Bill Text: DE SB256 | 2015-2016 | 148th General Assembly | Draft

Delaware Senate Bill 256 (Prior Session Legislation)

Draft

Bill Title: An Act Proposing An Amendment To Article Iii, Article Iv, And The Schedule Of The Delaware Constitution Relating To The Register Of Wills.

Spectrum: Moderate Partisan Bill (Democrat 4-1)

Status: (Introduced - Dead) 2016-05-05 - Assigned to Executive Committee in Senate [SB256 Detail]

Download: Delaware-2015-SB256-Draft.html

SPONSOR:	Sen. Henry & Rep. Mitchell
	Sen. Blevins; Reps. M. Smith, Wilson

DELAWARE STATE SENATE

148th GENERAL ASSEMBLY

SENATE BILL NO. 256

AN ACT PROPOSING AN AMENDMENT TO ARTICLE III, ARTICLE IV, AND THE SCHEDULE OF THE DELAWARE CONSTITUTION RELATING TO THE REGISTER OF WILLS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Article III, §11 of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

� 11. County officers; qualifications; members of Congress, federal employees and other officers holding dual office.

No person shall hold more than one of the following offices at the same time, to-wit: Secretary of State, Attorney-General, Insurance Commissioner, State Treasurer, Auditor of Accounts, Prothonotary, Clerk of the Peace, ~~Register of Wills,~~ Recorder, or Sheriff.

Section 2. Amend Article III, §22 of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§22. Election and term of office of certain county officers; commission.

Section 22. The terms of office of Clerks of the Peace, ~~Registers of Wills,~~ Recorders, and Sheriffs shall be 4 years. These officers shall be chosen by the qualified electors of the respective counties at general elections, and be commissioned by the Governor.

Section 3. Amend Article III, §23 of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§23. Place of office of certain county officers.

Section 23. Prothonotaries, Clerks of the Peace, ~~Registers of Wills,~~ Recorders and Sheriffs shall keep their offices in the town or place in each county in which the Superior Court is usually held.

Section 4. Amend Article IV, §1 of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§1. Creation of courts.

Section 1. The judicial power of this State shall be vested in a Supreme Court, a Superior Court, a Court of Chancery, a Family Court, a Court of Common Pleas, ~~a Register's Court,~~ Justices of the Peace, and such other courts as the General Assembly, with the concurrence of two-thirds of all the Members elected to each House, shall have by law established prior to the time this amended Article IV of this Constitution becomes effective or shall from time to time by law establish after such time.

Section 5. Amend Article IV §31 of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§31. Registers of Wills~~; depositions of witnesses; process; appeals to Court of Chancery; disqualification of Register for interest~~.

Section 31. The Registers of Wills of the several counties shall respectively hold the Register's Court in each County. Upon the litigation of a cause the depositions of the witnesses examined shall be taken at large in writing and made part of the proceedings in the cause. This court may issue process throughout the State. Appeals may be taken from a Register's Court to the Court of Chancery. In cases where a Register of Wills is interested in questions concerning the probate of wills, the granting of letters of administration, or executors' or administrators' accounts, the cognizance thereof shall belong to the Court of Chancery. Section 31. The Chancellor shall appoint a Register of Wills, who shall be a clerk of the Court of Chancery with statewide jurisdiction and hold office at the pleasure of that Court. The judicial function formerly reposed in the Register's Court in each county shall be within the Court of Chancery.

Section 6. Amend Article IV, §32 of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§32. Adjustment and settlement of executors' and administrators' accounts; notice; hearing of exceptions in Court of Chancery; transfer of jurisdiction; appeals.

Section 32. An executor or administrator shall file every account with the Register of Wills ~~for the County~~, who shall, as soon as conveniently may be, carefully examine the particulars with the proofs thereof, in the presence of such executor or administrator, and shall adjust and settle the same according to the right of the matter and the law of the land; which account so settled shall remain in his or her office for inspection; and the executor, or administrator, shall within three (3) months after such settlement give notice in writing to all persons entitled to shares of the estate, or to their guardians, respectively, if residing within the State, that the account is lodged in the said office for inspection.

Exceptions may be made by persons concerned to both sides of every such account, either denying the justice of the allowances made to the accountant or alleging further charges against him or her; and the exceptions shall be heard in the Court of Chancery ~~for the County~~; and thereupon the account shall be adjusted and settled according to the right of the matter and the law of the land.

The General Assembly shall have power to transfer to the Court of Chancery all or a part of the jurisdiction by this Constitution vested in the Register of Wills and to vest in the Court of Chancery all or a part of such jurisdiction and to provide for appeals from that Court exercising such jurisdiction.

Section 7. Amend §10 of the Schedule of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§10. ~~Registers' Court and jurisdiction~~ Jurisdiction of justice of the peace unaffected.

Section 10. Unless otherwise provided, ~~the Registers' Courts and~~ the jurisdiction of Justice of the Peace shall not be affected by this amended Constitution.

SYNOPSIS

This Act is the first leg of a constitutional amendment to provide for an integrated and state-wide Register of Wills office. At the present time, the three counties operate three separate offices that handle the functions of the Register of Wills. Each operates using its own requirements and procedures, each provides services solely in its respective county, and each is managed by a different elected official.

This proposed constitutional amendment will enable the General Assembly to create by statute a more cost-effective and efficient system of Register of Wills offices. The proposed amendment removes the constitutional provisions requiring that the Register of Wills be an elected office. Because the Register of Wills presently acts as a clerk to the Court of Chancery, the proposed amendment reorganizes that function under the leadership and jurisdiction of the Court of Chancery. The intent of this amendment is to develop legislation that will make the integration revenue neutral for the counties, so that the counties will not lose an important funding source and will retain the fees collected from the administration of estates, net of costs.

Author:Senator Henry