Other: Cynthia disagrees with the Second Accounting’s calculation of

$5,551.21 as the total probate assets remaining after the First Accounting. 121 The

figure on the Second Accounting listed as “Total Probate Assets after First

Accounting” must match the ending balance of assets on the First Accounting and

$5,551.21 is the amount listed as the ending balance on the First Accounting.122

And Cynthia questions the authenticity of the Will.123 Charisse responds that

any claim regarding the validity of the Will is untimely, since the exceptions were

filed on July 21, 2020 and the Will was admitted to probate on April 13, 2018.124

Delaware law provides that a will contest must be filed within six months after the

Will was admitted to probate, so Cynthia’s claim regarding the Will’s validity is

untimely and cannot be considered here.125

Cynthia also alleges Decedent was subject to undue influence by Charisse,

claiming Decedent was missing “thousands of dollars from her back accounts” after

121 ROW Action, D.I. 27, at 1. 122 Est. Tr. Exs. C, D. 123 ROW Action, D.I. 27, at 5. 124 Id., D.I. 29, at 3. 125 See 12 Del. C. §1309(a); Moore v. Graybeal, 1989 WL 17430, at *4 (Del. Ch. Feb. 24, 1989), (“[S]tatutes [limiting the time for challenging a will] are strictly construed.”) aff’d, 567 A.2d 422 (Del. 1989) (TABLE). Further, since the Will’s validity was not addressed as a part of the Second Accounting, such a claim is not properly brought as an exception to an accounting. See 12 Del. C. §2302(d).

27 Charisse moved in with Decedent.126 Charisse denies that she exerted undue

influence over Decedent or that Decedent was missing money because of her. 127 It

is not clear if Cynthia’s undue influence claim relates to specific actions taken by

Decedent. However, claims challenging inter vivos gifting or testamentary capacity

because of undue influence are evaluated based upon: “(1) the susceptibility of the

donor [or testator] to undue influence, (2) the opportunity to exert undue influence,

(3) disposition or motive to do so for an improper purpose, (4) actual exertion of

undue influence, and (5) a result demonstrating its effect.” 128 Here, there is no

evidence to support Cynthia’s undue influence claim. It is undisputed that Decedent

wanted to help Charisse. 129 Charisse responds that she also wanted to help Decedent

by providing support and companionship.130 Further, a claim of undue influence is

not properly brought as an exception to the Second Accounting. 131 I recommend

that the Court deny these exceptions.

D. Petition for Accurate Accounting

126 ROW Action, D.I. 27, at 6. 127 Id., D.I. 29, at 3-4. 128 Minieri v. Bennett, 2013 WL 6113911, at *12 (Del. Ch. Nov. 13, 2013); see also In re Estate of W., 522 A.2d 1256, 1264 (Del. 1987); In re Will of Cauffiel, 2009 WL 5247495, at *7 (Del. Ch. Dec. 31, 2009). 129 ROW Action, D.I. 27, at 6; Id., D.I. 29, at 4. 130 Id., D.I. 29, at 4. 131 The Second Accounting does not address, or refer to, any undue influence claim. See 12 Del. C. §2302(d).

28 Rodney and Cynthia filed the Petition for Accounting on June 27, 2018.132

They claim Charisse failed in her duties as personal representative because she failed

to provide information to the siblings, including death certificates or copies of the

Will, and information about Decedent’s bank accounts and balances. 133 They also

allege she failed to coordinate Decedent’s burial date with them, call them personally

before posting death and burial information online, obtain an appraisal of the

Property, and produce the Will in compliance with Delaware law.134 In addition,

they contend Charisse submitted an inaccurate and incomplete inventory list to them

and failed to collect and secure all of Decedent’s property.135 Charisse denies their

claims and asserts she secured Decedent’s property to the best of her ability. 136

With regard to their claim that Charisse failed to provide information to them,

Charisse had no legal obligation as personal representative to provide copies of

Decedent’s death certificate or the Will to the siblings, coordinate Decedent’s burial

date with them, call them personally before posting death and burial information

online, or provide information about Decedent’s bank accounts that were not Estate

132 Pet. for Acct., D.I. 1. 133 Id., at 2-3. 134 Id. 135 Id. 136 Id., D.I. 8, ¶ 5. Charisse asserts, however, that some of Decedent’s personal property was removed from Decedent’s residence by Cynthia and Kelli. Id., ¶ 6.

29 assets to them. 137 Rodney and Cynthia’s claim that Charisse failed to produce the

Will in compliance with Delaware law was addressed previously by the Court.138

The law of the case applies to bar reconsideration of that claim.139 Finally, Charisse

filed the First and Second Accountings on a timely basis and there is no evidence

that she breached her fiduciary duty related to filing those accountings for the

Estate. 140 Exceptions were filed related to the Inventory and First and Second

Accountings and have been addressed. Accordingly, I recommend that the Court

deny the Petition for Accounting.

E. Petition to Sell Real Estate to Pay Debts

Charisse seeks to sell the Property to pay Estate debts under 12 Del. C. §2701,

claiming that Estate debts exceed its assets.141 She calculates the Estate personal

137 Charisse stated that she provided information about Decedent’s burial to most of the siblings (with the belief that they would tell others) and that she provided copies of the Will to all siblings who requested a copy. Id., ¶ 5. 138 It was addressed when the Court denied Rodney and Cynthia’s motion for production of the Will. Id., D.I. 36. 139 Frederick-Conaway v. Baird, 159 A.3d 285, 296 (Del. 2017) (citation omitted) (“The ‘law of the case’ is established when a specific legal principle is applied to an issue presented by facts which remain constant throughout the subsequent course of the same litigation.”). 140 Delaware law requires that an accounting be filed within one year from the issuance of the letters testamentary. 12 Del. C. §2301(a). The First Accounting was not due when the Petition for Accounting was filed within six months of Decedent’s death. Pet. for Acct., D.I. 8, ¶ 10. Rodney and Cynthia’s request for proof of fire insurance on the Property is not addressed through a petition for an accounting, although Charisse testified that she has personally paid all carrying costs on the house since Decedent’s death. Trial Tr. 36:7-11. 141 Pet. to Sell Real Est., D.I. 1.

30 assets as $27,393.05 and the Estate debts as $43,263.01, resulting in a deficiency

necessitating the sale of the Property.142 Charisse also claims that she should be paid

for her surrender of her life estate out of the proceeds remaining after Estate debts

have been paid.143 Rodney moved to reject the Petition to Sell Property, claiming

that monies should be available since the Will states that expenses will be paid from

the residuary estate, and asking that the attorney’s fees be denied because they are

solely related to Charisse’s defense for her misconduct. 144 Cynthia filed an answer

to the Petition to Sell Property, claiming that sufficient Estate monies should have

been available for the debts, the attorney’s fees were incurred for Charisse’s benefit,

and Decedent told them that funeral expenses would be paid from her life insurance

policies.145 She denies that Charisse should be compensated for her life estate

interest. 146

142 Id., ¶¶ 6, 12, 13. 143 Id., ¶ 18. 144 Id., D.I. 6. Rodney also claims that the Property was jointly owned by Decedent and Dennis at her death. That argument has been addressed previously. Id. Rodney also cites to federal tax laws indicating that the value of the gross estate includes all property owned by Decedent at her death and considers property transfers made by Decedent up to three years prior to her death. Id. Federal tax laws do not affect consideration of Estate assets for purposes of deciding whether Decedent’s personal estate is insufficient to pay the debts. 145 Id., D.I. 9. 146 Id.

31 The Inventory shows probate assets valued at $34,650.00, including the

mobile home ($20,000.00) and the car ($8,000.00).147 Additional refunds totaling

$743.05 were added to the Estate assets, increasing the value to $35,393.05.148

When the value of the car is subtracted out, the remaining probate assets are valued

at $27,393.05. As discussed above, adding in the $823.10 value of Decedent’s coin

collection results in probate assets totaling approximately $28,216.15.149 Rodney

and Cynthia have offered no evidence to support their claims that additional monies

should be available in the Estate to pay debts.150

At the time the Petition to Sell Property was filed, Estate debts totaled

$43,263.01, including $343.44 in unpaid bills (cable, cell phone, electric) at

Decedent’s death; a $4,444.17 claim filed against the Estate by Wells Fargo for

remaining monies owed on the car loan (after the car was surrendered); $9,218.40

147 ROW Action, D.I. 3. 148 Est. Tr. Ex. C. There were two Delaware Electric Cooperative refunds of $654.19 and $88.86 that were received by the Estate. Id. 149 Pet. to Sell Real Est., D.I. 24. 150 I find Cynthia’s assertion that Decedent intended for her life insurance proceeds to be used for funeral expenses unpersuasive. See id., D.I. 9, ¶ 10. Her assertion is contrary to the Will, which directs that Decedent’s funeral expenses be paid from her residuary estate. Est. Tr. Ex. A, ¶ 1. In addition, Decedent’s life insurance policies named Charisse and another relative as beneficiaries, and not the Estate. See n. 81 supra.

32 for funeral expenses; $152.00 in administrative expenses; and $29,105.00 in

attorney’s fees and costs through September 30, 2020. 151

I find no basis for Rodney and Cynthia’s argument that the attorney’s fees

were incurred solely for Charisse’s benefit. As discussed above, attorney’s fees for

the personal representative were incurred related to the litigation and the

administration of the estate. They are considered an Estate expense and benefitted

the Estate. Charisse has presented sufficient documentation of the attorney’s fees

and costs incurred. 152 There were no allegations that specific attorney’s fees were

unnecessary or unreasonable.

Under Delaware law, when it appears “there is a deficiency of personal estate

for the payment of the decedent’s debts,” the Court of Chancery can order the sale

of the decedent’s real estate to make up the deficiency.153 The personal

representative must show “that the personal estate of the decedent is insufficient to

151 See Pet. to Sell Real Est., D.I. 1. There is a possibility that the $4,444.17 claim on the car loan may be reduced through negotiation. Attorney’s fees have continued to increase and, as of May 20, 2021, totaled $42,952.00, and $1,798.53 in related costs. Pet. for Acct., D.I. 65. 152 Pet. for Acct., D.I. 65; see n. 114 supra. 153 12 Del. C. §2704; see also 12 Del. C. §2701(a) (“When the personal estate of a decedent is not sufficient to pay the decedent’s debts, the decedent’s executor [may petition the Court to sell] . . . any real estate of the decedent.”).

33 pay his debts.”154 The decision “[w]hether and on what grounds to permit an

executor to sell real estate is left to the discretion of the court.”155

Here, given the amount of valid debts against the Estate, even if Charisse sells

all of Decedent’s personal property (including the mobile home), it appears that

Estate debts will not be satisfied and the Property will need to be sold to pay debts.

However, since selling the mobile home together with the Property offers the most

practical solution and maximizes the value to be obtained for the Estate, I

recommend that the Court grant the Petition to Sell Property and order that the

mobile home and the Property be sold together.

The final issue concerns how to distribute proceeds from the sale of the mobile

home and the Property. Since personal property is used to pay off Decedent’s debts

prior to using funds from the sale of the real property, the sale proceeds representing

the value of the mobile home will be applied first to pay outstanding Estate debts.156

Sale proceeds from the Property (the real property) would be applied to any residual

Estate debts.

154 In re Est. of Farren, 2015 WL 3797432, at *4 (Del. Ch. June 18, 2015). 155 In re Est. of Farren, 131 A.3d 817, 838 (Del. Ch. 2016). 156 See 12 Del. C. §§2701, 2704. Although unlikely, if there are sale proceeds representing the value of the mobile home remaining after Estate debts are paid, those funds would be distributed equally among Rodney, Cynthia, Kelli, and Charisse, consistent with the Will’s residuary clause. See Est. Tr. Ex. A, ¶ 5.

34 Charisse seeks to be paid for her life estate interest on the Property and to

receive 74.491% of the remaining sale proceeds, with the three other heirs dividing

25.509% of the proceeds equally.157 Cynthia contends that compensating Charisse

for her life estate interest conflicts with the Will since it provides that, if Charisse

sells the Property, she must share the proceeds equally with Rodney, Cynthia, and

Kelli. 158

Under the Will, Charisse received a life estate in the Property.159 The Will

allows Charisse to “reside in the property as long as she wishes” with the caveat that

if she “sells the real property, she must share any proceeds equally” with Rodney,

Cynthia, and Kelli.160 In contrast, 12 Del. C. §2711 (“Section 2711”) provides that,

after a decedent’s real property has been sold to pay her debts, “if there is any surplus

of the sale, after paying all the debts, it shall belong to the person to whom the

premises sold belonged at the time of the sale, who shall have the same proportion,

quantity and manner of interest in the surplus, as the person had in the premises

sold.” 161 In other words, the sale proceeds from property sold to pay decedent’s

157 Pet. to Sell Real Est., D.I. 1, ¶¶ 18-20. See Est. Tr. Ex. O (Charisse is 60 years old so her life estate is valued at 74.491% and the remainder interest at 25.509%). 158 Pet. to Sell Real Est., D.I. 9. 159 Est. Tr. Ex. A, ¶ 2. 160 Id. 161 12 Del. C. §2711.

35 debts under Section 2711 are distributed according to the “proportion, quantity and

manner of interest” that the owner had in the real property at the time of the sale. 162

The question is whether Charisse is selling the property under the terms of the

Will such that the proceeds are shared equally among the beneficiaries, or whether

the distribution of the sale proceeds are controlled by Section 2711, which would

compensate Charisse for the life interest she held in the Property at the time the

Property is sold. Charisse argues that she is not choosing to sell the Property

personally as provided by the Will, but is being forced to sell the Property as personal

representative in order to pay Estate debts. 163 As a consequence, she is losing the

value of her life interest. I find Charisse’s arguments persuasive. She is not making

a personal choice to sell the Property because she no longer wishes to live on the

Property, but is doing so in furtherance of her duties as personal representative.

Therefore, I find Section 2711 controls. Charisse shall be paid for her life interest

in the Property from the proceeds from the sale of the Property leftover after Estate

debts are paid. I recommend that the Court order that Charisse receive 74.491% of

any sale proceeds from the Property remaining after all Estate debts have been paid,

and Rodney, Cynthia, and Kelli divide equally 25.509% of the proceeds.

162 Id. See also In re Harris’ Estate, 44 A.2d 18 (Del. Orph. 1945) (treating surplus proceeds remaining from land sold to pay estate debts “as realty as to those who . . . hold the title) (decided under an earlier codification of 12 Del. C. §2711). 163 Trial Tr. 336:4-8.

36 III. Conclusion

For the reasons set forth above, I recommend that the Court grant the

exception to the Inventory regarding Decedent’s coin collection and require that

Schedule E the Inventory be amended to include the coin collection as an Estate

asset prior to the closing of the Estate (through the final accounting or an amendment

to the Inventory). I recommend that the Court deny the remaining exceptions to the

Inventory. Further, I recommend that the Court deny the exceptions to the First and

Second Accountings, and the Petition for an Accurate Accounting. Finally, I

recommend that the Court grant the Petition to Sell Real Estate to Pay Debts, and

order that the mobile home and the real property located at 3514 Irish Hill Road,

Magnolia, Delaware be sold together. Proceeds from the sale of the mobile home

shall be applied first to Estate debts and proceeds from the sale of the real property

used to pay any remaining Estate debts. Charisse Stanley shall receive the

proportion of sale proceeds from the real property leftover after all Estate debts have

been paid that represents her life interest in the real property, or 74.491% of the

proceeds. The rest, or 25.509%, shall be divided equally among Rodney Kirk,

Cynthia Kirk, and Kelli Walton. This is a final report and exceptions may be taken

under Court of Chancery Rule 144.