2021 Delaware Code
Title 12 - Decedents' Estates and Fiduciary Relations
Chapter 33. Administrative Provisions
§ 3301. Application of chapter; definitions [For application of this section, see 79 Del. Laws, c. 172, § 6].
(a) This chapter shall govern fiduciaries, as well as agents in certain instances, now or hereafter acting under governing instruments. Except as otherwise specified within the definitions of this section, the definitions of this section shall apply to this chapter, as well as to Chapters 35, 39, and 45 of this title, as well as to any other laws of this State incorporating by reference either this section or the laws of trusts generally.
(b) The term “agents” shall mean custodians (other than those acting under the Uniform Transfers to Minors Act, Chapter 45 of this title), escrow agents, managing agents, all persons defined as agents by the general law of agency and persons holding, other than in the capacity of a fiduciary as defined in this section, property belonging to another person whether that other person is a fiduciary or a nonfiduciary.
(c) The term “clearing corporation” shall refer to a “clearing corporation” as defined in § 8-102 of Title 6.
(d) The term “fiduciary” shall mean trustees, personal representatives, guardians, custodians under the Uniform Transfers to Minors Act (Chapter 45 of this title), advisers or protectors acting in a fiduciary capacity under § 3313(a) of this title, designated representatives acting in a fiduciary capacity under § 3339 of this title, agents to the extent delegated duties by another fiduciary and other fiduciaries; while the term “nonfiduciary” shall mean advisers or protectors acting in a nonfiduciary capacity under § 3313(a) of this title or designated representatives acting in a nonfiduciary capacity under § 3339 of this title.
(e) The term “governing instrument” shall mean a will, trust agreement or declaration, court order, or other instrument that creates or defines the duties and powers of a fiduciary, and shall include any instrument that modifies a governing instrument, allocates trustee powers, duties, and responsibilities among cotrustees under § 3343 of this title, or, in effect, alters the duties and powers of a fiduciary or other terms of a governing instrument.
(f) The terms “legal investment” or “authorized investment” or words of similar import, as used in any governing instrument, shall mean any investment which is permitted by the terms of § 3302 of this title.
(g) The term “wilful misconduct” shall mean intentional wrongdoing, not mere negligence, gross negligence or recklessness and “wrongdoing” means malicious conduct or conduct designed to defraud or seek an unconscionable advantage.
(h) For purposes of construing a governing instrument, unless a contrary statement appears in such governing instrument:
(1) The term “fiduciary fund” means the trust, estate, guardianship account, or account established under a Uniform Transfers to Minors Act [Chapter 45 of this title] that is being administered by a fiduciary.
(2) The term “interested person” means any living person who:
a. Is an income beneficiary or remainder beneficiary of a trust;
b. Has a vested interest in a decedent's estate;
c. Receives benefits as a ward from a guardianship account; or
d. Is the minor with respect to an account established under a Uniform Transfers to Minors Act [Chapter 45 of this title].
(3) The term “issue” shall denote a distribution per stirpes, such that the children of the person whose issue is referred to shall be taken to be the heads of the respective stocks of issue and a person legally adopted, whether under or over the age of 18 years at adoption, shall thereafter be considered to be a child and issue of the adopting person and an issue of the ascendants of the adopting person, and the issue of the person so adopted shall be considered to be issue of the adopting person and the adopting person's ascendants.
(4) The term “published fee schedule” and other terms of similar import mean the schedule or formula described in § 3561(b)(1) of this title in the case of any trustee required to file such a schedule or formula under that section.
(5) The term “wilful misconduct” means intentional wrongdoing, not mere negligence, gross negligence, or recklessness and “wrongdoing” means malicious conduct or conduct designed to defraud or seek an unconscionable advantage.
