§ 1712 — Probate of will produced after issuance of letters; effect upon prior administration

Delaware § 1712

• Jurisdiction: Delaware
• Title: 12
• Part: Administration of Decedents’ Estates
• Ch. 17: ABSENTEES; PRESUMED DECEDENTS

Text

(a) Whenever letters testamentary or of administration shall be issued upon the estate of any person presumed to be dead, in accordance with this chapter, the person having custody of any will which may have been left by such presumed decedent, in case letters of administration have been issued, or of any later will, in case letters testamentary have been issued, or any creditor of any person interested in the estate, may file a petition with the Court of Chancery in which the proceedings to establish the death by presumption have been held, setting forth the facts of the case, a copy of the will or later will, or an averment that such will exists, and the names of all persons interested in the estate of the presumed decedent.

(b) Upon the filing of such petition the Court of Chancery shall issue a citation to the person to whom letters of administration or letters testamentary have been issued, and to all persons interested in the estate of the presumed decedent, to appear upon a day fixed, and to show cause why the alleged will or later will should not be admitted to probate.

(c) Upon the return of the citation, if the Court of Chancery shall be satisfied from all the evidence that may be adduced that the proposed will was, in fact, the last will and testament made by the presumed decedent before the departure or disappearance from the residence, the will shall be admitted to probate as if the testator were in fact dead. If, upon such probate, it appears that an executor is named in the will, the letters of administration previously granted shall be revoked, and letters testamentary shall be issued to the executor, in the same manner and form as if the testator were in fact dead; but, if no executor shall be named in such will, then a certified copy of the will shall be attached to the letters of administration theretofore issued, or to a certified copy of such letters. Thereafter the executor or administrator shall execute the will according to its terms, and all property of the decedent shall be distributed and passed as provided by the will to the several legatees and devisees named therein. In case an earlier will shall have been admitted to probate, the letters testamentary issued thereunder shall be revoked, and letters shall be issued under the last will, or if no executor shall be named in the last will, then letters of administration with the will annexed shall be issued to the person entitled thereto. All the previous lawful acts of the removed executor or administrator shall be valid as provided in § 1545 of this title.

Legislative History

16 Del. Laws, c. 132, §§ 1, 2 ; Code 1915, § 3361; Code 1935, § 3826; 42 Del. Laws, c. 140, § 1 ; 12 Del. C. 1953, § 1711; 59 Del. Laws, c. 384, § 1 ; 70 Del. Laws, c. 186, § 1