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REGISTER OF WILLS

The origin and evolution of the office of Register of Wills can not be determined easily from early Delaware and Pennsylvania laws. However, by 1694 the register’s responsibility to probate wills, grant letters of administration, and settle estates was understood. These major responsibilities changed little in the succeeding three centuries until 1974 when some of his duties were given to the Court of Chancery.

Under the Duke of York, a law dated September 22, 1676 assigned the responsibility for probating wills and settling estates to both the constables and the county courts. When a person died, his death was investigated by the constable and two overseers of the parish to determine if a last will and testament existed. If none could be produced, it was assumed that the person died intestate (without a will); the constable determined the extent of the estate and submitted his findings to the justice of the peace. The justice could issue warrants to ensure that the property was not distributed before the next term of the Court of Sessions. At that time, the Court determined administration of the estate. If a widow or child was to administer the estate, the court appointed four men to inventory the appraise the property which was then divided among the widow and children. If there were no heirs, the property was sold by the court, and the money reverted to the king.1 If a will was produced, it was also proved at the Court of Sessions or Assizes, and administration was granted by the court.2 Wills involving estates of under one hundred pounds were not required to be recorded in New York.3

Laws enacted under William Penn (1682) stipulated that a volume be kept by the register in which were recorded births, marriages, burials, wills, and letters of administration.4 Permissible fees for recording these instruments were determined by legislation passed the following year.5 Further delineation of the register’s duties is not noted until the 1694 minutes of the Provincial Council. At that time, the representatives and Governor approved a motion designating persons in each county to prove wills and grant administrations.6 This official became known as the Register General.

A Register of Wills is not mentioned in Delaware Law until 1706. Legislation confirmed that wills were proved in a register’s office.7 Other early laws required the register to post bond ensuring faithful performance of his duties and to take security from administrators or else void their letters of administration.8 The register was also compelled to transit copies of all bonds, inventories, accounts, and proceedings relating to the estates of orphans or minors to the Orphans’ Court.9 In 1766 a Court of Delegates was established to hear appeals from registers relating tot he probating of wills and the granting of letters of administrations. Three judges and a clerk were commissioned by the Governor to staff the court.10

The State's 1776 Constitution makes little mention of the Register of Wills except to give the President and Privy Council the power of appointment.11 Under the 1792 Constitution, the Register was commissioned for five years by the Governor, although he could be removed by the Governor or both houses of the legislature on conviction of misbehavior in office.12 Currently, under the 1897 Constitution, a register is elected in a general election and commissioned by the Governor for four years.13 He is required to give security for faithful execution of his duties, such bond is filed with the Recorder of Deeds.14 He has the power to issue processes of citation, subpoena, attachment or capias; take acknowledgements; administer oaths; issue notices; certify and authenticate copies of instruments, documents, and records; and compel the appearance of witnesses and obedience to his orders by arrest, imprisonment and sequestration.15 Any deputies appointed to the office also have the power to administer oaths, make probate of wills, and grant letters testamentary and of administration. Their appointments are recorded in the Office of the Recorder of Deeds.16 After the 1974 reorganization of the office, the Register is now considered a clerk of the Court of Chancery.17

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The Register of Wills’ primary responsibilities are to probate wills, to issue letters of administration or testamentary, and to settle estates. Any person having custody of a will is required to produce and deliver it to the Register of Wills within ten days of learning of the testator's death. A person failing to deliver a will is liable for damages or may be cited for contempt.18 A 1983 law allows any testator, testatrix, or attorney to deposit original wills for safekeeping in the office of the Register of Wills for New Castle County. The wills are then sealed, numbered, and indexed. Whenever notice of the death of the testator or testatrix is received, the Register opens the will and places it in a pending file to await probate.19

Wills are proved before the Register of the county in which the testator resided at the time of his death. The will of a non-resident of the State is certified in the county in which property is owned.20 A will filed out of State and entered as evidence in a Delaware court is filed by the Register of the county in which the case is heard.21

Wills being proved are recorded in the office of the Register; the original will is also preserved in that office. Proof of a will can be taken without giving notice to any person interested unless they request that notice be given. The Court of Chancery (before 1974, the Register of Wills) appoints a time for taking the proof and awards processes of citation requiring the presence of all interested, if they think necessay.22

If the will is certified as genuine, the Register issues letters testamentary to an executor of the estate. If a person died intestate, letters of administration are granted by the Register to an administrator who manages the estate. Administrators are usually persons entitled to a residue of the estate; if no one is capable, then a creditor or other suitable person is selected.23

In 1989, the Court of Chancery has the power to remove executors or administrators who neglect their duties.24 This was previously a function of the Register of Wills. Executors and administrators are required to post bond before assuming the duties of their position. The Register is required to note in his docket the granting of letters, the names of the sureties, and any penalties for default of responsibilities. Bonds are filed in the Register’s office. The Register posts and publishes notices of the granting of letters so that all persons having demands against the deceased’s estate can have them satisfied. This was the responsibility of the administrator or executor in earlier times. Any actions of the register relating to the granting or the revoking an executor or administrator are subject to appeal. Appeals were heard by the Supreme Court (until 1831) or the Superior Court (until 1974). In 1989 appeals are directed to the Court of Chancery.25

After issuing letters, the Register of Wills appoints one or more persons to appraise and inventory the property of the deceased. After the inventory, appraisal, and a list of debts and credits is compiled, it is verified by affidavit signed by each executor or administrator. The Register can order the suppression of an inventory or list of debts and credits and require a further inventory or list be made if he believes them incomplete or incorrect. In the past appeals of this decision were made to Orphans' Court.26 Since the abolishment of the Orphans’ court in 1970, suppression of an inventory or list is currently a responsibility of the Court of Chancery.27

The executor or administrator was required to render an account of his administration every year until the concerns of the deceased's estate were closed and the final account passed.28 As soon as was convenient, the Register examined, adjusted, and settled the account in the presence of the executor or administrator. When the account was settled, the executor notified in writing to all persons entitled to shares of the estate that the account was lodged in the Register's office for inspection.29 Currently the Register of Wills performs this duty.30 Exceptions to the accounts could be made by any person concerned and were heard in the Orphans' Court until its abolition in 1970.31 If an executor or administrator could not disburse

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money in his hands because of the infancy or absence from the State of any person entitled to any share of the estate, they could deposit that share in the Farmers' Bank to the credit of the person. The executor or administrator took a certificate of the deposit and deliver it to the Register to be recorded.32 After July 1807 all accounts, inventories, appraisements, and valuations were required to be made in United States money, not in pounds, shillings, or pence.33 A 1973 law required the rendering of all accounts to the Court of Chancery for settlement instead of to the Register of Wills. However, all accounts approved by Chancery recorded and indexed by the Register.34

The 1792 Constitution gave the Register the jurisdiction to adjust and settle executors, administrators, and guardian accounts previously done by the Orphans' Court.35 The clerk of the Orphans' Court was required to deliver to the Register all administration and testamentary bonds as well as all accounts of deceased persons settled by the Orphans' Court.36 Whenever the court appointed any guardian, the clerk was required to notify the Register. Guardians rendered an accounting of their actions at the end of the first year; afterwards, such an accounting was made at the discretion of the Register. The Register of Wills had the power to order guardians to file such accounts and could enforce this power by attachment for contempt and imprisonment.37 In 1903, the settlement of guardian accounts again became the responsibility of the Orphans' Court. Registers were ordered to deliver to the clerk of the Orphans' Court all guardian accounts, indices, and other related records.38

A 1933 law enabled executors and administrators claiming to have an interest in the estate to apply for a decree of distribution from the Register (currently, the Court of Chancery). Such decree determined apportionment of the estate.39. Whenever the Register had a vested interest in a case brought before him, the Orphans' Court then probated the will, granted letters, and settled the account. Appeals were taken to the Supreme Court (after 1831 to Superior Court.)40 In 1970 the Orphans' Court was abolished; all of its duties relating to settlement of estates were given to the Court of Chancery.41

The 1792 Constitution established a Register's Court. Held by the Register of Wills, this court settled disputes involving estates. The Register took written depositions of witnesses, which were made part of the proceedings of a case. He issued processes throughout the State to compelling the attendance of witnesses. Appeals of his decisions could be made to the Supreme Court (after 1831 to Superior Court).42 Appeals are currently made to the Court of Chancery.43

The Register of Wills also had responsibilities relating to taxes. An 1877 law required that the Register obtain the assessment of property from the assessment records of the Levy Court in all cases where real estate was subject to the inheritance tax. The tax was based on this amount.44 A 1909 law required the Register to keep a separate docket, the Inheritance and Succession Docket, to record a general description of each parcel of real estate owned by the decedent; names of the parties entitled to any parcel; and the relationship of the person to the decedent. If the property was subject to a tax, the Register entered the amount of tax due and when paid into the docket. The tax was collected by the executor or administrator from the estate and given to the Register. Quarterly returns of collected taxes were made to the State Treasurer.45 In 1935 tax collection duties were assumed by the State Tax Department. The Register sent a monthly list of wills probated and administrators appointed to the State Tax Department.46 Currently every executor or administrator is required to file a tax return with the Division of Revenue.47 Final accounts cannot be approved until the Register receives a certificate from the Division of Revenue that the inheritance tax has been paid.48 The Register is also required to make a list of changes in ownership of real estate each month for the Board of Assessment (formerly to the Receiver of Taxes and County Treasurer).49

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An additional duty was given to the Register of Wills during World War II relating to missing or captured servicemen or merchant seamen. Since that time, the register may appoint a conservator to serve as a guardian of the absent serviceman's or seaman's property. On the petition of the absentee or his attorney, the Register terminates the conservatorship, transferring all property to the absentee or his attorney. If the serviceman dies while away, the Register appoints an executor or administrator for the estate and the probating of the estate begins.50

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1 Staughton George, Benjamin M. Nead, and Thomas McCamant, eds., Charter to William Penn and Laws of the Province of Pennsylvania . . . Proceeded by Duke of York;s Law . . . (Harrisburg: Lane S. Hart, State Printer, 1879), p. 5

2 Ibid., p. 61

3 Ibid., p. 66

4 Ibid., p. 101

5 Ibid., p. 149

6 Ibid., p. 425

7 1 D.L., ch. 18

8 1 D.L., ch. 19, 30

9 1 D.L., ch. 30

10 1 D.L., ch. 186

11 1776 Constitution, Art.12

12 1792 Constitution, Art.8, sec. 5

13 1897 Constitution, Art.3, sec. 22

14 4 D.L., ch. 144

15 7 D.L., ch. 208

16 24 D.L., ch. 77

17 59 D.L., ch. 384

18 7 D.L., ch. 208, 27 D.L., ch. 268, 59 D.L., ch. 384

19 64 D.L., ch. 401

20 7 D.L., ch. 208

21 1 D.L., ch. 196

22 7 D.L., ch. 208, 59 D.L., ch 384

23 7 D.L., ch. 208

24 Ibid, 59 D.L., ch. 384

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25 7 D.L., ch. 208

26 Ibid

27 59 D.L., ch. 384

28 7 D.L., ch. 208

29 1792 Constitution, Art.6, sec. 16

30 59 D.L., ch. 384

31 1831 Constitution, Art.6, sec. 22

32 9 D.L., ch. 448

33 4 D.L., ch. 21

34 59 D.L., ch. 384

35 1792 Constitution, Art.6, sec. 15

36 2 D.L., ch. 138

37 7 D.L., ch. 163

38 22 D.L., ch. 441

39 38 D.L., ch. 184, 59 D.L., ch. 384

40 1792 Constitution, Art.6, sec. 17, 1831 Constitution, Art.6, sec. 22

41 57 D.L., ch. 402

42 1792 Constitution, Art.6, sec. 17, 1831 Constitution, Art.6, sec. 22, , 1897 Constitution, Art.4, sec. 33

43 57 D.L., ch. 402

44 15 D.L., ch. 337

45 25 D.L., ch. 225

46 40 D.L., ch. 9, 10

47 59 D.L., ch. 384

48 64 D.L., ch. 252

49 59 D.L., ch. 384

50 45 D.L., ch. 231

rlg: February 28, 1989