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In re Brans

Court of Chancery of Delaware

January 23, 2018

IMO Theodore Brans

          Draft Report: January 10, 2018

          Submitted: December 1, 2017

          Patricia W. Griffin Master in Chancery

         Dear Mr. Rago:

         Pending before me is a petition for instructions pursuant to Court of Chancery Rule 207 filed by co-executors and heirs, Martin Brans ("Martin") and Ingrid Yerger ("Ingrid"), of the Last Will and Testament of Theodore J. Brans (hereinafter "Will"). Petitioners request that the Court order that the real property of Theodore J. Brans (hereinafter "the decedent") pass to the heirs as non-probate property for purposes of accounting because the provision within the Will pertaining to the distribution of the decedent's real estate was vague, ambiguous and subject to interpretation, the decedent's intent was for both heirs to be treated equally, and it is impossible to perform the requirements related to distribution of the decedent's real property under the Will. I recommend that the Court decline to provide the instructions recommended by the Petitioners.

         BACKGROUND

         On February 25, 2014, the decedent executed an amendment to a revocable trust agreement executed on October 17, 2008 (hereinafter "Revocable Trust"), which amended and restated the Theodore J. Brans Revocable Trust established on February 8, 1993.[1] That amendment revoked section three in its entirety and replaced it with the following new section three:

At the death of the Trustor, the principal of this trust shall be distributed as follows:
A. The principal of this Trust shall be distributed to my children, MARTIN BRANS and INGRID YERGER in equal shares.
B. In the event that MARTIN BRANS or INGRID YERGER predeceases the Trustor and leaves issue of his or her own surviving, then that child's share shall be distributed in equal shares to his or her surviving issue. In the event that MARTIN BRANS or INGRID YERGER predeceases the Trustor without leaving issue surviving, then that child's share shall be distributed to Trustor's surviving child per stirpes.

         The decedent executed the Will at issue in this petition on February 8, 2016, appointing Martin and Ingrid as co-executors of the Will. Paragraph 5 of the Will provides:

FIFTH: I direct that my residence and property at 38407 Boxwood Terrace, Selbyville, Delaware (hereinafter "the property") be handled as follows:
Subsequent to my death, my Co-Executors shall mutually agree upon a licensed appraiser to determine the fair market value of the property. The cost of the appraisal shall be paid by my estate. Upon receipt of the appraisal, MARTIN BRANS shall have fifteen (15) days to decide whether he wishes to retain the property. Should MARTIN BRANS decide to retain the property, he shall pay INGRID YERGER one-half (1/2) of the appraised value of the property. Said payment shall be due within eight (8) months of my date of death. In the event that my son, MARTIN BRANS, shall elect not to retain the property, my daughter, INGRID YERGER, shall have fifteen (15) days from the date she receives notice that MARTIN BRANS does not intend to purchase the property, to decide whether she wishes to retain the property. If INGRID YERGER wishes to retain the property, she shall pay MARTIN BRANS one-half (1/2) of the appraised value. Said payment shall be due within eight (8) months of my date of death. If neither MARTIN BRANS nor INGRIG [sic] YERGER wishes to retain the property, I direct, order and instruct my Co-Executors to sell the property. The proceeds shall become part of the rest, residue and remainder of my estate.

         The Will's residuary clause identifies the Revocable Trust as the vehicle for disposing of the residuary estate:

SIXTH: All the rest, residue, and remainder of my property and estate of whatever kind and wherever situated and of which I might die seized and possessed or to which I may be in any manner entitled at the time of my death, I give, devise and bequeath absolutely to the trustee(s) of the THEODORE J. BRANS REVOCABLE TRUST AGREEMENT DATED FEBRUARY 8, 1993, AS AMENDED AND RESTATED OCTOBER 17, 2008, and any amendments thereto, to be held and administered in accordance with the terms and provisions of said Trust Agreement.

          The decedent passed away on March 27, 2016, and the decedent's estate was opened on April 8, 2016. Since the decedent's wife predeceased him, Martin and Ingrid (or "Petitioners") are co-executors and heirs of the estate, and successor trustees of the Revocable Trust.

         Petitioners wish to take the decedent's real property at 38407 Boxwood Terrace, Selbyville, Delaware (hereinafter "the property") together jointly. They allege they discussed this goal with the estate's former counsel, who told them that Paragraph 5 of the Will did not allow them to take the property jointly without incurring probate fees, and that the Will gave them 15 days following the decedent's death to decide if one of them wanted to keep the property before it would be subject to sale.[2] Petitioners allege they voiced concerns to former counsel about his interpretation of Paragraph 5, but went ahead and obtained an appraisal of the property on April 27, 2017, which valued the property at $410, 000. ...


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