South Carolina General Assembly
119th Session, 2011-2012

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S. 1243

STATUS INFORMATION

General Bill
Sponsors: Senators McConnell, Malloy, Rose, Land and L. Martin
Document Path: l:\council\bills\nbd\11974dg12.docx

Introduced in the Senate on February 22, 2012
Currently residing in the Senate Committee on Judiciary

Summary: S.C. Probate Code

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
-------------------------------------------------------------------------------
   2/22/2012  Senate  Introduced and read first time (Senate Journal-page 4)
   2/22/2012  Senate  Referred to Committee on Judiciary 
                        (Senate Journal-page 4)
   2/29/2012  Senate  Referred to Subcommittee: Malloy (ch), Ford, Knotts, 
                        Massey, S.Martin
   3/12/2012          Scrivener's error corrected

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

2/22/2012
3/12/2012

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND TITLE 62, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA PROBATE CODE, SO AS TO, AMONG OTHER THINGS, DEFINE THE JURISDICTION OF THE PROBATE CODE, TO DETERMINE INTESTATE SUCCESSION, TO PROVIDE FOR THE PROCESS OF EXECUTING A WILL, TO PROVIDE FOR THE PROCESS TO PROBATE AND ADMINISTER A WILL, TO PROVIDE FOR LOCAL AND FOREIGN PERSONAL REPRESENTATIVES, TO PROVIDE FOR THE PROTECTION OF PERSONS WITH DISABILITIES, TO PROVIDE FOR THE GOVERNANCE OF NONPROBATE TRANSFERS, AND TO AMEND THE SOUTH CAROLINA TRUST CODE; AND TO AMEND CHAPTER 6, TITLE 27, RELATING TO THE RULE AGAINST PERPETUITIES, SO AS TO PROVIDE THAT NO RULE AGAINST PERPETUITIES SHALL BE IN FORCE IN THIS STATE.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Title 62 of the 1976 Code is amended to read:

"Article 1

General Provisions, Definitions, and Probate Jurisdiction Of Court

Part 1

Short Title, Construction, General Provisions

Section 62-1-100.    (a)    Except as otherwise provided, this Code takes effect July 1, 1987.

(b)    Except as provided elsewhere in this Code, on the effective date of this Code:

(1)    the Code applies to any estates of decedents dying thereafter;

(2)    the procedural provisions of the Code apply to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this Code;

(3)    every personal representative, including a person administering an estate of a minor or incompetent holding an appointment on that date, continues to hold the appointment but has only the powers conferred by this Code and is subject to the duties imposed with respect to any act occurring or done thereafter;

(4)    an act done before the effective date in any proceeding and any accrued right is not impaired by this Code. Unless otherwise provided in the Code, a substantive right in the decedent's estate accrues in accordance with the law in effect on the date of the decedent's death. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the effective date, the provisions remain in force with respect to that right;

(5)    a rule of construction or presumption provided in this code applies to multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.

(c)    Section 62-2-502 is effective for all wills executed after June 27, 1984, whether the testator dies before or after July 1, 1987.

Section 62-1-101.    Sections 62-1-101 et seq. shall be known and may be cited as the South Carolina Probate Code. References in Sections 62-1-101 et seq. to the term 'Code', unless the context clearly indicates otherwise, shall mean the South Carolina Probate Code.

Section 62-1-102.     (a)    This Code shall be liberally construed and applied to promote its underlying purposes and policies.

(b)    The underlying purposes and policies of this Code are:

(1)    to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;

(2)    to discover and make effective the intent of a decedent in the distribution of his property;

(3)    to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;

(4)    to facilitate use and enforcement of certain trusts;

(5)    to make uniform the law among the various jurisdictions.

Section 62-1-103.     Unless displaced by the particular provisions of this Code, the principles of law and equity supplement its provisions.

SECTION 62-1-104.     If any provision of this Code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Code which can be given effect without the invalid provision or application and to this end the provisions of this Code are declared to be severable.

Section 62-1-105.     This Code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.

Section 62-1-106.     Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Code or if fraud is used to avoid or circumvent the provisions or purposes of this Code, any person injured thereby may: (i) obtain appropriate relief against the perpetrator of the fraud or and (ii) restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not, but only to the extent of any benefit received. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.

REPORTER'S COMMENTS

By virtue of this section, the six-year period of limitation provided by Section 15-3-530(7) of the 1976 Code for actions for relief on the ground of fraud is reduced, with respect to fraud perpetrated in connection with proceedings and statements filed under this Code, or to circumvent its provisions or purposes. Under this section, actions for relief on the ground of fraud must be brought within two years after discovery of the fraud. In no event, however, may an action be brought against one not the perpetrator of the fraud (such as an innocent party benefiting from the fraud) later than five years after the commission of the fraud.

The last sentence of this section, however, excepts from this section actions 'relating to fraud practiced on a decedent during his lifetime which affect the succession of his estate' such as fraud inducing the execution or revocation of a will. There is some general authority for the proposition that one who is damaged by fraud which interferes with the making of a will may maintain an action for damages against the person who commits the fraud, 79 Am. Jur. 2d, Wills Section 414. In cases involving direct contest of wills which are allegedly the result of fraud, however, the provisions of Section 62-3-108 would be applicable and a formal probate proceeding would have to be commenced within the later of twelve months from the informal probate or three years from the decedent's death, at which time the allegations of fraud would be considered.

The 2012 amendment clarified that any person injured by the effects of fraud may (i) obtain relief against the perpetrator of the fraud and (ii) restitution from any other person (other than a bona fide purchaser) benefitting from the fraud.

Section 62-1-107.     In proceedings under this Code the South Carolina Rules of Evidence in courts of general jurisdiction, including any relating to simultaneous deaths, are applicable unless specifically displaced by the Code. In addition, the following rules relating to determination of death and status are applicable:

(1)    A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death, and the identity of the decedent.

(2)    A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.

(3)    A person who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.

REPORTER'S COMMENTS

This section states that the rules of evidence that apply in circuit court also apply in probate court proceedings unless specifically displaced by provisions of the South Carolina Probate Code. The 2011 Amendment removed those sections related to evidence as to the status of death, and these provisions have been incorporated into Section 62-1-507 of the Uniform Simultaneous Death Act. See Sections 62-1-500 to 62-1-510 for the Uniform Simultaneous Death Act.

Section 62-1-108.     For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power. The term 'presently exercisable general power of appointment' includes a testamentary general power of appointment having no conditions precedent to its exercise other than the death of the holder, the validity of the holder's last will and testament, and the inclusion of a provision in the will sufficient to exercise this power.

REPORTER'S COMMENTS

This section allows one who is the holder of a presently exercisable 'general power of appointment' (which, in this context, means one having the power to take absolute ownership of property to himself, either by appointment, by amendment, or by revocation) to agree to actions taken by a personal representative or by a trustee, to consent to the modification or termination of a trust or a deviation from its terms, and, thereby, to bind the beneficiaries whose interests are subject to the power.

Section 62-1-109.     Unless expressly provided otherwise in a written employment agreement, the creation of an attorney-client relationship between a lawyer and a person serving as a fiduciary shall not impose upon the lawyer any duties or obligations to other persons interested in the estate, trust estate, or other fiduciary property, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. This section is intended to be declaratory of the common law and governs relationships in existence between lawyers and persons serving as fiduciaries as well as such relationships hereafter created.

Section 62-1-110.     Whenever an attorney-client relationship exists between a lawyer and a fiduciary, communications between the lawyer and the fiduciary shall be subject to the attorney-client privilege unless waived by the fiduciary, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. The existence of a fiduciary relationship between a fiduciary and a beneficiary does not constitute or give rise to any waiver of the privilege for communications between the lawyer and the fiduciary.

REPORTER'S COMMENTS

This section was enacted and intended to: (i) expressly reject the concept of a 'fiduciary exception' to any attorney-client privilege; (ii) encourage full disclosure by the fiduciary to the lawyer to further the administration of justice; and (iii) foster confidence between a fiduciary and his lawyer that will lead to a trusting and open attorney-client dialogue. See Estate of Kofsky, 487 Pa. 473 (1979). This section also expressly rejects the holding set forth in the case of Riggs Natl. Bank v. Zimmer, 355 A.2d 709 (Del. Ch. 1976)(trustee's invocation of the attorney-client privilege does not shield document from disclosure to trust beneficiaries) as applied by the Court in Floyd v. Floyd, 365 S.C. 56, 615 S.E.2d 465 (Ct. App. 2005).

Section 62-1-111.    In a formal proceeding, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the estate that is the subject of the controversy.

REPORTER'S COMMENTS

This section was enacted to clarify the probate court's authority to award costs and expenses. See Section 62-7-1004 for a similar provision in the South Carolina Trust Code.

Part 2

Definitions

Section 62-1-201.         Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or parts, and unless the context otherwise requires, in this Code:

(1)    'Application' means a written request to the probate court for an order. An application does not require a summons and is not governed by or subject to the rules of civil procedure adopted for the circuit court.

(2)    'Beneficiary', as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and, as it relates to a charitable trust, includes any person entitled to enforce the trust.

(3)    'Child' includes any individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.

(4)    'Claims', in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.

(5)    'Court' means the court or branch having jurisdiction in matters as provided in this Code.

(6)    'Conservator' means a person who is appointed by a court to manage the estate of a protected person.

(7)    'Devise', when used as a noun, means a testamentary disposition of real or personal property, including both devise and bequest as formerly used, and when used as a verb, means to dispose of real or personal property by will.

(8)    'Devisee' means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

(9)    'Disability' means cause for a protective order as described by Section 62-5-401.

(10)    'Distributee' means any person who has received property of a decedent from his personal representative other than as creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, 'testamentary trustee' includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

(11)    'Estate' includes the property of the decedent, trust, or other person whose affairs are subject to this Code as originally constituted and as it exists from time to time during administration.

(12)    'Exempt property' means that property of a decedent's estate which is described in Section 62-2-401.

(12A)(13)    'Expense of administration' includes commissions of personal representatives, fees and disbursements of attorneys, fees of appraisers, and such other expenses that are reasonably incurred in the administration of the estate.

(14)    'Fair market value' is the price that property would sell for on the open market that would be agreed on between a willing buyer and a willing seller, with neither being required to act, and both having reasonable knowledge of the relevant facts.

(13)(15)    'Fiduciary' includes personal representative, guardian, conservator, and trustee.

(14)(16)    'Foreign personal representative' means a personal representative of another jurisdiction.

(15)(17)    'Formal proceedings' means actions commenced by the filing of a summons and petition with the probate court and service of the summons and petition upon the interested persons. Formal proceedings are governed by and subject to the rules of civil procedure adopted for the circuit court courts and other rules of procedure in this title.

(16)(18)    'Guardian' means a person appointed by the court as guardian who has qualified as a guardian of an incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem or a statutory guardian.

(16A)(19)    'General power of appointment' means any power that would cause income to be taxed to the fiduciary in his individual capacity under Section 678 of the Internal Revenue Code and any power that would be a general power of appointment, in whole or in part, under Section 2041(a)(2) or 2514(c) of the Internal Revenue Code.

(17)(20)    'Heirs' means those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent.

(18)(21)    'Incapacitated person' is as defined in Section 62-5-101.

(19)(22)    'Informal proceedings' means those commenced by application and conducted without notice to interested persons by the court for probate of a will or appointment of a personal representative. Informal proceedings are not governed by or subject to the rules of civil procedure adopted for the circuit court.

(20)(23)    'Interested person' includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.

(21)(24)    'Issue' of a person means all his lineal descendants whether natural or adoptive of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this Code.

(22)(25)    'Lease' includes an oil, gas, or other mineral lease.

(23)(26)    'Letters' includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.

(24)(27)    'Minor' means a person who is under eighteen years of age, excluding a person under the age of eighteen who is married or emancipated as decreed by the family court.

(25)(28)    'Mortgage' means any conveyance, agreement, or arrangement in which real property is used as security.

(26)(29)    'Nonresident decedent' means a decedent who was domiciled in another jurisdiction at the time of his death.

(27)(30)    'Organization' includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal entity.

(28)(31)    'Parent' includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.

(29)(32)    'Person' means an individual, a corporation, an organization, or other legal entity business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

(30)(33)    'Personal representative' includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. 'General personal representative' excludes special administrator.

(31)(34)    'Petition' means a complaint as defined in the rules of civil procedure adopted for the circuit court. A petition requires a summons and is governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.

(35)    'Probate estate' means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy.

(32)(36)    'Proceeding' includes action at law and suit in equity.

(33)(37)    'Property' includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

(34)(38)    'Protected person' is as defined in Section 62-5-101.

(35)(39)    'Protective proceeding' is as defined in Section 62-5-101.

(40)    'SCACR' means the South Carolina Appellate Court Rules.

(36)(41)    'Security' includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.

(36A)(42)    'Security interest' means any conveyance, agreement, or arrangement in which personal property is used as security.

(37)(43)    'Settlement' in reference to a decedent's estate includes the full process of administration, distribution, and closing.

(38)(44)    'Special administrator' means a personal representative as described by Sections 62-3-614 through 62-3-618.

(39)(45)    'State' includes any means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or and any territory or insular possession subject to the legislative authority jurisdiction of the United States.

(40)    'Stepchild' with reference to any person means one who is the child, natural or adopted, of such person's spouse but who is not the child, natural or adopted, of such person.

(41)(46)    'Successor personal representative' means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.

(42)(47)    'Successors' means those persons, other than creditors, who are entitled to property of a decedent under his will or this Code.

(43)(48)    'Testacy proceeding' means a formal proceeding to establish a will or determine intestacy.

(44)(49)    'Trust' includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. 'Trust' excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article 6 (Sections 62-6-101 et seq.), custodial arrangements pursuant to the South Carolina Uniform Gifts to Minors Act, Article 5, Chapter 5, Title 63, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.

(45)(50)    'Trustee' includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.

(46)(51)    'Ward' is as defined in Section 62-5-101.

(47)(52)    'Will' includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.

REPORTER'S COMMENTS

The definitions set out in this section are applicable throughout this Code. Of interest is the definition of 'claims' in item (4) which includes claims arising out of tort.

Also see Sections 62-4-101, 62-5-101, and 62-6-101 for additional definitions for Articles 4, 5, and 6.

The 2010 amendment revised certain definitions in Section 62-1-201, i.e., 'application' in item (1), 'formal proceedings' in item (17), 'informal proceedings' in item (22), 'petition' in item (34), and 'testacy proceeding' in item (48), as well as other relevant sections throughout the Probate Code, to clarify that the law requires a summons in formal proceedings and the rules of civil procedure adopted for the circuit court and other rules of procedure in this title apply to and govern formal proceedings in probate court. See S.C. Code Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP; also see, Weeks v. Drawdy, 495 S.E. 2d 454 (Ct. App. 1997) (the rules of probate court governing procedure address only a limited number of issues and in the absence of a specific probate court rule, the rules of civil procedure applicable in the court of common pleas shall be applied in the probate court unless to do so would be inconsistent with the provisions of the Code).

Prior to the 2010 amendments, certain confusion existed regarding the requirement of a summons in a formal proceeding and how the South Carolina Rules of Civil Procedure apply to formal proceedings in the probate court. The 2010 amendments in this section and throughout other portions of the Probate Code are intended to minimize such confusion and to expressly clarify that a 'formal proceeding' is commenced by a summons and petition and governed by the rules of civil procedure adopted for the circuit court and other rules of procedure in this title, and that an 'application' does not require a summons and is not governed by or subject to the rules of civil procedure adopted for the circuit court. Where applicable and appropriate, the 2010 amendments expand the matters in which an application may be utilized.

The 2012 amendment added definitions for 'Fair Market Value' and 'Probate Estate'. The 2012 amendment also made changes to the definitions of 'Guardian', 'Person', and 'State'. The definition of 'Stepchild' has been removed as a result of changes to Section 62-2-103(6).

Part 3

Scope, Jurisdiction, and Courts

Section 62-1-301.     Except as otherwise provided in this Code, this Code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected domiciled in this State, (2) the property of nonresidents located in this State or property coming into the control of a fiduciary who is subject to the laws of this State, (3) incapacitated persons and minors in this State, (4) survivorship and related accounts in this State, and (5) trusts subject to administration in this State.

REPORTER'S COMMENTS

This section merely states that this Code applies to matters having a connection to this State by reason of a person's domicile or the situs of property.

Section 62-1-302.     (a)    To the full extent permitted by the Constitution, and except as otherwise specifically provided, the probate court has exclusive original jurisdiction over all subject matter related to:

(1)    estates of decedents, including the contest of wills, construction of wills, determination of property in which the estate of a decedent or a protected person has an interest, and determination of heirs and successors of decedents and estates of protected persons;

(2)    protection of minors, except that jurisdiction over the care, custody, and control of the persons of minors is governed by Section 62-5-201 and incapacitated persons, including the mortgage and sale of personal and real property owned by minors or incapacitated persons as well as gifts made pursuant to the South Carolina Uniform Gifts to Minors Act, Article 5, Chapter 5, Title 63, except that jurisdiction for approval of settlement of claims in favor of or against minors or incapacitated persons is governed by Section 62-5-433 subject to Part 7, Article 5, and excluding jurisdiction over the care, custody, and control of a person or minor:

(i)        protective proceedings and guardianship proceedings under Article 5;

(ii)    gifts made pursuant to the South Carolina Uniform Gifts to Minors Act under Article 5, Chapter 5, Title 63;

(3)    trusts, inter vivos or testamentary, including the appointment of successor trustees;

(4)    the issuance of marriage licenses, in form as provided by the Bureau of Vital Statistics of the Department of Health and Environmental Control; record, index, and dispose of copies of marriage certificates; and issue certified copies of the licenses and certificates;

(5)    the performance of the duties of the clerk of the circuit and family courts of the county in which the probate court is held when there is a vacancy in the office of clerk of court and in proceedings in eminent domain for the acquisition of rights-of-way by railway companies, canal companies, governmental entities, or public utilities when the clerk is disqualified by reason of ownership of or interest in lands over which it is sought to obtain the rights-of-way; and

(6)    the involuntary commitment of persons suffering from mental illness, mental retardation, alcoholism, drug addiction, and active pulmonary tuberculosis.

(b)    The court's jurisdiction over matters involving wrongful death or actions under the survival statute is concurrent with that of the circuit court and extends only to the approval of settlements as provided in Sections 15-51-41 and 15-51-42 and to the allocation of settlement proceeds among the parties involved in the estate.

(c)    The probate court has jurisdiction to hear and determine issues relating to paternity, common-law marriage, and interpretation of marital agreements in connection with estate, trust, guardianship, and conservatorship actions pending before it, concurrent with that of the family court, pursuant to Section 63-3-530.

(d)    Notwithstanding the exclusive jurisdiction of the probate court over the foregoing matters, any action or proceeding filed in the probate court and relating to the following subject matters, on motion of a party, or by the court on its own motion, made not later than ten days following the date on which all responsive pleadings must be filed, must be removed to the circuit court and in these cases the circuit court shall proceed upon the matter de novo:

(1)    formal proceedings for the probate of wills and for the appointment of general personal representatives;

(2)    construction of wills;

(3)    actions to try title concerning property in which the estate of a decedent or protected person asserts an interest;

(4)    trusts matters involving the internal or external affairs of trusts as provided in Section 62-7-201, excluding matters involving the establishment of a 'special needs trust' as described in Article 5;

(5)    actions in which a party has a right to trial by jury and which involve an amount in controversy of at least five thousand dollars in value; and

(6)    actions concerning gifts made pursuant to the South Carolina Uniform Gifts to Minors Act, Article 5, Chapter 5, Title 63.

(e)    The removal to the circuit court of an action or proceeding within the exclusive jurisdiction of the probate court applies only to the particular action or proceeding removed, and the probate court otherwise retains continuing exclusive jurisdiction.

(f)    Notwithstanding the exclusive jurisdiction of the probate court over the matters set forth in subsections (a) through (c), if an action described in subsection (d) is removed to the circuit court by motion of a party, or by the probate court on its own motion, the probate court may, in its discretion, remove any other related matter or matters which are before the probate court to the circuit court if the probate court believes the removal of such related matter or matters would be in the best interest of the estate or in the interest of judicial economy. For any matter removed by the probate court to the circuit court pursuant to this subsection, the circuit court shall proceed upon the matter de novo.

REPORTER'S COMMENTS

This section clearly states the subject matter jurisdiction of the probate court. It should be noted that the probate court has 'exclusive original jurisdiction' over the matters enumerated in this section. This means, when read with other Code provisions (such as subsection (c) of this section and Section 62-3-105), that matters within the original jurisdiction of the probate court must be brought in that court, subject to certain provisions made for removal to the circuit court by the probate court or on motion of any party.

The language of this section is similar to Section 14-23-1150 of the 1976 Code, which, in item (a), provides that probate judges are to have jurisdiction as provided in Sections 62-1-301 and 62-1-302, and other applicable sections of this South Carolina Probate Code.

The 2012 amendments added 'determination of property in which the estate of a decedent or protected person has an interest' to subsection (a)(1), substantially rewrote subsections (a)(2), (d)(3), and (d)(4), and added subsection (f), which allows the probate court to remove any pending matter to circuit court in the event a party or the court removes a related matter pursuant to subsection (d), even if that pending matter is not otherwise covered by the removal provisions of (d).

Section 62-1-303.     (a)    Subject to the provisions of Section 62-3-201, where a proceeding under this Code could be maintained in more than one place in South Carolina, the court in which the proceeding is first commenced has the exclusive right to proceed.

(b)    If proceedings concerning the same estate, protected persons, ward, or trust are commenced in more than one court of South Carolina, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and, if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.

(c)    If a court finds that, in the interest of justice, a proceeding or a file should be located in another court of probate in South Carolina, the court making the finding may transfer the proceeding or file to the other court.

REPORTER'S COMMENTS

This section provides that, where a proceeding could be held in more than one county under Section 62-3-201, the probate court in which the proceeding is first commenced has the exclusive right to proceed. If proceedings are commenced in more than one probate court, the court in which the proceeding was first commenced must continue to hear the matter unless it decides that venue is properly in another county, in which event it is to transfer the matter to that other county. Section 62-3-201 relates to testacy or appointment proceedings after death and grants venue to the county of the decedent's domicile or, if the decedent was not domiciled in this State, to any county in which his property was located.

This section also provides that venue with respect to a nonresident's estate could be in any county where he owned property.

Section 62-1-304.     The South Carolina Rules of Civil Procedure (SCRCP) adopted for the circuit court and other rules of procedure in this title govern formal proceedings pursuant to this title. A formal proceeding is a 'civil action' as defined in Rule 2, SCRCP, and must be commenced as provided in Rule 3, SCRCP.

REPORTER'S COMMENTS

The 2010 amendment revised and essentially rewrote Section 62-1-304 in order to clarify that 'formal proceedings' are governed by and subject to the rules of civil procedure adopted for the circuit court [SCRCP] and other rules of procedure in this title and that the SCRCP also govern formal proceedings and commencement of same. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP; see also, Weeks v. Drawdy, 495 S.E. 2d 454 (Ct. App. 1997) (the rules of probate court governing procedure address only a limited number of issues and in the absence of a specific probate court rule, the rules of civil procedure applicable in the court of common pleas shall be applied in the probate court unless to do so would be inconsistent with the provisions of the Code).

Section 62-1-305.     The court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this Code, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the probate court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to letters must show the date of appointment.

REPORTER'S COMMENTS

This section requires that the probate court keep a record of all matters filed with the court and that records be so indexed and filed as to make them useful to those examining them. Further, the court is required to issue certified copies of documents on file.

This section does not go into the detail of Sections 14-23-1100 and 14-23-1130 of the 1976 Code which list in some detail the records which must be kept by the probate court. These sections are not incompatible with Section 62-1-305. Probate Court Rule 1, pertaining to a calendar and to books denoting titles of all cases and transactions therein, is not disturbed by this section.

Section 62-1-306.     (a)    If duly demanded, a party is entitled to trial by jury in any proceeding involving an issue of fact in an action for the recovery of money only or of specific real or personal property, unless waived as provided in the rules of civil procedure for the courts of this State. The right to trial by jury exists in, but is not limited to, formal proceedings in favor of the probate of a will or contesting the probate of a will.

(b)    If there is no right to trial by jury under subsection (a) or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.

(c)    The method of drawing, summoning, and compensating jurors under this section shall be within the province of the county jury commission and shall be governed by Chapter 7 of, Title 14 of the 1976 Code relating to juries in circuit courts.

REPORTER'S COMMENTS

This section confers a right to trial by jury in the probate court in the same kinds of proceedings in which the right to jury trial exists in the circuit court, namely, proceedings involving an issue of fact in an action for the recovery of money only or of specific real or personal property, Section 15-23-60 of the 1976 Code. If no right to trial by jury exists, the court may impanel a jury to decide any issue or fact on an advisory basis.

Chapter 7, Title 14 of the 1976 Code, relating to juries in the circuit court, governs the method of drawing, summoning, and compensating jurors.

Section 62-1-307.     The acts and orders which this Code specifies as performable by the court may be performed either by the judge or by a person, including one or more clerks, designated by the judge by a written order filed and recorded in the office of the court.

Section 62-1-308.    Except as provided in subsection (g)(1), appeals from the probate court must be to the circuit court and are governed by the following rules:

(a)    A person interested in a final order, sentence, or decree of a probate court and considering himself injured by it may appeal to the circuit court in the same county. The notice of intention to appeal to the circuit court must be filed in the office of the circuit court and in the office of the probate court and a copy served on all parties not in default within ten days after receipt of written notice of the appealed from order, sentence, or decree of the probate court. The grounds of appeal must be filed in the office of the probate court and a copy served on all parties within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court.

(b)    Within thirty days after the grounds of appeal has been filed in the office of the probate court, as provided in subsection (a), the probate court shall make a return to the appellate court of the testimony, proceedings, and judgment and file it in the appellate court. Upon final disposition of the appeal, all papers included in the return must be forwarded to the probate court forty-five days after receipt of written notice of the order, sentence, or decree of the probate court, the appellant must file with the clerk of the circuit court a Statement of Issues on Appeal (in a format described in Rule 208(b)(1)(B), SCACR) with proof of service and a copy served on all parties.

(c)    Where a transcript of the testimony and proceedings in the probate court was prepared, the appellant shall, within ten days after the date of service of the notice of intention to appeal, make satisfactory arrangements with the court or court reporter for furnishing the transcript. If the appellant has not received the transcript within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court, the appellant may make a motion to the circuit court for an extension to serve and file the parties' briefs and Designations of Matter to be Included in the Record on Appeal, as provided in subsections (d) and (e).

(d)    Within thirty days after service of the Statement of Issues on Appeal, all parties to the appeal shall serve on all other parties to the appeal a Designation of Matter to be Included in the Record on Appeal (in a format described in Rule 209, SCACR) and file with the clerk of the circuit court one copy of the Designation of Matter to be Included in the Record on Appeal with proof of service.

(e)    At the same time appellant serves his Designation of Matter to be Included in the Record on Appeal, the appellant shall serve one copy of his brief on all parties to the appeal, and file with the clerk of the circuit court one copy of the brief with proof of service. The appellant's brief shall be in a format described in Rule 208(b)(1), SCACR. Within thirty days after service of the appellant's brief, respondent shall serve one copy of his brief on all parties to the appeal, and file with the clerk of the circuit court one copy of the brief with proof of service. The respondent's brief shall be in a format described in Rule 208(b)(2), SCACR. Appellant may file and serve a brief in reply to the brief of respondent. If a reply brief is prepared, appellant shall, within ten days after service of respondent's brief, serve one copy of the reply brief on all parties to the appeal and file with the clerk of circuit court one copy of the reply brief with proof of service. The appellant's reply brief shall be in a format described in Rule 208(b)(3), SCACR.

(f)    Within thirty days after service of the respondent's brief, the appellant shall serve a copy of the Record on Appeal (in a format described in subsections (c), (e), (f) and (g) of Rule 210, SCACR, except that the Record of Appeal need not comply with the requirements of Rule 267, SCACR) on each party who has served a brief and filed with the clerk of the circuit court one copy of the Record on Appeal with proof of service.

(g)    Except as provided in this section, no party is required to comply with any other requirements of the South Carolina Appellate Court Rules. Upon final disposition of the appeal, all exhibits filed separately (as described in Rule 210(f), SCACR), but not included in the Record on Appeal, must be forwarded to the probate court.

(h)    When an appeal according to law is taken from any sentence or decree of the probate court, all proceedings in pursuance of the order, sentence, or decree appealed from shall cease until the judgment of the circuit court, court of appeals, or Supreme Court is had. If the appellant, in writing, waives his appeal before the entry of the judgment, proceedings may be had in the probate court as if no appeal had been taken.

(di)    When the return has been filed in The circuit court, as provided in subsection (b), the court of appeals, or Supreme Court shall hear and determine the appeal according to the rules of law. The hearing must be strictly on appeal and no new evidence may be presented.

(ej)    The final decision and judgment in cases appealed, as provided in this code, shall be certified to the probate court by the circuit court, court of appeals, or Supreme Court, as the case may be, and the same proceedings shall be had in the probate court as though the decision had been made in the probate court. Within forty-five days after receipt of written notice of the final decision and judgment in cases appealed, the prevailing party shall provide a copy of such decision and judgment to the probate court.

(fk)    A judge of a probate court must not be admitted to have any voice in judging or determining an appeal from his decision or be permitted to act as attorney or counsel.

(gl)    If the parties not in default consent either in writing or on the record at a hearing in the probate court, a party to a final order, sentence, or decree of a probate court who considers himself injured by it may appeal directly to the Supreme Court, and the procedure for the appeal must be governed by the South Carolina Appellate Court Rules.

REPORTER'S COMMENTS

This section provides that appeals from the probate court are to the circuit court. Under Section 62-1-308(i), any appeal from the probate court is strictly on the record.

The 2012 amendments to this section were intended to clarify the process for appeals from the probate court. With these changes, (i) the form for the Statement of Issues on Appeal follows that form set forth in Rule 208(b)(1)(B); the use of briefs is specifically contemplated and the form of the briefs follows that set forth in Rule 208, SCACR; (iii) the appellant bears the burden of preparing the record on appeal; and (iv) the prevailing party bears the burden of providing the probate court with a copy of the final decision and judgment from the circuit court, court of appeals, or Supreme Court. While the 2012 amendments do incorporate certain provisions of the SCACR, paragraph (g) clarifies that not all provisions of the SCACR apply to appeals from probate court to circuit court.

Section 62-1-309.     The judges of the probate court shall be elected by the qualified electors of the respective counties for the term of four years in the manner specified by Section 14-23-1020.

REPORTER'S COMMENTS

This section does not disturb Section 14-23-1040 of the 1976 Code which requires that a probate judge or an associate judge must be a qualified elector of the county in which he is to be a judge.

Part 4

Notice, Parties, and Representation

in Estate Litigation and other matters

Section 62-1-401.     (a)    If notice of a hearing on any petition is required and, except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice shall be given:

(1)    by mailing a copy thereof at least twenty days before the time set for the hearing by certified, registered, or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known;

(2)    by delivering a copy thereof to the person being notified personally at least twenty days before the time set for the hearing; or

(3)    if the address or identity of any person is not known and cannot be ascertained with reasonable diligence by publishing a copy thereof in the same manner as required by law in the case of the publication of a summons for an absent defendant in the court of common pleas.

(b)    The court for good cause shown may provide for a different method or time of giving notice for any hearing.

(c)    Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.

(d)    Notwithstanding a provision to the contrary, the notice provisions in this section do not, and are not intended to, constitute a summons that is required for a petition.

REPORTER'S COMMENTS

This section provides that, where notice of hearing on a petition is required, the petitioner shall give notice to any interested person or his attorney (1) by mailing at least twenty days in advance of the hearing, or (2) by personal delivery at least twenty days in advance of the hearing, or (3) if the person's address or identity is not known and cannot be ascertained, by publication as in the court of common pleas.

Under this Code, when a petition is filed with the court, the court is to fix a time and place of hearing and it is then the responsibility of the petitioner to give notice as provided in Section 62-1-401. See, for example, Sections 62-3-402 and 62-3-403.

The 2010 amendment added subsection (d) to clarify and avoid confusion that previously existed regarding the notice provisions in this section. The effect of the 2010 amendment was intended to make it clear that the notice provisions in this section are not intended to and do not constitute a summons, which is required for a petition in formal proceedings. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-1-402.     A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.

Section 62-1-403.     In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons and in judicially supervised settlements the following apply:

(1)    Interests to be affected must be described in pleadings that give reasonable information to owners by name or class by reference to the instrument creating the interests or in other appropriate manner.

(2)    Persons are bound by orders binding others in the following cases:

(i)     Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.

(ii)    To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a person may represent his minor or unborn issue.

(iii)    A minor or unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding.

(3)    Service of summons, petition, and notice is required as follows:

(i)     Service of summons, petition, and notice must be given to every interested person or to one who can bind an interested person as described in (2)(i) or (2)(ii) above. Service of summons and petition upon, as well as notice, may be given both to a person and to another who may bind him.

(ii)    Service upon and notice is given to unborn or unascertained persons who are not represented under (2)(i) or (2)(ii) above by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.

(4)    At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.

REPORTER'S COMMENTS

This section applies to formal proceedings and judicially supervised settlements. It provides that in certain specified instances a person will be bound by orders which are binding on others. Subitem (i) of item (2) provides that an order which is binding upon the person or persons holding a power of revocation or a general power of appointment will bind others, such as objects or takers in default, to the extent that their interests are subject to the power. This would mean that an order which is binding on one who has discretion will bind those in whose favor he might act.

Absent a conflict of interest, subitem (ii) of item (2) provides that orders binding a conservator or guardian are binding on the protected person. In certain limited instances, orders binding on a trustee or a personal representative are binding on beneficiaries and interested persons. Further, under subitem (iii) of item (2) an unborn or unascertained person is bound by orders affecting persons having a substantially identical interest. These provisions facilitate proceedings by limiting multiplicity of parties.

Item (4) permits the court at any point in a proceeding to appoint a guardian ad litem to represent a minor, an incapacitated person, an unborn or unascertained person, or one whose identity or address is unknown if the court determines that representation of that interest would otherwise be inadequate. Accordingly, in a proceeding where there are adult parties having the same interest as the minor or incapacitated person, the court may not deem it necessary to appoint a guardian ad litem if it appears that the common interest will be adequately represented. In the case of minors, the appointment of a guardian ad litem (or an attorney having the powers and duties of a guardian ad litem) is discretionary with the court. However, this Code does require that notice of the proceeding be given to adults presumably having an interest in the minor's welfare, such as the person having care and custody of the minor, parent(s), or nearest adult relatives.

The 2010 amendment revised subsections (1) and (3) to clarify procedure for a formal proceeding, which requires a summons and petition to commence a formal proceeding. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP. The 2010 amendment also revised subsection (2)(ii) to delete 'parent' and replace it with 'person,' so that it is consistent with the remainder of that subsection and also delete 'child' and replace it with 'issue' to be broader and more inclusive.

Part 5

Uniform Simultaneous Death Act

Section 62-1-500.    This part may be cited as the 'Uniform Simultaneous Death Act'.

REPORTER'S COMMENT

The 2012 amendment made significant changes to Part 5. Prior to the 2012 amendment, Part 5 did not include a 120 hour survival requirement similar to Section 62-2-104. The revisions to Part 5 now incorporate a default 120 hour survival requirement for testate and intestate decedents as well as for nonprobate transfers, subject to the exceptions set forth in Section 62-1-506.

Section 62-1-501. This part may be cited as the 'Uniform Simultaneous Death Act'.     For purposes of this part:

(1)    'Co-owners with right of survivorship' includes joint tenants in a joint tenancy with right of survivorship, joint tenants in a tenancy in common with right of survivorship, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.

(2)    'Governing instrument' means a deed, will, trust, insurance or annuity policy, account with POD designation, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.

(3)    'Payor' means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.

Section 62-1-502.     When the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously the property of each person shall be disposed of as if he had survived, except as provided otherwise in this part [Sections 62-1-501 et seq.]. (a)    Except as otherwise provided by this Code, where the title to property, the devolution of property, the right to elect an interest in property, or any other right or benefit depends upon an individual's survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by at least one hundred twenty hours is deemed to have predeceased the other individual.

(b)    If the language of the governing instrument disposes of property in such a way that two or more beneficiaries are designated to take alternatively by reason of surviving each other and it is not established by clear and convincing evidence that any such beneficiary has survived any other beneficiary by at least one hundred twenty hours, the property shall be divided into as many equal shares as there are alternative beneficiaries, and these shares shall be distributed respectively to each such beneficiary's estate.

(c)    If the language of the governing instrument disposes of property in such a way that it is to be distributed to the member or members of a class who survived an individual, each member of the class will be deemed to have survived that individual by at least one hundred twenty hours unless it is established by clear and convincing evidence that the individual survived the class member or members by at least one hundred twenty hours.

Section 62-1-503.     When two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived. Except as otherwise provided by this Code, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by at least one hundred twenty hours is deemed to have predeceased the event.

Section 62-1-504.     When there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one half as if one had survived and one half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property shall be so distributed in the proportion that one bears to the whole number of joint tenants. Except as otherwise provided by this Code, if:

(a)    it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by at least one hundred twenty hours, one-half of the property passes as if one had survived by at least one hundred twenty hours and one-half as if the other had survived by at least one hundred twenty hours;

(b)    there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by at least one hundred twenty hours, the property passes to the estates of each of the co-owners in the proportion that one bears to the whole number of co-owners.

REPORTER'S COMMENT

This section applies to property or accounts held by co-owners with right of survivorship. As defined in Section 62-1-501, the term 'co-owners with right of survivorship' includes multiple-party accounts with right of survivorship.

Section 62-1-505.     When the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. Notwithstanding any other provisions of the Code, solely for the purpose of determining whether a decedent is entitled to any right or benefit that depends on surviving the death of a decedent's killer under Section 62-2-803, the killer is deemed to have predeceased the decedent, and the decedent is deemed to have survived the killer by at least one hundred twenty hours, or any greater survival period required of the decedent under the killer's will or other governing instrument, unless it is established by clear and convincing evidence that the killer survived the victim by at least one hundred twenty hours.

Section 62-1-506.     This part shall not apply to the distribution of the property of a person who died prior to April 3, 1948. Survival by one hundred twenty hours is not required if any of the following apply:

(1)    the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;

(2)    the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a specified period; but survival of the event or the specified period must be established by clear and convincing evidence;

(3)    the imposition of a one hundred twenty hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under other provisions of the Code; but survival must be established by clear and convincing evidence;

(4)    the application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival must be established by clear and convincing evidence;

(5)    the application of a one hundred twenty hour requirement of survival would deprive an individual or the estate of an individual of an otherwise available tax exemption, deduction, exclusion, or credit, expressly including the marital deduction, resulting in the imposition of a tax upon a donor or a decedent's estate, other person, or their estate, as the transferor of any property. 'Tax' includes any federal or state gift, estate or inheritance tax;

(6)    the application of a one hundred twenty hour requirement of survival would result in an escheat.

REPORTER'S COMMENT

The 2012 amendment rewrote this section.

Subsection (1). Subsection (1) provides that the 120-hour requirement of survival is inapplicable if the governing instrument 'contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case.' The application of this provision is illustrated by the following example.

Example. G died leaving a will devising her entire estate to her husband, H, adding that 'in the event he dies before I do, at the same time that I do, or under circumstances as to make it doubtful who died first,' my estate is to go to my brother Melvin. H died about 38 hours after G's death, both having died as a result of injuries sustained in an automobile accident.

Under this section, G's estate passes under the alternative devise to Melvin because H's failure to survive G by 120 hours means that H is deemed to have predeceased G. The language in the governing instrument does not, under subsection (1), nullify the provision that causes H, because of his failure to survive G by 120 hours, to be deemed to have predeceased G. Although the governing instrument does contain language dealing with simultaneous deaths, that language is not operable under the facts of the case because H did not die before G, at the same time as G, or under circumstances as to make it doubtful who died first.

Subsection (2). Subsection (2) provides that the 120-hour requirement of survival is inapplicable if 'the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a stated period.'

Mere words of survivorship in a governing instrument do not expressly indicate that an individual is not required to survive an event by any specified period. If, for example, a trust provides that the net income is to be paid to A for life, remainder in corpus to B if B survives A, the 120-hour requirement of survival would still apply. B would have to survive A by 120 hours. If, however, the trust expressly stated that B need not survive A by any specified period, that language would negate the 120-hour requirement of survival.

Language in a governing instrument requiring an individual to survive by a specified period also renders the 120-hour requirement of survival inapplicable. Thus, if a will devises property 'to A if A survives me by 30 days,' the express 30-day requirement of survival overrides the 120-hour survival period provided by this Act.

Subsection (4). Subsection (4) provides that the 120-hour requirement of survival is inapplicable if 'the application of this section to multiple governing instruments would result in an unintended failure or duplication of a disposition.' The application of this provision is illustrated by the following example.

Example. Pursuant to a common plan, H and W executed mutual wills with reciprocal provisions. Their intention was that a $50,000 charitable devise would be made on the death of the survivor. To that end, H's will devised $50,000 to the charity if W predeceased him. W's will devised $50,000 to the charity if H predeceased her. Subsequently, H and W were involved in a common accident. W survived H by 48 hours.

Were it not for subsection (4), not only would the charitable devise in W's will be effective, because H in fact predeceased W, but the charitable devise in H's will would also be effective, because W's failure to survive H by 120 hours would result in her being deemed to have predeceased H. Because this would result in an unintended duplication of the $50,000 devise, subsection (4) provides that the 120-hour requirement of survival is inapplicable. Thus, only the $50,000 charitable devise in W's will is effective.

Subsection (4) also renders the 120-hour requirement of survival inapplicable had H and W died in circumstances in which it could not be established by clear and convincing evidence that either survived the other. In such a case, an appropriate result might be to give effect to the common plan by paying half of the intended $50,000 devise from H's estate and half from W's estate.

Under subsection (5), if the application of the 120-hour survival requirement would cause the loss of an available tax exemption, deduction, exclusion, or credit, creating a federal or State gift, estate or inheritance tax, the 120-hour survival requirement will not be applied. Additionally, under subsection (6), the 120-hour survival requirement is not applicable if it would cause an escheat.

Section 62-1-507.     This part [Sections 62-1-501 et seq.] shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the distribution that would otherwise be made under the provisions of this part [Sections 62-1-501 et seq.]. In addition to the South Carolina Rules of Evidence, the following rules relating to a determination of death and status apply:

(1)    Death occurs when an individual is determined to be dead under the Uniform Determination of Death Act, Section 44-43-460.

(2)    A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death, and the identity of the decedent.

(3)    A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.

(4)    In the absence of prima facie evidence of death under subsection (2) or (3), the fact of death may be established by clear and convincing evidence, including circumstantial evidence.

(5)    A person whose death is not established under the preceding paragraphs who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.

(6)    In the absence of evidence disputing the time of death stated on a document described in subsection (2) or (3), a document described in subsection (2) or (3) that states a time of death one hundred twenty hours or more after the time of death of another person, however the time of death of the other person is determined, establishes by clear and convincing evidence that the person survived the other person by one hundred twenty hours.

REPORTER'S COMMENT

The 2012 amendment rewrote this section. This section incorporates the provisions of former Section 62-1-107.

Section 62-1-508.        This part [Sections 62-1-501 et seq.] shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact substantially identical laws. (1)    A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a person designated in a governing instrument who, under this part, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the person's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this part. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this part.

(2)    Written notice of a claimed lack of entitlement under subsection (1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this part, a payor or other third party may pay any amount owed or transfer or deposit any item of property, other than tangible personal property, held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this part, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

(3)    A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this part to return the payment, item of property, or benefit, and is not liable under this part for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this part is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this part.

Section 62-1-509.     This part [Sections 62-1-501 et seq.] shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact substantially identical laws.

REPORTER'S COMMENT

Prior to the 2012 amendment this section was previously Section 62-1-508.

Section 62-1-510.    (a)    This part [Sections 62-1-501 et seq.] takes effect January 1, 2013.

(b)    On the effective date of this part [Sections 62-1-501 et seq.]:

(1)    an act done before the effective date in any proceeding and any accrued right is not impaired by this part. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before the effective date, the provisions remain in force with respect to that right; and

(2)    any rule of construction or presumption provided in this part applies to multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.

Article 2

Intestate Succession and Wills

Part 1

Intestate Succession

Section 62-2-101.     Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code.

REPORTER'S COMMENTS

Section 62-2-101 establishes intestate succession as the method of disposition of any part of a decedent's estate not effectively disposed of by his will, as under Sections 62-2-501 and 62-2-602. It applies both in cases of total intestacy and in cases of partial intestacy. See Sections 62-1-201(11) and 62-1-201(35) for this Code's definition of the estate governed by Section 62-2-101 as to intestate succession.

Section 62-2-102.     The intestate share of the surviving spouse is:

(1)    if there is no surviving issue of the decedent, the entire intestate estate;

(2)    if there are surviving issue, one-half of the intestate estate.

REPORTER'S COMMENTS

Section 62-2-102 defines the intestate share of the decedent's surviving spouse (which term is in turn defined by Section 62-2-802) by limiting the persons with whom the surviving spouse must share any part of the intestate estate to the decedent's surviving issue, i.e., if no issue survive, the spouse takes all, and, in case issue do survive, the spouse takes one-half of the intestate estate. Section 62-2-102 draws no distinction between cases of single child survival and multiple child survival.

A husband or wife who desires to leave his or her surviving spouse more or less than the share provided by this section and to leave to other persons more or less than would otherwise be available to them may do so by executing a will.

Section 62-2-103.     The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:

(1)    to the issue of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;

(2)    if there is no surviving issue, to his parent or parents equally;

(3)    if there is no surviving issue or parent, to the issue of the parents or either of them by representation;

(4)    if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;

(5)    if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the surviving paternal great-grandparents in equal shares, or to the surviving paternal great-grandparent if only one survives, or to the issue of the paternal great-grandparents if none of the great-grandparents survive, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving great-grandparent or issue of a great-grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;

(6)    if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, great-grandparent or issue of a great-grandparent, but the decedent is survived by one or more stepchildren or issue of stepchildren, the estate passes to the surviving stepchildren and to the issue of any deceased stepchildren; if they are all of the same degree of step-kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation.

REPORTER'S COMMENTS

Section 62-2-103 defines the intestate shares of persons, other than the surviving spouse, in that part of the intestate estate not passing to the surviving spouse under Section 62-2-102.

Subsection (1) of Section 62-2-103 gives preference to the decedent's issue as against all others, except the surviving spouse (see Section 62-2-102).

Where the surviving issue who are heirs are all of the same degree of kinship to the decedent, they take per capita, i.e., in equal shares. Where the surviving issue who are heirs are of unequal degrees, they take per capita with per capita representation, i.e., those in the nearest degree take per capita, equal shares, as before, while those in the more remote degrees take, by representation, the equal share which their deceased ancestor in the nearest degree would have taken had he survived the decedent. Such issue in more remote degrees take their deceased ancestor's equal share, in turn, per capita with per capita representation. This section, read together with Section 62-2-106, minimizes the occurrence of unequal distributions among members of the same generation.

For an example of issue taking per capita with per capita representation, suppose death is indicated by parentheses and:

1. (X) dies intestate:

2. predeceased by two children, (A) and (B):

3. survived by two grandchildren, A's child C, and B's child D, and predeceased by one grandchild, B's child (E):

4. predeceased by two great-grandchildren, E's children (F) and (G):

5. and survived by three great-great grandchildren F's child H, and G's children I and J.

Under Section 62-2-103(1), the number of issue, in the nearest degree of kinship having surviving members, counting both those who survive and those who predecease leaving issue surviving, determines the basic shares. In this example, 'thirds' go to each of the living grandchildren C and D and, collectively, to the issue of the predeceased grandchild E. In turn, E's 'third' is divided among his issue in the same manner; and the number of his issue, in the nearest degree having surviving members, determines the further shares, which are, in this example, 'thirds' of E's 'third', or 'ninths' which go to H, I, and J. Under Section 62-2-103(1), the pre-existence of A, B, F, and G is ignored because no member of their respective degrees of kinship survived the decedent.

Subsection (2) of Section 62-2-103 allocates the entire intestate estate to the parents of the decedent if there is neither a surviving spouse nor any surviving issue.

Subsection (3) of Section 62-2-103 apportions the entire intestate estate, by representation, among the issue of the parents of the decedent only if the decedent leaves neither spouse nor issue nor parents. All issue of parents of the decedent, however remotely related to the decedent they may be, share by representation. For example, a grandnephew of decedent, related through a brother and nephew of decedent, themselves both predeceased, takes by representation and is not excluded by the survival of another brother or of another nephew of decedent.

All issue of the decedent's parents take under Section 62-2-103(3) by representation so that half blood heirs are treated the same as whole blood heirs.

Subsections (4) and (5) of Section 62-2-103 apply in cases in which the decedent is survived by neither spouse, nor issue, nor parents, nor issue of parents, but is survived by grandparents or their issue (then the entire intestate estate is distributed to them under subsection (4)), or the decedent is survived neither by grandparents nor their issue but by great-grandparents or their issue (then the entire intestate estate is distributed to them under subsection (5)). Persons, even more remotely related to decedent, the so-called 'laughing heirs,' do not share at all.

Section 62-2-104.     Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of Section 62-2-401 and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of the intestate estate by the State under Section 62-1-105. (1)    For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (2):

(a)    an individual who was born before a decedent's death but who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established that an individual who was born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period.

(b)    an individual who was in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established that an individual who was in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.

(2)    This section does not apply if it would result in a taking of the intestate estate by the state under Section 62-2-105.

REPORTER'S COMMENTS

Section 62-2-104 makes clear that survival for the 120 hours is a condition for benefit of intestate succession, the homestead allowance, and the exempt property exclusion; the amendment clarifies that an infant in gestation must survive for 120 hours following birth.

Section 62-2-105.     If there is no taker under the provisions of this article [Sections 62-2-101 et seq.], the intestate estate passes to the State of South Carolina.

REPORTER'S COMMENTS

Section 62-2-105 provides for escheat of an intestate estate to the State of South Carolina whenever there are no heirs as prescribed in Sections 62-2-102 and 62-2-103, as affected by other sections of this Article 2, i.e., whenever neither spouse nor great-grandparents of decedent, nor issue thereof, survive decedent. The procedures regulating escheat to the State are embodied in Sections 27-19-10, et seq., of the 1976 Code.

Section 62-2-106.     If representation is called for by this Code, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner. If an interest created by intestate succession is disclaimed, the beneficiary is not treated as having predeceased the decedent for purposes of determining the generation at which the division of the estate is to be made.

REPORTER'S COMMENTS

Section 62-2-106 defines the division of an intestate estate, among the heirs' respective shares, by 'representation,' i.e., as an equal division among the nearest surviving kin, with the issue of any equally near but predeceased kin taking their ancestor's share in the same manner, by representation. For an example of the application of Section 62-2-106, see the Comment to Section 62-2-103(1).

Section 62-2-107.     Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

REPORTER'S COMMENTS

These rules of this section are carried over into the construction of wills' dispositions by Section 62-2-609.

Section 62-2-108.     Issue of the decedent (but no other persons) conceived before his death but born within ten months thereafter inherit as if they had been born in the lifetime of the decedent.

REPORTER'S COMMENTS

Section 62-2-108 codifies South Carolina case law establishing the right of an afterborn child of an intestate decedent to inherit. Pearson v. Carlton, 18 S.C. 47 (1882). This section expands the principle to benefit other issue of the intestate decedent, more remotely related than his children, e.g., grandchildren. The section further expressly excepts collateral relatives of the decedent from the principle's operation.

Section 62-2-109. If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1)    From the date the final decree of adoption is entered, and except as otherwise provided in Section 63-9-1120, an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.

(2)    In cases not covered by (1), a person born out of wedlock is a child of the mother. That person is also a child of the father if:

(i)     the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(ii)    the paternity is established by an adjudication commenced before the death of the father or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate and, if after his death, by clear and convincing proof, except that the paternity established under this subitem (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.

(3)    A person is not the child of a parent whose parental rights have been terminated under Section 63-7-2580 of the 1976 Code, except that the termination of parental rights is ineffective to disqualify the child or its kindred to inherit from or through the parent.

REPORTER'S COMMENTS

Section 62-2-109 concerns intestate succession as affected by adoptions of persons, by births out of wedlock, and by the termination of parental rights. However, this section's definition of the parent-child relationship is imported by references in Sections 62-1-201(3) defining 'child', 62-1-201(24) defining 'issue', and 62-1-201(31) defining 'parent', and in Section 62-2-609 construing class gift and family relationship terminology into the meanings of such terms and terminology as used throughout this Code and also in testators' wills. See Sections 62-2-102, 62-2-103, 62-2-106, 62-2-302, 62-2-401, 62-2-402, 62-2-603, and 62-2-609.

The rule of general applicability of Section 62-2-109(1) is that upon adoption the adopted person's intestacy relationships with all his natural relatives are severed, but are supplanted by newly established intestacy relationships with all of his adopted relatives.

However, the general rule does not apply to cases of adoption of adults. Rather, the intestacy relationships of the parties are left undisturbed by the adoption decree, unless a court finds it to be in the best interests of the persons involved to apply the general rule.

To cover the case of the marriage of a child's natural parent to a person who adopts the child, Section 62-2-109(1) provides that adoption does not sever the adopted child's intestacy relationship with 'that' natural parent. Adoption does, however, sever the adopted child's intestacy relationship with the 'other' natural parent, i.e., the natural parent not married to the person adopting the child.

Subsection (2) of Section 62-2-109 relates to the taking in intestacy by, through, or from persons born out of wedlock. It does not purport to declare such illegitimate children to be legitimate. No part of the prior South Carolina law, establishing the legitimacy of a child, is meant to be affected by Section 62-2-109(2). The bases for a finding of legitimacy, i.e., either birth to validly married parents, whether validly ceremonially married or married as at common law, or birth to parents covered by one of the legitimation statutes, Sections 20-1-30, 20-1-40, 20-1-50, 20-1-60, 20-1-80, and 20-1-90 of the 1976 Code, remains as under prior law; and, of course, such legitimate children bear intestacy relationships with their relatives.

Section 62-2-109(2) merely establishes intestacy relationships between illegitimate children and their maternal and paternal relatives.

The rule set forth in Section 62-2-109(2)(i) relates to the establishment of the illegitimate child's intestacy relationship with his father, whenever the father and mother have been ceremonially married, albeit invalidly so.

Section 62-2-109(2)(ii) allows an illegitimate child to inherit from and through his father if paternity is established by an adjudication commenced either before the father's death or within six months thereafter. A standard higher than usual, clear and convincing proof is required to be met in an adjudication commenced after, but not in an adjudication before, the father's death.

The imposition of a required adjudication and a higher standard of proof upon illegitimate children seeking to inherit from their fathers, as compared with legitimate children not similarly burdened, should pass constitutional muster under the decision of Lalli v. Lalli, 439 U.S. 259 (1978). Section 62-2-109(2)(ii) precludes the father and his kindred from inheriting from or through the child unless the father has openly treated the child as his and has not refused to support the child.

Subsection (3) of Section 62-2-109, on intestacy relationships following the termination of parental rights, is meant to conform with Section 63-7-2590 of the 1976 Code, cutting the parent off from the child's intestate estate, but not cutting the child off from the parent's intestate estate.

Section 62-2-110.     If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing signed by the decedent or acknowledged in a writing signed by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property shall be taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.

REPORTER'S COMMENTS

Section 62-2-110 concerns the effect on intestate succession of lifetime gifts made by the intestate to donees who are his prospective heirs. The section charges such lifetime gifts, as advancements, against the intestate share of the donee-heir, but only if, first, the intestate dies wholly intestate, i.e., without a will disposing of any part of his estate. See Section 62-2-610 on satisfaction for a rule analogous to the rule of advancements but operative in the event of succession under a will.

Such gifts are treated as advancements under Section 62-2-110 only if, second, they are contemporaneously declared by the intestate or acknowledged by the donee, in writing, to be advancements.

If the donee predeceases the intestate, but issue of the donee survive as heirs of the intestate, Section 62-2-110 charges the ancestor's lifetime gifts as advancements against the intestate share of the issue-heirs, again, only if there is a total intestacy and the above-mentioned writing exists but not if the writing provides that the lifetime gifts to the ancestor are not to be treated as advancements to such issue.

Section 62-2-110 applies to lifetime gifts made to any of the heirs of the intestate, a class of donees broader than the former law's language 'child or issue of the intestate.' See Section 62-1-201(20) defining 'heirs'.

Section 62-2-110 values the advancement at the earlier of the donee's actual receipt of the gift or the intestate's death, resulting in most cases in a valuation at the date of the gift rather than at the date of death.

Section 62-2-111.     A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.

REPORTER'S COMMENTS

Section 62-2-111 qualifies the personal representative's right and obligation of retainer, i.e., to offset or charge the amounts of debts owed to the decedent against the shares of successors to his estate, as provided for in Section 62-3-903. Section 62-2-111 limits such charge's effects so that they affect only the debtor's share and not also the intestate shares of the debtor's issue. This codifies South Carolina case law. See Stokes v. Stokes, 62 S.C. 346, 40 S.E. 662 (1902), where the debt of a predeceased brother of the intestate was not charged against the brother's children's intestate shares.

Section 62-2-112.     No person is disqualified to take as an heir because he, or a person through whom he claims, is or has been an alien.

REPORTER'S COMMENTS

Section 62-2-112 allows an individual to inherit property even though he, or a person through whom he claims, is or has been an alien. This was the prior South Carolina law notwithstanding the mandate of Article 3, Section 35 of the South Carolina Constitution (1895) and the provisions of former Sections 27-13-30 and 27-13-40 of the 1976 Code, limiting alien ownership of South Carolina land to five hundred thousand acres, the last obviously unrealistic as an effective limit at approximately twenty-eight miles square.

Section 62-2-113.     A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share.

REPORTER'S COMMENTS

Section 62-2-113 precludes possibility of a person related to the decedent through two lines of relationship, adopted and natural or either, from inheriting other than through the single line which will entitle him to the larger share.

Section 62-2-114.     Notwithstanding any other provision of law, if the parents of the deceased would be the intestate heirs pursuant to Section 62-2-103(2), upon the service of a summons, petition and notice by motion of either parent or any other party of potential interest based upon the decedent having died intestate, the probate court may deny or limit either or both parent's entitlement for a share of the proceeds if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority. If the court makes such a determination as to a parent or parents, the parent shall be a disqualified parent. The proceeds, or portion of the proceeds, that a disqualified parent would have taken shall pass as though the disqualified parent had predeceased the decedent.

REPORTER'S COMMENT

The 2012 amendment makes clear that an action under this section must be commenced by the service of a Summons, Petition and Notice by either parent or any other party of potential interest; the amendment defines a disqualified parent as a parent found by the court by a preponderance of the evidence not to have reasonably have provided support for the deceased child; the amendment clarifies that the portion, or all , as the court determines, of the intestate share denied to the disqualified parent shall pass as if the disqualified parent had predeceased the child.

Part 2

Elective Share of Surviving Spouse

Section 62-2-201.     (a)    If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of one-third of the decedent's probate estate, as computed under Section 62-2-202, the share to be satisfied as detailed in Sections 62-2-206 and 62-2-207 and, generally, under the limitations and conditions hereinafter stated.

(b)    If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death.

(c)    'Surviving spouse', as used in this Part, is as defined in Section 62-2-802.

REPORTER'S COMMENTS

See Section 62-2-802 for the definition of 'spouse' which controls in this part.

Under the common law, a widow was entitled to dower which was a life estate in a fraction of lands of which her husband was seized of an estate of inheritance at any time during the marriage. The South Carolina Supreme Court in Boan v. Watson, 281 S.C. 516, 316 S.E.2d 401 (1984) declared that dower was unconstitutional as a violation of the equal protection clauses of the South Carolina and United States Constitutions. South Carolina, like other states, substitutes an elective share in the whole estate for dower and the widower's common law right of curtesy.

Section 62-2-202.     (a)    For purposes of this Part, probate estate means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy, reduced by funeral and administration expenses and enforceable claims.

(b)    Except as provided in Section 62-7-401(c) with respect to a revocable inter vivos trust found to be illusory, the elective share shall apply only to the decedent's probate estate.

REPORTER'S COMMENTS

The 2012 amendment does not change the definition of 'probate estate,' a term with a settled meaning. As defined, the 'probate estate' to which the elective share is applicable is actually the net probate estate, after the probate estate is reduced by funeral and administration expenses and enforceable claims.

The 2012 amendment adds a new sub-paragraph (b), which takes into account and leaves unchanged the provisions of Section 62-7-401(c) of the South Carolina Trust Code. SCTC Section 62-7-401(c) is the statutory descendant of former SCPC Section 62-7-112, which was enacted after the Siefert decision, Seifert v. Southern Nat'l Bank of South Carolina , 305 S.C. 353, 409 S.E.2d 337 (1991). Seifert found that the revocable trust before the court was 'illusory' and, even though not a part of the settlor/decedent's probate estate, assets owned by the trust were nevertheless subject to the elective share. The amendment means to leave intact Section 62-7-401(c), including the possibility that assets owned by a revocable inter vivos trust found not to be illusory are not subject to the elective share. The amendment clarifies that the only nonprobate assets subject to the elective share in South Carolina are assets in a revocable trust found to be illusory under Section 67-7-401(c).

The intent of the amendment is to clarify and provide certainty with respect to all other of a decedent's nonprobate assets, which by this amendment are not subject to the elective share in South Carolina.

The amendment expressly rejects the concept of the 'augmented estate' as the multiplicand of the one-third elective share entitlement. This rejection is in keeping with and continues the intent of the drafters of the elective share statute as originally effective in 1987, whose comment to this section stated 'This section rejects the 'augmented estate' concept promulgated by the drafters of the Uniform Probate Code as unnecessarily complex.' The latest concept of 'augmented estate' promulgated by the drafters of the Uniform Probate Code is more onerous and complex than the version rejected in 1987.

The revised Uniform Probate Code last promulgated by the National Conference of Commissioners on Uniform State Laws, as well as statutes adopted in some states (for example, North Carolina) have extended the reach of the statutory spousal share or elective share to nonprobate assets. The property to which the surviving electing spouse is entitled to receive a portion is referred to as the augmented estate.

The effective and expeditious administration of decedents' estates would be virtually impossible if nonprobate assets owned by persons not subject to the personal jurisdiction of any South Carolina court are subject to disgorgement by reason of the elective share. A similar problem presently exists in estates in South Carolina where an equitable apportionment of the estate tax imposes on the personal representative the duty of collecting the proportionate share of tax from recipients of nonprobate property. Current laws provide no efficient, cost effective means to reach these assets in the hands of persons outside the range of existing long arm statutes.

SECTION 62-2-203.     The right of election of the surviving spouse may be exercised only during his lifetime by him or by his duly appointed attorney in fact. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending.

REPORTER'S COMMENTS

See Section 62-5-101 for definitions of protected person and protective proceedings.

SECTION 62-2-204.    (A)    The rights of a surviving spouse to an elective share, homestead allowance, and exempt property, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable disclosures to the waiving party of the other party's property and financial obligations have been given in writing.

(B)    Unless it provides to the contrary, a waiver of all rights in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, and exempt property by each spouse in the property of the other and a disclaimer by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of a will executed before the waiver or property settlement.

REPORTER'S COMMENTS

The right to homestead allowance is conferred by Article 1, Chapter 41, Title 15 of the 1976 Code, and exempt property by Section 62-2-401. The right to disclaim interests passing by testate or intestate succession is recognized by Section 62-2-801. The provisions of this section, permitting a spouse or prospective spouse to waive all statutory rights in the other spouse's property, seem desirable in view of the common and commendable desire of parties to second and later marriages to ensure that property derived from prior spouses passes at death to the issue of the prior spouses instead of to the newly acquired spouse. The operation of a property settlement as a waiver and disclaimer takes care of the situation which arises when a spouse dies while a divorce suit is pending.

Section 62-2-205.     (a)    The surviving spouse may elect to take his elective share in the probate estate by filing in the court and serving upon the personal representative, if any, a summons and petition for the elective share within eight months after the date of death or within six months after the probate of the decedent's will thirty days after service upon the surviving spouse of a summons and petition contesting the will, whichever limitation last expires.

(b)    The surviving spouse shall give notice of the time and place set for hearing to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the elective share.

(c)    The surviving spouse may withdraw or reduce his demand for an elective share at any time before entry of a final determination by the court.

(d)    After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the probate estate or by contribution as set out in Sections 62-2-206 and 62-2-207.

(e)    The order or judgment of the court for payment or contribution may be enforced as necessary in other courts of this State or other jurisdictions.

REPORTER'S COMMENTS

The 2010 amendment revised subsection (a) by deleting "mailing or delivering" and replacing it with "serving upon" and also adding "summons and" to clarify that a summons and petition are required to commence a formal proceeding, including a formal proceeding for elective share. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-2-206.     A surviving spouse is entitled to benefits provided under or outside of the decedent's will, by any homestead allowance, by Section 62-2-401, whether or not he elects to take an elective share, but such amounts as pass under the will or by intestacy, by any homestead allowance, and by Section 62-2-401 are to be charged against the elective share pursuant to Section 62-2-207(a).

REPORTER'S COMMENTS

This election does not result in a loss of benefits under, outside, or against the will (in the absence of renunciation) but (to the extent that such gifts are part of the estate) they are charged against the elective share under Sections 62-2-201, 62-2-202, and 62-2-207(a).

Section 62-2-207.     (a)    In the proceeding for an elective share, all property, including beneficial interest, which passes or has passed to the surviving spouse under the decedent's will or by intestacy, by a homestead allowance, and by Section 62-2-401, or which would have passed to the spouse but was renounced, or which is contained in a trust created by the decedent's will or a trust as described in Section 62-7-401(c) in which the spouse has a beneficial interest, is applied first to satisfy the elective share and to reduce contributions due from other recipients of transfers included in the probate estate. A beneficial interest that passes or has passed to a surviving spouse under the decedent's will includes an interest as a beneficiary in a trust created by the decedent's will or an interest as a beneficiary in property passing under the decedent's will to an inter vivos trust created by the decedent. For purposes of this subsection, the value of the electing spouse's beneficial interest in property which qualifies or would have qualified for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended and in effect on December 31, 2009, must be computed at the full value of the qualifying property. Qualifying for these purposes must be determined without regard to whether an election has been made to treat the property as qualified terminable interest property.

(b)    Remaining property of the probate estate is applied so that liability for the balance of the elective share of the surviving spouse is satisfied from the probate estate with devises abating in accordance with Section 62-3-902. In the proceeding for an elective share, all property, including any beneficial interests, which passes or has passed to the surviving spouse must be applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the probate estate, so long as the property is passed to the surviving spouse:

(1)    under the decedent's will;

(2)    by intestacy;

(3)    by the homestead allowance;

(4)    by Section 62-2-401;

(5)    by beneficiary designation of any life insurance;

(6)    by beneficiary designation of any Individual Retirement Account or qualified retirement plan, or annuity;

(7)    which would have passed to the spouse but was renounced or disclaimed;

(8)    which is contained in a trust created by the decedent's will; or

(9)    which is contained in a trust as described in Section 62-7-401(c).

(b)    A beneficial interest that passes or has passed to a surviving spouse under the decedent's will includes:

(1)    an interest as a beneficiary in a trust created by the decedent's will;

(2)    an interest as a beneficiary in property passing under the decedent's will to an inter vivos trust created by the decedent; and

(3)    an interest as a beneficiary in property contained at the decedent's death in a trust described in Section 62-7-401(c).

(c)(1)    For purposes of this section, the value of the electing spouse's beneficial interest in any property which qualifies for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, or, if the federal estate tax is not applicable at the decedent's death, would have qualified for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, in effect on December 31, 2009, must be computed at the full value of any such qualifying property. Qualifying for these purposes must be determined without regard to whether an election has been made to treat the property as qualified terminable interest property.

(2)    The value of such qualifying property shall be the value at the date of death as finally determined in the decedent's estate tax proceedings, or if there is no federal estate tax proceeding, as shown on the inventory and appraisement or as determined by the court. The personal representative may choose assets, in order of abatement pursuant to Section 62-3-902, to satisfy the elective share, using the fair market value at the date of distribution. The elective share is pecuniary in nature.

(3)    The electing spouse who is the income beneficiary of a trust, the value of which is treated, or could be treated, as qualifying property, shall have the right to require a conversion of the income trust to a total return unitrust as defined in Section 62-7-904B(12) and in accordance with Section 62-7-940N.

(d)    In choosing assets to fund the elective share, remaining property of the probate estate is so applied so that liability for the balance of the elective share of the surviving spouse is satisfied from the probate estate, with devises abating in accordance with Section 62-3-902.

REPORTER'S COMMENT

The 2012 amendment rewrites this section entirely and changes substantively the method of calculation of the elective share in South Carolina.

Under the law prior to this amendment, nonprobate assets passing to the surviving spouse were not credited against the elective share. Under the amendment, the amount of the probate estate subject to the elective share is reduced by the value of nonprobate assets passing to the spouse at the death of the decedent. Including the value of nonprobate assets passing to the surviving spouse at the death of the decedent in the calculation of the elective share imposes on the personal representative the duty to ascertain the value of those nonprobate assets as well as the duty to verify that the assets in fact pass to the surviving spouse. Probate Courts may require that nonprobate assets be identified sufficiently on the Inventory and appraisement to enable the calculation to be made. The amendment makes clear that the nonprobate assets are applied first to satisfy the elective share before assets from the probate estate are applied in satisfaction.

The amendment clarifies and makes certain that property passing directly to the surviving spouse in a revocable inter vivos trust, including a beneficial interest, will satisfy the elective share. The amendment eliminates the concern that property had to 'pass under the will' first in order to be applied in satisfaction of the elective share.

The amendment leaves unchanged the law that the value of the electing spouse's beneficial interest in any property which qualifies for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended (or, if the federal estate tax is not applicable at the decedent's death , would have qualified for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, in effect on December 31, 2009), must be computed at the full value of any such qualifying property. Two comments are relevant here. First, the future of the federal estate tax is at best uncertain. The federal estate tax law in effect on December 31, 2009, as it pertained to the qualification for the federal estate tax marital deduction, was settled law, familiar to laymen and practitioners alike. Consequently, incorporation of the qualification requirements for the federal estate tax marital deduction then in effect, particularly with respect to the so called 'QTIP' marital trust, is the measure least likely to cause confusion and error. Next, in rejecting the 'augmented estate' while at the same time continuing to credit at full value the assets in an income only QTIP trust, this section takes into account the possibility that the consequences to a surviving spouse in the present and projected economy could be harsh as well as changes to South Carolina law since 1987, including adoption of the Prudent Investor Act (SCTC Section 62-7-933), predicated on Modern Portfolio Theory. Recognizing that simple, income only trusts may be disappointing and inadequate, the 2012 amendment provides that the electing spouse who is the beneficiary of an income trust, the value of which is treated (or could be treated) as qualifying property, shall have the right to require a conversion of the income trust to a total return unitrust as defined in Section 62-7-904B(12) and in accordance with Section 62-7-940N.

The 2012 amendment makes clear that the value of such qualifying property shall be the value at the date of death as finally determined in the decedent's estate tax proceedings, or if there is no federal estate tax proceeding, as shown on the Inventory and Appraisement or as determined by the court. Generally this is fair market value. The amendment makes clear, first, that in satisfying the elective share, probate assets will be valued at date of distribution values; second, the amendment provides that the elective share is pecuniary in nature and not fractional. This is less burdensome and requires revaluation only of assets in kind used to fund the elective share. Although the law prior to the 2012 amendment may have been unclear about whether the elective share was fractional or pecuniary, the treatment of the elective share as pecuniary will be clear prospectively from the effective date of the amendment.

The amendment leaves unchanged the order of abatement within the probate estate.

Part 3

Spouse and Children Unprovided for in Wills

Section 62-2-301.     (a)    If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse, upon compliance with the provisions of subsection (c), shall receive the same share of the estate he would have received if the decedent left no will unless:

(1)    it appears from the will that the omission was intentional; or

(2)    the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

(b)    In satisfying a share provided by this section, the devises made by the will abate as provided in Section 62-3-902.

(c)    The spouse may claim a share as provided by this section by filing in the court and mailing or delivering to serving upon the personal representative, if any, a claim summons and petition for such share within eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires. The spouse shall give notice of the time and place set for hearing to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the share.

REPORTER'S COMMENTS

Section 62-2-301 sets aside an intestate share for any surviving spouse who is married to a testator after the execution of a will which omits provision for the spouse, unless the omission was intentional or the spouse was otherwise provided for outside of and intentionally in lieu of a will's provisions. Compare the set aside for omitted afterborn children under Section 62-2-302. The testator's intentions may be shown on the face of the will or by his statements concerning or from the amount of or from other evidence concerning the nontestamentary transfer.

Section 62-2-301 does not totally revoke the will; rather, Section 62-2-301 merely abates the will's devises to the extent necessary to satisfy the spouse's intestate share. Compare Section 62-2-507, effecting a partial revocation of a will's provisions to the extent that they benefit a spouse divorced from testator after execution of the will, and otherwise providing that no change of circumstances, e.g., marriage, revokes a will by operation of law.

The spouse's protection accorded by Section 62-2-301 presumably may be waived. See Section 62-2-801.

Section 62-2-302.     (a)    If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child, upon compliance with subsection (d), receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:

(1)    it appears from the will that the omission was intentional; or

(2)    when the will was executed the testator had one or more children and devised substantially all his estate to his spouse; or

(3)    the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

(b)    If, at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes that child to be dead, the child, upon compliance with subsection (d), receives a share in the estate equal in value to that which he would have received if the testator had died intestate.

(c)    In satisfying a share provided by this section, the devises made by the will abate as provided in Section 62-3-902.

(d)    The child, and his guardian or conservator acting for him, may claim a share as provided by this section by filing in the court and mailing or delivering to serving upon the personal representative, if any, a claim summons and petition for such share within eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires. The child, and his guardian or conservator acting for him, shall give notice of the time and place set for hearing to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the share.

REPORTER'S COMMENTS

Section 62-2-302 sets aside an intestate share for any surviving child who either was unprovided for because he was thought to be dead at the execution of a will or is born to or adopted by a testator after the execution of a will which omits provision for the child; but, in the case of the afterborn child, he does not take a set aside if the omission was intentional, or if the child was otherwise provided for outside of and intentionally in lieu of a will's provisions. Compare the set aside for omitted spouses under Section 62-2-301. The testator's intentions may be shown on the face of the will or by his statements concerning or from the amount of or from other evidence concerning the nontestamentary transfer.

The 2012 amendment addresses afterborn children by providing that a will devising substantially all of a testator's estate to his spouse is valid against the claim of a child omitted under such will regardless of whether the will was executed by the decedent before or after the child was born or adopted.

Part 4

Exempt Property

Section 62-2-401.     The surviving spouse of a decedent who was domiciled in this State is entitled from the estate to a value not exceeding five twenty-five thousand dollars in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than five twenty-five thousand dollars, or if there is not five twenty-five thousand dollars worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the five twenty-five thousand dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate except claims described in Section 62-3-805(a)(1). These rights are in addition to any right of homestead and personal property exemption otherwise granted by law but are chargeable against and not in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by the elective share. Any surviving spouse or minor or dependent children of the decedent who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of this section.

REPORTER'S COMMENTS

Section 62-2-401 sets aside an unencumbered twenty-five thousand dollars worth of exempt personal property to a domiciliary decedent's surviving spouse or minor or dependent children. Claimants must survive the decedent by one hundred twenty hours in order to qualify under Section 62-2-401.

Section 62-2-401 sets aside the indicated amount free of the claims of both the unsecured creditors of the decedent's estate (a creditors' claim exemption) and the decedent's will's named beneficiaries, i.e., notwithstanding any provisions in the will to the contrary (a mandatory set aside).

While the mandatory set aside is chargeable against and not in addition to any provisions in the will or in intestacy in favor of the spouse or children, unless otherwise provided in the will, Section 62-2-401 provides that the mandatory set aside and creditors' claim exemption is to be in addition to and not chargeable against any right of homestead allowance, i.e., real property exemption, and personal property exemption, available to the decedent's survivors pursuant to Section 15-41-30 of the 1976 Code, and otherwise.

For a discussion of which of these exemptions apply to a decedent's estate, see (Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E. 2d 603 (S.C. App. 1997).

Section 62-2-402.     (a)    If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians or conservators of the minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make these selections if the surviving spouse, the children, or the guardians or conservators of the minor children are unable or fail to do so within a reasonable time or if there are no guardians or conservators of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may make application to the court for appropriate relief.

(b)    The surviving spouse or the minor or dependent child, and the minor's guardian or conservator acting for him, as the case may be, may claim a share of exempt property as provided in this part by filing in the court and mailing or delivering to the personal representative, if any, a claim for such share within eight months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires.

REPORTER'S COMMENTS

Section 62-2-402 governs the administration of the exempt property provisions of Section 62-2-401.

The 2010 amendment revised subsection (a) by deleting "petition" and replacing it with "make application," so that the personal representative or any interested person as referred to in this section can make application to the probate court. Unlike a petition, an application does not require a summons or petition. See 2010 amendments to certain definitions in Section 62-1-201(1).

Section 62-2-403.     All moneys monies paid for insurance, compensation, or pensions by the United States of America to the executors, administrators, or heirs-at-law of any deceased veteran who served during any 'period of war' as determined in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542 and the regulations issued thereunder, and of the Spanish-American War, World War I, or World War II whose estate is administered in this State for insurance, compensation, or pensions is hereby declared to be exempt from the claims of any and all creditors of such deceased veteran.

REPORTER'S COMMENT

The 2012 amendment exempts monies paid for insurance, compensation, or pensions by the United States of America to the executors, administrators, or heirs-at-law of any deceased veteran who served during any 'period of war' as that term is defined under federal regulations. Prior to amendment the protection did not cover veterans of conflicts after World War II.

Part 5

Wills

Section 62-2-501. A person An individual who is of sound mind and who is not a minor as defined in Section 62-1-201(24)(27) may make a will.

REPORTER'S COMMENTS

Section 62-2-501 allows any individual of sound mind who is not a minor to make a will. An individual is not a minor if the individual is either (1) at least eighteen, (2) married, or (3) emancipated. An individual may make a will of his or her 'estate.' The estate which may be so devised is defined in item (11) of Section 62-1-201 as 'property', in turn defined in item (37) of Section 62-1-201 as both real and personal and 'anything that may be the subject of ownership.' No distinction on the question of capacity to make a will is drawn by Section 62-2-501 between men and women or between citizens and aliens.

Section 62-2-501 is not meant to reverse the South Carolina law with respect to tenants in fee simple conditional, Jones v. Postell, 16 S.C.L. 92 (Harp. L. )(1824), and tenants in joint tenancies with express provisions for right of survivorship, Davis v. Davis, 223 S.C. 182, 75 S.E.2d 46 (1963). In both cases the law disabled such tenants from passing their estates by will. The spirit, if not the letter, of this Code's provisions is opposed to the grant of any such novel right to devise.

Tenants who hold real property in joint tenancies lacking express survivorship provisions may devise their interest in such real property. In the absence of a will such tenant's interest in such real property will pass in intestacy. See Section 62-2-804.

The elaborate body of case law developed in the application of former Sections 21-7-10, et seq., will continue to supply guidance in the application of Section 62-2-501. That case law concerns the matters of sufficient testamentary intent, Madden v. Madden, 237 S.C. 629, 118 S.E.2d 443 (1961), C. & S. Nat. Bank of S. C. v. Roach, 239 S.C. 291, 122 S.E.2d 644 (1961), including conditional wills, S. Alan Medlin, The Law of Wills and Trusts (S.C. Bar 2002) Section 305; and sufficient mental capacity, Lee's Heirs v. Lee's Executor, 15 S.C.L. 183 (4 McC. L.) (1827), Hellams v. Ross, 268 S.C. 284, 233 S.E.2d 98 (1977), Medlin, supia at Section 301.2; as well as the effect of undue influence, Farr v. Thompson, 25 S.C.L. 37 (Cheves L.) (1839); Thompson v. Farr, 28 S.C.L. 93 (1 Sp. L.) (1842); O'Neall v. Farr, 30 S.C.L. 80 (1 Rich. L.) (1844), Mock v. Dowling, 266 S.C. 274, 222 S.E.2d 773 (1976), Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d 415 (1982), Medlin, supra at Section 301.4; and the burdens of proof applicable and the presumptions of fact available with respect to mental capacity and undue influence, Havird v. Schissell, 252 S.C. 404, 166 S.E.2d 801 (1969), Medlin, supra at Sections 301.2, 301.4. The developed South Carolina case law also covers the matters of mistake in the execution of wills, Ex Parte King, 132 S.C. 63, 128 S.E. 850 (1925), Medlin, supra at Section 301.2; and fraud as it affects the making of wills.

Section 62-2-502.     Except as provided for writings within Section 62-2-512 and wills within Section 62-2-505, every will, shall be:

(1)    in writing;

(2)    signed by the testator or signed in the testator's name by some other person individual in the testator's presence and by his the testator's direction,; and

(3)    shall be signed by at least two persons individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.

REPORTER'S COMMENTS

Section 62-2-502 specifies the usual requirements for the valid formal execution of every will: a writing signed by the testator, or for him by another, and also signed by two witnesses, witnessing either the testator's signing or his acknowledgment of either his signature or the will. All of these formalities were required by prior South Carolina law, formerly Sections 21-7-20 and 21-7-50 of the 1976 code, which, however, further required that three witnesses sign and that they do so in the presence of the testator and of each other. The required number of witnesses is reduced from three to two with respect to all wills executed after June 27, 1984, the effective date of South Carolina's first statute recognizing the device of the self-proving will affidavit, formerly Section 21-7-615 of the 1976 code, embodied in Section 62-2-503 of this Code. That statute might have been read by some testators to allow for the valid execution and attestation of a will by only two witnesses. As the policy of this Code is to require just two witnesses at testation, it appears advisable to bring within the Code's protection any testators whose wills were attested by but two witnesses between June 28, 1984, and the effective date of this Code. Section 62-2-502 requires neither subscription of the testator's signature, i.e., that it appear at the end of the will, nor publication of the will, i.e., the testator's announcement to the witnesses that the document is his will, nor a specific request by the testator that the witnesses attest and sign. Each of these practices is, however, customary and unobjectionable.

This Code does not recognize the holographic method of execution of a will, i.e., dispensing with the witnesses but requiring that the whole will be cast in the testator's handwriting and that it be signed by him. Such a will is not valid in South Carolina, unless specifically by valid out-state execution or out-state probate, which special rules are to be found at Sections 62-2-505, 62-3-303(c) and (d), and 62-3-408 of this Code. Further, this Code recognizes neither soldiers' and mariners' wills of personalty nor nuncupative wills of personalty, i.e., oral wills.

The effect of Section 62-2-502 is that every will must be in an integrated writing, signed and witnessed as described, except only as provided in Sections 62-2-505 (written wills duly executed elsewhere) and 62-2-512 (writings disposing of tangible personal property).

Section 62-2-503.     (a)    Any will may be simultaneously executed, attested, and made self-proved. The self-proof shall be effective upon the acknowledgment by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in the following form or in a similar form showing the same intent:

I, __________, the testator, sign my name to this instrument this ___ day of __________, 19___, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older (or if under the age of eighteen, am married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.

We, __________ and __________, the witnesses, sign our names to this instrument, and at least one of us, being first duly sworn, does hereby declare, generally and to the undersigned authority, that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.

(b)    An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached, or annexed to the will in the following form or in a similar form showing the same intent:

The State of __________ County of __________ We, __________ and __________, the testator and at least one of the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and to the best of his knowledge the testator was at that time eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.

(c)    A witness to any will who is also an officer authorized to administer oaths under the laws of this State may notarize the signature of the other witness of the will in the manner provided by this section.

REPORTER'S COMMENTS

Section 62-2-503 provides for an expediting feature for the proof of wills. The self-proved will is a will into which an affidavit has been incorporated, signed by the testator, the witnesses and a notary, declaring the due execution of the will, the testamentary capacity of the testator and the absence of undue influence worked upon the testator. Probate of a self-proved will is freed of the requirement of producing the available testimony of such witnesses to the due execution of the will, as otherwise required by Sections 62-3-405 and 62-3-406 of this Code as to formal testacy proceedings.

The testator's affidavit may be drafted into the testimonium clause of the will so that his one signature suffices for both the execution of the will and the execution of his affidavit. Similarly, the witnesses' affidavit may be drafted into their attestation clause, requiring each of them to sign only once. Section 62-2-503 (a). Alternatively, under Section 62-2-503(b), a will may be drafted with traditional testimonium and attestation clauses, requiring the signatures of the testator and the witnesses, respectively, with the affidavits of the testator and of the witnesses drafted as one, but separated from the testimonium and attestation clauses, and thus requiring each of such persons to sign a second time. The Section 62-2-503(b) form may be attached to a will executed simultaneously with the affidavit or, more to the point, a will executed at any time prior to the execution of the affidavit, even one executed prior to the enactment of this statute.

Section 62-2-503 makes a will self-proved if affidavits in 'substantially' the form of those set forth in the section are executed. Therefore, neither merely formal variations, nor the subscription of the will and of the affidavit by more than two witnesses, nor the failure of one or more of the witnesses to sign the affidavit should frustrate the self-proof of the will by way of the affidavit, that is, at least not insofar as the proof of the will depends upon the testimony of the witnesses who do sign the affidavit.

Section 62-2-504.        (a)    No A subscribing witness to any will, testament, or codicil may be held is not incompetent to attest or prove the same by reason of any devise, legacy, or bequest therein in favor of such witness, such witness's spouse, or such witness's issue or the husband or wife of such witness, by reason of any appointment therein of such witness or the husband or wife of such witness to any office, trust, or duty, or by reason of any charge therein of debts to any part of the estate in favor of such witness as creditor. Any If there are two disinterested witnesses to a will in addition to the interested witness, then such devise, legacy, or bequest is valid and effectual, if otherwise effective. so, but unless there are two other and disinterested witnesses then so far as the property, estate, or interest so devised or bequeathed exceeds in value any property, estate, or interest to which such witness or the husband or wife of such witness would be entitled upon the failure to establish such will, testament, or codicil, If there are not two disinterested witnesses to a will in addition to an interested witness, then such devise, legacy, or bequest is null and void to the extent of such the value of the excess property, estate, or interest so devised over the value of the property, estate or interest to which such witness, such witness's spouse, or such witness' issue would be entitled upon the failure to establish such will. The voided portion of such devise shall pass by intestacy in accordance with Section 62-2-101 et seq., provided the share of the interested witness, such witness's spouse, or such witness' issue shall not increase due to the devise passing by intestacy.

(b)    A subscribing witness to any will is not incompetent to attest or prove the will by reason of any appointment within the will of such witness, such witness's spouse, or such witness's issue to any office, trust, or duty. The Any such appointment of a witness, a witness's spouse, or a witness's issue is valid, if otherwise so, and the person individual so appointed, in such case, is entitled by law to take or receive any commissions or other compensation on account thereof.

(c)    A subscribing witness to any will is not incompetent to attest or prove the will by reason of any charge within the will of debts to any part of the estate in favor of such witness, such witness's spouse, or such witness's issue as creditor.

REPORTER'S COMMENTS

The purpose of this section is to remove from the interested witness any benefit to the witness from the will that the witness would not otherwise receive so that the witness can be used to prove the will.

An 'interested witness' is an individual (1) who is named as a devisee in the testator's will; (2) whose spouse is named as a devisee in the testator's will, or (3) whose issue are named as devisees in the testator's will.

Section 62-2-505.     A written will is valid if:

(a)    it is executed in compliance with Section 62-2-502 either at the time of execution or at the date of the testator's death; or

(b)    if its execution complies with the law at the time of execution of either (1) the place where the will is executed, or (2) the place where the testator is domiciled at the time of execution or at the time of death.

REPORTER'S COMMENTS

Section 62-2-505 specifies the extraordinary requirements, alternative to the usual requirements of Section 62-2-502 of this Code, for the valid formal execution of a will: a writing executed in compliance with the law applicable at the time of the will's execution (not that at the time of the testator's date of death), of the place (whether South Carolina or elsewhere): (1) where the will is executed; (2) where the testator is domiciled at the time of the will's execution; or (3) where the testator is domiciled at the time of his death.

The policy of Section 62-2-505, the effectuation of the testator's intention to duly execute his will in accordance with the law as he may understand it at the date of the will's execution is furthered by the definition of the applicable law for purposes of Section 62-2-505 as that at the time of execution and as that of any of several different mentioned places.

The wills of all decedents, domiciliary or otherwise, are covered by this section and may benefit thereby.

One further alternative to this Code's provisions for valid in-state execution under Section 62-2-502 and valid out-state execution under Section 62-2-505 exists in its provisions for probate in South Carolina of a will already validly probated out-state; see Sections 62-3-303(c) and (d) and 62-3-408.

Section 62-2-506.    (a)    A will or any part thereof is revoked:

(1)    by executing a subsequent will which that revokes the prior previous will or part expressly or by inconsistency; or

(2)    by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his the testator's presence and by his the testator's direction.

(b)    If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(1)    The testator is presumed to have intended a subsequent will to replace rather than to supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator's death.

(2)    The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will and each will is fully operative on the testator's death to the extent they are not inconsistent.

REPORTER'S COMMENTS

Section 62-2-506 specifies the broad requirements for the valid intentional revocation of a will and of any part of a will: either (1) a subsequent will, defined in Section 62-1-201(52) of this Code, acting expressly or by implication on the will being revoked, or (2) a physical act affecting the will being revoked.

The elaborate body of case law developed in the application of former Section 21-7-210 will continue to supply guidance in the application of Section 62-2-506. S. Alan Medlin, The Law of Wills and Trusts (S.C. Bar 2002) Sections 310, 310.1. That case law stressed the necessity to meet the statute's requirements in order to effect a revocation, Madden v. Madden, 237 S.C. 629, 118 S.E.2d 443 (1961); distinguished intended revocations from the accidental inclusion of express language of revocation in subsequent wills, Owens v. Fahnestock, 110 S.C. 130, 96 S.E. 557 (1918), and the accidental destruction of wills, such accidents involving no revocation in the eyes of the law unless, perhaps, the accident was later confirmed as an intended revocation, Davis v. Davis, 214 S.C. 247, 52 S.E.2d 192 (1949). It distinguished unmistaken, unconditional revocations from cases of dependent relative revocation, i.e., mistaken revocations, not effective as revocations at law, Pringle v. McPherson's Executors, 4 S.C.L. 279 (2 Brev.) (1809), Johnson v. Brailsford, 2 Nott and McC. 272 (S.C. 1820) Charleston Library Society v. C. & S. Nat. Bank, 200 S.C. 96, 20 S.E.2d 623 (1942), Stevens v. Royalls, 223 S.C. 510, 77 S.E.2d 198 (1953). It allowed partial revocations by either one of the two broad methods of revocation, Brown v. Brown, 91 S.C. 101, 74 S.E. 135 (1912). It gave effect to revocations by implication from the inconsistency between the provisions of the will being revoked and the subsequent will and also determined whether any such inconsistency existed, Starratt v. Morse, 332 F. Supp. 1038 (D.S.C. 1971) and Werber v. Moses, 117 S.C. 157, 108 S.E. 396 (1921). It governed revocations by physical act, including those accomplished 'by another person in his (the testator's) presence and by his direction,' Means v. Moore, 16 S.C.L. 314 (Harp. L.) (1824), and those rebuttably presumed to have occurred in cases of mutilated wills, Johnson v. Brailsford, supra, and in cases of missing wills, Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293 (1945).

Section 62-2-507.     If after executing a will the testator is divorced or his marriage annulled or his spouse is a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses, the divorce or annulment or order revokes any disposition or appointment of property including beneficial interests made by the will to the spouse, any provision conferring a general or special power of appointment on the spouse, and any nomination of the spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a spouse because of revocation by divorce or annulment or order passes as if the spouse failed to survive the decedent, and other provisions conferring some power or office on the spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. For purposes of this section, divorce or annulment or order means any divorce or annulment or order which would exclude the spouse as a surviving spouse within the meaning of subsections (b) and (c) of Section 62-2-802. A decree of separate maintenance which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of marital or parental circumstances other than as described in this section revokes a will. (a)    In this section:

(1)    'Disposition or appointment of property' includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.

(2)    'Divorce or annulment' means any divorce or annulment or declaration of invalidity of a marriage or other event that would exclude the spouse as a surviving spouse in accordance with Section 62-2-802. It also includes a court order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death. A decree of separate maintenance that does not terminate the status of husband and wife is not a divorce for purposes of this section.

(3)    'Divorced individual' includes an individual whose marriage has been annulled.

(4)    'Governing instrument' means an instrument executed by the divorced individual before the divorce or annulment of the individual's marriage to the individual's former spouse including, but not limited to wills, revocable inter vivos trusts, powers of attorney, life insurance beneficiary designations, annuity beneficiary designations, retirement plan beneficiary designations and transfer on death accounts.

(5)    'Revocable' with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the divorced individual's former spouse, whether or not the divorced individual was then empowered to designate the divorced individual in place of the divorced individual's former spouse and whether or not the divorced individual then had the capacity to exercise the power.

(b)    No change of circumstances other than those described in this section and in Section 62-2-803 effects a revocation.

(c)    Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, the divorce or annulment of a marriage:

(1)    revokes any revocable:

(i)     disposition or appointment of property or beneficiary designation made by a divorced individual to the divorced individual's former spouse in a governing instrument;

(ii)     provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse; or

(iii)    nomination in a governing instrument, nominating a divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, trustee, conservator, agent, attorney in fact or guardian;

(2)    severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship so that the share of the decedent passes as the decedent's property and the former spouse has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.

(d)    A severance under subsection (c)(2) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

(e)    Provisions of a governing instrument and nomination in a fiduciary or representative capacity that are revoked by this section are given effect as if the former spouse predeceased the decedent.

(f)    Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.

(g)(1)    A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment, or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.

(2)    Written notice of the divorce, annulment, or remarriage under subsection (g)(1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

(h)(1)    A person who purchases property from a former spouse or any other person for value and without notice, or who receives from a former spouse or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.

(2)    If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

REPORTER'S COMMENTS

The 2012 amendment expands this section to cover life insurance and retirement plan beneficiary designations, transfer on death accounts, and other revocable dispositions to the former spouse that the divorced individual established before the divorce or annulment. This section effectuates a decedent's presumed intent: without a contrary indication by the decedent, a former spouse will not receive any probate or nonprobate transfer as a result of the decedent's death.

Section 62-2-508.    (a)    If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act The revocation by acts under Section 62-2-506(a)(2) of a the previous will remains revoked unless it is revived. will made subsequent to a former will, where the subsequent will would have revoked the former will if the subsequent will had remained effective at the death of the testator, shall not revive or make effective any former will unless it The previous will is revived if it appears by clear, cogent, and convincing evidence that the testator intended to revive or make effective the former previous will.

(b)    If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 62-2-506(a)(2), a revoked part of the previous will is revived unless it appears by clear and convincing evidence that the testator did not intend the revoked part to take effect as executed.

(c)    The revocation by a third will under Section 62-2-506(1) of a will made subsequent to a former will, where the subsequent will would have revoked the former will if the subsequent will had remained effective at the death of the testator, shall not revive or make effective any former will except If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the third later will that the testator intended the former previous will to take effect.

REPORTER'S COMMENTS

Section 62-2-508 addresses the question whether the revival of a former and revoked will is intended and will be effected by the revocation of a subsequent and revoking will, either by physical act or by way of the execution of yet a third will revoking the subsequent will.

The 2012 amendment distinguishes between the revocation of a subsequent will that effects a complete revocation or a partial revocation of a previous will.

There is a presumption against revival where the subsequent will wholly revokes the previous will. The presumption against revival is intended to be heightened by the requirement of 'clear and convincing evidence' to rebut it.

There is a presumption in favor of revival (of the revoked part or parts of the previous will) where a subsequent will partially revoked the previous will. The justification is that where the subsequent will only partially revoked the previous will, the subsequent will is only a codicil to the previous will and the testator should know that the previous will has continuing effect.

Section 62-2-509.    Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

REPORTER'S COMMENTS

Section 62-2-509 permits incorporation by reference in a will of a separate writing, in existence at the date of the execution of the will, if both the intent to incorporate and the identification of the writing appear in the language of the will. However, Section 62-2-509 does not require that the will describe the writing as existent and requires only that the writing be described 'sufficiently to permit its identification.'

Compare Section 62-2-512 which allows a writing not sufficiently incorporated by reference into a will, as under Section 62-2-509, to affect the will's dispositions in certain cases.

Section 62-2-510.    (a)(A)    A devise or bequest, the validity of which is determinable by the law of this State, may be made by a will to the trustee of a trust established or to be established by the testator or by the testator and some other person or by some other person (including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts) if to a trust is valid so long as:

(1)        the trust is identified in the testator's will and its terms are set forth in:

(a)    a written instrument (other than a will) executed before, or concurrently with, or after the execution of the testator's will but not later than the testator's death; or

(b)    in the valid last will of a person another individual who has predeceased the testator; (regardless of the existence, size, or character of the corpus of the trust). The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or after the death of the testator.

(B)    The trust is not required to have a trust corpus other than the expectancy of receiving the testator's devise.

(C)    The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or after the death of the testator.

(D)    Unless the testator's will provides otherwise, the property so devised:

(1)    is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given; and

(2)    shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the death of the testator; (regardless of whether made before or after the execution of the testator's will), and, if the testator's will so provides, including any amendments to the trust made after the death of the testator.

(E)    Unless the testator's will provides otherwise, a revocation or termination of the trust before the death of the testator causes the devise to lapse.

(b)(F)    Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus or profit-sharing plan, or under a retirement annuity contract, may be paid to the trustee of a trust established by the insured, employee, or annuitant or by some other person if the trust is in existence at the death of the insured, employee, or annuitant, it is identified and its terms are set forth in a written instrument, and such death benefits shall be administered and disposed of in accordance with the provisions of the instrument setting forth the terms of the trust including any amendments made thereto before the death of the insured, employee, or annuitant and, if the instrument so provides, including any amendments to the trust made after the death of the insured, employee, or annuitant. It shall not be necessary to the validity of any such trust instrument, whether revocable or irrevocable, that it have a trust corpus other than the right of the trustee to receive such death benefits.

(c)(G)    Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus, or profit-sharing plan, or under a retirement annuity contract, may be paid to a trustee named, or to be named, in a will which is admitted to probate as the last will of the insured or the owner of the policy, or the employee covered by such plan or contract, as the case may be, whether or not such will is in existence at the time of such designation. Upon the admission of such will to probate, and the payment thereof to the trustee, such death benefits shall be administered and disposed of in accordance with the provisions of the testamentary trust created by the will as they exist at the time of the death of the testator. Such payments shall be deemed to pass directly to the trustee of the testamentary trust and shall not be deemed to have passed to or be receivable by the executor of the estate of the insured, employee, or annuitant.

(d)(H)    In the event no trustee makes proper claim to the proceeds payable as provided in subsections (b)(F) and (c)(G) of this section from the insurance company or the obligor within a period of one year after the date of the death of the insured, employee, or annuitant, or if satisfactory evidence is furnished to the insurance company or other obligor within such one year period that there is or will be no trustee to receive the proceeds, payment must be made by the executors or administrators of the person making such designations, unless otherwise provided by agreement.

(e)(I)    Death benefits payable as provided in subsections (b)(F) and (c)(G) of this section shall not be subject to the debts of the insured, employee, or annuitant nor to transfer or estate taxes to any greater extent than if such proceeds were payable to the beneficiary of such trust and not to the estate of the insured, employee, or annuitant.

(f)(J)    Such death benefits payable as provided in subsections (b)(F) and (c)(G) of this section so held in trust may be commingled with any other assets which may properly come into such trust.

REPORTER'S COMMENTS

This section allows a receptacle trust to be executed after the execution of the testator's will, and makes clear that the trust does not have to have a corpus other than the expectancy of receiving the testator's devise.

Section 62-2-511.    A will may dispose of property by reference to acts and events which that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.

REPORTER'S COMMENTS

Under Section 62-2-511, acts and events extraneous to a will are allowed to affect the will's dispositions if they have some significance apart from their effect upon the will's dispositions. The acts or events, including the execution or revocation of another person's will, might occur either before or after the dates of either the execution of the will or the testator's death and yet be given such effect.

Compare Section 62-2-512 which in certain cases allows an act extraneous to a will to affect the will's dispositions although the act has no independent significance.

Section 62-2-512.     A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title (as defined in Section 36-1-201(15)), securities (as defined in Section 36-8-102(1)(A)), and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which that has no significance apart from its effect upon the dispositions made by the will.

REPORTER'S COMMENTS

Section 62-2-512 relaxes the normal application of the rules of incorporation by reference, Section 62-2-509, and of facts of independent significance, Section 62-2-511, all in favor of the special case of extraneous writings, either in the testator's handwriting or signed by the testator, referred to in the testator's will, and which dispose of certain items of tangible personal property. They are given effect, albeit they are neither required to be in existence at the date when the will is executed nor to have independent significance. They may be altered by the testator at any time.

Black's Law Dictionary defines 'tangible personal property' as including coin collections; therefore, coin collections may be items disposed of in a tangible personal property memorandum. Vehicles and boats are also tangible personal property.

Part 6

Construction

Section 62-2-601.    (A)    The intention of a testator as expressed in his the testator's will controls the legal effect of his the testator's dispositions. The rules of construction expressed in the succeeding sections of this part apply unless a contrary intention is indicated by the will.

(B)    Notwithstanding subsection (A), the court may reform the terms of the will, even if unambiguous, to conform the terms to the testator's intention if it is proved by clear and convincing evidence that the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.

REPORTER'S COMMENTS

Section 62-2-601 states the first principle of the construction of wills, that the testator's intention as expressed in the will controls, a codification of South Carolina case law. See King v. S.C. Tax Comm., 253 S.C. 246, 173 S.E.2d 92 (1970). Only in the absence of expression in the will of the testator's intention do the rules of construction of this Part (6) control.

Subsection (B) tracks Uniform Probate Code Reformation to Correct Mistakes to give probate judges statutory authority to reform a will's terms when there is clear and convincing evidence of a mistake (for example, in husband/wife wills where the attorney mistakenly forgets to change the name of the devisee from wife to husband in wife's will). Additionally, subsection (B) mirrors Section 62-7-415 in the Trust Code.

Section 62-2-602.     A will is construed to pass all property which the testator owns at his the testator's death including property acquired after the execution of the will and all property acquired by the testator's estate after the testator's death.

REPORTER'S COMMENTS

Section 62-2-602 establishes the general rule that an ambiguous will is construed to pass all property owned at the testator's date of death, if at all possible to do so. Thus is stated the South Carolina law's presumption against intestacy. See MacDonald v. Fagan, 118 S.C. 510, 111 S.E. 793 (1922).

Property specifically described in the will presents no problem; it is property not specifically described which raises the question answered by this section's rule. Provisions referring generally to classes of property of the decedent, without specification of the items of such property, are construed to refer to all items within the scope of their general reference, whether the items were acquired before or after the execution of the will. However, items of property not within the scope of reference of any general provision contained in the will do not pass under that will; they pass in intestacy, regardless of when they were acquired by the testator. Cornelson v. Vance, 220 S.C. 47, 66 S.E.2d 421, 426 (1951).

This section also expresses the particular rule that after-acquired property is to be treated the same as property owned at the execution of the will even if that property is acquired by the testor's estate after the testater's death.

Section 62-2-603. (A)    Unless a contrary intent appears in the will, if a devisee, who is a great-grandparent or a lineal descendant of a great-grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation.

(B)    One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

(C)    Words of survivorship in a devise to an individual 'if he survives me,' or to 'my surviving children,' are, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of subsections (A) and (B).

REPORTER'S COMMENTS

The anti-lapse rule of Section 62-2-603 applies unless the decedent's will provides otherwise and unless lifetime gifts to a devisee satisfy his devise under Section 62-2-610. The rule preserves some devises which otherwise would be void or would lapse because of the failure of the devisees to survive to take the devise. The rule saves only devises to persons who are related to the testator as or through the testator's great-grandparents, whether they are individually named in the devise, or merely described by class terminology, and whether they predecease the will's execution or the testator's date of death or they are merely treated as predeceasing his death, as under the Uniform Simultaneous Death Act, Sections 62-1-501 et seq., or as under Section 62-2-801 respecting devisees who renounce their succession rights, or as under Section 62-2-803 respecting devisees who feloniously and intentionally kill their testators. Those of the devisee's issue, defined by Section 62-1-201(24) who survive the testator take the devise in place of the devisee; they take among themselves per capita with per capita representation, as in intestate succession under Section 62-2-106 (see Reporter's Comments to Sections 62-2-106 and 62-2-103(1)).

Section 62-2-603 unifies in one anti-lapse rule the simplified and expanded protection of those related to the testator as or through his great-grandparents and it also clarifies and expands the coverage of the anti-lapse rule, applying it to class gifts as well as to void devises.

The 2012 amendment added a presumption that words of survivorship are sufficient indication that the testator does not intend the antilapse section to apply.

Section 62-2-604.     (a)(A)    Except as provided in Section 62-2-603, if a devise other than a residuary devise fails for any reason it becomes a part of the residue.

(b)(B)    Except as provided in Section 62-2-603 if the residue is devised to two or more persons, and the share of one of the residuary devisees that fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.

REPORTER'S COMMENTS

The pro-residuary anti-failure rule of Section 62-2-604 applies to a failed devise unless the decedent's will provides otherwise, Section 62-2-601, as by substituting other takers for the failed devise, and unless the anti-lapse rule of Section 62-2-603 applies to preserve the otherwise failed devise.

The rule preserves from intestacy devises failing for any reason, e.g., because of the indefiniteness of the devise, illegality, a violation of any Rule Against Perpetuities, incapacity of the devisee, or the failure of the devisee to survive to take the devise, including treatment of such devisee as being predeceased, as under the Uniform Simultaneous Death Act, Sections 62-1-501 et seq., and under Sections 62-2-801 and 62-2-803. The rule passes the failed devise to such of the residuary devisees whose devises do not fail, if any, who take proportionately in place of the devisee with respect to whom the devise failed. The rule of Section 62-2-604 applies whether the failed devise is pre-residuary, subsection (A), or residuary, subsection (B).

Section 62-2-605.    (a)(A)    If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:

(1)    as much of the devised securities as is a part of the testator's estate at the time of the testator's death;

(2)    any additional or other securities of the same entity organization owned by the testator by reason of action initiated by the entity organization or any successor, related or acquiring organization excluding any acquired by exercise of purchase options;

(3)    securities of another entity organization owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity organization or any successor, related or acquiring organization;

(4)    any additional securities of the entity organization owned by the testator as a result of a plan of reinvestment if it is a regulated investment company in the organization.

(b)(B)    Distributions in cash declared prior to death with respect to a specifically devised security not provided for in subsection (a)(A) are not part of the specific devise.

REPORTER'S COMMENTS

Section 62-2-605 establishes the rule that a specific devise, i.e., not merely a devise of equivalent value, of securities, defined at Section 62-1-201(41), is construed to pass only certain related securities, owned by the testator at his death, and listed in Section 62-2-605(A), and not to pass any other related securities or distributions of record before the death of the testator not so listed, Section 62-2-605(B), unless the decedent's will provides otherwise, Section 62-2-601. For the generally applicable nonademption rule see Section 62-2-606. See Section 62-7-908(A) concerning distributions of record after the death of testator.

The specific devise carries out with it as much of the securities specifically referred to as remain owned by the testator at his death, Section 62-2-605(A)(1), codifying South Carolina case law. See Gist v. Craig, 142 S.C. 407, 141 S.E. 26 (1927) and Watson v. Watson, 231 S.C. 247, 95 S.E.2d 266 (1956) (identified specifically devised proceeds not adeemed).

Also carried out with the specific devise are additional securities of both entities other than the entity issuing the specifically devised securities, owned by the testator as a result of merger or the like, Section 62-2-605(A)(3), and of the entity itself, Section 62-2-605(A)(2), in either case owned by the testator by reason of actions initiated by the entity, Sections 62-2-605(A)(2) and (A)(3), and not initiated by testator himself. Additional securities received by the testator in mergers, name changes, stock splits and stock dividends, and the like, more representing change in the form of ownership of the specifically devised securities than change in the substance of that which is owned, and none at the initiative of the testator, are here bulked with and carried out with the specifically devised securities themselves, as is likely to be intended by the testator.

Not carried out with the specific devise are additional securities of the entity itself owned by the testator by reason of his exercise of purchase options, i.e., at the initiative of the testator, Section 62-2-605(A)(2), and thus not to be bulked with the specifically devised securities, the testator himself having failed to do so by the route, open to but not taken by him, of amending his will. This is consistent with South Carolina case law, Rogers v. Rogers, 67S.C. 168, 45 S.E. 176 (1903), notwithstanding the case of Rasor v. Rasor, 173 S.C. 365, 175 S.E. 545 (1934), a case not of a specific devise but rather of a devise of equivalent value of certain securities.

However, there are carried out with the specifically devised securities of an organization any additional securities resulting from a plan of reinvestment in the organization. These are owned also at the initiative of the testator, but are bulked with the specifically devised securities because the testator himself has practically done so by his assent to the plan of reinvestment.

The rule of Section 62-2-605(B) that distributions not provided for in Section 62-2-605(A) are not carried out with the specifically devised securities is, as the residual rule in this Code's scheme, consistent with the general rule of South Carolina case law, Bailey v. Wagner, 21 S.C. Eq. 1, 8, 10 (2 Strob. Eq.) (1848) (proceeds of sale of adeemed specific bequest not carried out); Rogers v. Rogers, supra, Pinson v. Pinsom, 150 S.C. 368, 148 S.E. 211 (1928), and Rikard v. Miller, 231 S.C. 98, 107, 97 S.E.2d 257 (1957) (identified proceeds of collection or sale of adeemed specific bequests not carried out); and Stanton v. David, 193 S.C. 108, 7 S.E.2d 852 (1940), and Taylor v. Goddard, 265 S.C. 327, 218 S.E.2d 246 (1975) (nor unidentified proceeds).

The 2012 amendment substituted the word 'organization' for 'entity' because 'organization' is defined in the probate code at Section 62-1-201(30). The amendment also added 'successor, related, or acquiring organization' to contemplate multiple changes in title of securities between the testator's acquisition of the security and the testator's death. The amendment eliminated 'if it is a regulated investment company' from (A)(4). The amendment added the words 'in cash' to subsection (B) to clarify that distributions made in cash do not fall within subsection (A) while distributions of other securities do fall within subsection (A). Finally, the amendment added the word 'declared' to subsection (B) to clarify that the cash distributions declared before death do not pass as part of the devise regardless of whether they are paid before or after death.

Section 62-2-606.     (a)    Where a portion of property specifically devised is no longer owned by the testator at the time of death, A specific devisee has the right to the remaining specifically devised property in the testator's estate at the testator's death and to:

(1)    any balance of the purchase price (together with any mortgage or other security interest) owing from owed by a purchaser to the testator at the testator's death by reason of sale of the property;

(2)    any amount of a condemnation award for the taking of the property unpaid at the testator's death;

(3)    any proceeds unpaid at the testator's death on fire or casualty insurance on or on other recovery for injury to the property;

(4)    any property owned by the testator at his death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.

(b)    If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award or insurance proceeds are or recovery for injury to the property is paid to a conservator as a result of condemnation, fire, or casualty or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, or the insurance proceeds, or the recovery. This subsection does not apply if subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one year.

(c)    The right of the specific devisee under this subsection (b) is reduced by the value of any right he has under subsection (a).

(d)    For purposes of references in subsection (b) to a conservator, subsection (b) does not apply if after the sale, mortgage, condemnation, casualty or recovery, it was adjudicated that the testator's disability ceased and the testator survived the adjudication for at least one year.

(e)    For purposes of references in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) 'incapacitated principal' means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.

REPORTER'S COMMENTS

Section 62-2-606 establishes the rule that a specific devise of any property, including securities also governed by Section 62-2-605, is construed to pass, not only as much of the specifically devised property as remains at testator's death, but also the proceeds of sale, subsection (a)(1), and condemnation, subsection (a)(2), of the property, and the proceeds of policies of insurance against fire or casualty to the property, subsection (a)(3), but only if such proceeds are yet unpaid to the testator at the testator's death, Section 62-2-606(a), or if such proceeds have been paid to an agent acting within the authority of a durable power of attorney or to a conservator, defined at Section 62-1-201(6), of the testator during the testator's life, provided less than one year separates the death of the testator and a prior adjudication that his disability had ceased, Section 62-2-606(b). Further, a specific devise of a secured obligation passes the products of foreclosure, or settlement in lieu of foreclosure, of such security, Section 62-2-606(a)(4). Section 62-2-606 applies unless the decedent's will provides otherwise, Section 62-2-601.

The 2012 amendment adds the provisions regarding an agent acting within the authority of a durable power of attorney

Section 62-2-607.     A specific devise passes subject to any mortgage, pledge, security interest or other lien existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

REPORTER'S COMMENTS

Section 62-2-607 establishes a rule of construction that specific devises pass not exonerated of but subject to any related security interests, unless the decedent's will provides otherwise, Section 62-2-601.

See Section 62-3-814 empowering the personal representative to pay an encumbrance under some circumstances; the last sentence of that section makes it clear that such payment does not increase the right of the specific devisee. The present section governs the substantive rights of the devisee.

For the rule as to exempt property, see Section 62-2-401.

Section 62-2-608.     A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.

REPORTER'S COMMENTS

Section 62-2-608 follows the common law rule of construction that, unless the decedent's will provides otherwise, Sections 62-2-601 and 62-2-608, general dispositive provisions in a will do not pass property subject to the testator's powers of appointment.

Section 62-2-609.     Half bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father.

REPORTER'S COMMENTS

Section 62-2-609 establishes the meaning of terms of family relationship, as used in wills, as including the meaning which such terms have for purposes of intestate succession by certain persons under Part l of Article 2, unless the decedent's will provides otherwise, Section 62-2-601. Hence, references to 'children', 'issue', or 'heirs', and the like, are read to include or exclude half blood and adopted persons and persons born out of wedlock according to the rules of Sections 62-2-103(3) and 62-2-107, half bloods, 62-2-109(1), adopted persons, 62-2-109(2), persons born out of wedlock, 62-2-112, aliens, and 62-2-113, twice related persons, at least those who are otherwise implicated by mention in Section 62-2-609.

Half Blood:

Section 62-2-107 generally treats half bloods just as whole bloods in the event of intestacy; hence, Section 62-2-609 would generally treat them without discrimination in the construction of wills. Adopted Persons:

Section 62-2-109(1) generally treats adopted persons as natural born members of their adoptive families in the event of intestacy, as would Section 62-2-609 generally treat them in the construction of wills.

Persons Born Out of Wedlock:

Section 62-2-109(2) treats persons born out of wedlock just as legitimate persons in the event of the intestacy of their mothers, as would Section 62-2-609 treat them in the construction of wills. Section 62-2-109 treats persons born out of wedlock just as legitimate persons in the event of the intestacy of their fathers, but only in cases of ceremonial marriage of the person's parents even if the attempted marriage was void, Section 62-2-109(2)(i), or in cases of adjudication of the father's paternity, Section 62-2-109(2)(ii), and so would Section 62-2-609 treat them in the construction of wills but for its additional proviso that the person born out of wedlock is treated as the child of the father only if the father himself openly and notoriously so treated him.

Section 62-2-610.     (a)    Property which a testator gave in his the testator's lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if:

(i)        the will provides for deduction of the lifetime gift;, or

(ii)    the testator declares declared in a contemporaneous writing that the gift is to be deducted from the devise; or

(iii)    is in satisfaction of the devise, or the devisee acknowledges acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.

(b)    For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator at the testator's death, whichever occurs first.

(c)    If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying Sections 62-2-603 and 62-2-604, unless the testator's contemporaneous writing provides otherwise.

REPORTER'S COMMENTS

Section 62-2-610 concerns the effect on testate succession of lifetime gifts made by the testator to persons who are also devisees under his will. The section establishes a rule of construction which charges such lifetime gifts, in satisfaction, against the will's devise, but only if either they are declared thus to be in satisfaction, either by the will or by the testator, contemporaneously in writing, or they are thus acknowledged by the devisee, again in writing. If the devisee predeceases the testator, but issue of the devisee survive as beneficiaries of the anti-lapse provision of this Code, Section 62-2-603, then Sections 62-2-610 and 62-2-603 read together charge the ancestor's lifetime gifts in satisfaction against the devise to the issue, again, however, only if the above-mentioned writing exists.

Section 62-2-610 values the satisfaction at the earlier of the devisee's actual receipt of the gift or the testator's date of death, resulting in most cases in a valuation at the date of the gift rather than at the date of death.

See Section 62-2-110 on advancements, for a rule analogous to the rule of satisfaction, but operative in the event of intestacy.

The 2012 amendment added subsection (c) to provide that if a devisee fails to survive the testator and the devisee's descendants take under 62-2-603 and if this devise is reduced with respect to the devisee, it shall automatically be reduced with respect to the devisee's descendants.

Consider Section 62-2-606 as it relates to ademption.

Section 62-2-611.     A devise of land is construed to pass an estate in fee simple, regardless of the absence of words of limitation in the devise.

Section 62-2-612.     The personal representative, trustee, or any affected beneficiary under a will, trust, or other instrument of a decedent who dies or did die after December 31, 2009, and before January 1, 2011, may bring a proceeding to determine the decedent's intent when the will, trust, or other instrument contains a formula that is based on the federal estate tax or generation-skipping tax. The proceeding must be commenced within twelve months following the death of the decedent.

Part 7

Contractual Arrangements Relating to Death

Section 62-2-701.     A contract to make a will or devise, or to revoke a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract and extrinsic evidence proving the terms of the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

REPORTER'S COMMENTS

Section 62-2-701 allows the proof of a contract binding a decedent and concerning the succession to his estate, testate or intestate, only by way of some signed writing, either (1) his written, signed will containing the material provisions of the contract; (2) his written, signed will containing an express reference to the contract (extrinsic evidence proving its terms); or (3) a writing other than a will but signed by the decedent and containing evidence of the contract (allowing extrinsic evidence to prove its terms). The section's requirement of a signed writing to prove such contracts is meant to apply only prospectively, leaving the prior South Carolina law in effect retrospectively.

Noting that the only concern of Section 62-2-701 is with the proof of contracts concerning succession, it should be recognized that the prior South Carolina law, concerning the formation of such contracts and the effects of such contracts' formation and the breach thereof, remains intact. See S. Alan Medlin, The Law of Wills and Trusts (S.C. Bar 2002) Sections 341, 342; W. Brown, Note: Specific Performance of Oral Contracts to Devise, 17 S.C.L. Rev. 540 (1965); and T. Stubbs, Oral Contracts to Make Wills, IX Selden Soc. Y.B. Part III, 10 (1948).

The policies basing Section 62-2-701 and Sections 62-2-502 (execution of wills), 62-2-506 (revocation of wills), and 62-2-509 (incorporation of other matter by reference in wills) are the same. All of these sections are aimed at protecting the integrity of the process of succession to the estates of decedents in accordance with their own true wills. Each of these sections requires that the decedent's will be expressed either in some writing or by way of a physical act done to some writing; the writings are required in the expectation of increasing the reliability of the proof of the decedent's true will. See K. Walsh, Note: The Statute of Frauds' Lifetime and Testamentary Provisions: Safeguarding Decedents' Estates, 50 Ford. L. Rev. 239 (1981) (hereinafter Walsh).

Section 32-3-10(4) of the 1976 Code does require contracts concerning land to be 'in writing and signed by the party to be charged therewith.' Accordingly, contracts concerning the succession to land as an asset of a decedent's estate were, Brown v. Golightly, 106 S.C. 519, 91 S.E. 869 (1917), White v. McKnight, 146 S.C. 59, 143 S.E. 552 (1928), and will yet be required to be in writing and signed by the decedent, i.e., 'by the party to be charged therewith (only in the sense that to charge the personal representative or other successor or assign of the decedent is to charge the decedent himself).'

In addition, prior South Carolina case law was said to require that contracts concerning succession be proved by 'clear, cogent, and convincing evidence.' Caulder v. Knox, 251 S.C. 337, 346, 162 S.E.2d 262 (1968), Brown v. Graham, 242 S.C. 491, 131 S.E.2d 421 (1963). While Section 2-701 fails to codify the stated higher standard of proof per se, the provision's requirement of a signed writing is consistent with the spirit of the former higher standard of proof and perpetuates its intended effect.

Further, Section 62-2-701 provides that no presumption of the existence of a contract concerning succession arises from the mere execution of mutual wills or of a joint will. And while there is South Carolina authority, relying on the reciprocating nature of the terms of a joint will, together with surrounding family circumstances, for the satisfaction by implication of the clear, cogent, and convincing evidentiary standard as to the existence of a contract not to revoke the joint will, in a case in which the joint will failed to actually express an agreement of nonrevocability, Pruitt v. Moss, 271 S.C. 305, 247 S.E.2d 324 (1978), Section 62-2-701 seems to preclude the establishment of any such contract of nonrevocability where the material provision thereof, i.e., the promise not to revoke, is not expressed in the joint will and the joint will otherwise fails to expressly refer to the contract.

Extrinsic evidence is freely admissible under Section 62-2-701 to prove the important terms of a contract whose mere existence is proved by a signed writing. However, as a brake on the provision's liberality with respect to extrinsic evidence, Section 19-11-20 of the 1976 Code, the 'Dead man's' statute, will continue to limit the admissibility of that extrinsic evidence which is subject to its application, this notwithstanding the enactment of Section 62-2-701. See Brown v. Golightly, supra.

Section 62-2-701 avoids the problems, both that of the possibly uneven application of the stated higher standard of proof of contracts concerning succession and that of the questionable breadth of application of the several pre-existing Statutes of Frauds provisions as to contracts concerning succession, quite simply by establishing a signed writing requirement specifically applicable to all such contracts. Presumably Section 62-2-701 will be construed as preempting the field, rendering all other such statutory and case law provisions inapplicable to such contracts in the future.

However, it may be questioned whether Section 62-2-701 should not be subject, in its operation, to the familiar legal and equitable exceptions to the operation of the other Statutes of Frauds provisions. See Section 62-1-103 and Walsh, supra, at 258-270. These include the remedies of restitution of monies advanced and the imposition of a constructive trust to force the restitution of other specific assets advanced by the promisee on an oral contract, and the effects of part performance of the oral contract by the promisee as well as equitable and promissory estoppel, either matter binding the promissor to the oral contract notwithstanding any applicable Statute of Frauds. One case has reached such a conclusion after the enactment of Section 62-2-701. See Satcher v. Satcher, 351 S.C. 477, 570 S.E. 2d 535 (S.C. App. 2002). See also White v. McKnight, supra, Turnipseed v. Sirrine, supra 57 S.C. at 578, Riddle v. George, 181 S.C. 360, 187 S.E. 524 (1936), Bruce v. Moon, 57 S.C. 60, 35 S.E. 415 (1900). See W. Brown, Note: Specific Performance of Oral Contracts to Devise, 17 S.C.L. Rev. 540 (1965).

For the enforcement of a contract concerning succession while the testator is still alive, see Wright v. Trask, 329 S.C. 170, 495 S.E. 2d 222 (S.C. App. 1997).

Part 8

General Provisions

Section 62-2-801.     (a)    In addition to any methods available under existing law, statutory or otherwise, if a person (or his executor, administrator, successor, personal representative, special administrator, guardian, attorney-in-fact, trustee, committee, conservator, or his other fiduciary or agent who performs substantially similar functions under the law governing his status, acting with or without the approval of a specific court order and with or without the receipt of consideration for the act), as a disclaimant, makes a disclaimer as defined in Section 12-16-1910 of the 1976 Code, with respect to any transferor's transfer (including transfers by any means whatsoever, lifetime and testamentary, voluntary and by operation of law, initial and successive, by grant, gift, trust, contract, intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, devise, bequest, beneficiary designation, survivorship provision, exercise and nonexercise of a power, and otherwise) to him of any interest in, including any power with respect to, property, or any undivided portion thereof, the interest, or such portion, is considered never to have been transferred to the disclaimant.

(b)    The right to disclaim exists notwithstanding any limitation on the disclaimant's interest in the nature of a spendthrift provision or similar restriction.

(c)    The right to disclaim is barred by the disclaimant's written waiver of the right.

(d)    Unless the transferor has provided otherwise in the event of a disclaimer, the disclaimed interest shall be transferred (or fail to be transferred, as the case may be) as if the disclaimant had predeceased the date of effectiveness of the transfer of the interest; the disclaimer shall relate back to that date of effectiveness for all purposes; and any future interest which is provided to take effect in possession or enjoyment after the termination of the disclaimed interest shall take effect as if the disclaimant had predeceased the date on which he or she as the taker of the disclaimed interest became finally ascertained and the disclaimed interest became indefeasibly vested; provided, that an interest disclaimed by a disclaimant who is the spouse of a decedent, the transferor of the interest, may pass by any further process of transfer to such spouse, notwithstanding the treatment of the transfer of the disclaimed interest as if the disclaimant had predeceased.

(e)    The date of effectiveness of the transfer of the disclaimed interest is (1) as to transfers by intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, devise and bequest, the date of death of the decedent transferor of, or that of the donee of a testamentary power of appointment (whether exercised or not exercised) with respect to, the interest, as the case may be, and (2) as to all other transfers, the date of effectiveness of the instrument, contract, or act of transfer.

(f)    It is the intent of the legislature of the State of South Carolina by this provision to clarify the laws of this State with respect to the subject matter hereof in order to ensure the ability of persons to disclaim interests in property without the imposition of federal and state estate, inheritance, gift, and transfer taxes. This provision is to be interpreted and construed in accordance with, and in furtherance of, that intent.

(g)    With the court's approval, a personal representative, trustee, or similar fiduciary may disclaim any one or more of the powers granted to the personal representative, trustee, or similar fiduciary. Any disclaimer must be made by written instrument in the manner provided in subsection (a) and has the same effect as in subsection (d). The disclaimer of a power may be made binding on any successor fiduciary, if the disclaiming fiduciary so declares when making the disclaimer. This section applies to disclaimers of any interest in or power over property,     whenever created, and is the exclusive means by which a disclaimer may be made under the laws of this State.

(b)    For purpose of this section:

(1)    'Disclaimer' means any writing which disclaims, renounces, declines, or     refuses an interest in or power over property.

(2)    'Disclaimant' means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.

(3)    'Disclaimed interest' means the interest that would have passed to the disclaimant had the disclaimer not been made.

(4)    'Fiduciary' means a personal representative, trustee, agent acting under a power of attorney, guardian, conservator, or other person authorized to act as a fiduciary with respect to the property of another person.

(c)(1)    A person may disclaim, in whole or in part, any interest in or power over property, including a power of appointment.

(2)    Unless barred, a disclaimer must be made within a reasonable time after the disclaimant acquires actual knowledge of the interest. A disclaimer is conclusively presumed to have been made within a reasonable time if made within nine months after the date of effectiveness of the transfer as determined under subsection (d)(3).

(3)    To be effective, a disclaimer must be:

(i)     in writing;

(ii)    declare the writing as a disclaimer;

(iii)    describe the interest or power disclaimed; and

(iv)    be delivered to the transferor of the interest, the transferor's fiduciary, the holder of the leagal title to or the person in possession of the property to which the interest relates, or a court that would have jurisdiction over such interest or subject matter. A disclaimer of a power must be delivered as if the power disclaimed were an interest in property. Delivery of a disclaimer may be made by personal delivery, first-class mail, or any other method that results in its receipt. A disclaimer sent by first-class mail shall be deemed to have been delivered on the date it is postmarked.

(4)    A disclaimer is not a transfer, assignment, or release if made within a reasonable time after the disclaimant acquires actual knowledge of the interest and if not otherwise barred.

(5)    A barred disclaimer is ineffective as a disclaimer under this section. A disclaimer is barred by any of the following conditions occurring before the disclaimer becomes effective:

(i)        the disclaimant waived in writing the right to disclaim;

(ii)    the disclaimant accepted the interest sought to be disclaimed;

(iii)    the disclaimant voluntarily assigned, conveyed, encumbered, pledged, transferred, or directed the interest sought to be disclaimed or has contracted to do so; or

(iv)    a judicial sale of the interest sought to be disclaimed has occurred.

(6)    A disclaimer is not barred by any of the following conditions:

(i)    by a spendthrift provision or similar restriction on transfer or the right to disclaim imposed by the creator of the interest in or power over the property;

(ii)    by the disclaimant's financial condition, whether or not insolvent and a disclaimer that complies with this section is not a fraudulent transfer under the laws of this State;

(iii)    a disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise;

(iv)    a disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred unless the power is exercisable in favor of the disclaimant.

(7)    Unless a disclaimer is barred, a disclaimer treated as a qualified disclaimer pursuant to Internal Revenue Code Section 2518 is effective as a disclaimer under this section.

(d)(1)    If a disclaimant makes a disclaimer with respect to any transferor's transfer (including transfers by any means whatsoever, lifetime and testamentary,     voluntary and by operation of law, initial and successive, by grant, gift,     trust, contract, intestacy, wrongful death, elective share, forced share,     homestead allowance, exempt property, devise, bequest, beneficiary designation, survivorship provision, exercise and nonexercise of a power, and otherwise) to the disclaimant of any interest in, including any power     with respect to, property, or any undivided portion thereof, the interest, or     such portion, is considered never to have been transferred to the disclaimant.

(2)    Unless the transferor has provided otherwise in the event of a disclaimer, the disclaimed interest shall be transferred (or fail to be transferred), as if the disclaimant had predeceased the date of effectiveness of the transfer of the interest. The disclaimer shall relate back to that date of effectiveness for all purposes, and any future interest which is provided to take effect in possession or enjoyment after the termination of the disclaimed interest shall take effect as if the disclaimant had predeceased the date on which he or she as the taker of the disclaimed interest became finally ascertained and the disclaimed interest became indefeasibly vested. Provided, that an interest disclaimed by a disclaimant who is the spouse of a decedent, the transferor of the interest, may pass by any further process of transfer to such spouse, notwithstanding the treatment of the transfer of the disclaimed interest as if the disclaimant had predeceased.

(3)    The date of effectiveness of the transfer of the disclaimed interest is (i) as to transfers by intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, devise and bequest, the date of death of the decedent transferor, or that of the donee of a testamentary power of appointment (whether exercised or not exercised) with respect to, the interest, as the case may be, and (ii) as to all other transfers, the date of effectiveness of the instrument, contract, or act of transfer.

(e)(1)    If and to the extent an instrument creates a fiduciary relationship and     expressly grants the fiduciary the right to disclaim, the fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment. If there is no instrument expressly granting the fiduciary the right to disclaim, the fiduciary's right to disclaim shall be determined by the laws of this State applicable to that fiduciary relationship.

(2)    If a trustee disclaims an interest in property that otherwise would have become trust property, the disclaimed interest does not become trust property.

(3)    A fiduciary may disclaim a power held in a fiduciary capacity. If the power has not been previously exercised, the disclaimer takes effect as of the time the instrument creating the power became irrevocable. If the power has been previously exercised, the disclaimer takes effect immediately after the last exercise of the power. The disclaimer of a fiduciary power may be made binding on any successor fiduciary if the disclaimer so provides.

(4)    If no conservator or guardian has been appointed, a parent may disclaim on behalf of that parent's minor child and unborn issue, in whole or in part, any interest in or power over property which the minor child or unborn issue is to receive as a result of another disclaimer, but only if the disclaimed interest or power does not pass outright to that parent as a result of the disclaimer.

(f)    A fiduciary or other person having custody of the disclaimed interest is not liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is barred pursuant to subsection (c)(5), for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual knowledge of the facts constituting the bar of the right to disclaim.

REPORTER'S COMMENTS

Section 62-2-801 provides for the state law effectiveness of the disclaimer of transfers by way of succession to the estates of decedents and otherwise. It affects transfers by will as well as transfers through intestate estates.

Section 62-2-801 also regulates the method by which a disclaimer must be made in order to be effective, its nature, timeliness, formal execution and delivery, and also the effect of a disclaimer on the further disposition of the interest renounced.

The purpose of the enactment of Section 62-2-801 is to establish the state property law basis for the recognition of the effectiveness of such disclaimers

The antilapse statute, Section 62-2-603, applies to cases of disclaimers of gifts under wills unless the transferor provides otherwise.

Section 62-2-802.     (a)    A person An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he the individual is married to the decedent at the time of death. A decree of separate maintenance which that does not terminate the status of husband and wife is not a divorce for purposes of this section.

(b)    For purposes of Parts 1, 2, 3, and 4 of Article 2 [Sections 62-2-101 et seq., 62-2-201 et seq., 62-2-301 et seq., and 62-2-401 et seq.] and of Section 62-3-203, a surviving spouse does not include:

(1)    a person an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this State, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as husband and wife at the time of the decedent's death;

(2)    a person an individual who, following a an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or

(3)    a person an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death; or.

(4)    a person an individual claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of a personal representative; if the action is commenced after the death of the decedent, proof must be by clear and convincing evidence.

(c)    A divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.

REPORTER'S COMMENTS

Section 62-2-802 provides, with respect to the capacity of a putative surviving spouse to take by way of succession to the estate of a decedent, whether testate or intestate, for the effects of (1) a divorce, (2) an annulment, (3) a decree of separate maintenance, and (4) an order terminating marital property rights, or confirming equitable distribution between spouses, in cases in which any such event affects the marriage of the decedent to the putative surviving spouse.

Valid Divorce and Annulment.

Under Section 62-2-802(a), a valid divorce or a valid annulment deprives the putative spouse of the status of surviving spouse of the decedent and the capacity to take as such in succession to the decedent's estate under this Code, i.e., by way of provisions in favor of a 'surviving spouse,' whether found in the decedent's will, Parts 5 and 6 of Article 2, or in the intestacy statute, Section 62-2-102, or in the provision for an elective share, Section 62-2-201 et. seq., or in the provision for an omitted spouse, Section 62-2-301, or in that for a spouse with respect to exempt property, Section 62-2-401. However, the issuance of a decree of separate maintenance, not terminating the marital status, has no such effect. It should be apparent that a valid divorce or annulment must always have deprived the former spouse of the status of spouse of the decedent for purposes of succession.

Marital Conditions Other than Divorce or Annulment.

Under Section 62-2-802(b), any one of the following, an order terminating marital property rights, or confirming equitable distribution between spouses, subsection (3), a divorce or an annulment not recognized as valid in South Carolina if the putative spouse obtained or consented to it, subsection (1), or subsequent to it he or she participated in a marriage ceremony with some third person, subsection (2), deprives the putative spouse of the status of surviving spouse of the decedent; but, under Section 62-2-802(b) itself, the deprivation is only for the purposes of succession to the decedent's estate in intestacy, as a spouse with respect to an elective share as an omitted spouse, as a spouse with respect to exempt property, and as a spouse in line for appointment as an administrator in intestacy, i.e., as under Parts 1, 2, 3, and 4 of Article 2 and under Section 62-3-203.

However, under Section 62-2-507, such an order, a divorce or annulment, whether valid or invalid as under Section 62-2-802(b) has the additional effect of revoking, by operation of law, so much of the decedent's will as affects the putative spouse. Section 62-2-507 refers to Section 62-2-802 for the definition of divorce and annulment.

Perhaps other marital conditions, not valid as divorces or annulments and not detailed in Section 62-2-802(b), will continue by the common law to estop a putative spouse from claiming as a surviving spouse. See Section 62-1-103. Further, matters of succession not within the coverage of Sections 62-2-802(b) and 62-2-507 will continue to be governed by the prior South Carolina law, e.g., recovery under the Wrongful Death Act, Section 15-51-20 of the 1976 Code. See Folk v. U.S., 102 F. Supp. 736 (W.D.S.C. 1952), and see Lytle v. Southern Ry.-Carolina Division, 171, S.C. 221, 171 S.E. 42 (1933) and Lytle v. Southern Ry.-Carolina Division, 152 S.C. 161, 149 S.E. 692 (1929).

Both Sections 62-2-802 and 62-2-507 provide for the exceptional case of the subsequent marriage of the decedent to the putative spouse, those sections being rendered inapplicable to such a case.

The 2012 amendment clarifies that an individual who undergoes a divorce that is either invalid or not recognized in South Carolina will be considered a surviving spouse if the individual is living as husband and wife with the decedent at the time of decedent's death.

Section 62-2-803.     (a)    A surviving spouse, heir, or devisee An individual who feloniously and intentionally kills the decedent is not entitled to any benefits under the decedent's will, trust of which the decedent is a grantor or under this article with respect to the decedent's estate, including, but not limited to, an intestate share, an elective share, an omitted spouse's share or child's share, a homestead allowance, and exempt property, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.

(b)    Any joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his the decedent's property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.

(c)    A named beneficiary of a bond, life insurance policy, retirement plan, annuity, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person individual upon whose life the policy is issued is not entitled to any benefit under the bond, policy, retirement plan, annuity, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.

(d)    Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section. A beneficiary whose interest is increased as a result of feloniously and intentionally killing shall be treated in accordance with the principles of this section.

(e)    The felonious and intentional killing of the decedent revokes the nomination of the killer in a will or other document nominating or appointing the killer to serve in any fiduciary capacity or representative capacity, including, but not limited to, as personal representative, trustee, agent or guardian.

(f)    A final judgment of by conviction, or guilty plea establishing criminal accountability of felonious and intentional killing the decedent is conclusive conclusively establishes that the convicted individual feloniously and intentionally killed the decedent for purposes of this section. In the absence of a conviction of felonious and intentional killing such final judgment the court, may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this section upon the petition of an interested person, must determine whether, upon the preponderance of the evidence standard, the individual would be found responsible for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be responsible for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section.

(f)(g)    This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer, for value and without notice, property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.

(g)(h)    For purposes of this section, the killer is considered to have predeceased the decedent if the killer dies within one hundred twenty hours after feloniously and intentionally killing the decedent. If an individual feloniously and intentionally kills the decedent, and if the killer dies within one hundred twenty hours of the decedent's death, then the decedent shall be deemed to have survived the killer for purposes of distributing the killer's estate, including, but not limited to, property passing by intestacy, the killer's will, any trust of which the killer is a grantor, joint tenancy with right of survivorship and benefits payable under a life insurance policy, retirement plan, annuity or other contractual arrangement.

REPORTER'S COMMENTS

Section 62-2-803, subsections (a) through (e), governs the effects of the proof of a putative successor's felonious and intentional killing of a decedent upon whose death some matter of succession depends. Under this Code, such a killer is disabled from taking the succession and the succession proceeds as if the killer had predeceased the decedent. Under Section 62-2-803(f), a final judgment of conviction or a guilty plea of felonious and intentional killing conclusively invokes the operation of Section 62-2-803, but the lack of a conviction is no bar to invocation of the provision where the killing is proved by the preponderance of the evidence.

At common law, according to the maxim that 'no one shall be permitted to profit by his own ... wrong,' Smith v. Todd, 155 S.C. 323, 152 S.E. 506 (1930), those, who were by the preponderance of the evidence, Smith v. Todd, supra, proven to have feloniously, Smith v. Todd, supra; and Keels v. Atlantic Coast Line R. Co., 159 S.C. 520, 157 S.E. 834 (1931), and intentionally, i.e., maliciously and not merely recklessly or involuntarily, Leggette v. Smith, 226 S.C. 403, 85 S.E.2d 576 (1955), but see Fowler v. Fowler, 242 S.C. 252, 254, 130 S.E.2d 568 (1963), killed another, were disabled from taking in succession to their victim, whether by their being named as the beneficiary of a policy of life insurance on their victim, Smith v. Todd, supra, or of employment death benefits with respect to their victim, Keels, supra, or by their taking in intestacy from their victim, or otherwise, Leggette v. Smith, supra. The maxim applied and the civilly proven killer was disabled from taking notwithstanding that on the criminal side he had been convicted of involuntary manslaughter, Keels, supra, or had been acquitted of crime, Leggette v. Smith, supra. .

Former Section 21-1-50 of the 1976 Code was enacted, importantly, in supplementation of the common law maxim disabling a killer from taking in succession to his victim, and was enacted merely in order to establish a conclusive presumption of the disablement of the killer in the single specified case of his criminal court conviction of an unlawful killing, Sections 16-3-10 and 16-3-50 of the 1976 Code and Rasor v. Rasor, 173 S.C. 365, 175 S.E. 545 (1934), presumably because of the higher standard of proof bound to have been imposed in that proceeding; not including coroner's convictions, Smith v. Todd, supra, nor including, of course, complete acquittals, Leggette v. Smith, supra, nor involuntary manslaughter convictions, Keels, supra, Sections 16-3-50 and 16-3-60 of the 1976 Code, but, perhaps, including other reckless homicide convictions, Section 56-5-2910 of the 1976 Code, unlawful albeit unintended, i.e., nonmalicious and involuntary. See Fowler v. Fowler, supra, at 254 and C. Karesh, Survey of South Carolina Law, 8 S.C.L.Q. 150 (1955) and E. McCrackin, Inheritance--Unintentional Killing, 7 S.C.L.Q. 475 (1955).

The thrust of Section 62-2-803 is meant to encompass not only the intended unlawful killing cases covered by former Section 21-1-50 of the 1976 Code, but also the cases left to the common law maxim. See Section 62-2-803(d). Perhaps the common law maxim retains some validity, as under Section 62-1-103, with respect to cases of killings or of succession, not covered by Section 62-2-803, if any. For instance, perhaps the common law maxim will yet apply to deprive unintended but reckless homicides of the benefits of the Wrongful Death Act, Sections 15-51-10, 15-51-20 of the 1976 Code et seq. See Fowler v. Fowler, supra at 254 but compare Leggette v. Smith, supra.

Under Section 62-2-803, subsections (a) through (d), the effect of the proving of the killing is not only to disable the killer from taking in succession but also to redirect the succession so that the matter proceeds as if the killer had predeceased the decedent.

Section 62-2-803(g) provides for the protection, from the claims of the takers on the redirected succession, of obligors who pay benefits to a killer without notice of such claims and also for the protection, from such claims, of purchasers from a killer, for value and without notice, who purchase before the adjudication of such claims.

In protecting the killer's subsequent purchasers, for value and without notice, Section 62-2-803(g), having first established the theoretical base that the killer is deprived by his crime of all legal title in the property which the killer would have acquired except for this section, the interest then, however, accords to the killer's subsequent purchasers, for value and without notice, in whom presumably later mere equitable title arises, the kind of protection against the claims of the earlier legal title claimants, i.e., those who take the redirected succession under Section 2-803. Thus, Section 62-2-803(g) carves out a further statutory exception to the common law rule of priority.

Section 62-2-804.     When any person individual is seized or possessed of any real property held in joint tenancy at the time of his the individual's death, the joint tenancy is deemed to have been severed by the death of the joint tenant and the real property is distributable as a tenancy in common unless the instrument which creates the joint tenancy in real property, including any instrument in which one person individual conveys to himself and one or more other persons, or two or more persons convey to themselves, or to themselves and another or others, expressly provides for a right of survivorship, in which case the severance does not occur. While other methods for the creation of a joint tenancy in real property may be utilized, an express provision for a right of survivorship is conclusively considered to have occurred if the will or instrument of conveyance contains the names of the devisees or grantees followed by the words 'as joint tenants with right of survivorship and not as tenants in common'.

REPORTER'S COMMENTS

Section 62-2-804 is incorporated into Article 2 in order to integrate particularly with Sections 62-2-101 and 62-2-501 the South Carolina law on the effects of the establishment of a joint tenancy in real property, with and without express provision for right of survivorship, on the succession to a decedent joint tenant's interest in such real property by, respectively, the surviving joint tenants or the decedent's testate or intestate successors. The case law developed in South Carolina in the application of former Section 21-3-50 of the 1976 Code and its predecessor statutes, recodified as Section 62-2-804, continues to apply.

Section 62-2-805.     (A)    For purposes of this article, tangible personal property in the joint possession or control of the decedent and the surviving spouse at the time of the decedent's death is presumed to be owned by the decedent and the decedent's spouse in joint tenancy with right of survivorship if ownership is not evidenced otherwise by a certificate of title, bill of sale, or other writing. This presumption does not apply to property:

(1)    acquired by either spouse before marriage;

(2)    acquired by either spouse by gift or inheritance during the marriage;

(3)    used by the decedent spouse in a trade or business in which the surviving spouse has no interest;

(4)    held for another; or

(5)    specifically devised in a will or devised in a written statement or list disposing of tangible personal property pursuant to Section 62-2-512.

(B)    The presumption created in this section may be overcome by a preponderance of the evidence demonstrating that ownership was held other than in joint tenancy with right of survivorship.

Section 62-2-806.    To achieve the testator's tax objectives, the court may modify the terms of the testator's will in a manner that is not contrary to the testator's probable intention. The court may provide that the modification has retroactive effect.

REPORTER'S COMMENTS

The 2012 amendment added this section with provisions similar to Section 62-7-416.

Part 9

Delivery and Suppression of Wills

Section 62-2-901.    (a)    Every executor, devisee, legatee, trustee, guardian, attorney, or other After the death of a testator, a person having in his possession, custody, or control any last of a will and testament, including any codicil or codicils thereto, of the testator shall deliver such will, any person dying must within thirty days after of actual notice or knowledge of the testator's death of the testator deliver such last will and testament, including any codicil or codicils thereto, to the judge of the probate court having jurisdiction to admit the same to probate and or to a person named as personal representative in the will who shall deliver the will to the judge of the probate court. Upon receipt of the will, the such judge of probate shall file the same in his probate court and if proceedings for the probate are not begun within thirty days he must the judge shall publish a notice of such delivery and filing in one of the newspapers in his the county of the probate court for fifteen days once a week for three consecutive weeks. Any executor, devisee, legatee, guardian, attorney, or other person who fails to deliver to the judge of the probate court having jurisdiction to admit it to probate any last will and testament, including any codicil or codicils thereto, upon conviction must be punished as for a misdemeanor.

(b)    Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver the will to the judge of the probate court having jurisdiction to admit it to probate any last will and testament, including any codicil or codicils thereto, for the purpose and with the intent to prevent the institution of proceedings for its probate shall, upon conviction thereof, be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both, in the discretion of the court is liable to any person aggrieved for any damages that may be sustained by such action or inaction.

(c)    Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver the will to the judge of the probate court having jurisdiction to admit it to probate, after being ordered by the court in a proceeding brought for the purpose of compelling delivery, is subject to a penalty for contempt of court.

REPORTER'S COMMENT

Section 62-2-901 requires a custodian of a will, who has actual notice or knowledge of the testator's death, to deliver the will to the probate court or to the personal representative named in the will.

Article 3

Probate of Wills and Administration

Part 1

General Provisions

Section 62-3-101.     The power of a person to leave property by will and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this Code to facilitate the prompt settlement of estates, including the exercise of the powers of the personal representative. Upon the death of a person, his real property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting the devolution of intestate estates, subject to the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purposes of administration, particularly the exercise of the powers of the personal representative under Sections 62-3-709, 62-3-710, and 62-3-711, and his personal property devolves, first, to his personal representative, for the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purposes of administration, particularly the exercise of the powers of the personal representative under Sections 62-3-709, 62-3-710, and 62-3-711, and, at the expiration of three years after the decedent's death, if not yet distributed by the personal representative, his personal property devolves to those persons to whom it is devised by will or who are his heirs in intestacy, or their substitutes, as the case may be, just as with respect to real property.

REPORTER'S COMMENTS

Real property devolves to the devisees or substitutes, under decedent's will, or to his heirs or substitutes, in an intestate estate, at the death of the owner whereas personal property devolves at the expiration of three years after decedent's death if not yet distributed by the personal representative.

As to devolution of real property, see Sections 62-3-711 and 62-3-715 concerning certain powers of the personal representative over real estate.

The devolution of personal property to devisees or heirs is expressly made subject to other provisions of this Code regarding exempt property, the rights of creditors, and the administration of estates. Further, the power (and fiduciary obligation) of the personal representative to apply personal property to the benefit of creditors and others interested in the estate is provided for in Section 62-3-711. Only if the property is not required to protect the rights of creditors or others does it devolve with no affirmative act of transfer of title by distribution being necessary. Thus, under the system of this Code and the provisions of this section, title to personal property devolves to devisees or heirs, but subject to exempt property provisions and the power to shift title to the personal representative where required in administration and to protect the rights of creditors or others.

Section 62-3-102.    Except as provided in Section 62-3-1201 and except as to a will that has been admitted to probate in another jurisdiction which is filed as provided in Article 4, to be effective to prove the transfer of any property or to nominate an executo a personal representative, a will must be declared to be valid by an order of informal probate by the court or an adjudication of probate by the court.

REPORTER'S COMMENTS

A duly executed, unrevoked will must be declared to be valid by order of informal probate or an adjudication of probate in order to be effective to prove the transfer of any property or to nominate an executor, with one exception, the affidavit procedures authorized for collection of estates worth less than twenty-five thousand dollars. Section 62-3-1201. The time limitations on probate proceedings to establish testacy are stated in Section 62-3-108.

Section 62-3-103.     Except as otherwise provided in this article [Sections 62-3-101 et seq.] and in Article 4 [Sections 62-4-101 et seq.], to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court, qualify, and be issued letters. Administration of an estate is commenced by the issuance of letters.

REPORTER'S COMMENTS

Before one acquires the status of personal representative, he must be appointed by the court, qualify, and be issued letters. Failure to secure appointment by one who possesses the goods of a decedent makes him liable as executor in his own wrong, Sections 62-3-619, 62-3-620, 62-3-621.

The exceptions provided in Article 4 permit a personal representative appointed in another state to collect certain assets in this State, Sections 62-4-201 through 62-4-203, and to exercise the powers of a local personal representative, if no local administration or application is pending in this State, by filing authenticated copies of his appointment and any will and any bond, Sections 62-4-204, 62-4-205.

For 'qualification,' see Section 62-3-601; for 'letters,' see Section 62-1-305; for the time of accrual of duties and powers of personal representative, see Section 62-3-701.

Section 62-3-108 imposes time limitations on appointment proceedings.

Section 62-3-104.     No claim can be filed against the estate of a decedent and no proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this article [Sections 62-3-101 et seq.]. After distribution, a creditor whose claim has not been barred may recover from the distributees as provided in Section 62-3-1004 or from a former personal representative individually liable as provided in Section 62-3-1005. This section has no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency judgment which might be sought therein.

REPORTER'S COMMENTS

This section requires creditors of decedents to assert their claims against a duly appointed personal representative. Notice to creditors, time limitations, payment of claims, and other provisions relating to creditors' claims are in Part 8 of Article 3. Creditors are interested persons who may seek appointment either in informal proceedings for appointment of a personal representative, Section 62-3-301, or in formal proceedings for appointment, Section 62-3-414. A creditor may seek appointment as personal representative, and has priority for appointment if no other interested person has applied for appointment within forty-five days after death, Section 62-3-203, and may do so at any time within ten years of decedent's death, Section 62-3-108.

If a personal representative has been appointed and has closed the estate under circumstances which leave a creditor's claim unbarred and unpaid, the creditor may recover from the distributees, Section 62-3-1004, or from the former personal representative individually liable for breach of fiduciary duty as provided in Sections 62-3-807 and 62-3-1003, subject to the limitations of Section 62-3-1005.

A secured creditor is not affected by this section except as to any deficiency judgment sought. A secured creditor is not required to assert his claim against the personal representative of the deceased debtor; however, the secured creditor who wishes to enforce a claim for deficiency, even if unliquidated or only potential, is required to comply with the claims provisions of this section and Part 8 of this article.

Section 62-3-105.    Persons interested in decedents' estates may apply to the court for determination in the informal proceedings provided in this article [Sections 62-3-101 et seq.], and may petition the court for orders in formal proceedings within the court's jurisdiction including but not limited to those described in this article.

Section 62-3-106.     In proceedings within the jurisdiction of the court where notice is required by this Code or by rule, and in proceedings to construe probated wills or determine heirs which concern estates that have not been and cannot now be opened for administration, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this State by notice in conformity with Section 62-1-401. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.

REPORTER'S COMMENTS

The notice provisions of this section cover all proceedings within the exclusive jurisdiction of the probate court where notice is required by this Code or by rule. Notice provisions also apply to proceedings to construe probated wills or to determine heirs in an intestate estate which has not been and cannot be opened for administration due to time limitations. Thus, this section and the exceptions to the time limitations of Section 62-3-108 make it clear that proceedings to construe a probated will or to determine heirs of intestates may be commenced more than ten years after death. Notice may be given to less than all interested persons but is binding upon only those who are given notice.

For the time and method of giving notice, see Section 62-1-401; and waiver of notice, Section 62-1-402.

Section 62-3-107.     Unless administration under Part 5 [Sections 62-3-501 et seq.] is involved, (1) each proceeding before the court is independent of any other proceeding involving the same estate; (2) petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay, but, except as required for proceedings which are particularly described by other sections of this article [Sections 62-3-101 et seq.], no petition is defective because it fails to embrace all matters which might then be the subject of a final order; (3) proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (4) a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.

REPORTER'S COMMENTS

This section and the other provisions of this article are designed to establish a flexible system of administration of decedents' estates which permits interested persons to determine the extent to which matters relating to estates become the subjects of judicial orders.

Administration under Part 5, Sections 62-3-501, et seq., is a single proceeding for judicial determination of testacy, priority, and qualification for appointment as personal representative and administration and settlement of decedents' estates. Section 62-3-107 applies to all other proceedings except those which are particularly described in other sections of this article. With the exceptions stated, proceedings for probate of wills and adjudication of intestacy may be combined with proceedings for appointment of personal representatives. Jurisdiction over interested persons is facilitated by Sections 62-3-106 and 62-3-602. Venue is determined by Section 62-3-201.

Except in circumstances which permit appointment of a special administrator, Section 62-3-614, a personal representative may not be appointed unless the will to which the requested appointment relates has been formally or informally probated, Sections 62-3-308, 62-3-402, and 62-3-414.

Section 62-3-108.        No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than ten years after the decedent's death, except (1) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding and if that previous proceeding was commenced within the time limits of this section; (2) appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and (3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within the later of eight months from the informal probate or one year from the decedent's death. If no informal probate and no formal testacy proceedings are commenced within ten years after the decedent's death, and no proceedings under (2) above are commenced within the applicable period of three years, it is incontestable that the decedent left no will and that the decedent's estate passes by intestate succession. These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under (1) or (2) above, the date on which a testacy or appointment proceeding is properly commenced is deemed to be the date of the decedent's death for purposes of other limitations provisions of this Code which relate to the date of death.

(A)(1)    No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than ten years after the decedent's death.

(2)    Notwithstanding any other provision of this section:

(a)    if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding and if that previous proceeding was commenced within the time limits of this section;

(b)    appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and

(c)    a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within eight months from informal probate or one year from the decedent's death, whichever is later.

(B)    If no informal probate and no formal testacy proceedings are commenced within ten years after the decedent's death, and no proceedings under subsection (A)(2)(b) are commenced within the applicable period of three years, it is incontestable that the decedent left no will and that the decedent's estate passes by intestate succession. These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In proceedings commenced under subsection (A)(2)(a) or (A)(2)(b), the date on which a testacy or appointment proceeding is properly commenced is deemed to be the date of the decedent's death for purposes of other limitations provisions of this Code which relate to the date of death.

REPORTER'S COMMENTS

This section establishes a time limitation of ten years after a decedent's death for commencement of any proceeding to determine whether a decedent died testate or for commencing administration of his estate, with the following exceptions:

(1)    a proceeding to probate a will previously probated in testator's domicile;.

(2)    appointment proceedings relating to an estate in which there has been a prior appointment;.

(3)    if a previous proceeding was dismissed because of doubt about the fact of death, and if decedent's death in fact occurred prior to commencement of the previous proceeding, and if there has been no undue delay in commencing the subsequent proceeding;.

(4)    if the decedent was a protected person, as an absent, disappeared, or missing person for whose estate a conservator has been appointed, and if the proceeding is commenced within three years after the conservator is able to establish the death of the protected person; or.

(5)    a proceeding to contest an informally probated will and appointment if the contest is successful, may be commenced within the later of eight months from informal probate or one year from the decedent's death.

These limitations do not apply to proceedings to construe wills or to determine heirs of an intestate.

If no will is probated within ten years from death, or within the time permitted by one of the exceptions, this section makes the assumption of intestacy final.

If a will has been probated informally within ten years, this section makes the informal probate conclusive within one year from death or eight months from informal probate, whichever is later. The limitation period prescribed applies to all persons including those under disability.

Interested persons can protect themselves against changes within the period of doubt concerning whether a person died testate or intestate by commencing at an earlier date a formal proceeding, Sections 62-3-401, 62-3-402.

Protection to a personal representative appointed after informal probate of a will or informally issued letters of administration, but which is subject to change in a subsequent formal proceeding commenced within the limitations prescribed, is afforded under Section 62-3-703.

Distributees who receive distributions from an estate before the expiration of the period remain potentially liable to those determined to be entitled in properly commenced formal proceedings, Section 62-3-909, 62-3-1006.

Purchasers from the personal representative or a distributee may be protected without regard to whether the period has run, Sections 62-3-714, 62-3-910.

Creditors' claims are barred against the personal representative, heirs, and devisees after one year from date of death in any event. Section 62-3-803(a).

Section 62-3-109.     The running of any statute of limitations on a cause of action belonging to a decedent which had not been barred as of the date of his death is suspended during the eight months following the decedent's death but resumes thereafter unless otherwise tolled.

REPORTER'S COMMENTS

Any statute of limitations running on a decedent's cause of action surviving decedent, which had not been barred at decedent's death, is tolled for eight months after decedent's death. This section has the effect of extending the running of a statute of limitations with respect to a cause of action surviving decedent for eight months from the time when it would have run, if the action had not been barred at decedent's death.

For the tolling or suspension of any statute of limitations running on a cause of action against decedent for the eight months following decedent's death, see Section 62-3-802.

Part 2

Venue for Probate and Administration; Priority to Administer; Demand for Notice

Section 62-3-201.     (a)    Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:

(1)    in the county where the decedent had his domicile at the time of his death; or

(2)    if the decedent was not domiciled in this State, in any county where property of the decedent was located at the time of his death.

(b)    Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in Section 62-1-303 or (c) of this section.

(c)    If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.

(d)    For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.

REPORTER'S COMMENTS

Venue for the first informal or formal testacy and appointment proceedings and subsequent proceedings is established in Section 62-3-201. For domiciliaries, venue is the county of domicile. For decedents not domiciled in this State, venue is in any county where property of the decedent was located.

If proceedings concerning the same estate are commenced in more than one court of this State, the court in which the proceeding was first commenced makes the finding of proper venue, Sections 62-3-201, 62-1-303. Upon finding that venue is elsewhere, the court in which the first proceeding was filed may transfer the proceeding to some other court, Section 62-3-201(c). Where a proceeding could be maintained in more than one court in this State, the court in which the first proceeding was commenced has the exclusive right to proceed or to transfer, Section 62-1-303.

Section 62-3-202.     If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this State, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this State must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this State.

REPORTER'S COMMENTS

Conflicting claims of domicile arising in a formal testacy or appointment proceeding in a court of this State and a testacy or appointment proceeding after notice pending in another state are resolved by the court in which the first proceeding was commenced.

Section 62-3-203.     (a)    Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:

(1)    the person with priority as determined by a probated will including a person nominated by a power conferred in a will;

(2)    the surviving spouse of the decedent who is a devisee of the decedent;

(3)    other devisees of the decedent;

(4)    the surviving spouse of the decedent;

(5)    other heirs of the decedent regardless of whether the decedent died intestate and determined as if the decedent died intestate (for the purposes of determining priority under this item, any heirs who could have qualified under items (1), (2), (3), and (4) of subsection (a) are treated as having predeceased the decedent);

(6)    forty-five days after the death of the decedent, any creditor;

(7)    four months after the death of the decedent, upon application by the South Carolina Department of Revenue, a person suitable to the court.

(8)    Unless a contrary intent is expressed in the decedent's will, a person with priority under subsection (a) may nominate another, who shall have the same priority as the person making the nomination, except that a person nominated by the testator to serve as personal representative or successor personal representative shall have a higher priority than a person nominated pursuant to this item.

(b)    An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) apply except that:

(1)    if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;

(2)    in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value or, in default of this accord, any suitable person.

(c)    Conservators of the estates of protected persons or, if there is no conservator, any guardian for the protected person or the custodial parent of a minor, except a court appointed guardian ad litem of a minor or incapacitated person may exercise the same right to be appointed as personal representative, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.

(d)    Appointment of one who does not have priority may be made in formal or informal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary. If the administration is necessary, appointment of one who has equal or lower priority may be made as follows within the discretion of the court:

(1)    informally if all those of equal or higher priority have filed a writing with the court renouncing the right to serve and nominating the same person in his or her place; or

(2)    in the absence of agreement, informally in accordance with the requirements of Section 62-3-310; or

(3)    in formal proceedings.

(e)    No person is qualified to serve as a personal representative who is:

(1)    under the age of eighteen;

(2)    a person whom the court finds unsuitable in formal proceedings;

(3)    with respect to the estate of any person domiciled in this State at the time of his death, a corporation created by another state of the United States or by any foreign state, kingdom or government, or a corporation created under the laws of the United States and not having a business in this State, or an officer, employee, or agent of such foreign corporation, whether the officer, employee, or agent is a resident or a nonresident of this State, if such officer, employee, or agent is acting as personal representative on behalf of such corporation;

(4)    a probate judge for an estate of any person within his jurisdiction, except as provided in Section 62-3-1202A ; however, a probate judge may serve as a personal representative of the estate of a family member if the service does not interfere with the proper performance of the probate judge's official duties and the estate must be transferred to another county for administration. For purposes of this subsection, 'family member' means a spouse, parent, child, brother, sister, aunt, uncle, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.

(f)    A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representatives in this State and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.

(g)    This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.

(h)    If it comes to the knowledge of a probate judge that any person within his jurisdiction has died leaving an estate upon which no application has been made for appointment or no personal representative appointed or no will offered for probate or appointment granted, he must, immediately after the lapse of four months from the death of such person, notify the South Carolina Department of Revenue thereof together with his opinion as to whether or not any part of the estate is likely to be taxable.

REPORTER'S COMMENTS

The priorities of the right to appointment as personal representative or successor personal representative (but not special administrator, Sections 62-3-203(b), 62-3-615) are, in order, a person determined by a probated will, a spouse who is a devisee, other devisees, a spouse who is not a devisee, other heirs, and, after forty-five days after death, a creditor, Section 62-3-203(a). Objections to appointment can be made only in formal proceedings, Section 62-3-203(b). Conservators or guardians of protected persons may exercise the same right to nominate for or object to appointment which the protected person would have if qualified, Section 62-3-203(c). Persons disqualified include persons under age eighteen, those found unsuitable by the court, and foreign corporations not having a place of business in this State, Section 62-3-203(e).

The 2010 amendment revised subsection (d) to eliminate certain language as to 'priority resulting from renunciation or waiver,' and adding 'or informal' proceedings. The prior version of subsection (d) provided for only a formal proceeding. The 2010 amendment allows one who does not have priority to pursue either a formal proceeding (requiring summons and petition) or an informal proceeding (does not require summons and petition) for appointment. See section 62-3-310 for informal appointments to one who does not have priority. See 2010 amendments to certain definitions in Section 62-1-201.

Section 62-3-204.     Any interested person desiring notice of any order or filing pertaining to a decedent's estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant's address or that of his attorney. The demand for notice shall expire one year from the date of filing with the court. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, the personal representative must give a copy of the demanded filing to the demandant or his attorney. If the demand is a demand for a hearing, then the personal representative must comply with no order or filing to which the demand relates may be made or accepted without notice as prescribed in Section 62-1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement is not affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and ceases upon the termination of his interest in the estate.

REPORTER'S COMMENTS

Interested persons may file a demand for notice, requiring notice to be given to them or their attorneys. The 2012 amendment clarifies that a court may issue an order and accept a filing while a demand for notice is effective.

As to the method and time of giving the notice referred to, see Section 62-1-401.

Part 3

Informal Probate and Appointment Proceedings

Section 62-3-301.    (a)    Applications for informal probate or informal appointment shall be directed to the court, and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the following information:

(1)    Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:

(i)     a statement of the interest of the applicant;

(ii)    the name, and date of death of the decedent, his age, and the county and state of his domicile at the time of death, and the names and addresses of the spouse, children, heirs (regardless of whether the decedent died intestate and determined as if the decedent died intestate) and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;

(iii)    if the decedent was not domiciled in the State at the time of his death, a statement showing venue;

(iv)    a statement identifying and indicating the address of any personal representative of the decedent appointed in this State or elsewhere whose appointment has not been terminated;

(v)    a statement indicating whether the applicant has received a demand for notice, or is aware of a demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this State or elsewhere; and

(vi)    that the time limit for informal probate or appointment as provided in this article has not expired either because ten years or less has passed since the decedent's death, or, if more than ten years from death have passed, circumstances as described by Section 62-3-108 authorizing tardy probate or appointment have occurred;.

(vii)    such further information as may be prescribed by the South Carolina Department of Revenue pursuant to Sections 12-15-510 and 12-15-540 of the 1976 Code.

(2)    An application for informal probate of a will shall state the following in addition to the statements required by (1):

(i)     that the original of the decedent's last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application;

(ii)    that the applicant, to the best of his knowledge, believes the will to have been validly executed;

(iii)    that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will.

(3)    An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought.

(4)    An application for informal appointment of an administrator in intestacy must state the name and address of the person whose appointment is sought and must state in addition to the statements required by (1):

(i)        that after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this State under Section Section 62-1-301 or a statement why any such instrument of which he may be aware is not being probated;

(ii)    the priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under Section 62-3-203.

(5)    An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.

(6)    An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in Section 62-3-610(c), or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.

(7)    The court may probate a will without appointing a personal representative.

(b)    By verifying an application for informal probate, or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against him.

REPORTER'S COMMENTS

This section prescribes the contents of the application for the informal probate of a will or for the informal appointment of a personal representative. The proofs and findings required for issuance of any order of informal probate or informal appointment are contained in Sections 62-3-303 and 62-3-308. This section requires that the application be verified, 62-3-301(a) and (b). The application is a part of the public record. Persons injured by deliberately false representation may invoke remedies for fraud without any specified time limit (See Article 1).

This section allows the court to probate a will without appointing a personal representative. Further, it allows the court to appoint a personal representative without notice.

Section 62-3-302. Upon receipt of an application requesting informal probate of a will, the court, upon making the findings required by Section 62-3-303, shall issue a written statement of informal probate. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.

REPORTER'S COMMENTS

'Informal Probate' is designed to keep the vast majority of wills, which are simple and generate no controversy, from becoming involved in truly judicial proceedings. An order of informal probate makes the will operative and may be the only official action concerning its validity. The order is subjected to the safeguards which seem appropriate to this transaction.

Section 62-3-303. (a)    In an informal proceeding for original probate of a will, the court shall determine whether:

(1)    the application is complete;

(2)    the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;

(3)    the applicant appears from the application to be an interested person as defined in Section 62-1-201(20);

(4)    on the basis of the statements in the application, venue is proper;

(5)    an original, duly executed and apparently unrevoked will is in the court's possession;

(6)    any notice required by Section 62-3-204 has been given and that the application is not within Section 62-3-304;

(7)    it appears from the application that the time limit for original probate has not expired.

(b)    The application shall be denied if it indicates that a personal representative has been appointed in another county of this State or except as provided in subsection (d) below, if it appears that this or another will of the decedent has been the subject of a previous probate order.

(c)    A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 62-2-502 or 62-2-505 have been met shall be probated without further proof. In other cases, the court may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.

(d)    Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.

(e)    A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection (a) above, may be probated in this State upon receipt by the court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place. A will of a nonresident decedent which has not been probated and is not eligible for probate under subsection (a)(5) may nevertheless be probated in this State upon receipt by the court of a copy of the will authenticated as true by its legal custodian together with the legal custodian's certificate that the will is not ineligible for probate under the law of the other place.

REPORTER'S COMMENTS

This section lists the proofs and findings required to be made by the court as a part of an order of informal probate.

The purpose of subparagraph (c) of the section is to permit the informal probate of a will which, from a simple attestation clause, appears to have been executed properly. It is not necessary that the will be notarized or self-proved. If the will has been made self-proved under Section 62-2-503 it will of course 'appear' to be well executed and will include the recitals necessary for ease of probate under this section. This section does not require that the court examine one or both of the subscribing witnesses to the will. Any interested person who desires more rigorous proof of due execution may commence a formal testacy proceeding.

Note the provision of subparagraph (b) that informal probate is generally unavailable if there has been a previous probate of this or another will, unless, as under subparagraph (d), ancillary probate is desired.

Section 62-3-304.     Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than a will and its codicils), the latest of which does not expressly revoke the earlier, shall be declined.

REPORTER'S COMMENTS

The court is required to decline applications for informal probate in the circumstances specified in this section where a formal proceeding with notice and hearing would provide a desirable safeguard.

Section 62-3-305.     If the court is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 62-3-303 and 62-3-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.

REPORTER'S COMMENTS

This section confers upon the court the discretion to deny probate to an instrument even though all of the statutory requirements have arguably been met. The denial of an application for informal probate does not give rise to a right of appeal. The proponent of the will is left with the option of initiating a formal testacy proceeding.

Section 62-3-306.     (a)    The moving party must give notice as described by Section 62-1-401 of his application for informal probate to any person demanding it pursuant to Section 62-3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.

(b)    If an informal probate is granted, within thirty days thereafter the applicant shall give written information of the probate to the heirs (determined as if the decedent died intestate) and devisees. The information must include the name and address of the applicant, the date of execution of the will, and any codicil thereto, the name and location of the court granting the informal probate, and the date of the probate. The information must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by Section 62-3-705. An applicant's failure to give information as required by this section is a breach of his duty to the heirs and devisees but does not affect the validity of the probate.

REPORTER'S COMMENTS

The party seeking informal probate of a will (who may or may not be seeking informal appointment as personal representative) must give notice of his application for informal probate, presumably at the time he makes his application. The notice must be given to any personal representative of the decedent whose appointment has not been terminated, and to any other person who demands notice pursuant to Section 62-3-204. Section 62-3-204 prescribes that a person demanding notice under that section must have 'a financial or property interest.' The notice must be in conformity with Section 62-1-401, which provides that a notice may be given by certified, registered, or ordinary first class mail, by personal service, or if the address or identity of the person sought to be notified cannot be ascertained, by publication.

As to notice after informal probate is granted, the requirement in subsection (b) of giving written information of the probate to heirs and devisees is unnecessary if a personal representative is appointed who is required to give the written information required by Section 62-3-705. This latter section provides that every personal representative except any special administrator must give written information of his appointment to heirs and devisees. The information requirement of Section 62-3-306(b) is effectively limited to those circumstances where an informal probate is granted but no personal representative is appointed. The term 'heirs and devisees' appears to encompass not only those persons who take by virtue of a probated will, but also those persons who would have been the decedent's heirs had he died intestate.

Section 62-3-307.     (a)    Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in Section 62-3-614, the court, after making the findings required by Section 62-3-308, shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent was a nonresident, the court shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that his estate be subject to the laws of this State.

(b)    The status of a personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in Sections 62-3-608 through 62-3-612, but is not subject to retroactive vacation.

REPORTER'S COMMENTS

This section and those that follow establish the mechanism for informal appointment of a personal representative.

The thirty day waiting period in the case of a nonresident decedent is designed to permit the first appointment to be at the decedent's domicile and presumably, to allow the domiciliary personal representative to then seek appointment in this State.

Section 62-3-308.     (a)    In informal appointment proceedings, the court must determine whether:

(1)    the application for informal appointment of a personal representative is complete;

(2)    the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;

(3)    the applicant appears from the application to be an interested person as defined in Section 62-1-201(20);

(4)    on the basis of the statements in the application, venue is proper;

(5)    any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;

(6)    any notice required by Section 62-3-204 has been given;

(7)    from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.

(b)    Unless Section 62-3-612 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Section 62-3-610(c) has been appointed in this or another county of this State, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this State and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.

REPORTER'S COMMENTS

Subsection (a) sets out those findings required of the court in an order of informal appointment of a personal representative. Of particular importance is the finding that any will to which the requested appointment relates has been formally or informally probated. As noted in the comment to Section 62-3-301, this Code allows the court to probate a will without appointing a personal representative. However, the effect of subsection (a) is that while the court may probate a will without appointing the personal representative designated in that will, it cannot informally appoint the personal representative without a prior formal or informal probate of the will to which the personal representative's appointment relates.

The court must enter a finding that the person appears to have priority entitling him to appointment. Section 62-3-203 establishes priority among persons seeking appointment as personal representative.

Subsection (b) sets out certain circumstances in which the application must be denied. The first such circumstance is where another personal representative has been appointed in this or another county of this State, except under the special situation of Section 62-3-612. The second such circumstance is in the case of a nondomiciliary decedent. Here, the section is designed to prevent informal appointment of a personal representative in this State when a personal representative has been previously appointed at the decedent's domicile. Sections 62-4-201, 62-4-204, and 62-4-205 may make local appointment unnecessary.

Section 62-3-309.    If the court is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 62-3-307 and 62-3-308 or, for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.

REPORTER'S COMMENTS

Because the appointment of a personal representative confers broad powers over the assets of the decedent's estate, the authority granted the court to deny the appointment for unclassified reasons is an important safeguard.

Section 62-3-310.     The moving party must give notice as described by Section 62-1-401 of his intention to seek an appointment informally: (1) to any person demanding it pursuant to Section 62-3-204; and (2) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required. The applicant must give notice of his intention to seek an appointment informally to any person having equal right to appointment not waived in writing and filed with the court. The notice shall state that, if no objection or nomination of another or no competing application or petition for appointment is filed with the court within forty-five days from mailing of the application and notice, the applicant may be appointed informally as the personal representative. If an objection, nomination, application, or petition is filed within the forty-five day period, the court shall decline the initial application pursuant to Section 62-3-309. The court can require the formal proceedings to appoint someone of equal or lesser priority.

REPORTER'S COMMENTS

This section requires that the party seeking informal appointment must give notice to any person having equal right to appointment. It provides a forty-five day period in which a person with equal right of appointment may respond.

Section 62-3-311.     If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this State, and which is not filed for probate in this court, the court shall decline the application.

REPORTER'S COMMENTS

This section is the counterpart of Section 62-3-304. Section 62-3-301(a)(4) requires that an applicant for informal appointment make certain representations concerning the existence of any unrevoked testamentary instrument. If any such instrument is not being offered for probate by the applicant, nor has been otherwise offered for probate, the court must decline the application for informal appointment. This section is a necessary safeguard against the abuse of the informal process.

Part 4

Formal Testacy and Appointment Proceedings

Section 62-3-401.     A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding must be commenced by an interested person filing and serving a summons and a petition as described in Section 62-3-402(a) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with Section 62-3-402(b) for an order that the decedent died intestate.

A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.

During the pendency of a formal testacy proceeding, the court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.

Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.

REPORTER'S COMMENTS

This section establishes the formal testacy proceeding and prescribes the effect of a formal proceeding on an informal probate proceeding. The word 'testacy' as used in this section encompasses any determination with respect to the testacy status of the decedent including that the decedent died without a will. See Section 62-1-201 (48). Although not specifically listed, the six uses for a formal testacy proceeding are: (1) an original proceeding to secure probate of a will; (2) a proceeding to corroborate a previous informal probate; (3) a proceeding to block a pending application for informal probate or to prevent informal application from occurring thereafter; (4) a proceeding to contradict a previous order of informal probate; (5) a proceeding to secure a declaratory judgment of intestacy or partial intestacy and a determination of heirs; (6) a proceeding to probate a will that has been lost, destroyed, or is otherwise unavailable.

The pendency of an action under this section automatically suspends any informal probate proceeding. Unless the petitioner requests confirmation of a previous informal appointment, a formal testacy proceeding suspends the personal representative's power of distribution but has no effect on the representative's other powers. If the petitioner seeks the appointment of a different personal representative, the court may further restrain the representative's powers, specifying the court's power over representatives. See also Sections 62-3-607 and 62-3-611. It should be noted that a 'distribution' does not include a payment of claims. See Section 62-1-121(10) for the definition of 'distributee' and Section 62-3-807 regarding payment of claims.

Under this section, any interested person may initiate a formal testacy proceeding. See Section 62-1-201 (23) for the definition of 'interested person.'

A formal testacy proceeding need not follow an informal proceeding and can be commenced without regard to whether a personal representative has been appointed.

The representative's power of distribution is automatically suspended upon the representative's receipt of notice of the proceeding. If there is a contest over who should serve, the court has the discretion to restrict further the representative's power.

The 2010 amendment deleted 'may' and replaced it with 'must' and added 'and serving a summons' to clarify that a summons and petition are required to commence a formal proceeding, including a formal testacy proceeding. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-3-402.     (a)    Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:

(1)    requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;

(2)    contains the statements required for informal applications as stated in the seven six subitems under Section 62-3-301(a)(1), and the statements required by subitems (ii) and (iii) of Section 62-3-301(a)(2);

(3)    states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.

If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.

(b)    A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by (1) and (4) of Section 62-3-301(a) and indicate whether administration under Part 5 [Sections 62-3-501 et seq.] is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by subitem (ii) of Section 62-3-301(a)(4) above may be omitted.

REPORTER'S COMMENTS

An interested person who petitions the court for a formal testacy proceeding must comply with the requirements of this section concerning the contents of the petition. Regardless of whether the formal testacy proceeding concerns a testate or intestate decedent, the petitioner must request an order determining the decedent's heirs. Requiring the determination of heirship precludes later questions that might arise at the time of distribution. If formal probate of a will is requested, the petition must provide the court with information concerning the location of the original will. If the original is 'lost, destroyed, or otherwise unavailable, the petition must contain the terms of the missing will. The petition should indicate whether administration under Part 5 of this article is desired. Once a formal testacy proceeding has been initiated, notice must be given as specified in Section 62-3-403.

If a formal order of appointment is sought because of a dispute over who should serve, Section 62-3-414 describes the appropriate procedure.

Section 62-3-403.     (a)    Upon commencement of a formal testacy proceeding or at any time after that, the court shall fix a time and place of hearing. Notice must be given in the manner prescribed by Section 62-1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 62-3-204. The following persons must be properly served with summons and petition: the surviving spouse, children, and other heirs of the decedent (regardless of whether the decedent died intestate and determined as if the decedent died intestate), the devisees, and personal representatives named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated.

(b)    If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the summons, petition, and notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:

(1)    by inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;

(2)    by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;

(3)    by engaging the services of an investigator.

The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.

REPORTER'S COMMENTS

Section 62-3-403(a) specifies those persons to whom notice of a formal testacy proceeding must be given. If another will has been or is being offered for probate within the county, those persons named in that will must be notified. The petitioner is not required to determine whether another will has been probated or offered for probate in other counties, but if the petitioner has actual knowledge of such a will, the devisees and executors named therein must be notified.

If the notice which is given does not fully comply with the requirements of this section, that defect is not necessarily fatal to the validity of an order. Section 62-3-106 provides that an order is valid as to those given notice though less than all interested persons were given notice. Section 62-3-1001(b) allows the court to confirm or amend as it affects those persons who were not notified of the formal testacy proceeding.

Section 62-3-403(b) sets out the additional steps which must be taken if the fact of the decedent's death is in doubt. In addition to giving notice to the alleged decedent, the petitioner must make a 'reasonably diligent search' for that individual. The court is to determine whether the search has been sufficiently diligent in light of the circumstances. In the event the alleged decedent is in fact alive or if the court is not convinced of the death of the alleged decedent, the petitioner is responsible for the costs of the search. In the event the court finds the alleged decedent is dead, the estate of that decedent will bear the cost of the search.

The 2010 amendment revised subsection (a) to add 'or at any time after that,' to delete Notice at the beginning of the third sentence and replacing it with 'The following persons' and also including the requirement for a summons and petition. The 2010 amendment also revised subsection (b) to clarify that a summons and petition are required to commence a formal proceeding, including a formal testacy proceeding. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-3-404.    Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.

REPORTER'S COMMENTS

In order to object to the formal probate of a will, the objections must be stated in a pleading. The filing of such a response makes the proceeding a contested matter, and a hearing must be held in accordance with Section 62-3-406.

Section 62-3-405. If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 62-3-409 have been met or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit (including an affidavit of self-proof executed in compliance with Section 62-2-503) or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.

REPORTER'S COMMENTS

If proper notice has been given and no objection has been stated in a pleading, the proceeding is an uncontested one. The court may enter relief on the pleadings alone and without a hearing if the court finds that the alleged decedent is dead, venue is proper, and the proceeding is a timely one. Even in the absence of an objection, the court may require a hearing and evidence concerning the execution of the will. In the latter case, the section provides that the affidavit or testimony of one or more witnesses is sufficient proof of such execution.

Section 14-23-330 establishes a mechanism for the judge to receive the deposition of an attesting witness who lives at a distance from the court. Under Section 62-3-405, the court is given more flexibility in considering evidence of proof of execution of the will in an uncontested proceeding.

Section 62-3-406.     (a)    If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses is required. Such testimony is not required if: (1) no attesting witness is within the State; (2) no attesting witness is competent to testify; (3) no attesting witness can be found; or (4) all attesting witnesses are otherwise unable to testify. Due execution of an attested will may be proved by other evidence.

(b)    If the will is self-proved, compliance with signature requirements for execution and other requirements of execution are presumed subject to rebuttal, without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit. In a contested case in which the proper execution of a will is at issue:

(1)    if the will is self-proved pursuant to Section 62-2-503, the will satisfies the requirements for execution, subject to rebuttal, without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it;

(2)    if the will is notarized pursuant to Section 62-2-503(c), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will;

(3)    if the will is witnessed pursuant to Section 62-2-502, but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.

REPORTER'S COMMENTS

In the event an objection to a formal testacy proceeding has been received, the evidence necessary to prove the will depends upon whether the will is self-proved or notorized. If the will is not self-proved or notorized, testimony of at least one attesting witness is required. Compliance with the self-proving procedure of Section 62-2-503 gives rise to a rebuttable presumption that the will was properly executed, and the testimony of attesting witnesses is not required. The presumption does not extend to other grounds of attack, such as undue influence, lack of testamentary intent or capacity, fraud, duress, mistake, or revocation.

Section 62-3-407.     In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it must be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it must be determined first whether the will is entitled to probate.

REPORTER'S COMMENTS

In all contested formal testacy proceedings, the petitioner bears the burden of proving death and venue. If the petitioner is attempting to establish that the decedent died intestate, he must also prove heirship. Any person asserting that a will is valid bears the burden of proving due execution.

This section also specifies the order of proof when two wills are offered and the later will purports to revoke the earlier. Proof of the later will is considered first, and an earlier will cannot be probated unless the later will is found to be invalid.

Section 62-3-408.     A final order of a court of another state determining testacy, or the validity or construction of a will made in a proceeding involving notice to and an opportunity for contest by all interested persons, must be accepted as determinative by the courts of this State if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.

REPORTER'S COMMENTS

This section makes it incumbent upon the local court to give full faith and credit to final orders of courts in another jurisdiction in the United States determining testacy or the validity or construction of a will regardless of whether the parties before the local court were personally before the foreign court. However, the foreign proceeding must have provided the requisite notice and opportunity for contest or construction for the resulting order to be binding locally.

This section does not apply unless the foreign proceeding has been previously concluded. If a local proceeding is concluded before completion of the foreign formal proceedings, local law will control.

If there is a contest concerning the decedent's domicile in formal proceedings commenced in different jurisdictions, Section 62-3-202 applies.

Local courts are bound by the foreign court's determination of the validity or construction of the will so long as this determination is part of a final order.

Section 62-3-409.     Upon proof of service of the summons and petition, and after any hearing and notice that may be necessary, if the court finds that the testator is dead, venue is proper, and that the proceeding was commenced within the limitation prescribed by Section 62-3-108, it shall determine the decedent's domicile at death, his heirs (regardless of whether the decedent died intestate and determined as if the decedent died intestate), and his state of testacy. Any will found to be valid and unrevoked must be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by Section 62-3-612. The petition must be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this State by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective is not ineligible for probate under the law of the other place.

REPORTER'S COMMENTS

This section governs the scope and content of the formal testacy order. Every order must contain the court's findings regarding whether the alleged decedent is dead, the decedent's domicile at death, whether venue is proper, and whether the proceeding is a timely one. Regardless of whether the decedent is alleged to have died intestate, the order must contain a determination of heirs and testacy. If the court is not convinced of the alleged decedent's death, the court may dismiss the proceeding or it may permit amendment of the proceeding so as to make it a proceeding to protect the estate of a missing and therefore 'disabled' person under Article 5. Provision is made for proof of a will from a foreign jurisdiction which does not provide for probate of wills.

The 2010 amendment revised this section to delete 'After the time required for any notice has expired, upon' at the beginning and replace it with 'Upon' proof of 'service of the summons and petition' and also included the notice requirement for any hearing. The foregoing amendment was intended to clarify that a summons and petition are required to commence a formal proceeding, including a formal testacy proceeding. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-3-410. (A)        If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument.

(B)    After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of Section 62-3-412.

REPORTER'S COMMENTS

An order in a formal testacy proceeding ends the time within which it is possible to probate after-discovered wills, though subject to the provisions for vacation or modification of that order under Sections 62-3-412 and 62-3-413. While a determination of heirs is not barred by the ten year limitation under Section 62-3-108, a judicial determination of heirs in a final order is conclusive unless the order is vacated or modified.

Under this section the court may admit more than one will to probate if the court in the exercise of its sound discretion determines that the instruments can be construed together.

Section 62-3-411.     If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.

Section 62-3-412.     Subject to appeal and subject to vacation as provided herein and in Section 62-3-413, a formal testacy order under Sections 62-3-409 through 62-3-411, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:

(1)    The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication.

(2)    If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of his death, or were given no notice of any proceeding concerning his estate, except by publication.

(3)    A petition for vacation under either (1) or (2) above must be filed prior to the earlier of the following time limits:

(i)     If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate.

(ii)    Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 62-3-108 when it is no longer possible to initiate an original proceeding to probate a will of the decedent.

(iii)    Twelve months after the entry of the order sought to be vacated.

(4)    The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances by the order of probate of the later-offered will or the order redetermining heirs.

(5)    The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under Section 62-3-403(b) was made. If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.

REPORTER'S COMMENTS

This section establishes the exceptions to the res judicata effect of a formal testacy order. If a decedent's will has been probated and a final order issued, the court may modify or vacate the order only if: (1) the proponents of a later-offered will had no knowledge of the existence of the will at the time of the proceeding; or (2) the proponents of the later will did not have actual knowledge of the earlier proceeding and were given no notice of it other than by publication. If the final order determined that all or a part of the estate was intestate, that order may be vacated or modified only if the petitioner can establish: (1) that one or more heirs were omitted and (2) that the omitted heir or heirs had no knowledge of their status as an heir, that they were unaware the decedent had died, or that they were given no notice of the proceeding other than by publication.

Section 62-3-412(3) prescribes the time limits for filing a petition for vacation under this section. The petition must be filed prior to the earlier of the following: (1) in an estate where a personal representative has been appointed, the entry of an order approving final distribution; (2) the ten-year ultimate time limit under Section 62-3-108; or (3) twelve months from the entry of the formal testacy order. The individual submitting a petition for vacation bears the burden of proving that modification or vacation of the order is 'appropriate under the circumstances.'

This section also specifies the procedure to be followed when an alleged decedent is discovered to be alive subsequent to a final order finding the fact of death. In such a situation, the alleged decedent may recover assets retained by the personal representative. The heirs and distributees may be required to restore the 'estate or its proceeds' if it is 'equitable in view of all the circumstances.'

Section 62-3-413.     For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.

REPORTER'S COMMENTS

This section deals with the modification or vacation of an order during the pendency of an appeal or within the time allowed for appeal. Broadly speaking, the power to vacate or modify an order under Section 62-3-412 provides the court with a means of dealing with facts not before the court during the proceeding. Section 62-3-413 gives the court the option of reconsidering its decision although it has no new evidence before it.

Section 62-3-414.     (a)    A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as a personal representative, or of one who previously has been appointed a personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by Section 62-3-402, as well as by this section. In other cases, the petition shall contain or adopt the statements required by Section 62-3-301(a)(1) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.

(b)    After service of the summons and petition to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as a personal representative, the court shall determine who is entitled to appointment under Section 62-3-203, make a proper appointment, and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 62-3-611.

REPORTER'S COMMENTS

If there is a question concerning the priority or qualifications of a personal representative, the issue may be combined with a request for the determination of testacy in a petition for a formal testacy proceeding. However, the formal appointment of a personal representative can be considered alone. If the proceeding under this section is combined with a formal testacy proceeding, the petition must not only comply with the requirements of a petition for formal testacy, but must also describe the issue regarding appointment. Once a proceeding has been initiated under this section alone, the court must receive a petition which complies with the requirements of Section 62-3-402 and describes the issue regarding appointment. Once initiated, a proceeding under this section stays any pending informal appointment proceedings. If a representative had been appointed prior to this proceeding, the filing of a petition under this section automatically restraints all of the representative's powers which are not necessary to preserve the estate. Under this section, service of the summons and petition must be given to all interested persons as defined in subparagraph (b).

Formal proceedings concerning appointment should be distinguished from administration under Part 5. The former includes any proceeding after notice involving a request for an appointment. Administration under Part 5 begins with a formal proceeding and may be requested in addition to a ruling concerning testacy or appointment, but it is descriptive of a special proceeding with a different scope and purpose than those concerned merely with establishing the bases for an administration. A personal representative appointed in a formal proceeding may or may not be subject to administration under Part 5. Procedures for securing the appointment of a new personal representative after a previous assumption as to testacy under Section 62-3-612 may be informal or related to pending formal proceedings concerning testacy.

When an order authorizing appointment is issued, the personal representative must then comply with Section 62-3-601 et seq., concerning bond requirements.

The 2010 amendment revised subsection (b) to delete 'notice' and replace it with 'service of the summons and petition' to clarify that a summons and petition are required to commence a formal proceeding, including a formal proceeding concerning appointment of a personal representative as referred to in this section. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Part 5

Administration Under Part 5

Section 62-3-501.     Administration under Part 5 [Sections 62-3-501 et seq.] is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A personal representative under Part 5 [Sections 62-3-501 et seq.] is responsible to the court, as well as to the interested parties persons, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this part, or as otherwise ordered by the court, a personal representative under Part 5 [Sections 62-3-501 et seq.] has the same duties and powers as a personal representative who is not subject to administration under Part 5 [Sections 62-3-501 et seq.].

REPORTER'S COMMENTS

This section and the following sections of this part describe an optional procedure for settling an estate in one continuous proceeding in the court. The proceeding is a single 'in rem' action designed to secure complete administration and settlement of a decedent's estate when it is desired to make sure that every step in probate is adjudicated with notice and hearing. If administration under Part 5 is not requested or ordered, there may be no compelling reason to employ all the available formal proceedings in the administration of an estate.

Section 62-3-502.     A petition for administration under Part 5 [Sections 62-3-501 et seq.] may be filed by any interested person or by a personal representative at any time, a prayer for administration under Part 5 [Sections 62-3-501 et seq.] may be joined with a petition in a testacy or appointment proceeding, or the court may order administration under Part 5 [Sections 62-3-501 et seq.] on its own motion. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for administration under Part 5 [Sections 62-3-501 et seq.] shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for administration under Part 5 [Sections 62-3-501 et seq.], even though the request for administration under Part 5 [Sections 62-3-501 et seq.] may be denied. After service of the summons and petition and upon notice to interested persons, the court shall order administration under Part 5 [Sections 62-3-501 et seq.] of a decedent's estate: (1) if the decedent's will directs administration under Part 5 [Sections 62-3-501 et seq.], it shall be ordered unless the court finds that circumstances bearing on the need for administration under Part 5 [Sections 62-3-501 et seq.] have changed since the execution of the will and that there is no necessity for administration under Part 5 [Sections 62-3-501 et seq.]; (2) if the decedent's will directs no administration under Part 5 [Sections 62-3-501 et seq.], then administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that administration under Part 5 [Sections 62-3-501 et seq.] is necessary under the circumstances.

REPORTER'S COMMENTS

Under this section any 'interested person' or the personal representative may request administration under Part 5, or the probate court may order it on its own motion. If the decedent's will directs such administration it must be ordered unless the court finds circumstances have changed since execution of the will. Likewise, where the will directs no such administration, it will be ordered only if the court finds it is necessary for protection of interested persons.

Even though it is possible that a request for administration under Part 5 may be made after a determination of testacy has been made, this section requires the petition for such administration to include matters necessary to put the issue of testacy before the court. The result is that the question of testacy will be adjudicated.

While administration under Part 5 compels a judicial settlement of an estate there are other sections which grant a judicial review and settlement. This fact leads to the conclusion that administration under Part 5 will be valuable primarily when there is some advantage in a single judicial proceeding which will adjudicate all major points involved in an estate settlement.

The 2010 amendment revised this section to add 'service of the summons and petition and upon' in the fourth sentence to clarify that a summons and petition and notice of any hearing are required for a formal proceeding for administration under Part 5. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-3-503.     (a)    The pendency of a proceeding for administration under Part 5 [Sections 62-3-501 et seq.] of a decedent's estate stays action on any informal application then pending or thereafter filed.

(b)    If a will has been previously probated in informal proceedings, the effect of the filing of a petition for administration under Part 5 [Sections 62-3-501 et seq.] is as provided for formal testacy proceedings by Section 62-3-401.

(c)    After service of the summons and petition upon the personal representative and notice of the filing of a petition for administration under Part 5 [Sections 62-3-501 et seq.], a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.

REPORTER'S COMMENTS

This section deals with the effect of administration under Part 5 on other proceedings. Primarily pendency of such administration does two things: (1) it stays action on any informal proceedings and (2) it prohibits the personal representative from exercising his power to distribute the estate. However, the filing of the petition does not otherwise affect the powers and duties of the personal representative unless the court restricts the exercise of such power.

In regard to the effect of such action on the personal representative's ability to create good title in a purchaser of estate assets, it should be noted that such a power is not hampered by the fact that the personal representative may breach a duty created by statute or otherwise. However, the personal representative may be held for contempt of court. In any event, the pendency of the proceeding could be recorded as is usual under a lis pendens.

The 2010 amendment deleted 'he has received' and added 'service of the summons and petition upon the personal representative and' to the first sentence to clarify that a summons and petition are required to commence a formal proceeding, including a formal proceeding under Part 5. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-3-504.     Unless restricted by the court, a personal representative under Part 5 [Sections 62-3-501 et seq.] has, without interim orders approving exercise of a power, all powers of personal representatives under this Code, but he shall not exercise his power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on his letters of appointment and any court certification thereof, and unless so endorsed is ineffective as to persons dealing in good faith with the personal representative.

REPORTER'S COMMENTS

This section acknowledges that the powers of a personal representative in an administration under Part 5 are the same as in any other administration unless restricted by the court and endorsed on the letters of appointment. If not so endorsed, the restrictions are ineffective as to persons dealing with the estate in good faith. The practical effect of this provision is to require persons dealing with the personal representative to examine the representative's letters.

Section 62-3-505.     Unless otherwise ordered by the court, administration under Part 5 [Sections 62-3-501 et seq.] is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under Section 62-3-1001. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of an administration under Part 5 [Sections 62-3-501 et seq.] on the application of the personal representative or any interested person.

REPORTER'S COMMENTS

This section requires additional notice for a closing order. The requirement for notice of interim orders is left to the discretion of the court except to the extent such notice is required by other sections, see e.g. Section 62-3-204, which entitles any interested person to notice of any interim order.

Part 6

Personal Representative; Appointment,

Control, and Termination of Authority

Section 62-3-601.     Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.

REPORTER'S COMMENTS

This and related sections of this part describe details and conditions of appointment which apply to all personal representatives without regard to whether the appointment proceeding involved is formal or informal, or whether the personal representative is subject to administration under Part 5. Section 62-1-305 authorizes issuance of copies of letters and prescribes their content. The section should be read with Section 62-3-504 which directs endorsement on letters and any court certification of any restrictions of powers of an administrator under Part 5.

No formal oath is required of a personal representative.

Section 62-3-602.     By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed to him by ordinary first class mail at his address as listed in the application or petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.

REPORTER'S COMMENTS

Except for personal representatives appointed pursuant to Section 62-3-502, appointees are not deemed to be officers of the appointing court or to be parties in one continuous judicial proceeding that extends until final settlement. See Section 62-3-107.

In order to prevent a personal representative who might make himself unavailable to service within the State from affecting the power of the appointing court to enter valid orders affecting him, each appointee is required to consent in advance to the personal jurisdiction of the court in any proceeding relating to the estate that may be instituted against him. The section requires that he be given notice of any such proceeding, which, when considered in the light of the responsibility he has undertaken, should make the procedure sufficient to meet the requirements of due process.

Section 62-3-603.     (A)    Except as may be required pursuant to Section 62-3-605 or upon the appointment of a special administrator, a personal representative is not required to file a bond if:

(1)    all heirs and devisees agree to waive the bond requirement;

(2)    the personal representative is the sole heir or devisee;

(3)    the personal representative is a state agency, bank, or trust company, unless the will expressly requires a bond; or

(4)    the personal representative is named in the will, unless the will expressly requires a bond.

If, pursuant to Section 62-3-203(a), the court appoints as personal representative a nominee of a personal representative named in a will, the court may in its discretion decide not to require bond.

(B)    Where a bond is required of the personal representative or administrator of an estate by law or by the will, it may be waived under the following conditions:

(1)    the personal representative or administrator by affidavit at the time of applying for appointment as such certifies to the court that the gross value of the estate will be less than twenty thousand dollars, that the assets of the probate estate are sufficient to pay all claims against the estate, and that the personal representative or administrator agrees to be personally liable to any beneficiary or other person having an interest in the estate for any negligence or intentional misconduct in the performance of his duties as personal representative or administrator; and

(2)    all known beneficiaries and other persons having an interest in the estate execute a written statement on a form prescribed by the court that they agree to the bond being waived. This form must be filed with the court simultaneously with the affidavit required by item (1) above. A creditor for purposes of this item (2) is not considered a person having an interest in the estate.

The provisions of this subsection (B) are supplemental and in addition to any other provisions of law permitting the waiving or reducing of a bond. Any bond required by Section 62-3-605 may not be waived under the provisions of this section.

REPORTER'S COMMENTS

A bond is required of any personal representative who is not named in a will, including an administrator in intestacy and a special administrator, whether in probate or in intestacy, whether resident or nonresident, but excluding corporate fiduciaries not required to be bonded. However, bond is not required for a personal representative who is the sole heir or devisee. Moreover, all heirs and devisees can agree to waive any bond requirement. A bond is not required of any personal representative who is named in a will, unless appointed as a special administrator or unless the will or some interested person under Section 62-3-605, requires a bond.

Section 62-3-604.    If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in Section 62-6-101) in a manner that prevents their unauthorized disposition. Upon application by the personal representative or another interested person or upon the court's own motion, the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, or permit the substitution of another bond with the same or different sureties or dispense with the bond.

REPORTER'S COMMENTS

This section permits estimates of value needed to fix the amount of any required bond. A consequence of this procedure is that estimates of value of estates are not required to appear in the petition and applications which will attend every administered estate. Hence, a measure of privacy that is not possible under most existing procedures may be achieved.

Release of sureties was formerly interpreted to mean that the probate court might release a surety if he petitioned for relief and established that he reasonably believes himself to be in danger of suffering a loss on account of his suretyship. See Bellinger v. United States Fidelity Co., 115 S.C. 469, 106 S.E. 470 (1921); and McKay v. Donald, 8 Rich. 311 (42 S.C.L. 331) (1855). Section 62-3-604 is more flexible and should not be construed so narrowly as to permit release of sureties only on the limited basis available at prior law.

The 2010 amendment deleted 'On petition of' at the beginning of the last sentence and added 'Upon application by' to allow the personal representative or another interested person to make application to the probate court regarding bond matters as outlined in this section. Unlike a petition, an application does not require a summons or petition. See Section 62-1-201(1). The 2010 amendment also added 'upon the court's own motion' in the last sentence.

Section 62-3-605.     Any person apparently having an interest in the estate worth in excess of one five thousand dollars, or any creditor having a claim in excess of one five thousand dollars, may make a written demand that a personal representative give bond. The demand must be filed with the court and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required in an amount determined by the court as sufficient to protect the interest of the person or creditor demanding bond, but the requirement ceases if the person or creditor demanding bond ceases to have an interest in the estate worth in excess of one five thousand dollars or a claim in excess of one five thousand dollars. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate or to pay the person or creditor demanding bond. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty days after receipt of notice is cause for his removal and appointment of a successor personal representative unless good cause is shown for the delay.

REPORTER'S COMMENTS

The demand for bond described in this section may be made in a petition or application for appointment of a personal representative, or may be made after a personal representative has been appointed. The mechanism for compelling bond is designed to function without unnecessary judicial involvement. If demand for bond is made in a formal proceeding, the judge can determine the amount of bond to be required with due consideration for all circumstances. If demand is not made in formal proceedings, methods for computing the amount of bond are provided by statute so that demand can be complied with without resort to judicial proceedings. The information which a personal representative is required by Section 62-3-705 to give each beneficiary includes a statement concerning whether bond has been required. Section 62-3-605 is consistent with the general policy of this Code to minimize the formalities of estate administration unless interested parties ask for specific protection.

Section 62-3-606.     (a)    The following requirements and provisions apply to any bond required by this part:

(1)    Bonds shall name the judge of the court as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law.

(2)    Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.

(3)    By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner.

(4)    On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.

(5)    The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.

(b)    No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

REPORTER'S COMMENTS

This section provides for the terms and conditions of bonds to be furnished by personal representatives. It provides that the judge of the court is the obligee of the bond and that the sureties are jointly and severally liable if they consent to the jurisdiction of the court by executing the bond.

Section 62-3-607.     (a)    Upon application of any interested person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.

(b)    The matter shall be set for hearing within ten days or at such other times as the parties may agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition application.

REPORTER'S COMMENTS

This section provides that a person who appears to have an interest in an estate may petition the court for an order to restrain a personal representative from performing acts of administration if it appears to the court that the personal representative may take some action which would jeopardize the interest of the applicant or some other interested person. The matter must be set for hearing on the restraining order within ten days or at such other time as the parties may agree. There is also a provision for notice which must be given to the personal representative, his attorney, and to any other parties named defendant in the petition.

The 2010 amendment deleted 'On petition' at the beginning of this section and replaced it with 'Upon application' so that any person who appears to have an interest in the estate can make application to the probate court to restrain a personal representative. Unlike a petition, an application does not require a summons or petition. See 2010 amendments to certain definitions in Section 62-1-201(1).

Section 62-3-608.     Termination of appointment of a personal representative occurs as indicated in Sections 62-3-609 to 62-3-612, inclusive. Termination ends the right and power pertaining to the office of personal representative as conferred by this Code or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.

REPORTER'S COMMENTS

'Termination,' as defined by this Section and Sections 62-3-609 through 62-3-612 provide definiteness respecting when the rights and powers of a personal representative (who may or may not be discharged of duty and liability by court order) terminate. An order of the court entered under Sections 62-3-1001 may terminate the appointment of and discharge a personal representative.

It is to be noted that this section does not relate to jurisdiction over the estate in proceedings which may have been commenced against the personal representative prior to termination. In such cases, a substitution of successor or special representative should occur if the plaintiff desires to maintain his action against the estate.

Section 62-3-609.     The death of a personal representative or the appointment of a conservator for the estate or guardian for the person of a personal representative, terminates his appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification.

REPORTER'S COMMENTS

This section deals with the termination of a representative by death or disability. The personal representative of the disabled or deceased representative will sometimes succeed to the duties and powers of the office.

Section 62-3-610.     (a)    Unless otherwise provided, an order closing an estate as provided in Section 62-3-1001 terminates an appointment of a personal representative and relieves the personal representative's attorney of record of any further duties to the court.

(b)    A personal representative may resign his position by filing a written statement of resignation with the court and providing twenty days' written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him. When the resignation is effective, the personal representative's attorney of record shall be relieved of any further duties to the court.

REPORTER'S COMMENTS

Under subparagraph (a) a formal closing immediately terminates the authority of a personal representative. Subparagraph (b) allows resignation of a personal representative.

The more informal process for resignation coupled with the comparative ease of securing appointment of a successor, see Sections 62-3-613 through 62-3-618, infra, facilitates the substitution of personal representatives.

Section 62-3-611.     (a)    A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in Section 62-3-607, after service of the summons and petition upon the personal representative and receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration, or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.

(b)    Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this State to administer local assets.

(c)    The termination of appointment under this section shall relieve the personal representative's attorney of record of any further duties to the court.

REPORTER'S COMMENTS

This section deals with the termination of a personal representative by removal for cause. Any interested person may petition the court for the removal of a representative although notice and hearing are required.

The 2010 amendment added 'service of the summons and petition upon the personal representative and' in the fourth sentence to clarify that a summons and petition are required to commence a formal proceeding, including a formal proceeding to remove a personal representative. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

SECTION 62-3-612.     Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in Section 62-3-401. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.

REPORTER'S COMMENTS

This section and Section 62-3-401 describe the relationship between formal or informal proceedings. The basic assumption of both sections is that an appointment, with attendant powers of management, is separable from the basis of appointment; i.e., intestate or testate?; what will is the last will? Hence, a previously appointed personal representative continues in spite of formal or informal probate that may give another a prior right to serve as personal representative. But, if the testacy status is changed in formal proceedings, the petitioner also may request appointment of the person who would be entitled to serve if his assumption concerning the decedent's will prevails. Provision is made for a situation where all interested persons are content to allow a previously appointed personal representative to continue to serve even though another has a prior right because of a change relating to the decedent's will. It is not necessary for the continuing representative to seek a reappointment under the new assumption for Section 62-3-703 is broad enough to require him to administer the estate as intestate, or under the later probated will, if either status is established after he was appointed. Under Section 62-3-403, notice of a formal testacy proceeding is required to be given to any previously appointed personal representative. Hence, the testacy status cannot be changed without notice to a previously appointed personal representative.

Section 62-3-613.     Parts 3 and 4 of this article [Sections 62-3-301 et seq. and Sections 62-3-401 et seq.] govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process, or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated.

REPORTER'S COMMENTS

This section provides that all powers and authority of the initial representative pass to the successor personal representative unless the court provides otherwise.

Section 62-3-614.     A special administrator may be appointed:

(1)    informally by the court on the application of an interested person when necessary:

(a)    to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in Section 62-3-609; or

(b)    for a creditor of the decedent's estate to institute any proceeding under Section 62-3-803(c); or

(c)    to take appropriate actions involving estate assets.

(2)    in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.

REPORTER'S COMMENTS

Appointment of a special administrator would enable the estate to participate in a transaction which the general personal representative could not, or should not, handle because of conflict of interest. If a need arises because of temporary absence or anticipated incapacity for delegation of the authority of a personal representative, the problem may be handled without judicial intervention by use of the delegation powers granted to personal representatives by Section 62-3-715(19).

Section 62-3-615. (a)        If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available and qualified.

(b)    In other cases, any proper person may be appointed special administrator.

REPORTER'S COMMENTS

In some areas of the country, particularly where wills cannot be probated without full notice and hearing, appointment of special administrators pending probate is sought almost routinely. The objective of this section is to reduce the likelihood that contestants will be encouraged to file contests as early as possible simply to gain some advantage via having a person who is sympathetic to their cause appointed special administrator. Hence, it seems reasonable to prefer the named executor as special administrator where he is otherwise qualified.

Section 62-3-616.     A special administrator appointed by the court in informal proceedings pursuant to Section 62-3-614(1) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor, and to deliver them to the general personal representative upon his qualification. The special administrator has the power of a personal representative under this Code necessary to perform his duties.

REPORTER'S COMMENTS

Duties of the special administrator are provided throughout this particular section, although the power to distribute assets is specifically omitted.

Section 62-3-617. A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct.

REPORTER'S COMMENTS

In formal proceedings in which a special administrator is appointed, the powers of a special administrator are the same as those of a personal representative except in the instance where the powers are limited by the court.

Section 62-3-618.    The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in Sections 62-3-608 through 62-3-611.

REPORTER'S COMMENTS

Appointment of a special administrator would terminate according to the provisions of the order of appointment.

Section 62-3-619.     Any person who shall obtain, receive, and have any goods or debts of any decedent or a release or other discharge of any debt or duty that belonged to the decedent upon any fraud or without such valuable consideration as shall amount to the value of the same goods or debts or near thereabouts (except it be in or toward satisfaction of some just and principal debt of the value of the same goods or debts to him owing by the decedent at the time of his decease) shall be charged and chargeable as executor of his own wrong, so far as such goods and debts coming to his hands or whereof he is released or discharged by such administrator will satisfy, deducting, nevertheless, to and for himself allowance of all just, due, and principal debts upon good consideration without fraud owing to him by the decedent at the time of his decease and all other payments made by him which lawful personal representatives may and ought to have and pay by the laws and statutes of this State. Any person who obtains, receives, or possesses property of whatever kind, belonging to the decedent, by means of fraud or without paying valuable consideration equivalent to the value of the property, shall be charged and chargeable as executor of his own wrong (executor de son tort) with respect to the goods and debts. The value of the property is charged to the executor de son tort. Likewise, the value of the property shall be deducted from any distribution or payment of any claim or commission to which the executor de son tort is entitled from the estate.

REPORTER'S COMMENTS

This section defines as an executor de son tort any person who by fraud or without valuable consideration obtains assets of a decedent without appointment as his personal representative, charging him with liability therefor.

Section 62-3-620.     The judge of probate of the county in which a deceased person may have died may, either of his own accord or at the instance of any creditor or other person interested in the estate of the deceased, cite before him such person as, neither being appointed personal representative nor having obtained administration of the effects of such deceased person, shall nevertheless possess himself of the goods, chattels, rights, and credits of such person deceased and, upon such person being cited as aforesaid, the judge of probate shall require of him a discovery and account of all and singular the goods, chattels, rights, and credits of the deceased and shall proceed to decree against him for the value of the estate and effects of the deceased which he may have wasted or which may have been lost by his illegal interference, charging him as executors of their own wrong are made liable at common law as far as assets shall have come into his hands. Acting sua sponte or upon the petition of any interested person, the probate judge of the county in which a deceased person was domiciled at the time of his death may order the executor de son tort to account for the property in his possession. Upon a finding that the property has been converted, wasted or otherwise damaged through improper interference, the court may assess damages including attorney's fees and costs in the amount determined by the court not to exceed the value of the property charged to the executor de son tort.

REPORTER'S COMMENTS

This section provides that the probate judge may cite before him the executor de son tort and require him to account for the deceased's property. It also enables the probate judge to enter a decree against the executor de son tort for any property of the deceased that he has wasted or has lost by his illegal interference.

Section 62-3-621.     Every personal representative of any person who, as executor in his own wrong, shall waste or convert any goods, chattels, estate, or assets of any person deceased to his own use shall be liable and chargeable in the same manner as his testator or intestate would have been if he had been living. The rights of the probate court and interested parties set forth in Section 62-3-620 shall survive the death of the executor de son tort.

REPORTER'S COMMENTS

This section provides that the estate of an executor de son tort may be liable for the waste or conversion committed by the executor de son tort.

Part 7

Duties and Powers of Personal Representatives

Section 62-3-701. The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor personal representative in a will may protect property of the decedent's estate and carry out written instructions of the decedent relating to his body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.

REPORTER'S COMMENTS

The authority of a personal representative relates back to death upon appointment and stems from his appointment. The personal representative may ratify acts done by others prior to appointment.

Section 62-3-702.     A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.

REPORTER'S COMMENTS

This section provides that a person to whom letters are issued has exclusive authority until the appointment is terminated or modified. It also allows the personal representative to recover any property in the hands of a second erroneously appointed representative.

Section 62-3-703.     (a)    A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by Section 62-7-804. A personal representative has a duty to settle and distribute the estate of the decedent in accordance with the terms of a probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this code, the terms of the will, and any order in proceedings to which he is party for the best interests of successors to the estate.

(b)    A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. Upon expiration of the relevant claim period, an order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware has not received actual notice of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his appointment or fitness to continue, or a proceeding for administration under Part 5. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent as described elsewhere in this Code.

(c)    Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.

REPORTER'S COMMENTS

This section is especially important because it states the basic theory underlying the duties and powers of the personal representative. The personal representative is classified as a fiduciary and must adhere to the 'prudent person' rule provided for trustees by Section 62-7-804. In general the personal representative is required to settle and distribute the estate as fast and efficiently as possible for the best interest of the estate. The section holds the power of distribution as the most significant power the personal representative performs. Finally, the section grants a personal representative the same standing to sue and be sued in the courts of this State and any other jurisdiction as the decedent had immediately prior to his death, except as to proceedings which do not survive the decedent's death.

The 2010 amendment, in subsection (a), changed the reference from Section 62-7-933 to Section 62-7-804, which was made necessary by the adoption of the South Carolina Trust Code.

Section 62-3-704.     A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate under the supervision of the court, as follows:

(a)    Immediately after his appointment he shall publish the notice to creditors required by Section 62-3-801.

(b)    Within ninety days after his appointment he shall file with the court the inventory and appraisement required by Section 62-3-706.

(c)    Upon the expiration of the relevant period, as set forth in Section 62-3-807, the personal representative shall proceed to allow or disallow claims and pay the claims allowed against the estate, as provided in Section 62-3-807.

(d)    Upon the expiration of the relevant period, as set forth in Section 62-3-1001, the personal representative shall file the account accounting, proposal for distribution, petition for settlement of the estate, proofs required by Section 62-3-1001, and proof of publication of notice to creditors.

(e)    Within the time set forth in Section 62-3-806(a), serve upon all claimants a notice stating that their claim has been allowed or disallowed pursuant to that section.

(f)    The time periods stated herein for completing the above requirements are not intended to supplant any other time periods stated elsewhere in this Code. The court may on its own motion, or on the motion of the personal representative or of any interested person, extend the time for completing any of the requirements of administration contained in Article 3 [Section 62-3-1001, et seq.] including any of the above requirements, and especially including the requirement to account, under Section 62-3-1001, in cases of estates which remain significantly unadministered as of the expiration of the relevant time period, either as to the marshalling of assets or as to the allowance of claims.

(f)(g)    If a personal representative or trustee neglects or refuses to comply with any provision of Section 62-3-706 he is liable to a penalty of one thousand dollars for each separate failure or neglect and the official bond of the personal representative or trustee is liable therefor. This penalty must be recovered by the South Carolina Department of Revenue for the use of the State and an action for the recovery thereof may be brought by the Department of Revenue in any court of competent jurisdiction and, upon collection, must be paid into the state treasury. But the department, upon good cause shown, may, in its discretion, excuse the penalty or any part thereof he is subject to the contempt power of the court. The probate court, after a hearing and any notice the court may require, may issue its order imposing the sentence, fine, or penalty as it sees fit and remove the personal representative and appoint another personal representative.

REPORTER'S COMMENTS

This section requires the personal representative to proceed expeditiously with the settlement and distribution of the estate. It further provides that the settlement and distribution are under the court's supervision. Where informal procedures are in effect, the section does not impose any burdens on the personal representative other than those of Part 5 and of any other pertinent provision of Article 3, requiring or permitting such direct court supervision.

Section 62-3-705.     Not later than thirty days after his appointment every personal representative, except any special administrator, shall give information of his appointment to the heirs (regardless of whether the decedent died intestate and determined as if the decedent died intestate) and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information must include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, and describe the court where papers relating to the estate are on file. The personal representative's failure to give this information is a breach of his duty to the persons concerned but does not affect the validity of his appointment, his powers, or other duties. A personal representative may inform other persons of his appointment by delivery or ordinary first class mail.

REPORTER'S COMMENTS

This section requires the personal representative to inform of his appointment those persons who appear to have an interest in the estate as it is being administered. Such notice must be given within thirty days of his appointment. The notice may be sent through ordinary mail. The notice must include the personal representative's name and address, indicate that the information is being sent to all those who might have an interest in the estate and whether a bond was required and where the papers relating to the estate are filed. The notice should not be confused with the notice requirements relating to litigation.

Section 62-3-706.     (A)    Within ninety days after his appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall:

(1)    prepare an inventory and appraisement of probate property owned by the decedent at the time of his death, together with such other information as may be required by the South Carolina Department of Revenue, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item;

(2)    file the original of the inventory and appraisement with the court; and

(3)    mail a copy of the filed inventory and appraisement to interested persons who request it have filed a demand for notice of the filing of the inventory pursuant to Section 62-3-204.

(B)    Within ninety days of a demand by an interested person for an inventory of nonprobate property, the personal representative shall:

(1)    prepare a list of the property owned by the decedent at the time of his death that is not probate property, so far as is known to the personal representative which may, at the discretion of the personal representative, include the value and nature of the decedent's interest in the property on the date of the decedent's death;

(2)    mail a copy of the list to each interested person who has requested the list; and

(3)    file proof of the mailing with the probate court.

(C)    The court, upon application of the personal representative, may extend the time for filing or making the either the inventory and appraisement or list of nonprobate property provided for in this section.

REPORTER'S COMMENTS

This section requires the personal representative within ninety days after his appointment to file an inventory and appraisement listing the fair market value of each probate asset as of the decedent's date of death. He must list the type and amount of any encumbrances. He is also required to mail copies to interested persons who request it.

The 2012 amendment requires the personal representative to provide a list of nonprobate property to any interested person who claims it. The list of nonprobate property does not have to include information about the value and nature of the property, although the personal representative at his discretion may include information about the value and nature of the property.

The court may upon application extend the time for filing.

Section 62-3-707.     The personal representative may obtain a qualified and disinterested appraiser to assist him in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser must be indicated on the inventory and appraisement or by supplemental inventory and appraisement with the item or items he appraised. Each appraiser shall execute the inventory, stating thereon the item or items he appraised. On motion application of any interested person, the court may require that one or more qualified appraisers be appointed to ascertain the fair market value of all or any part of the estate or may approve one or more qualified appraisers.

REPORTER'S COMMENTS

This section allows the personal representative to employ expert appraisers and also authorizes the court to require the appointment of expert appraisers upon application by any interested person.

Section 62-3-708.     If any property not included in the original inventory and appraisement comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make submit a supplementary, amended or corrected inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court, restating the unchanged information from the original inventory and appraisement and furnish copies thereof or information thereof to persons who receive the original inventory, and to interested persons interested in who have requested or demanded the new information.

Section 62-3-709.     Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.

REPORTER'S COMMENTS

Section 62-3-101 provides that title to real and personal property devolves on death or thereafter to heirs or devisees 'subject ... to administration.' Section 62-3-711 vests in the personal representative a power over title to real and personal property during administration. This section deals with the personal representative's duty and right to possess assets, real and personal. It proceeds from the assumption that it is desirable wherever possible to avoid disruption of the possession of the decedent's assets by his heirs or devisees. But if the personal representative considers it advisable he may take possession and his judgment is made conclusive. It is likely that the personal representative's judgment could be questioned in a later action but this possibility should not interfere with the personal representative's administrative authority as it relates to possession of the estate.

Section 62-3-710.     The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.

REPORTER'S COMMENTS

This section authorizes the personal representative to recover any property transferred by the decedent in a transaction which would be void or voidable against creditors.

Section 62-3-711.     (a)    Until termination of his appointment or unless otherwise provided in Section 62-3-910, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. Except as otherwise provided in subsection (b), this power may be exercised without notice, hearing, or order of court.

(b)    Except where the will of the decedent authorizes to the contrary, a personal representative may not sell real property of the estate except as authorized pursuant to the procedure procedures described in Sections 62-3-911 or Section Sections 62-3-1301 et seq. and shall refrain from selling tangible or intangible personal property of the estate (other than securities regularly traded on national or regional exchanges and produce, grain, fiber, tobacco, or other merchandise of the estate for which market values are readily ascertainable) having an aggregate value of five ten thousand dollars or more without prior order of the court which may be issued upon application of the personal representative and after notice or consent as the court deems appropriate.

(c)    If the will of a decedent devises real property to a personal representative or authorizes a personal representative to sell real property (the title to which was not devised to the personal representative), then subject to Section 62-3-713, the personal representative, acting in trust for the benefit of the creditors and others other interested persons in the estate, may execute a deed in favor of a purchaser for value, who takes title to the real property in accordance with the provisions of Section 62-3-910(b).

REPORTER'S COMMENTS

This section grants a personal representative the same power over title to property that an absolute owner would have, in trust, however, for the benefit of creditors and others interested in the estate. This power over title is limited in two respects. First, except where the will provides to the contrary, an order from the probate court must be obtained before personal property having an aggregate value in excess of ten thousand dollars may be sold. Secondly, and again except where the will provides to the contrary, the representative cannot exercise the power to sell real property unless he follows the mechanism of Section 62-3-911 or Section 62-3-1301 et seq.

Under this section, Section 62-3-101, and Section 62-3-709, title to personal property (as well as real property) devolves at or soon after death to heirs and devisees, and not to the personal representative. Further, the representative can exercise power over the title to real property (as well as personal property) subject to limitations.

Section 62-3-712.     If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in Sections 62-3-713 and 62-3-714.

REPORTER'S COMMENTS

This section provides that the personal representative is liable for his acts and omissions and for any breach of duty to the same extent as the trustee of an express trust. The rights of purchasers and others dealing with the personal representative are governed by the next two sections. Additionally, this section should be read in conjunction with Sections 62-3-607 and 62-3-611, the first of which deals with an interested party obtaining an order restraining the personal representative from performing a specified act or exercising a specified power and the second of which deals with the right of an interested party to petition for the removal of the personal representative.

Section 62-3-713.     Any sale or encumbrance to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure unless:

(1)    the will or a contract entered into by the decedent expressly authorized the transaction; or

(2)    the transaction is approved by the court after notice to interested persons.

REPORTER'S COMMENTS

This section provides that certain actions of a personal representative are voidable. Exceptions to the general rule are provided in the event the will or a contract entered into by the decedent expressly authorizes the transaction or if the transaction is approved by the probate court after notice to interested parties. Presumptively, a broad authorization in the will of a decedent for his personal representative to deal with himself in both a fiduciary and an individual capacity would not fall under the first exception which is limited to 'the transaction' and must, therefore, be held to require authorization for a specific transaction.

The general principles of law pertaining to a bona fide purchaser for value will protect the title to property in the hands of such a purchaser who obtained it without notice of the conflict of interest or act of self-dealing.

Section 62-3-714.     A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of personal representatives under Part 5 [Sections 62-3-501 et seq.] which are endorsed on letters as provided in Section 62-3-504, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

REPORTER'S COMMENTS

This section is designed to provide protection to persons who deal with a personal representative. Persons dealing with representatives generally are not charged with the duty to inquire into any restrictions pertaining to the exercise of powers by such personal representative. Any person dealing with a representative under Part 5 will be charged with knowledge of the restrictions upon exercise of power set forth in the letters.

For example, a bona fide purchaser for value dealing with a representative will be completely protected with respect to claims by interested parties. However, the personal representative will be liable to persons interested in the estate if his dealings with such bona fide purchaser were inconsistent with directions set forth in the will or other restrictions imposed by order of the probate court. However, if such a purchaser had actual knowledge of any such restrictions, then this section will not provide protection to such purchaser; instead, he is subject to having title to the property acquired from the personal representative declared void upon the petition of some interested party.

Section 62-3-715.     Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the restrictions imposed in Section 62-3-711(b) and to the priorities stated in Section 62-3-902, a personal representative, acting reasonably for the benefit of the interested persons, may properly:

(1)    retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;

(2)    receive assets from fiduciaries or other sources;

(3)    perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as he may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:

(i)     execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or

(ii)    deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement.

Execution and delivery of a deed pursuant to this subsection affects title to the subject real property to the same extent as execution and delivery of a deed by the personal representative in other cases authorized by this Code.;

(4)    satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;

(5)    if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including monies received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally;

(6)    subject to the restrictions imposed in Section 62-3-711(b), acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(7)    make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing, or erect new party walls or buildings;

(8)    satisfy and settle claims and distribute the estate as provided in this Code;

(9)    enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, but not for a term extending beyond the period of administration and, with respect to a lease with option to purchase, subject to the restrictions imposed in Section 62-3-711(b);

(10)    enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(11)    vote stocks or other securities in person or by general or limited proxy;

(12)    pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;

(13)    hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;

(14)    insure the assets of the estate against damage, loss, and liability and himself against liability as to third persons;

(15)    effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, lien, or other security interest upon property of another persons, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;

(16)    pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;

(17)    sell, or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(18)    allocate items of income or expense to either estate income or principal, as permitted or provided by law;

(19)    employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;

(20)    prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties;

(21)    subject to the restrictions imposed in Section 62-3-711(b), sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;

(22)    continue any unincorporated business or venture in which the decedent was engaged at the time of his death (i) in the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will; (ii) in the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or (iii) throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;

(23)    make payment in cash or in kind, or partly in cash and partly in kind, upon any division or distribution of the estate (including the satisfaction of any pecuniary distribution) without regard to the income tax basis of any specific property allocated to any beneficiary and value and appraise any asset and distribute such asset in kind at its appraised value.;

(24)    with the approval of the probate court or the circuit court, compromise and settle claims and actions for wrongful death, pain and suffering or both, and all claims and actions based on causes of actions surviving, to personal representatives, arising, asserted, or brought under or by virtue of any statute or act of this State, any state of the United States, the United States, or any foreign country.;

(25)    donate a qualified conservation easement or fee simple gift of land for conservation on any real property of the decedent in order to obtain the benefit of the estate tax exclusion allowed under Internal Revenue Code Section 2031(c) as defined in Section 12-6-40(A), and the state income tax credit allowed under Section 12-6-3515, if the personal representative has the written consent of all of the heirs, beneficiaries, and devisees whose interests are affected by the donation. Upon petition of the personal representative, the probate court may consent on behalf of any unborn, unascertained, or incapacitated heirs, beneficiaries, or devisees whose interests are affected by the donation after determining that the donation of the qualified real property interest shall not adversely affect them or would most likely be agreed to by them if they were before the court and capable of consenting. A guardian ad litem must be appointed to represent the interest of any unborn, unascertained, or incapacitated persons. Similarly, and for the same purposes and under the same conditions, mutatis mutandis, a trustee may make such a donation for the settlor.;

(26)    The personal representative has the power to access the decedent's files and accounts in electronic format, including the power to obtain the decedent's user names and passwords.

REPORTER'S COMMENTS

The purpose of this section is to grant personal representatives a broad array of powers reasonably necessary for the proper administration of an estate. The purpose of this section is to set forth in some detail the powers which a personal representative may exercise with respect to the estate and without the necessity of obtaining an order from the probate court in order to do so. Note the introductory provision that the representative may exercise his powers, including the power of sale, only within the restrictions of Section 62-3-711(b) (see the comments to that section, supra.).

Section 62-3-716.     A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.

REPORTER'S COMMENTS

This section provides that a successor personal representative has the same powers and duties imposed upon the original personal representative except any such powers or duties which are expressly made personal to the original personal representative named in the will.

Section 62-3-717.     If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or. When a corepresentative has been delegated to act for the others, written notice of the delegation signed by the others and setting forth the duties delegated must be filed with the court. Persons dealing with a corepresentative if actually unaware that another has been appointed to serve with him or if advised by the personal representative with whom they deal that he has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the persons with whom they dealt had been the sole personal representative.

REPORTER'S COMMENTS

This section provides that all corepresentatives are required to unanimously consent to any matter pertaining to the administration and distribution of the estate except when any corepresentative receives and receipts for property due the estate, when an emergency arises and action is necessary in order to preserve the estate or when the corepresentatives have delegated the right to act to one or more of their number.

This section absolves any person dealing with one corepresentative for any excesses committed by such corepresentative in the exercise of his duty to the extent that such person dealing with the corepresentative is unaware that the existence of other corepresentatives or has been advised by such corepresentative that he has the authority to so act. The thrust of this section is to protect such a person dealing with a corepresentative and to eliminate the need for such person to inquire into the validity of the actions taken by such corepresentative. However, the rules pertaining to administration under Part 5 would have the effect of at least requiring a person dealing with a personal representative to determine whether or not the letters granted by the probate court restrict the actions of the representative. That being the case, it would seem that a person exercising due diligence in determining whether or not there is an administration under Part 5 would necessarily come across the fact that more than one representative has been appointed by the probate court to represent the estate. That leads to the inescapable fact that a person dealing with the representative of an estate who exercises due diligence would necessarily come across the existence of additional corepresentatives and would, therefore, not be able to rely upon the protections purportedly granted to him as stated above, unless such corepresentative represents in some fashion that he has the authority to act for all other corepresentatives. See the third sentence of Section 62-3-714 in connection with the purchaser's implicit duty to inquire into the authority of a representative to act on behalf of the estate.

Section 62-3-718.     Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one or more remaining after the appointment of one or more is terminated and, if one of two or more nominated as coexecutors is not appointed, those appointed may exercise all the powers incident to the office.

REPORTER'S COMMENTS

This section merely provides that remaining corepresentatives will have full authority to act if one or more of their number loses the capacity to so act by reason of death or other termination of appointment as a personal representative.

Section 62-3-719.     (a)    Unless otherwise approved by the court for extraordinary services, a personal representative shall receive for his care in the execution of his duties a sum from the probate estate funds not to exceed five percent of the appraised value of the personal property of the probate estate plus the sales proceeds of real property of the probate estate received on sales directed or authorized by will or by proper court order, except upon sales to the personal representative as purchaser. The minimum commission payable is fifty dollars, regardless of the value of the personal property of the estate.

(b)    Additionally, a personal representative may receive not more than five percent of the income earned by the probate estate in which he acts as fiduciary. No such additional commission is payable by an estate if the probate judge determines that a personal representative has acted unreasonably in the accomplishment of the assigned duties, or that unreasonable delay has been encountered.

(c)    The provisions of this section do not apply in a case where there is a contract providing for the compensation to be paid for such services, or where the will otherwise directs, or where the personal representative qualified to act before June 28, 1984.

(d)    A personal representative also may renounce his right to all or any part of the compensation. A written renunciation of fee may be filed with the court.

(e)    If more than one personal representative is serving an estate, the court in its discretion shall apportion the compensation among the personal representatives, but the total compensation for all personal representatives of an estate must not exceed the maximum compensation allowable under subsections (a) and (b) for an estate with a sole personal representative.

(f)    For purposes of this section, 'probate estate' means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy. This subsection is intended to be declaratory of the law and governs the compensation of personal representatives currently serving and personal representatives serving at a later time.

REPORTER'S COMMENTS

Unless provided otherwise by contract, by the will or by the personal representative's renunciation, his compensation is limited to sums equal to five percent of personal property and five percent of sold real property, in the normal course, plus five percent of income on invested monies, unless the probate court disapproves. The probate court may set fees for less than the stated limits. The probate court may set fees higher than the stated limits if the court determines the personal representative provided extraordinary service.

Section 62-3-720.     If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred.

REPORTER'S COMMENTS

If any personal representative in good faith prosecutes or defends an action, he is entitled to reimbursement from the estate for reasonable expenses as well as reasonable attorney fees.

Section 62-3-721.     (a)    After notice to all interested persons, on petition of an interested person or on appropriate motion if administration is under Part 5 [Sections 62-3-501 et seq.], the propriety of employment of any person by a personal representative including any attorney, auditor, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for his own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.

(b)    Upon the settlement of their accounts by personal representatives the court shall allow each appraiser appointed by the court a reasonable daily fee for each day spent on appraising the property of the estate and also mileage at the same rate that members of state boards, commissions, and committees receive for each mile actually traveled in going to and from the place where the property ordered to be appraised is situated. In determining the reasonableness of the fee to each appraiser the court shall consider the value of the estate, the actual time consumed by the appraisers in the performance of their duties, and other such circumstances and conditions surrounding the appraisal as the court deems appropriate.

REPORTER'S COMMENTS

This section allows a personal representative to seek prior approval of the probate court before an agent or advisor is hired.

Part 8

Creditors' Claims

Section 62-3-801.     (a)    Unless notice has already been given under this section, a personal representative upon his appointment shall must publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county announcing his appointment and address and notifying creditors of the estate to present their claims within eight months after the date of the first publication of the notice or be forever barred.

(b)    A personal representative may give written notice by mail or other delivery to any creditor, notifying the creditor to present his claim within eight months from one year of the published notice as provided in (a) above, decedent's death, or within sixty days from the mailing or other delivery of such notice, whichever is later earlier, or be forever barred. Written notice is the notice described in (a) above or a similar notice.

(c)    The personal representative is not liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section.

(d)    Notwithstanding subsections (a) and (b), notice to creditors under this section is not required if no personal representative is appointed to administer the decedent's estate during the one-year period following the death of the decedent.

REPORTER'S COMMENTS

This section provides for the publication of notice and for the delivery of notice to creditors at the discretion of the personal representative. The notice is published once a week for three successive weeks in a paper of general circulation in the county. There is no requirement that demands be duly attested.

Section 62-3-802.     (a)    Unless an estate is insolvent, the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid.

(b)    The running of any statute of limitations measured from some other event than death or the giving of notice to creditors is suspended during the eight months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections which follow.

(c)    For purposes of any statute of limitations, the proper presentation of a claim under Section 62-3-804 is equivalent to commencement of a proceeding on the claim.

REPORTER'S COMMENTS

This section provides for waiver of and the suspension of the running of any statute of limitations, measured from some event other than death and notice to creditors, during the eight months following the decedent's death, resuming thereafter.

Section 62-3-803.     (a)    All claims against a decedent's estate which arose before the death of the decedent, including claims of the State and any political subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other another statute of limitations, or nonclaim statute; are barred against the estate, the personal representative, and the decedent's heirs and devisees, and nonprobate transferees of the decedent,; unless presented within the earlier of the following dates:

(1)    one year after the decedent's death; or

(2)    within the time provided by Section 62-3-801(b) for creditors who are given actual notice, and within the time provided in Section 62-3-801(a) for all creditors barred by publication; provided, claims.

(b)    A claim described in subsection (a) which is barred by the nonclaim statute at of the decedent's domicile before the giving of notice to creditors barred in this State are also is barred in this State.

(b)(c)    All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:

(1)    a claim based on a contract with the personal representative within eight months after performance by the personal representative is due; or

(2)    any other claim, within the later of eight months after it arises, or the time specified in subsection (a)(1).

(c)(d)    Nothing in this section affects or prevents shall be construed as placing a limitation on the time for:

(1)    any commencing a proceeding to enforce any a mortgage, pledge, lien, or other security interest upon property of the estate; or

(2)    to the limits of the insurance protection only, any commencing a proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance; or

(3)    collection of collecting compensation for services rendered and to the estate or reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate.

REPORTER'S COMMENTS

Under this section, claims encompass those that are due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis. The claims are then divided into those which arose before the death of the decedent and those which arise at or after the death of the decedent.

Claims arising before death, unless barred by other statutes of limitation, are barred unless presented as follows: (1) for those creditors not barred by publication within the earlier of one year following date of death or sixty days from any actual notice; and (2) for those creditors barred by publication within the earlier of one year from date of death or eight months from any publication. Also, if a claim is barred by the nonclaim statute of the decedent's domicile before the first publication for claims in this State, it is also barred in this State.

Claims arising at or after death must be presented as follows: (1) if against the personal representative, within eight months after his performance is due; (2) otherwise, within eight months after the claim arises.

The limitations of Section 62-3-803 do not apply to proceedings to enforce mortgages, pledges, or other liens upon property of the estate, or proceedings to establish liability of the decedent or the personal representative for which there is liability insurance.

Section 62-3-804.     Claims against a decedent's estate may must be presented as follows:

(1)    The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and must file a written statement of the claim, in the form prescribed by rule, with the clerk of the probate court in which the decedent's estate is under administration. The claim is deemed presented on upon the first to occur of receipt filing of the written statement of claim by the personal representative or the filing of the claim with the court. If a claim is not yet due, the date when it will become due must be stated. If the claim is contingent or unliquidated, the nature of the uncertainty must be stated. If the claim is secured, the security must be described. Failure to describe correctly fully the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.

(2)    The Subject to item (5), once a claim is presented in accordance with item (1), a claimant may at any time thereafter commence a legal proceeding against the personal representative by the filing of a summons and petition for allowance of claim or complaint in any court where the personal representative may be subjected to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim, and the claimant must file a written statement of the claim as in (1) above, with the clerk of the probate court. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death seeking payment of the claim by the decedent's estate, and serving the same upon the personal representative. If the legal proceeding is not commenced in the probate court, the claimant must provide written notice to the probate court in which the decedent's estate is under administration that a legal proceeding has commenced for allowance of the claim, setting forth the court in which the legal proceeding is pending. Thereafter, the probate court shall not permit the closing of the decedent's estate until the legal proceeding has ended.

(3)    If a claim is presented under subsection (1), no proceeding thereon may be commenced more than thirty days after the personal representative has mailed a notice of disallowance with warning of the impending bar; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the thirty-day period, or to avoid injustice the court, on petition presented to the court prior to the expiration of such thirty-day period, may order an extension of the thirty-day period, but in no event may the extension run beyond the applicable statute of limitations. In lieu of the procedure provided in items (1) and (2), and subject to item (6), a claimant may commence a legal proceeding against the personal representative, by the filing of a summons and petition for allowance of claim or complaint in any court where the personal representative may be subjected to jurisdiction, seeking payment of his claim by the estate, and serving the same upon the personal representative. The commencement of the legal proceeding under this item must occur within the time limit for presenting the claim as set forth in Section 62-3-803. If the legal proceeding is not commenced in the probate court, the claimant must file a written statement of the claim with the probate court in which the decedent's estate is under administration providing substantially the same information as the statement in item (1), along with a statement that a legal proceeding to enforce the claim has commenced, and identifying the court where the proceeding is pending. Thereafter, the probate court shall not permit the closing of the decedent's estate until the legal proceeding has ended.

(4)    Notwithstanding any other provision of this section, no presentation of a claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of the decedent's death.

(5)    Notwithstanding any other provision of this section, no proceeding for enforcement or allowance of a claim or collection of a debt may be commenced more than thirty days after the personal representative has mailed a notice of disallowance or partial disallowance of the claim in accordance with the provisions of Section 62-3-806. However, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the thirty day period, or to avoid injustice the court, on petition presented to the court prior to the expiration of the thirty-day period, may order an extension of the thirty-day period, but in no event shall the extension run beyond the applicable statute of limitations.

(6)    Notwithstanding any other provision of this section, no claim against a decedent's estate may be presented or legal action commenced against a decedent's estate prior to the appointment of a personal representative to administer the decedent's estate.

(7)    Any legal proceedings against or involving the decedent and pending on the date of his death must be suspended until a personal representative is appointed to administer the decedent's estate.

REPORTER'S COMMENTS

This section establishes the mechanism for presenting claims. The claim may be delivered to the personal representative and must be filed with the court. Certain information must be included for claims not yet due, contingent, unliquidated, and secured claims.

In lieu of presenting a claim, a proceeding may be commenced against a personal representative in any appropriate court, but the commencement must occur within the time for presenting claims. No claim is required in matters which were pending at the time of decedent's death.

Actions on claims must be commenced within the thirty days after the personal representative has mailed a notice of disallowance, but the personal representative or the court may consent prior to the expiration of the thirty-day period to extensions which do not run beyond the applicable statute of limitations.

Section 62-3-805. Classification of claims.

(a)    If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

(1)    costs and expenses of administration, including reasonable attorney's fees, and;

(2)    reasonable funeral expenses;

(3)    debts and taxes with preference under federal law;

(2)(i)(4)    reasonable and necessary medical and expenses, hospital expenses, and personal care expenses of the last illness of the decedent, including compensation of persons attending the decedent prior to death;

(ii)    medical assistance paid under Title XIX State Plan for Medical Assistance as provided for in Section 43-7-460;

(3)    debts and taxes with preference under federal law;

(4)(5)    debts and taxes with preference under other laws of this State, in the order of their priority, including medical assistance paid under Title XIX State Plan for Medical Assistance as provided for in Section 43-7-460;

(5)(6)    all other claims.

(b)    Except as is provided under subsection (a)(4)(5) above, no preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.

(c)    Any person advancing or lending money to a decedent's estate for the payment of a specific claim shall, to the extent of the loan, have the same priority for payment as the claimant paid with the proceeds of the loan.

REPORTER'S COMMENTS

This section sets up the classification of claims where the assets of the estate are insufficient to pay all claims in full. Claims due and payable are not entitled to a preference over claims not due.

Section 62-3-806.     (a)    As to claims presented in the manner described in Section 62-3-804(1) within the time limit prescribed in Section 62-3-803, within sixty days after the presentment of the claim, or within fourteen months after the death of the decedent, whichever is later, the personal representative may mail must serve upon the claimant a notice to any claimant stating that the claim has been allowed or disallowed in whole or in part. Service of such notice shall be by United States mail, personal service, or otherwise as permitted by rule and a copy of the notice shall by filed with the probate court along with proof of delivery setting forth the date of mailing or other service on the claimant. A notice of disallowance or partial disallowance of a claim must contain a warning that the claim will be barred to the extent disallowed unless the claimant commences a proceeding for allowance of the claim in accordance with Section 62-3-804(2) within thirty days of the mailing or other service of the notice of disallowance or partial disallowance. If, after allowing or disallowing a claim, the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding for allowance of the claim in accordance with Section 62-3-804(2) not later than thirty days after the mailing or other service against the personal representative not later than thirty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. It is the responsibility of the personal representative to notify the claimant if a claim is disallowed disallowance by the personal representative. For good cause shown, the court may reasonably extend the time for filing the notice of allowance or disallowance of a properly filed claim.

(b)    Upon service of the summons and petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the court in due time and not barred by subsection (a) of this section. Notice of hearing in this proceeding shall be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced. The personal representative of a decedent's estate may commence a proceeding to obtain probate court approval of the allowance, in whole or part, of any claim or claims presented in the manner described in Section 62-3-804(1), within the time limit prescribed in Section 62-3-803, and not barred by subsection (a). The proceeding may be commenced by the filing of a summons and petition with the probate court, and service of the same upon the claimant or claimants whose claims are in issue; and such other interested parties as the probate court may direct by order entered at the time the proceeding is commenced. Notice of hearing on the petition shall be given to interested parties in accordance with Section 62-1-401.

(c)    A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim. Upon obtaining such a judgment a claimant must file a certified copy of its judgment with the probate court in which the decedent's estate is being administered.

(d)    Unless otherwise provided in any judgment in another court entered against the personal representative and except from claims under 3-803-(d), allowed claims bear interest at the legal rate (as determined according to Section 34-31-20(A)) for the period commencing thirty days upon the later of fourteen months after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision date of the decedent's death or the last date upon which the claim could have been properly presented under Section 62-3-803; unless based on a contract making a provision for interest, in which case the claim bears interest in accordance with the terms of the contract

(e)    Allowance of a claim is evidence the personal representative accepts the claim as a valid debt of the decedent's estate. Allowance of a claim may not be construed to imply the estate will have sufficient assets with which to pay the claim.

REPORTER'S COMMENTS

This section provides the procedure by which the personal representative acts on claims and claimants react to disallowed claims. Within thirty days after the mailing of notice of disallowance, if the notice warns of the impending bar, a claimant must commence a proceeding against the personal representative. This relates to claims allowed in whole or in part. A claimant has thirty days to react to a disallowed claim. A judgment in a proceeding in another court to enforce a claim constitutes an allowance of a claim.

Unless otherwise provided, or unless interest is based upon contract, allowed claims bear interest at the legal rate commencing thirty days after the time for original presentation of the claims has expired.

The personal representative or the claimant may begin an action in the court for allowance of the claim. This gives the courts jurisdiction over any claim or claims presented to the personal representative or filed with the court.

The 2010 amendment added 'service of' and 'summons and' in the first sentence to clarify that a summons and petition are required to commence a formal proceeding, including a formal proceeding for allowance of claims. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP. The 2010 amendment also added 'of hearing' after 'Notice' in the last sentence to clarify the notice of hearing requirements referred to in Section 62-1-401.

The 2012 amendment defines allowance and imposes an affirmative duty on the personal representative to either allow or disallow a claim within time frames imposed by the code.

Under the 2012 amendment, unless the court approves an extension of time, the personal representative must either allow or disallow all properly presented claims and serve notice of the allowance or disallowance of the claim on the claimant within the later of sixty days from the presentment of the claim and fourteen months from the date of the decedent's death.

Service of the notice of allowance or disallowance can be made by mail or some other form of delivery. If a notice of disallowance is sent by mail, the thirty day period for filing a petition for allowance of claim, starts to run on the date of mailing.

A claim can be allowed, disallowed, or allowed in part and disallowed in part. The code does not establish a penalty for failure of the personal representative to comply with the requirement to notify the claimant, but instead relies on the authority of the probate court to remove a personal representative for failure to perform his duties under the code.

The 2012 amendment imposes on a person obtaining a judgment against an estate in a court other than the probate court an obligation to provide the probate court with a certified copy of the judgment.

The 2012 amendment modifies the interest rules in regard to the properly presented claims against the decedent's estate. Interest on a claim begins to run upon the later of fourteen months after the decedent's death or the last day upon which the claim could be properly presented, unless the claim is based on a contract providing for interest.

The 2012 amendment requires that interested persons be notified of hearings on petitions for allowance of claim.

Section 62-3-807.     (a)    Upon the expiration of the applicable time limitation provided in Section 62-3-803 for the presentation of claims, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, for exempt property under Section 62-2-401, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is under Part 5, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment. Prior to the closing of the estate and no later than fourteen months after the decedent's death, the personal representative must proceed to pay the claims allowed against the estate in the order of priority prescribed; and after making provision for the homestead, for exempt property under Section 62-2-401, for claims already presented which have not been allowed or whose disallowance is the subject of a legal proceeding, or the time to file such a proceeding has not expired, and for unbarred claims which may yet be presented, including costs and expenses of administration. Upon application of the personal representative and for good cause shown, the probate court may extend the time for payment of creditor claims.

(b)    Upon the expiration of the applicable time limitation provided in Section 62-3-803 for the presentation of claims, any claimant whose claim has been allowed, or partially allowed, under Section 62-3-806 may petition the probate court, or file an appropriate motion if the administration is under Part 5, for an order directing the personal representative to pay the claim, to the extent allowed, and to the extent assets of the estate are available for payment without impairing the ability of the personal representative to fulfill the other obligations of the decedent's estate.

(c)    The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:

(1)    the payment was made before the expiration of the time limit stated in subsection (a) set forth in Section 62-3-803 for the presentation of a claim, and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or

(2)    the payment was made, due to the negligence or wilful fault of the personal representative, in such manner as to deprive the injured claimant of his priority.

REPORTER'S COMMENTS

This provides a remedy for a claimant whose claim has been allowed but has not been paid. Under Section 62-3-807(c), a personal representative is liable for claims paid out of order.

Section 62-3-808.     (a)    Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity or identify the estate in the contract.

(b)    A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(c)    Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.

(d)    Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.

REPORTER'S COMMENTS

This section clarifies that the personal representative is not individually liable for contracts properly entered into in his fiduciary capacity on obligations arising from ownership or control of the estate. He is liable for torts committed in the course of his administration only if he is personally at fault.

It also provides for a variety of appropriate proceedings to determine the issues of liability between the estate and the personal representative.

Section 62-3-809.     Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; otherwise, payment is upon the basis of one of the following:

(1)    if the creditor exhausts his security before receiving payment, upon the amount of the claim allowed less the fair market value of the security as agreed by the parties, or as determined by the court; or

(2)    if the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.

REPORTER'S COMMENTS

This provides for payment of allowed secured claims in full if the security is surrendered by the creditor.

Where the creditor exhausts his security before receiving payment, he receives the claim allowed less the fair market value of security as agreed or determined by the court.

If the security has not been exhausted, the creditor is paid the amount of the claim less the value of the security if covered.

Section 62-3-810.     (a)    If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.

(b)    In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:

(1)    if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;

(2)    arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage or other security interest, obtaining a bond or security from a distributee, or otherwise.

REPORTER'S COMMENTS

This provides various arrangements by which the personal representative can secure future payment of claims which are not due, contingent, or unliquidated.

Section 62-3-811.     In allowing a claim, the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate, a court shall reduce the amount allowed by the amount of any counterclaims allowed and, if such counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.

REPORTER'S COMMENTS

This provides for the reduction of a claim against the estate by any counterclaim, liquidated or unliquidated.

Section 62-3-812.     No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, liens, or other security interests upon real or personal property in an appropriate proceeding.

REPORTER'S COMMENTS

This prohibits executions and levies against property of the estate under judgments against the decedent or the personal representative, but excepts enforcement of mortgages, pledges, and liens in appropriate proceedings.

Section 62-3-813.     When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

REPORTER'S COMMENTS

This section gives the personal representative the authority to compromise claims in the best interests of the estate. The consent of the probate judge is not necessary.

Section 62-3-814.     If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew, or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

REPORTER'S COMMENTS

This gives the personal representative essential authority to deal with encumbered assets.

Section 62-3-815.     (a)    All assets of estates being administered in this State are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed.

(b)    If the estate either in this State or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this State or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this State, the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit.

(c)    In case the family exemptions and allowances, prior charges, and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this State is not the state of the decedent's last domicile, the claims allowed in this State shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this State the amount to which they are entitled, local assets shall be marshaled so that each claim allowed in this State is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this State from assets in other jurisdictions.

REPORTER'S COMMENTS

This section deals with various matters related to the payment of claims where there is administration in more than one state. As to the order of priorities of payment of claims, local creditors are not preferred over creditors in the decedent's domicile.

Section 62-3-816.     The estate of a nonresident decedent being administered by a personal representative appointed in this State shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless: (1) by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this State without reference to the local law of the decedent's domicile; (2) the personal representative of this State, after reasonable inquiry is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under Section 62-3-1001 or incident to the closing of an administration under Part 5 [Sections 62-3-501 et seq.]. In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of this article [Sections 62-3-101 et seq.].

REPORTER'S COMMENTS

The estate of a nonresident decedent being administered in this State is, upon conclusion of the local administration, paid over to the domiciliary personal representative.

Part 9

SPECIAL PROVISIONS RELATING TO DISTRIBUTION

Section 62-3-901.     In the absence of administration, the devisees are entitled to the estate in accordance with the terms of a probated will and the heirs in accordance with the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by exemption or intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and subject to the rights of others resulting from abatement, retainer, advancement, and ademption, and elective share.

REPORTER'S COMMENTS

This section governs the rights of heirs and devisees when the administrator of an estate is not able to proceed for one reason or another or in the absence of administration. This section provides that in the absence of administration the rights of the heirs or devisees will be established by the laws of intestate succession or by the terms of a probated will. Without an administration, heirs and devisees take the property subject to charges, such as charges incident to administration and creditors' claims. In addition, successors in title are 'subject to the rights of others' which may result from 'abatement, retainer, advancement, ademption and elective share.'

Section 62-3-902.     (a)    Except as provided in subsection (b), and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b)    If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), as, for instance, in case the will was executed before the effective date of this Code, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

(c)    If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

REPORTER'S COMMENTS

The purpose of Section 62-3-902 is to provide a defined order in which assets of an estate are used or applied for the payment of debts, in the absence of intent by the testator that an alternate order of abatement be used. The design of this section is to insure that the testator's intent, whether expressed or implied by the terms of the will, would be given first priority in the order of abatement. The section is to be used only to resolve doubts as to the testator's intent, rather than defeating his purpose.

Under this section, there is no distinction made with regard to the character of the assets. A devise encompasses any testamentary passage of property, whether real estate or personalty. Within classifications, abatement will be prorata.

Section 62-3-903.     The amount of a liquidated indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.

REPORTER'S COMMENTS

This section provides that if the amount of liquidated indebtedness of a successor to the estate is due, then the personal representative is to offset any devise to that successor by the amount of the liquidated indebtedness. In the event the indebtedness is liquidated but not yet due, the representative can use the present value of the indebtedness to offset that amount against the devise to the successor.

Section 62-3-905.     A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Section 62-3-906.     (a)    Unless a contrary intention is indicated by the will, such as the grant to the personal representative of a power of sale, the distributable assets of a decedent's estate must be distributed in kind to the extent possible through application of the following provisions:

(1)    A specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in Section 62-2-401 shall receive the items selected.

(2)    Any devise payable in money may be satisfied by value in kind provided:

(i)     the person entitled to the payment has not demanded payment in cash;

(ii)    the property distributed in kind is valued at fair market value as of the date of its distribution; and

(iii)    no residuary devisee has requested that the asset in question remain a part of the residue of the estate.

(3)    For the purpose of valuation under paragraph (2), securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.

(4)    The personal property of the residuary estate must be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. Subject to the provisions of Section 62-3-711(b), in other cases, personal property of the residuary estate may be converted into cash for distribution.

(b)    After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution, notifying such persons of the pending termination of the right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.

(c)    When a personal representative or a trustee is empowered under the will or trust of a decedent to satisfy a pecuniary bequest, devise, or transfer in trust, in kind with assets at their value for federal estate tax purposes, the fiduciary, in order to implement the bequest, devise, or transfer in trust, shall, unless the governing instrument provides otherwise, distribute assets, including cash, fairly representative of appreciation or depreciation in the value of all property thus available for distribution in satisfaction of the pecuniary bequest, devise, or transfer.

(d)    Personal representatives and trustees are authorized to enter into agreements with beneficiaries and with governmental authorities, agreeing to make distribution in accordance with the terms of Section 62-3-906 for any purpose which they consider to be in the best interests of the estate, including the purpose of protecting and preserving the federal estate tax marital deduction as applicable to the estate, and the guardian or conservator of a surviving beneficiary or the personal representative of a deceased beneficiary is empowered to enter into such agreements for and on behalf of the beneficiary or the deceased beneficiary.

(e)    The provisions of Section 62-3-906 are not intended to change the present laws applicable to fiduciaries, but are statements of the fiduciary principles applicable to these fiduciaries and are declaratory of these laws.

REPORTER'S COMMENTS

Section 62-3-906(a) establishes a preference for distributions 'in kind.'

Section 62-3-906(a) sets out the rights of the three classes of successors specific devisees (62-3-906(a)(1)), general pecuniary devisees (62-3-906(a)(2)), and residuary devisees (62-3-906(a)(3)).

As to specific devisees, Section 62-3-906(a)(1) provides that the specific devisee is entitled to the thing devised to him.

Section 62-3-906(a)(2) authorizes the personal representative to make 'in kind' distributions to satisfy devises payable in money (general pecuniary devises) provided (1) the devisee has not demanded payment in cash, (2) the property is fairly valued as of the date of distribution under Section 62-3-906(a)(3) and, (3) a residuary devisee has not requested that the asset remain part of the residue estate.

Residuary devisees are to receive 'in kind' distribution provided (1) there is no objection to the proposed distribution and (2) it is practicable to distribute undivided interests.

Section 62-3-906(b) provides that the personal representative may submit a proposal for distribution to all parties in interest. This section effectively eliminates the interested party's right to object to the distribution if he fails to object to the plan in writing within thirty days from receipt of the proposal.

The 2012 amendment added to 62-3-906(b) the requirement of notice of deadline to object to proposed distribution.

Section 62-3-907.     (A)    If distribution in kind is made, whether real or personal property, the personal representative must execute an instrument or a deed of distribution with respect to real property and such other necessary or appropriate instrument of conveyance with respect to personal property, assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property.

(B)    If the decedent dies intestate or devises real property to a distributee, the personal representative's execution of a deed of distribution of real property constitutes a release of the personal representative's power over the title to the real property, which power is equivalent to that of an absolute owner, in trust, however, for the benefit of the creditors and others interested in the estate, provided by Section 62-3-711(a). The deed of distribution affords the distributee and his purchasers or encumbrancers the protection provided in Sections 62-3-908 and 62-3-910.

(C)    If the decedent devises real property to a personal representative, either in a specific or residuary devise, the personal representative's execution of a deed of distribution of the real property constitutes a transfer of the title to the real property from the personal representative to the distributee, as well as a release of the personal representative's power over the title to the real property, which power is equivalent to that of an absolute owner, in trust, however, for the benefit of the creditors and others interested in the estate, provided by Section 62-3-711(a). The deed of distribution affords the distributee, and his purchasers or encumbrancers, the protection provided in Sections 62-3-908 and 62-3-910.

(D)    The personal representative's execution of an instrument or deed of distribution of personal property constitutes a transfer of the title to the personal property from the personal representative to the distributee, as well as a release of the personal representative's power over the title to the personal property, which power is equivalent to that of an absolute owner, in trust, however, for the benefit of the creditors and others interested in the estate, provided by Section 62-3-711(a).

REPORTER'S COMMENTS

This section provides that evidence of distribution 'in kind' will be in the form of an instrument or deed of distribution which the personal representative will give to the distributees. This instrument serves as a transfer of the interest an estate had in an asset or assets. Sections 62-3-907 should be read in conjunction with Sections 62-3-908 through 62-3-910 to determine rights of distributees and purchasers therefrom. In addition the personal representative may use this instrument as a release under Section 62-3-709 where the representative determines that certain assets of the decedent's estate should be left in the possession of the party who would ultimately receive these assets by way of distribution 'in kind.'

The 2012 amendments revised subsection (a) to provide that, while a deed of distribution is required for real property, with respect to personal property the personal representative may execute an appropriate instrument evidencing the conveyance of title.

Section 62-3-908.     Proof that a distributee has received an instrument or deed of distribution of assets in kind whether real or personal property, or payment in distribution, from a personal representative is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper. An improper distribution includes, but is not limited to, those instances where the instrument or deed of distribution is found to be inconsistent with the provisions of the will or statutes governing intestacy.

REPORTER'S COMMENTS

Section 62-3-908 contemplates that all actions for overpayment to a devisee be funneled through the personal representative.

Section 62-3-909.     Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.

REPORTER'S COMMENTS

This section provides that an innocent distributee does not have the protection of a bona fide purchaser. The purpose of Section 62-3-909 is to shift questions concerning propriety of distribution from fiduciary to distributees. It should be remembered that a distribution under Section 62-3-703 may be 'authorized at the time' but may still be improper under this section.

The provisions of Sections 62-3-909 and 62-3-910 establish the proposition that liability follows the property.

Section 62-3-910.     (A)    If property distributed in kind (whether real or personal property) or a mortgage or other security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested persons, whether or not the distribution was proper or supported by court order or the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution. Any recorded instrument described in this section on which the appropriate documentary or revenue stamps are affixed deed recording fee prescribed by Chapter 24, Title 12, has been paid, and which has been recorded is prima facie evidence that the transfer sale was made for value.

(B)    If a will devises real property to a personal representative or authorizes a personal representative to sell real property (the title to which was not devised to the personal representative), a purchaser for value who receives a deed from the personal representative takes title to the real property free of rights of any heirs or devisees or other interested person in the estate and incurs no personal liability to the estate or to any heir or devisee or other interested person in the estate. The purchaser is protected whether or not the sale was proper and regardless of whether the heirs or devisees to whom title devolved pursuant to Section 62-3-101 executed or consented to the deed, because the personal representative exercises the power of sale in trust, for the benefit of ; however, creditors, and others interested in the estate, who have a right of recourse against the personal representative under Section 62-3-712 if the sale constitutes a breach of the personal representative's fiduciary duty. This section protects a purchaser of real property from a personal representative who has title to the real property or who has sold real property to the purchaser pursuant to an authorization in the will. To be protected under this provision, a purchaser need not inquire whether a personal representative acted properly in making the sale, even if the personal representative and the purchaser are the same person, or whether the authority of the personal representative had terminated before the sale. Any recorded instrument described in this section on which the appropriate documentary or revenue stamps are affixed deed recording fee prescribed by Chapter 24, Title 12 has been paid, and which has been recorded is prima facie evidence that the sale was made for value.

REPORTER'S COMMENTS

Section 62-3-910 provides that an instrument of distribution (as defined in Section 62-3-907) is an essential element in the chain of title to ensure that purchasers or lenders from or to a distributee would have good title.

Section 62-3-911. For purposes of this section, 'interested heirs or devisees' means those heirs or devisees who are entitled to an interest in the real or personal property that is subject to partition pursuant to this section.     When two or more heirs or devisees are entitled to distribution of undivided interests in any personal or real property of the estate, the personal representative or one or more of the interested heirs or devisees may petition the court prior to the closing of the estate, to make partition. After service of summons and petition and after notice to the interested heirs or devisees, the court shall partition the property in kind if it can be fairly and equitably partitioned in kind. If not subject to fair and equitable partition in kind, the court shall direct the personal representative to sell the property and distribute the proceeds the manner provided in this section.

(1)    The court shall partition the property in kind if it can be fairly and equitably partitioned in kind.

(2)    If the property cannot be fairly and equitably partitioned in kind, the court shall direct the personal representative to sell the property and distribute the proceeds subject to the following provisions of this item.

(a)    The court shall provide for the nonpetitioning interested heirs or devisees who wish to purchase the property to notify the court of that interest no later than ten days prior to the date set for a hearing on the partition. The nonpetitioning interested heirs or devisees shall be allowed to purchase the interests in the property as provided in this section whether default has been entered against them or not.

(b)    In the circumstances described in subitem (a) of this section, and in the event the interested heirs or devisees cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent appraisers, as the court shall approve, appointed for that purpose by the court. The appraisers appointed pursuant to this section shall make their report in writing to the court within thirty days after their appointment. The costs of the appraisers appointed pursuant to this section shall be taxed as a part of the cost of court to those seeking to purchase the interests of the heirs or devisees in the property described in the petition for partition.

(c)    In the event that the interested heirs or devisees object to the value of the property interests as determined by the appointed appraisers, those heirs or devisees shall have ten days from the date of filing of the report to file written notice of objection to the report and request a hearing before the court on the value of the interest or interests. An evidentiary hearing limited to the proposed valuation of the property interests of the interested heirs or devisees shall be conducted, and an order as to the valuation of the interests of the interested heirs and devisees shall be issued.

(d)    After the valuation of the interests in the property is completed as provided in subitems (b) or (c) of this item, the interested heirs or devisees seeking to purchase the interests of the other interested heirs or devisees shall have forty-five days to pay into the court the price set as the value of those interests to be purchased, in such shares and proportions as the court shall determine. Upon the payment and approval of it by the court, the court shall direct the personal representative to execute and deliver the proper instruments transferring title to the purchasers.

(e)    In the event that the interested heirs or devisees seeking to purchase the partitioned property fail to pay the purchase price as provided in subitem (d) of this item, the court shall proceed according to the traditional practices of circuit courts in partition sales.

REPORTER'S COMMENTS

This section makes provision for the probate court to partition personal property.

The 2010 amendment added 'service of summons and petition and after' in the second sentence to clarify that a summons and petition are required to commence a formal proceeding, including a formal proceeding for purpose of distribution and to make partition. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Under the 2012 amendment Section 62-3-911 has been rewritten to provide a method of partition in probate court comparable to the procedure in circuit court pursuant to section 15-61-25.

Section 62-3-912.     Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.

REPORTER'S COMMENTS

Section 62-3-912 sanctions settlement agreements among successors allowing them to vary the distributions of an estate, whether testate or intestate, without the necessity of seeking court approval.

Section 62-3-913.     (a)    Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries as provided in Section 62-7-813.

(b)    If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he may withhold distribution until the court has acted.

(c)    No inference of negligence on the part of the personal representative shall be drawn from his failure to exercise the authority conferred by subsections (a) and (b).

REPORTER'S COMMENTS

This section gives the right to the personal representative to require a trustee to register where the state law allows for registration. In addition this section permits the representative to require that a trustee post a bond unless the trust document provides otherwise.

This section grants powers to the representative to withhold distributions to a trust where the representative feels that the beneficiaries may not be informed of the existence of the trust or when the representative has doubts as to the capability and competency of the trustee or of the trustee's intention to hold the funds without profit to himself.

Under this section, testamentary trustees would enjoy the status of a devisee, distributee, and successor.

Section 62-3-914.     (a)    If after the expiration of eight months from the appointment of the personal representative of a decedent it appears to the satisfaction of the court by whom the appointment was granted that the personal representative of the estate is unable to ascertain the whereabouts of a person entitled to be heir or devisee of the estate or whether a person who, if living, would be entitled as heir or devisee of this estate is dead or alive, the court may issue a notice addressed to all persons interested in the estate as heirs or devisees calling on the person whose whereabouts or the fact of whose death is unknown, his personal representatives, or heirs or devisees, to appear before the court on a certain day and hour as specified in this notice and to show cause why the personal representative should not be ordered to distribute the estate as if the person whose whereabouts or the fact of whose death is unknown had died before the decedent, and notifying all persons entitled to the estate as heir or devisee, or otherwise, to appear on a designated day and time before the court to intervene for their interest in the estate. The day fixed in the notice, on which cause must be shown, must not be less than one month after the date of the first publication of the notice.

(b)    The notice must be published once a week for three successive weeks in a newspaper published in the county in which the court is held. The court has the right, in its discretion, to order the notice to be published once a week for three successive weeks in one other newspaper published in another place most likely to give notice to interested persons.

(c)    The publication of the notice as prescribed in subsection (b) must be proved by filing with the court copies of the newspapers containing the publication of the notice and or the affidavit of the publishers or printers of the respective newspapers.

(d)    At the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if no person appears as required, the court must decree distribution of the estate to be made as if the person whose whereabouts or the fact of whose death is unknown had died before the decedent. Distribution by the personal representative is a full and complete discharge to the personal representative.

(e)    At the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if the person whose whereabouts or the fact of whose death was unknown appears, all further proceedings must be discharged.

(f)    If the identity of the person appearing is disputed by the personal representative, an heir or devisee of the decedent or the legal representatives of an heir or devisee, the court must proceed to hear and determine the controversy. If the controversy is determined against the person appearing, distribution of the estate must be made as prescribed in subsection (d); but if the controversy is determined in favor of the party appearing, he is considered to be the person whose whereabouts or the fact of whose death was unknown. The determination in either case is subject to appeal as provided in Section 62-1-308.

(g)    At the expiration of the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if a person appears claiming to be heir, devisee, or personal representative of the person whose whereabouts or the fact of whose death is unknown or to be otherwise entitled to his estate and claiming a distributive share in the decedent's estate, the court shall proceed to hear and determine whether the person whose whereabouts or the fact of whose death is unknown died before or after the decedent, and if the determination is that the person whose whereabouts or the fact of whose death is unknown died before the decedent, distribution of the decedent's estate must be made accordingly; but if the court determines that the person whose whereabouts or the fact of whose death is unknown died after the death of the decedent, the distributive share of the person must be paid and delivered by the personal representative to the person legally entitled to receive it, the determination in either case, is subject to appeal as provided in Section 62-1-308.

(h)    Instead of the procedure required in this section, an unclaimed devise or intestate share of one hundred five thousand dollars or less may be paid or transferred by the personal representative to the South Carolina State Treasurer.

REPORTER'S COMMENTS

Section 62-3-914 provides that the distributive share to a missing heir, devisee, or claimant must be paid to the conservator of the missing person or, if there is no conservator, to the State Treasurer, to become part of the escheat fund. This section sets aside the assets belonging to a missing person.

The 2012 amendment revised subsection (c) to permit proof of publication by either filing with the court copies of the newspaper itself or an affidavit of the publisher or printer of the newspaper. The de minimus amount in subsection (h) now includes an intestate share and has been increased to $5000.

Section 62-3-915.     A personal representative may discharge his obligation to distribute to any person under legal disability by distributing to his conservator or any other person authorized by this Code or otherwise to give a valid receipt and discharge for the distribution.

REPORTER'S COMMENTS

Section 62-3-915 provides that the personal representative will be absolved if he distributes to a conservator of a disabled or incompetent distributee.

Section 62-3-916.     (a)    For purposes of this section:

(1)    'Estate' means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this State.

(2)    'Person' means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency.

(3)    'Persons interested in the estate' means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent's estate. It includes a personal representative, conservator, and trustee.

(4)    'State' means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

(5)    'Tax' means the federal estate tax and the basic and any additional estate tax imposed by the State of South Carolina and interest and penalties imposed in addition to the tax.

(6)    'Fiduciary' means personal representative or trustee.

(b)(1)    Unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in this Code, the method described in the will controls. To the extent that a provision of a decedent's will expressly and unambiguously directs the apportionment of an estate tax, the tax must be apportioned accordingly.

(2)    Any portion of an estate tax not apportioned pursuant to item (1) must be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor which expressly and unambiguously directs the apportionment of an estate tax. If conflicting apportionment provisions appear in two or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this item:

(A)    a trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and

(B)    the date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.

(3)    Any tax not apportioned in items (1) or (2) shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If pursuant to items (1) and (2) the decedent's will or revocable trust directs a method of apportionment of tax different from the method described in this Code, the method described in the will or revocable trust controls.

(c)(1)    The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose, may determine the apportionment of the tax.

(2)    If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection (b), because of special circumstances, it may direct apportionment thereof in the manner it finds equitable.

(3)    If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge him with the amount of the assessed penalties and interest.

(4)    In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this Code, the determination of the court in respect thereto shall be prima facie correct.

(5)    The expenses reasonably incurred by the fiduciary and by any other person interested in the estate in connection with the determination of the amount and apportionment of the tax shall be apportioned as provided in subsection (b) and charged and collected as a part of the tax apportioned. If the court finds it is inequitable to apportion the expenses as provided in subsection (b), it may direct apportionment thereof equitably.

(d)(1)    The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to him, the amount of tax attributable to his interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this section.

(2)    If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative.

(e)(1)    In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate, and for any deductions and credits allowed by the law imposing the tax.

(2)    Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift; but if an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal.

(3)    Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or his estate inures to the proportionate benefit of all persons liable to apportionment.

(4)    Any credit for inheritance, succession, or estate taxes or taxes in the nature thereof applicable to property or interest includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax.

(5)    To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar purpose is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection (b) hereof, and to that extent no apportionment is made against the property. The sentence immediately preceding does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under Section 2053(d) of the Internal Revenue Code of 1954, as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.

(f)    No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.

(g)    Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three months' period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment.

(h)    A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this State and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this State or who owns property in this State subject to attachment or execution. For the purposes of the action, the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct.

REPORTER'S COMMENTS

Section 62-3-916(b) establishes a true apportionment of estate taxes among all takers, whether they be probate or nonprobate, unless a will or revocable trust states otherwise.

The 2012 amendment incorporates into the South Carolina Probate Code the Uniform Estate Tax Apportionment Act as revised in 2003 (UETAA or new UETAA). The new UETAA replaces the Uniform Probate Code's former estate tax apportionment provision (Section 3-916), which incorporated into the Uniform Probate Code the former UETAA. The new UPC apportionment statute is actually 15 sections (although a couple are blank, marked 'reserved') and with comments extending for more than 20 pages.

Before the 2012 amendment, this statute did not specifically allow a variance from the statutory apportionment by revocable trust, only by will. The 2012 amendment requires a specific and unambiguous direction for the payment and allows it in a will or in a revocable trust. Per the UPC comments, a general direction to pay debts from the residue does not meet this standard.

Part 10

Closing Estates

Section 62-3-1001.     (a)    Within one year after the date of the first publication of notice to creditors, (or if a state or federal estate tax return was filed, within ninety days after the receipt of a state or federal estate tax closing letter, whichever is later), the later of: (i) The expiration of the applicable time limitation for any creditor to commence a proceeding contesting a disallowance of a claim pursuant to Section 62-3-806(a); the time when all legal proceedings commenced for allowance of a claim have ended in accordance with Sections 62-3-804 and 62-3-806; and (iii) if a state or federal estate tax return was filed, within ninety days after the receipt or a state or federal estate tax closing letter, whichever is later, a personal representative must shall file with the court:

(1)    a full account accounting in writing of his administration, unless the accounting is waived pursuant to subsection (e);

(2)    a proposal for distribution of assets not yet distributed, unless the proposal for distribution of assets is waived pursuant to subsection (e);

(3)    an application for settlement of the estate to consider the final account accounting or approve an accounting and distribution and adjudicate the final settlement and distribution of the estate; and

(4)    proof that a notice of right to demand hearing and copies of the account accounting, the proposal for distribution, and the application for settlement of the estate have been sent to all interested persons including all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred, unless the notice of right to demand hearing is waived pursuant to subsection (e).

(b)    If the personal representative does not timely perform his duties under pursuant to subsection (a), and all interested persons have not waived the requirement pursuant to subsection (e), any an interested person may petition for an order compelling the personal representative to perform his duties under pursuant to subsection (a). The court may issue an order requiring the personal representative to perform his duties under After notice and hearing in accordance with Section 62-1-401, the court may issue an order requiring the personal representative to perform his duties pursuant to subsection (a).

(c)    After thirty days from the filing by the personal representative of proof that a notice of right to demand hearing has been sent to all persons entitled to such the notice under pursuant to subsection (a), or at any time after the filing of the application of settlement if notice of right to demand hearing has been waived pursuant to subsection (e), the court may enter an order or orders approving settlement and directing or approving distribution of the estate, terminating the appointment of the personal representative, and discharging the personal representative from further claim or demand of any interested person. However, if any an interested person files with the court a written demand for hearing within thirty days after the personal representative files proof that a notice of right to demand hearing has been sent to all persons entitled to such the notice under pursuant to subsection (a), the court may enter its order or orders only after notice to all interested persons in accordance with Section 62-1-401 and hearing.

(d)    If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under pursuant to this section, and after notice of hearing to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding constitutes prima facie proof of due execution of any a will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.

(e)    Notwithstanding the provisions of this section, a personal representative shall not be required to file an accounting in writing of his administration, a proposal for distribution of assets not yet distributed, or a notice of right to demand hearing if and to the extent these filings are waived by all interested persons.

REPORTER'S COMMENTS

Section 62-3-1001 describes procedures for obtaining orders of complete settlement of an estate.

The closing process under Section 62-3-1001(a) requires notice to all interested parties including unpaid creditors. The court upon application may order or approve an accounting, may interpret the terms of the will, direct or approve distribution of estate assets, discharge the personal representative, and close the estate. Such a discharge of the personal representative terminates his authority. The personal representative or any other interested person may petition for an order of complete settlement under this section after the claim period has expired, but a devisee may not seek such an order until a year has elapsed from the issuance of the appointment of the representative.

The 2010 amendment revised subsections (3) and (4) to conform to current practice allowing the personal representative to pursue informal proceedings to close the estate by filing an application rather than a petition. Unlike a petition, an application does not require a summons or petition. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 (1). The 2010 amendment also revised subsection (4)(c ) to delete 'on appropriate conditions, determining testacy, determining the persons entitled to distribution of the estate, and, as circumstances require,' and adding 'in accordance with Section 62-1-401 in the last sentence to clarify procedure. The 2010 amendment added 'of hearing' in subsection (d) to clarify the notice of hearing requirements referred to in Section 62-1-401.

The 2012 amendment clarifies that all interested persons may waive the filings otherwise required by Section 62-3-1001(a)(1), (2), or (4).

Section 62-3-1002.     No final account accounting of a fiduciary shall be allowed by the probate court unless such account shows, and the judge of such court finds, that all taxes imposed by the provisions of Chapter 6 of, Title 12 upon such fiduciary, which have become payable, have been paid, and that all taxes which may become due are secured by bond, deposit, or otherwise. The certificate of the South Carolina Department of Revenue and the receipt for the amount of the tax therein certified shall be conclusive as to the payment of the tax to the extent of such certificate.

REPORTER'S COMMENTS

Section 62-3-1002 precludes the court's approval of a final accounting by a fiduciary without a finding that the taxes imposed by Chapter 6, Title 12, have been paid.

Section 62-3-1003.     No final account accounting of a personal representative in any probate proceeding who is required to file a federal estate tax return may be allowed and approved by the court before whom the proceeding is pending unless the court finds that the any tax imposed on the property by Chapter 16 of, Title 12, including applicable interest, has been paid in full or that no such tax is due.

REPORTER'S COMMENTS

Section 62-3-1002 precludes the court's approval of a final accounting by a fiduciary without a finding that the taxes imposed by Chapter 16, Title 12, have been paid.

Section 62-3-1004.     After assets of an estate have been distributed and subject to Section 62-3-1006, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property or for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.

REPORTER'S COMMENTS

Section 62-3-1004 allows a creditor of an estate to pursue assets distributed against one or more distributees. A distributee's liability to a claimant is for amounts received as distributions in excess of exempt property but no more than the value of the property received, valued as of the time of the distribution.

A distributee has a right of contribution against other distributees if he gives timely notice to the distributees so that they can participate in the proceedings under which the claimant is asserting his claim.

Section 62-3-1005.     Unless previously barred by adjudication and except as provided in the any accounting, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the account, proposal for distribution of the estate, petition application for settlement of the estate, and proofs required by Section 62-3-1001. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.

REPORTER'S COMMENTS

The 2012 amendment conforms this section to changes to 3-1001, allowing waiver of accounting and proposal for distribution.

Section 62-3-1006.     Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is forever barred at the later of (i) if a claim by a creditor of the decedent, at one year after the decedent's death, and (ii) any other claimant and any heir or devisee, at the later of three years after the decedent's death or one year after the time of distribution thereof. This section does not bar an action to recover property or value received as the result of fraud.

REPORTER'S COMMENTS

Section 62-3-1006 creates a statute of limitations for claims against distributees by creditors or other persons claiming to be entitled to distribution from the estate. The time limitation provided for heirs and devisees or claimants other than creditors is three years after the decedent's death or, for creditors, one year after the time of the distribution thereof.

As in Section 62-3-1005, this section does not create a time bar for any action to recover property received as a result of fraud.

Section 62-3-1007.     After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the court that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.

REPORTER'S COMMENTS

Under Section 62-3-1007, after termination of the personal representative's appointment, and upon the filing of an application showing that no action is pending concerning the estate, the personal representative or his sureties may obtain from the court a certificate to the effect that the personal representative appears to have fully administered the estate. A certificate issued by the court affects a release of any security given in connection with the personal representative's bond, but does not prevent an action against the personal representative or his surety.

Section 62-3-1008.     If other property of the estate is discovered after an estate has been settled and the personal representative discharged or for other good cause, the court upon application of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently opened estate. If a new appointment is made, unless the court orders otherwise, the provisions of this Code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.

REPORTER'S COMMENTS

Section 62-3-1008 provides a procedure for reopening an estate following discharge of the personal representative. Such a supplemental or subsequent administration of a decedent's estate would be required if other property of the estate is discovered after the personal representative's discharge. Upon petition of an interested party and upon notice as required by the court, the court may reappoint the former personal representative or a different person to administer the subsequently discovered assets.

In administering the subsequently discovered assets, the procedure of this Code would apply as appropriate, except that previously barred claims could not be asserted in the subsequent administration.

The 2010 amendment deleted 'petition' and replaced it with 'application' to allow any interested person to make application for a subsequent administration. Unlike a petition, an application does not require a summons or petition. See 2010 amendments to certain definitions in Section 62-1-201.

Part 11

Compromise of Controversies

Section 62-3-1101.     A compromise of a controversy as to admission to probate of an instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of a probated will, the rights or interests in the estate of the decedent, of a successor, or the administration of the estate, if approved by the court after hearing, is binding on all the parties including those unborn, unascertained, or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it. A compromise approved pursuant to this section is not a settlement of a claim subject to the provisions of Section 62-5-433.

REPORTER'S COMMENTS

Section 62-3-1101 provides that compromises of controversies regarding estates can be made binding on interested parties by court confirmation.

Such controversies would include disagreements regarding the admission to probate of and instrument as the will of the decedent, the construction, validity, and effect of a probated will, the rights of successors to decedent's estate, and the personal representative's administration of the estate.

Approval of the compromise agreement is by order of the probate court following a formal proceeding. The order confirming the agreement is binding upon parties to the proceeding, and is binding upon unborn or unascertained persons and upon persons who could not be located.

After court confirmation, the agreement is binding even though the agreement affects a trust contained in an instrument separate from decedent's will, and even though it affects an unalienable right.

The agreement as confirmed by the court is not binding on creditors of the estate or trust estate, or on taxing authorities, unless they are parties to the agreement.

The 2010 amendment deleted 'in a formal proceeding in' and replaced the foregoing with 'by' and deleted 'for that purpose' and replaced it with 'after hearing.' The intention of the amendment was to require court approval in an informal proceeding after hearing. See Section 62-3-1102 regarding application procedure for approval of compromise and certain agreements.

Section 62-3-1102.     The procedure for securing court approval of a compromise is as follows:

(1)    The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.

(2)    Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.

(3)    Upon application to the court and after notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries subject to its jurisdiction to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.

REPORTER'S COMMENTS

Section 62-3-1102 provides the procedure by which agreements for compromise of estate controversies are confirmed by the probate court.

Subsection (1) requires the agreement be in written form setting forth all of the terms of the compromise. The agreement must be signed by all persons having a beneficial interest in or claim against the estate, whose interest or claim is affected by the agreement. If an interested party is a minor, the agreement may be executed on his behalf by his parent.

Execution of the agreement is not required by unknown parties or by parties whose whereabouts are unknown or cannot reasonably be ascertained. The agreement should clearly specify the effect of the compromise on the minors, on unknown parties, and on unlocated parties. Subsection (2) would imply that the agreement is not to be signed by the personal representative or trustees of the affected testamentary trust prior to submission of the agreement to the probate court, but the agreement should specify the proposed effect on the personal representative and affected trusts.

Subsection (2) requires submission of the agreement to the probate court for approval. The application for approval may be made by an interested party or by the personal representative. The application would request approval of the agreement and would request an order directing or permitting the personal representative and the trustee of an affected testamentary trust to execute the agreement.

Pursuant to subsection (3), a hearing after notice to all interested parties is conducted by the probate judge. In addition to parties to the agreement, the personal representative and trustees of affected trusts must be notified of the hearing.

The advocates of the agreement must prove to the court that a controversy existed in good faith among the interested parties. This requirement is to avoid sham arrangements designed to prejudice unknown parties or parties whose addresses are unknown but would be bound by an order confirming the agreement.

The advocates of the agreement must prove that the effect of the agreement on persons, including minors and incompetents represented by fiduciaries or other representatives, is fair, equitable, and reasonable.

Upon such proof to the court, the court will by order approve the agreement and will direct the personal representative and all fiduciaries subject to the court's jurisdiction to execute the agreement.

The agreement as confirmed by the court will govern further disposition of the decedent's estate in accordance with the terms of the agreement. Subsection (3) further provides that minor children who are represented only by their parents may be bound only if their parents executed the agreement with other competent persons. In the event this requirement cannot be met, execution of the agreement on behalf of the minor could be made binding if by a court appointed guardian.

The 2010 amendment revised subsection (3) to delete 'After' at the beginning and replaces it with 'Upon application to the court and after' to allow application to the probate court to secure court approval of a compromise. Unlike a petition, an application does not require a summons or petition. See 2010 amendments to certain definitions in Section 62-1-201.

Part 12

Collection of Personal Property by Affidavit and Summary Administration Procedure for Small Estates

Section 62-3-1201.     (a)    Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or the instrument evidencing the debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor. Before this affidavit may be presented to collect the decedent's personal property, it must:

(1)    state that the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), wherever located, less liens and encumbrances, does not exceed ten twenty-five thousand dollars;

(2)    state that thirty days have elapsed since the death of the decedent;

(3)    state that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;

(4)    state that the claiming successor, which for the purposes of this section includes a person who remitted payment for reasonable funeral expenses, is entitled to payment or delivery of the property;

(5)    be approved and countersigned by the probate judge of the county of the decedent's residence domicile at the time of his death, or if the decedent was not domiciled in this State, in the county in which the property of the decedent is located, and only upon the judge's satisfaction that the successor is entitled to payment or delivery of the property; and

(6)    be filed in the probate court for the county of the decedent's domicile at the time of his death, or, if the decedent was not domiciled in this State, in the county in which property of the decedent is located.

(b)    A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).

REPORTER'S COMMENTS

Section 62-3-1201 provides for a simplified handling of small estates of twenty-five thousand dollars or less through the use of an affidavit. The small estate affidavit may be used starting thirty days after the death of the decedent if the entire estate of the decedent, wherever located, after deduction of liens and encumbrances, does not exceed twenty-five thousand dollars. The affiant must state that the value of the estate does not exceed twenty-five thousand dollars, that thirty days have elapsed since the decedent's death, that no person has applied for appointment as, or has been appointed as, personal representative in any jurisdiction, and that the affiant as successor to the decedent is entitled to payment or delivery of the property.

Upon presentment of such an affidavit, holders of property of the decedent, or persons obligated to the decedent, must transfer the property, or discharge their debt, to the successor. Stock transfer agents in subparagraph (6) are directed to transfer stock based on such affidavits.

The small estate affidavit cannot be used to transfer title to real estate and it cannot be used by creditors of the estate to reach assets of the estate.

The 2012 amendment increases the size of the estate in which a small estate affidavit can be utilized to twenty-five thousand dollars, establishes that a person who advances reasonable funeral expenses is a successor for purposes of this section regardless of his status as an heir or devisee, and clarifies which probate court must approve and record the affidavit.

Section 62-3-1202.     The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person who receives or is presented with a valid affidavit executed pursuant to Section 62-3-1201 and who has not received actual written notice of its revocation or termination must not fail to deliver the property identified in the affidavit, provided it contains the following provision. 'No person who may act in reliance on this affidavit shall incur any liability to the estate of the decedent.' Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.

REPORTER'S COMMENTS

Section 62-3-1202 discharges and releases any person who transfers personal property of a decedent or who pays his debt to the decedent pursuant to the small estate affidavit pursuant to Section 62-3-1201 to the same extent he would have been released from liability had he dealt with a court-appointed personal representative of the decedent. The person so released is not required to inquire into the accuracy of the affidavit nor to insure the proper application of the personal property by the successor.

This section creates a liability in the recipient of property through the use of an affidavit to any personal representative of the estate and to any person having a superior right, including creditors of the decedent or of the estate, or other successors of the decedent.

The 2012 amendment requires the person receiving or presented with the affidavit to deliver the property identified in the affidavit if the affidavit contains the quoted language, unless that person has received actual written notice of the affidavit's revocation or termination.

Section 62-3-1203.     (a)    If it appears from the inventory and appraisal that the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), less liens and encumbrances, does not exceed ten twenty-five thousand dollars and exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, after giving publishing notice to creditors required by pursuant to Section 62-3-801, but without giving additional notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.

(b)    If it appears from an appointment proceeding that (1) the appointed personal representative, individually or in the capacity of a fiduciary, is either the sole devisee under the probated will of a testate decedent or the sole heir of an intestate decedent, or (2) the appointed personal representatives, individually or in their capacity as a fiduciary, are the sole devisees under the probated will of a testate decedent or the sole heirs of an intestate decedent, the personal representative, after giving publishing notice to creditors as required by under Section 62-3-801, but without giving additional notice to creditors may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.

REPORTER'S COMMENTS

Sections 62-3-1203 and 62-3-1204 provide for an expedited administration by a personal representative. Under Section 62-3-1203, if the personal representative determines after inventory and appraisal that: (1) the estate assets, after deduction of liens and encumbrances, do not exceed the total of twenty-five thousand dollars, plus exempt property, plus costs and expenses of administration, reasonable funeral expenses, and medical and hospital expenses of the decedent's last illness, or (2) that the sole personal representative is also the sole heir or devisee of the decedent or that corepresentatives are all of the only heirs or devisees of the decedent, then the personal representative may immediately pay the administration, funeral, medical, and hospital expenses and distribute the balance to distributees. Other than the publication of notice under Section 62-3-801, additional notice to creditors of this election is not required. Following the disbursement of the assets, the personal representative would file the closing statement required by Section 62-3-1204.

Section 62-3-1204.     (a)    Unless prohibited by order of the court and except for estates being administered under Part 5 (Sections 62-3-501 et seq.), a after filing an inventory with the court, and paying any court fees due, the personal representative may close an estate administered under the summary procedures of Section 62-3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:

(1)    either

(i)     to the best knowledge of the personal representative, the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), less liens and encumbrances, did not exceed ten twenty-five thousand dollars and exempt property, costs, and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent; or

(ii)    the estate qualifies for summary administration according to the provisions of subsection (b) of Section 62-3-1203;

(2)    the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto;

(3)    the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom he the personal representative is aware and whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected.

(b)    If no unresolved claims, actions or proceedings involving the personal representative are pending in the any court one year after the closing statement is filed date of the decedent's death, the appointment of the personal representative terminates.

REPORTER'S COMMENTS

Section 62-3-1204 provides the procedure for closing the estate following the disbursement and distribution of assets pursuant to Section 62-3-1203. The procedure would not be used if prohibited by the probate court or if the estate was in administration under Part 5.

The personal representative would file with the probate court his verified statement stating that: (1) to the best of his knowledge the estate assets do not exceed the limitations in or would qualify as a summary administrator according to the requirements described in Section 62-3-1203; (2) he has disbursed and distributed the assets to the proper persons, he has sent a copy of the closing statement to the distributees, unpaid creditors, and claimants whose claims are not barred, and he has sent to all distributees a written account of his administration of the estate.

If no action regarding the estate is pending one year after the date of the decedent's death, the court will terminate the appointment of the personal representative who filed the closing statement.

Part 13

Sale of Real Estate by Probate Court to Pay Debts

Section 62-3-1301.     The provisions of this Part are hereby declared to be the only procedure for the sale of lands by the court, except where the will of the decedent authorizes to the contrary.

Section 62-3-1302.     The court may, as herein provided, authorize the sale of the real estate property of such deceased person a decedent.

REPORTER'S COMMENTS

Section 62-3-1302 establishes the circumstances under which the probate court has the power to sell the land of the decedent.

Section 62-3-1303.     At any time after the qualification of the personal representative, on application petition to the court by an interested person requesting the sale of real estate property of the deceased decedent, a summons shall be issued to the personal representative (if not the petitioner), the heirs or devisees of the estate at law of the decedent (if the decedent died intestate or the time to challenge a will admitted to probate has not expired), the devisees under the decedent's will (if any), any person who has properly presented a claim against the estate which remains unresolved, any interested person effected by the proceeding, and any other person as required by the court in its discretion.

REPORTER'S COMMENTS

Section 62-3-1303 specifies the process by which an action for the sale of real estate in aid of assets is commenced. The action is commenced by a petition filed after qualification of the personal representative. The petition may be filed by an interested person.

Upon filing of the petition, Section 62-3-1303 provides that the probate judge will issue a summons directed to the specified interested persons.

Section 62-3-1304.     The form of such summons must be in like form as summonses for civil actions in the circuit courts.

Section 62-3-1305.     To such summons a copy of the petition must be attached and copies of the summons and petition served on the personal representative (if not the petitioner), the heirs or devisees, and any other at law of the decedent (if the decedent died intestate or the time to challenge a will admitted to probate has not expired), the devisees under the decedent's will (if any), any person who has properly presented a claim against the estate which remains unresolved, any interested person effected by the proceeding, and any other interested person as required by the court in its discretion, in like manner as summonses and complaints are served in civil actions in the circuit courts. If there are minors the court shall appoint guardians ad litem who must be served with copies of the summons and petition and the appointment, and who must acknowledge acceptance of such guardian endorsed on the their appointment as guardians ad litem to the probate court prior to being served with the summons and petition. Nothing herein contained precludes any of the parties interested in the proceeding from accepting service of the summons and petition or from and consenting to the sale as prayed for in the petition.

REPORTER'S COMMENTS

This section provides for the manner of service of the summons and petition and incorporates by reference the methods of service of summons and complaints in civil actions in the circuit courts. This section further provides for appointment of guardian ad litem to represent minors and specifies that the guardian ad litem will be served with copies of the summons and petition. A copy of the order appointing the guardian ad litem and a statement of the guardian to serve must be endorsed on the petition. This section further provides that any of the parties may accept service of the summons and petition and may also consent to the sale prayed for in the petition.

Section 62-3-1306.     The sheriffs of the several counties in this State are required to serve all processes which may be issued, if so ordered by the court under the provisions of this Part, for which they shall receive the same fees as are allowed them by law for similar services, which must be paid from the proceeds of sale or by the petitioner.

REPORTER'S COMMENTS

Section 62-3-1306 provides for service of the summons and petition within the State of South Carolina by the sheriffs of the various counties in which interested parties are located. This section specifies that the sheriffs' fees for service shall be as in other circumstances and are to be paid by the petitioner or from the proceeds of the sale.

Section 62-3-1307.     If there is any party who resides beyond the limits of this State or whose residence is unknown and who does not consent in writing to the sale, the court may authorize publication of the summons as provided by this Code and if such party does not appear and show sufficient cause within the time named in the summons the court shall enter of record his consent as confessed and proceed with the sale.

REPORTER'S COMMENTS

This section provides for service of the summons and petition by publication on interested parties who are not residents of South Carolina or whose addresses are unknown. If the party consented to the sale, service would not be required. If the party after such service did not appear or answer, the probate judge will enter of record his consent by default.

Section 62-3-1308.     Upon the filing of the petition, the petitioner shall file in the office of the clerk of the circuit court a notice of pendency of action authorized by Sections 15-11-10 to 15-11-50 and upon the filing of such notice it has the same force and effect as notice of pendency of action filed in an action in the circuit court.

REPORTER'S COMMENTS

This section prescribes the filing of a notice of pendency of action, or lis pendens, by the probate judge in the office of the clerk of court for the county in which the land is located, at the time the petition is filed, pursuant to Sections 15-11-10 to 15-11-50. Such filing will eliminate from consideration by the court any party who acquires subsequent to the filing of the notice a lien upon or an interest for value in the land.

Section 62-3-1309.     The time to answer or otherwise respond by motion to the a summons and petition is at least thirty days from the date of service. Should the personal representative (if not the petitioner) or any of the heirs or devisees, or other parties, if any, desire to answer or otherwise respond by motion it must be in writing and the court shall in regular order, as in the case of other litigated cases, proceed to determine the issues made by petition, subsequent pleadings, and motions and if the court decides that the real estate for sale of real property of a decedent is the same as the time to answer in any civil litigation case. Interested persons who wish to file an answer or return to the petition must do so in writing in the same manner as an answer to a complaint in other civil litigation cases. In addition the court may hear motions and accept such subsequent pleadings as would be heard or accepted in other civil litigation cases. After the filing and service of the summons and petition and the time for filing responsive pleadings has elapsed, the court will convene a hearing on the merits of the petition. If based on the evidence presented at the hearing the court finds the real property should be sold it shall then, in its discretion, either (a) order the personal representative to sell the same at private sale upon such terms and conditions as the court may impose; or (b) proceed to sell the same upon the next or some subsequent convenient sales day after publishing a notice of such sale three weeks prior thereto in some paper published in the county. Upon the sale being made, after the payment of the costs and expenses thereof, the court shall pay proceeds of the sale will be paid over to the personal representative the net proceeds of such sale. The personal representative shall administer such proceeds in like manner as proceeds of personal property coming into his hands. Nothing in this part may be construed to abridge homestead exemptions. Notice of hearings in regard to the petition will be provided to interested persons in accordance with Section 62-1-401.

REPORTER'S COMMENTS

Section 62-3-1309 incorporates the rules of civil litigation to determine the time limits to file an answer or return to the petition. Following this period, the probate judge would schedule a hearing of the case.

If the probate judge determines that the land should be sold in accordance with the petition, he would either order a private sale or schedule a public auction of the land. The notice of the sale must be published once a week for three weeks during the three weeks preceding the sale in a newspaper published in the county of the probate court.

Following the sale, the net proceeds of the sale will be paid over to the personal representative for distribution in accordance with law as if it were personal property originally belonging to the estate.

Section 62-3-1309 further provides that the proceedings are not to abridge the rights of homestead exemption in the land.

The 2010 amendment revised this section to delete 'for return' in the first sentence and replace it with 'to answer or otherwise respond by motion to the summons and petition, delete 'make a return' and replace it with 'answer or otherwise respond by motion,' add 'subsequent pleadings,' and delete 'return' and replace it with 'motions' in the second sentence The foregoing 2010 amendment is intended to clarify that an answer or other response to a summons and petition must be served in an action to sell real estate, which is a formal proceeding as referred to in Section 62-1-201(17).

The amendments to this section in 2012 were largely clarifying revisions, and did not change substantive law. All answers to the petition must be in writing and served on the petitioner and other parties in the same manner as an answer to a complaint in circuit court, and within the same time limits as would apply in circuit court. Further, the same rules apply as to motions in the case of a petition for sale of real property of a decedent as apply in circuit court to answers. Consequently, as in circuit court, answers may not be due while certain motions are pending, and the same rules for amending petitions and answers would apply.

The 2012 amendments added the requirement that all interested persons be served with notice of hearings regarding a petition to sell real property of a decedent in accordance with Section 62-1-401.

Section 62-3-1310.     The regular bond of the personal representative must protect the creditors, heirs, devisees, or other interested persons, if any, in the handling of the proceeds of sale by the personal representative, but in case no such bond has been given, the court shall may require the giving of a bond by such personal representative as provided in Sections 62-3-603, 62-3-604, and 62-3-605.

REPORTER'S COMMENTS

Section 62-3-1310 provides that the regular bond of the personal representative protects claimants to the proceeds of the sale. If no bond has been filed previously, the personal representative may be required to file one pursuant to Sections 62-3-603 and 62-3-605. If a bond has previously been filed, the personal representative may be required to increase the amount of the bond.

The 2012 amendment gives the court discretion to require bond.

Section 62-3-1311.     The court shall file and keep the original petition with due proof of service thereon and all original papers connected with the sale and shall require from such personal representative his final account showing the distribution of the funds received by him.

REPORTER'S COMMENTS

Section 62-3-1311 requires the filing and preserving in the probate court of all original documents relating to the action for the sale of the land including the petition, proofs of service, and order.

This section further requires the personal representative file a final accounting to document the distribution of the proceeds of sale of the land.

Section 62-3-1312.     In case any lands of the deceased subject to the lien of any judgment, mortgage, or other lien is sold under the provisions of this Part the court may enter a release of the lands so sold upon the records in the office of the clerk of court or register of deeds of the county from the lien of such judgment, mortgage, or other lien and in case such mortgage, judgment, or other lien debt has been paid in full out of the proceeds of the sale of such lands the court may have cancellation of the same entered on the record thereof. The foregoing does not relieve any judgment, mortgage, or other lien creditor of the duty, as provided otherwise by law, of releasing or canceling such liens. Each release satisfaction or cancellation provided for herein must refer by proper notation to the file number of such estate in the court. The provisions of this section do not apply when the order of sale directs the sale of any lands which must be sold subject to any existing mortgage, judgment, or other lien, but only when such lands are sold freed and discharged from all such liens.

REPORTER'S COMMENTS

This section provides that the probate judge must file in the offices of the clerk of court and of the register of mesne conveyances releases of the land sold from the lien of any mortgage, judgment, or other lien on said land. If the lien claim is paid in full from the proceeds of sale, the probate judge will file a cancellation of the lien. Such filing of releases by the probate judge will not be required if such releases are timely filed by the lien claimants. Such releases by the probate judge must make reference to the probate court file number for the estate.

This section specifies that releases must also be filed by the lien claimants even if a release has been filed by the probate judge.

This section further provides that the probate judge may sell the land subject to any existing lien on the land, and, in which case, no release from the lien would be required.

Article 4

Local and Foreign Personal Representatives; Ancillary Administration

Part 1

Definitions

Section 62-4-101.     In this article [Sections 62-4-101 et seq.]:

(1)    'Local administration' means administration by a personal representative appointed in this State pursuant to appointment proceedings described in Article 3 [Sections 62-3-101 et seq.].

(2)    'Local personal representative' includes any personal representative appointed in this State pursuant to appointment proceedings described in Article 3 [Sections 62-3-101 et seq.] and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to Section 62-4-205.

(3)    'Resident creditor' means a person domiciled in, or doing business in, this State who is, or could be, a claimant against an estate of a nonresident decedent.

REPORTER'S COMMENTS

Section 62-4-101 defines 'local administration' and 'local personal representative' in order to distinguish 'local' matters from that matter covered by Article 4, the 'foreign personal representative' and his administrative acts in South Carolina undertaken on the strength of his 'foreign administration,' without his appointment in South Carolina pursuant to Article 3 of this Code. Section 62-1-201 includes definitions of 'foreign personal representative', 'personal representative', and 'non-resident decedent'.

Part 2

Powers of Foreign Personal Representatives

Section 62-4-201.     At any time after the expiration of sixty days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock, or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock, or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:

(1)    the date of the death of the nonresident decedent;

(2)    that no local administration, or application or petition therefor, is pending in this State;

(3)    that the domiciliary foreign personal representative is entitled to payment or delivery.

REPORTER'S COMMENTS

Sections 62-4-201, 62-4-202, and 62-4-203 must be read, together with Section 62-4-206, as providing a means, less cumbersome than those provided by Sections 62-4-204 and 62-4-205 and by Section 62-4-207, for the unification and simplification of the administration of multi-state estates in the hands of the domiciliary foreign personal representatives of nonresident decedents. These sections allow the domiciliary foreign personal representative to collect estate assets in South Carolina without requiring local appointment (Section 62-4-201), while protecting debtors of the estate against double payment (Section 62-4-202) and also protecting resident creditors of the estate from nonpayment (Section 62-4-203). See Section 62-5-431 for a provision similarly allowing the collection of the assets of a nonresident protected person by his domiciliary foreign conservator.

Sections 62-4-201 and 62-4-202 preserve the domiciliary foreign personal representative's power to collect estate assets in South Carolina from debtors willing to make voluntary payment on the strength of his foreign appointment, and also preserve the corresponding effect, the full discharge of the debtor, resulting from the payment.

These sections by their terms apply only to estates of nonresident decedents and allow for payment only to the domiciliary, not to any ancillary, foreign personal representative. Presumably, an ancillary personal representative is empowered to collect assets only in the state of his appointment. The debtor's good faith reliance on the foreign personal representative's proof of appointment and affidavit, inaccurately showing that the decedent was a nonresident of South Carolina and that the personal representative was appointed as a domiciliary personal representative, should protect the debtor under Section 62-4-202. These sections apply even if local administration is actually pending or applied for, as long as the foreign personal representative supplies the documentation detailed in Section 62-4-201 and the debtor has no actual notice of the pending local administration. Section 62-4-202 requires only good faith of the debtor who receives that documentation; his release then depends solely on his making payment to the foreign personal representative. See Section 62-4-206.

These sections apply even though interested persons, including estate creditors, are domiciled in, or doing business in, South Carolina. Such creditors are protected under Section 62-4-203.

These sections apply to the collection of all debts owed to and tangible and intangible personal property owned by the estate. Section 62-3-201(d) refers to the location of tangible personal property and intangible personal property which may be evidenced by an instrument. Transfers of securities are covered by these sections as well as by Sections 35-7-10, et seq. the Uniform Act for Simplification of Fiduciary Security Transfers.

Section 62-4-201 provides for a waiting period of sixty days from the death of the decedent before payment can be made with the expectation of an immediate discharge of the debtor. Presumably, having made payment before the expiration of the period, a debtor will be discharged at the expiration of the period if he would have been discharged had he then paid, but, for example, not if, in the meantime, a local administration has come to the attention of the debtor.

See Section 12-16-1150 for estate tax duties and liabilities imposed on personal representatives.

Section 62-4-202.     Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property or of the instrument evidencing a debt, obligation, stock, or chose in action to the same extent as if payment or delivery had been made to a local personal representative.

REPORTER'S COMMENTS

See Comment to Section 62-4-201.

Section 62-4-203.     Payment or delivery under Section 62-4-201 may not be made if a resident creditor of the nonresident decedent has given written notice to the debtor of the nonresident decedent or the person having possession of the personal property or of the instrument evidencing a debt, obligation, stock, or chose in action belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.

REPORTER'S COMMENTS

For the context of Section 62-4-203, see comment to Section 62-4-201. Section 62-4-203 provides a means by which a resident creditor of the decedent can attempt to protect himself from nonpayment of his debt, resulting from assets of the estate being removed from South Carolina by a domiciliary foreign personal representative. The creditor simply notifies the debtors of the decedent not to pay their debts under Sections 62-4-201 and 62-4-202. The notice must be in writing, thereby excluding constructive notice. Section 62-4-203 provides for a mechanism protective of resident creditors, while Section 62-4-202 deprives of such protection resident creditors who fail to give notice under Section 62-4-203.

Section 62-4-204.     If no local administration or application or petition therefor is pending in this State, a domiciliary foreign personal representative may file with a court in this State in a county in which property belonging to the decedent is located, authenticated copies of his appointment, and of the will, if any, and of any official bond he has given, which bond shall name the court in this State as co-obligee on such bond. The filing of a bond shall not be required unless the court in its discretion orders it.

REPORTER'S COMMENTS

Sections 62-4-204 and 62-4-205 must be read, together with Section 62-4-206, as providing a means, additional to those of Sections 62-4-201 through 62-4-203 and of Section 62-4-207, for the unification and simplification of the administration of multi-state estates, without requiring the local appointment of a personal representative. Predicated on no local administration having been instituted, the domiciliary foreign personal representative, who files with the court the documents required by Section 62-4-204, obtains under Section 62-4-205 all of the powers of a local personal representative. See Article 3 for the powers of local personal representatives.

Section 62-4-205.     A domiciliary foreign personal representative who has complied with Section 62-4-204 may exercise as to assets (including real and personal property) in this State all powers of a local personal representative and may maintain actions and proceedings in this State subject to any conditions imposed upon nonresident parties generally.

REPORTER'S COMMENTS

See comment to Section 62-4-204.

Section 62-4-206.     The power of a domiciliary foreign personal representative under Section 62-4-201 or 62-4-205 shall be exercised only if there is no administration or application therefor pending in this State. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 62-4-205, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this State.

REPORTER'S COMMENTS

Section 62-4-206 limits the powers of foreign personal representatives, under both Sections 62-4-201, et seq., and 62-4-204, et seq., to cases in which no local administration is pending, with provision, however, for court approved exercise of limited powers to preserve the estate, for protection of any person acting in reliance upon these sections and without actual notice of a pending local administration, and for subjection of the local personal representative to the obligations accrued by the foreign personal representative under these sections. See Article 3 for provisions concerning local administration.

Section 62-4-207.     In respect to a nonresident decedent, the provisions of Article 3 [Sections 62-3-101 et seq.] govern (1) proceedings, if any, in a court of this State for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties, and liabilities of any local personal representative and the rights of claimants, purchasers, distributees, and others in regard to a local administration. The initiation of a proceeding under Article 3 (Sections 62-3-101 et seq.) is the appropriate procedure for an ancillary administration relating to the real property of a nonresident decedent located in this State and is an alternative to the procedures available to a foreign personal representative under Sections 62-4-201 through 62-4-206.

REPORTER'S COMMENTS

The purpose of this section is to direct attention to Article 3 for sections controlling ancillary, i.e., local administration of estates of nonresident decedents. See in particular Sections 62-3-101, 62-3-201, 62-3-202, 62-3-203, 62-3-307(a), 62-3-308, 62-3-611(b), 62-3-803(a), 62-3-815, and 62-3-816. Section 62-4-207 and Article 3 must be read as providing an alternative to the procedures available to a foreign personal representative under Sections 62-4-201 through 62-4-206.

Part 3

Jurisdiction Over Foreign Personal Representatives

Section 62-4-301.     A foreign personal representative submits personally to the jurisdiction of the courts of this State in any proceeding relating to the estate by (1) filing authenticated copies of his appointment as provided in Section 62-4-204, (2) receiving payment of money or taking delivery of personal property under Section 62-4-201, or (3) doing any act as a personal representative in this State which would have given the State jurisdiction over him as an individual. Jurisdiction under (2) is limited to the money or value of personal property collected.

REPORTER'S COMMENTS

Sections 62-4-301 and 62-4-302 assert the South Carolina courts' jurisdiction over foreign personal representatives, not appointed in South Carolina pursuant to Article 3. Jurisdiction is asserted in the circumstances, under Section 62-4-301, of the foreign personal representative's acting (1) under Section 62-4-204 of this Code, (2) under Section 62-4-201 of this Code, or (3) within the state in a manner which would have subjected him, as an individual, to the state's jurisdiction, and, under Section 62-4-302, (4) of the decedent's having been subject to the courts' jurisdiction immediately prior to his death. The words 'courts of this state' are sufficient under federal legislation to include a federal court having jurisdiction in South Carolina.

A foreign personal representative appointed at the decedent's domicile has priority for appointment in any local administration. See Section 62-3-203(g). Once appointed as local personal representative, he remains subject to the jurisdiction of the appointing court under Section 62-3-602.

Section 62-4-302.     In addition to jurisdiction conferred by Section 62-4-301, a foreign personal representative is subject to the jurisdiction of the courts of this State to the same extent that his decedent was subject to jurisdiction immediately prior to death.

REPORTER'S COMMENTS

For the context of Section 62-4-302, see comment to Section 62-4-301. Section 62-4-302 subjects the foreign personal representative to jurisdiction on the basis of his decedent's immediate pre-death condition or activities, whether the decedent was domiciled, doing business, or maintaining his principal place of business in South Carolina (see Section 36-2-802 Code) of the 1976 Code or engaged in conduct encompassed in South Carolina's 'long-arm' statutes (see Sections 36-2-803, 15-5-130, 15-5-140, and 15-9-350, et seq.). As to survival of causes of action, see Sections 15-5-90, 15-51-10, et seq., and 35-1-1520 of the 1976 Code.

Uniform Commercial Code Section 36-2-801 might be read to subject a personal representative 'whether or not a citizen or domiciliary of this State,' including a foreign personal representative, to the jurisdiction of the South Carolina courts. Section 62-4-302 settles any doubt as to the foreign personal representative's immunity from suit.

Section 62-4-302 should be read with Sections 15-5-130 and 15-5-140 as augmenting and simplifying the process available to persons involved in South Carolina in automobile accidents also involving deceased nonresident motorists. Section 62-4-302 allows for suit directly against the foreign personal representative.

Section 62-4-303.     (a)    Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this State on either the foreign personal representative or his decedent immediately prior to death.

(b)    If service is made upon a foreign personal representative as provided in subsection (a), he shall be allowed thirty days within which to appear or respond.

REPORTER'S COMMENTS

Section 62-4-303 provides for service of process upon a foreign personal representative, first, either by registered or by certified mail, with return receipt requested, if available under postal regulations; second, by ordinary first class mail, where registered or certified mail is unavailable; and, third, by any means available under other laws of South Carolina for service on the decedent (or on the foreign personal representative himself) immediately prior to the decedent's death. For service on the decedent, see Sections 36-2-804, et seq., for service of process in support of personal jurisdiction under the 'long-arm' provisions of the Uniform Commercial Code, Sections 36-2-801, et seq. See Sections 15-9-350, et seq., for substituted service of process in South Carolina on the statutorily designated agents of nonresident motorists, motor carriers, aircraft operators, vessel operators, certain traveling shows, nonresident directors of domestic corporations, nonresident trustees of inter vivos trusts, and nonresident individual fiduciaries.

See Sections 62-1-401 through 62-1-403 of this Code for the general notice provisions of this Code.

Part 4

Judgments and Personal Representatives

Section 62-4-401.     An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication; provided, however, that notice and the opportunity to defend must be given to the local representative in order that the judgment be collectible.

REPORTER'S COMMENTS

For the determinative effect of domiciliary foreign orders determining testacy or the validity of a will and of domiciliary certificates of the efficacy of a will, see Section 62-3-408 and 62-3-409.

Article 5

Protection of Persons Under Disability and Their Property

Part 1

General Provisions

Section 62-5-101.     Unless otherwise apparent from the context, in this Code article:

(1)    'Incapacitated person' means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property;

(2)    A 'protective proceeding' is a proceeding under the provisions of Section 62-5-401 to determine if a person is an incapacitated person, or to secure the administration of the estates of incapacitated persons or minors;

(3)    A 'protected person' is a minor or incapacitated person for whom a conservator has been appointed or other protective order has been made;

(4)    A 'ward' is a person for whom a guardian has been appointed;

(5)    A 'guardianship proceeding' is a formal proceeding under the provisions of Part 3 of Article 5 (Section 62-5-301, et seq.) to determine if a person is an incapacitated person, or to appoint a guardian for an incapacitated person.

'Adult' means an individual who has attained eighteen years of age or who has been emancipated by a court of competent jurisdiction.

(2)    'Conservator' means a person appointed by the court to manage the estate of a protected person.

(3)    'Court' means the probate court.

(4)    'Emergency' means circumstances that likely will result in substantial harm to a primary respondent's health, safety, or welfare or in substantial economic loss to the primary respondent.

(5)    'Guardian' means a person appointed by the court as guardian, but excludes one who is a guardian ad litem.

(6)    'Guardian With Limitation' is a guardian whose powers or duties have been limited by court order.

(7)    'Guardian Without Limitation' is a guardian who has all the powers and duties conferred in section 62-5-313.

(8)    'Guardian ad litem' is a person appointed by the court in accordance with Part 8, Article 5.

(9)    'Guardianship order' means an order appointing a guardian or adjudicating an adult incapacitated.

(10)    'Guardianship proceeding' means a formal proceeding under the provisions of Part 3, Article 5 (Sections 62-5-301, et seq.) to determine if an adult is an incapacitated person or in which an order for the appointment of a guardian for an adult is sought or has been issued.

(11)    'Home state' means the state in which the primary respondent was physically present, including a period of temporary absence, for at least six consecutive months immediately before the filing of a petition for the appointment of a guardian or protective order, or if none, the state in which the primary respondent was physically present, including a period of temporary absence, for at least six consecutive months ending with the six months prior to the filing of the petition.

(12)    'Incapacitated person' means an individual who, for reasons other than minority, has incapacity.

(13)    'Incapacity' means the inability to receive and evaluate information or make or communicate decisions to the extent that a person, even with appropriate technological assistance, (a) is unable to provide for his physical health, safety, or self-care to the extent he needs a guardian, or (b) is unable to manage his property to the extent he needs a protective order.

(14)    'Party' means the primary respondent, petitioner, guardian, conservator, or any other person allowed by the court or entitled under this article to participate in a guardianship proceeding or protective proceeding.

(15)    'Person' means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

(16)    'Primary respondent' means (a) an adult for whom a protective order is sought, (b) an adult for whom the appointment of a guardian is sought, (c) an adult for whom a determination of incapacity is sought, or (d) a minor for whom a protective order is sought.

(17)    'Protected person' means

(a)(i)    a minor;

(ii)    an incapacitated person;

(iii)    a person who is confined, is detained by a foreign power, or has disappeared; or

(iv)    a person who is disabled and requires a court order to create and establish a special needs trust; and

(b)    for whom a conservator has been appointed or other protective order has been made.

(18)    'Protective order' means an order appointing a conservator or related to the management of the property of:

(a)    an incapacitated person;

(b)    a minor;

(c)    a person who is confined, is detained by a foreign power, or has disappeared; or

(d)    a person who is disabled and requires a court order to create and establish a special needs trust for the person's benefit.

(19)    'Protective proceeding' means a judicial proceeding in which a protective order is sought or has been issued.

(20)    'Record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(21)    'Significant-connection state' means a state, other than the home state, with which a primary respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the primary respondent is available. Determination of whether a primary respondent has a significant connection with a particular state shall include consideration of the following:

(a)    the location of the primary respondent's family and others required to be notified of the guardianship proceeding or protective proceeding;

(b)    the length of time the primary respondent at any time was physically present in the state and the duration of any absences;

(c)    the location of the primary respondent's property; and

(d)    the extent to which the primary respondent has other ties to the state such as voting registration, filing of state or local tax returns, vehicle registration, driver's license, social relationships, and receipt of services.

(22)    'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(23)    'Visitor' is a person who has the requisite knowledge, training, or expertise to perform the duties required as the court may determine appropriate and must be an officer, employee, or special appointee of the court with no personal interest in the proceeding.

(24)    'Ward' means an adult for whom a guardian has been appointed.

REPORTER'S COMMENTS

The 2012 amendment substantially changed this section.

Section 62-5-101 defines certain terms which are used in Article 5.

Definitions from the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (Part 7) have been moved to 62-5-101. The South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act is a slightly modified version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) drafted by the Uniform Law Commission.

The definitions of 'Incapacity' and 'Incapacitated Person' have changed significantly. These definitions are modified versions of the definition contained in the Uniform Guardianship and Protective Proceedings Act (1997) drafted by the Uniform Law Commission. The new definition is based upon an individual's functional capacity rather than the person's disability. The requirement that the person be unable to make 'responsible' decisions is deleted, as is the requirement that the person have an impairment by reason of a specified disability or other cause, a requirement which may have led the trier of fact to focus unduly on the nature of the respondent's disabling condition, as opposed to the respondent's actual ability to function. The revised definition is based on recommendations of the 1988 Wingspread conference on guardianship reform, the report of which should be referred to for additional background. See Guardianship: An Agenda For Reform 15 (A.B.A. 1989). See also Stephen J. Anderer, Determining Competency in Guardianship Proceedings (A.B.A. 1990). Courts seeking guidance on particular factors to consider should also consult the California Due Process in Competency Determination Act, California Probate Code Section 811.

This Article 5 uses the term' guardian' (5) to refer to a fiduciary who has custody of an incapacitated adult. See Section 62-1-201(16).There are two types of guardian: 'guardian without limitation' (7) and 'guardian with limitation' (6).

Under this Article 5, a fiduciary appointed to manage the assets of a minor or incapacitated person is referred to as a 'conservator' (2).

Any person for whom a guardian has been appointed is referred to as a 'ward' (24).

Any person for whom a conservator has been appointed or a protective order issued is referred to as a 'Protected Person' (17).

A person who may participate in a guardianship proceeding or a protective proceeding is referred to as a 'Party' (14).

A 'Conservator' (2) is appointed pursuant to a 'Protective Order' (18) which is issued as part of a 'Protective Proceeding' (19) and which authorizes the conservator to manage the property of a 'Protected Person' (17). A protective order may be issued by the court without the appointment of a conservator. For example, under 62-5-405 the court may authorize a so-called single transaction. For this reason, Article 5 contains frequent references to the broader category of protective orders. When intended to apply only to conservatorships this Article 5 refers to conservatorship and not the broader category of protective proceedings.

Article 5 applies to all types of guardianship proceedings and protective proceedings, whether full, limited, temporary or emergency.

In compliance with the requirement of a summons with all petitions in the probate court, the individual for whom a guardianship or protective proceeding is sought is referred to as the 'Primary Respondent' (16).

The definition of 'home state' (11) is derived from but differs in a couple of respects from the definition of the same term in Section 102 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997). First, unlike the definition in the UCCJEA, the definition clarifies that actual physical presence is necessary. The UCCJEA definition instead focuses on where the child has 'lived' for the prior six months. Basing the test on where someone has 'lived' may imply that the term 'home state' is similar to the concept of domicile. Domicile, in an adult guardianship context, is a vague concept that can easily lead to claims of jurisdiction by courts in more than one state. Second, under the UCCJEA, home state jurisdiction continues for six months following physical removal from the state and the state has ceased to be the actual home. Under this Act, the six-month tail is incorporated directly into the definition of home state. The place where the respondent was last physically present for six months continues as the home state for six months following physical removal from the state. This modification of the UCCJEA definition eliminates the need to refer to the six-month tail each time home state jurisdiction is mentioned in the Act.

The definition of 'significant-connection state' (21) is similar to Section 201(a)(2) of the Uniform Child Custody Jurisdiction and Enforcement Act (1997). However, this definition adds a list of factors relevant to adult guardianship and protective proceedings to aid the court in deciding whether a particular place is a significant-connection state. Under Section 301(e)(1), the significant connection factors listed in the definition are to be taken into account in determining whether a conservatorship may be transferred to another state.

Section 62-5-102.     (a)    The probate court has jurisdiction over protective proceedings and guardianship proceedings.

(b)    When both guardianship proceedings and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.

REPORTER'S COMMENTS

Under Section 62-5-102, when proceedings relating to the appointment of a fiduciary who will have custody and proceedings relating to the appointment of a fiduciary who will manage assets are commenced in the same court, such proceedings may be consolidated.

Section 62-5-103.     (1)    A person under a duty to pay or deliver money or personal property to a minor or incapacitated person may perform this duty in amounts not exceeding an aggregate amount of ten thousand dollars each year, by paying or delivering the money or property to:

(1)(A)    a person having the care and custody of the minor or incapacitated person with whom the minor or incapacitated person resides;

(2)(B)    a guardian of the minor or an incapacitated person; or

(3)(C)    a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor or for the minor under the Uniform Gifts to Minors Act and giving notice of the deposit to the minor.

(2)    This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings that a proceeding for appointment of a conservator of the estate of the minor or incapacitated person are primary respondent is pending. The persons, other than the minor or incapacitated person or a financial institution under (3)(1)(C) above, receiving money or property for a minor or incapacitated person, serve as fiduciaries subject to fiduciary duties, and are obligated to apply the money for the benefit of the minor or incapacitated person with due regard to (i) the size of the estate, the probable duration of the minority or incapacity, and the likelihood that the minor or incapacitated person, at some future time, may be able fully to manage his affairs and his estate; (ii) the accustomed standard of living of the minor or incapacitated person and members of his household; and (iii) other funds or sources resources used or available for the support of the minor or incapacitated person, but. The persons may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated person's support. Money or other property received on behalf of a minor or incapacitated person may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated person. Excess sums must be preserved for future benefit of the minor or incapacitated person, and a any balance not used and property received for the minor or incapacitated person must be turned over to the minor when he attains majority or to the incapacitated person when he is no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application of it the money or personal property.

(3)    Regardless of the amount of compensation, any employer may fulfill his duties to a minor or incapacitated employee by delivering a check to or depositing payment into an account in the name of the minor or incapacitated employee.

REPORTER'S COMMENTS

This section applies to the property of minors or incapacitated persons. This section does not require a court order. This section was amended to clarify that the $10,000.00 limit is an aggregate amount each year. Multiple distributions in one year aggregating more than $10,000.00 require the appointment of a conservator or other protective order.

When a minor or incapacitated person annually receives from a specific payer property or cash of $10,000 or less, in all likelihood it will be expended for support within the year and it would be cumbersome and unnecessarily expensive to require the establishment of a conservatorship to handle the payments. This section allows the person required to transfer the property to do so in a more expeditious way.

The person required to transfer the property has the option of making the transfer to the person having care and custody of the minor or incapacitated person, when the minor or incapacitated person resides with that person, or may instead make payments to the guardian of the minor or incapacitated person, a custodian under the Uniform Gifts to Minors Act, or to a financial institution where an interest-bearing account or certificate in only the minor's name is located.

The protections of this section do not apply if the person required to make the transfer knows that a conservator has been appointed or that there is a proceeding pending for the appointment of a conservator. Consequently, the fact that a guardian has been appointed does not require that payment be made to that guardian. A guardian of a minor or incapacitated person may receive payments but has no power to compel payment from a third person. Should a guardian desire such authority, the appropriate course is for the guardian to petition the court to be appointed as conservator.

Although the person making the transfer has no duty or obligation to see that the money or property is properly applied, this section is a default statute and does not override any specific provisions in a will or trust instrument relating to monies to be paid to a minor or incapacitated person. In those cases, the duty of the person making the transfer would be dictated by the terms of the instrument.

The section limits the use of the money or property for the benefit of the minor or incapacitated person. The money or property may not be used to discharge a legal or customary obligation of support. Only expenses reasonably incurred may be reimbursed from this money or property, with the balance being preserved for the future benefit of the minor or incapacitated person. This section is not applicable to child support payments made pursuant to a court order because child support payments are made to another for the minor's benefit.

While a recipient of funds is not a fiduciary in the normally understood sense of a person appointed by the court or by written instrument, a recipient under this section is subject to fiduciary obligations. Under subsection (2), the recipient may not derive any personal benefit from the transfer and must preserve funds not used for the minor's benefit and transfer any balance to the minor upon emancipation or attainment of majority. Should the recipient misapply the funds or property transferred, the recipient, given this fiduciary role, would be liable for breach of trust.

The person receiving the monies may consider, in appropriate cases, the purchase of an annuity or some other financial arrangement whereby payout occurs at a time subsequent to the minor's attainment of majority. But to provide more certainty for the transaction, the recipient should consider petitioning the Court under Section 62-5-405 for approval of the purchase as a protective arrangement.

Section 62-5-104.     A guardian of an incapacitated person, by a properly executed power of attorney, may delegate to another person, for not more than thirty days, any of his powers regarding care and custody of the incapacitated person. If a patient of a state mental health facility has no legally appointed conservator, the Director of the Department of Mental Health or his designee may receive and accept for the use and benefit of the patient assets, which may be due the patient by inheritance, gift, pension, or otherwise, with an aggregate value not exceeding ten thousand dollars in one calendar year. The director or his designee may act as conservator for the patient and his endorsement or receipt discharges the obligor for any assets received. Upon receipt, the director or his designee shall use the assets for the proper maintenance, use, and benefit of the patient or as much of the assets as may be necessary for these purposes. In the event the patient dies leaving an unexpended balance of assets in the hands of the director or his designee, the director or his designee shall apply the balance first to the funeral expenses of the patient, and any balance remaining must be held by the director or his designee for a period of six months; and if within this period, the director or his designee is not contacted by the personal representative of the deceased patient, the balance of the assets may be applied to the maintenance and medical care account of the deceased patient. The director or his designee must, within thirty days following the death of the patient, notify the probate court in the county in which the patient last resided of the death of the patient and provide a list of any property belonging to the patient and held by the department. Upon appointment of a conservator for a patient of a state mental health facility, the director shall deliver any assets of the protected person to the conservator and provide an accounting of the management of those assets.

REPORTER'S COMMENTS

This section was formerly Section 62-5-105 before the 2012 amendment. This section addresses the receipt of assets up to an aggregate of $10,000.00 per year by the Director of the Department of Mental Health for patients of a state mental health facility for whom no conservator has been appointed. If a conservator has been appointed, the assets must be delivered to the conservator.

At the death of the patient, the Director may apply remaining funds to funeral expenses. The director must notify the court of the patient's death and provide a list of assets within thirty days from the date of death. If no personal representative is appointed and contacts the Director within six months of the death, the funds may be applied to the account of the deceased patient.

Section 62-5-105.     If a patient of a state mental health facility has no legally appointed conservator, the Director of the Department of Mental Health or his designee may receive and accept for the use and benefit of that patient a sum of money, not in excess of the sum of ten thousand dollars in one calendar year, which may be due the patient or trainee by inheritance, gift, pension, or otherwise. The director or his designee may act as conservator for the patient and his endorsement or receipt discharges the obligor for the sum received. Upon receipt of these funds the director or his designee shall use it for the proper maintenance, use, and benefit of the patient or as much of the fund as may be necessary for these purposes. In the event the patient dies leaving an unexpended balance of these funds in the hands of the director or his designee, he shall apply the balance first to the funeral expenses of the patient or trainee, and any balance remaining must be held by the director or his designee for a period of six months, and if he is not within this period, contacted by the personal representative of the deceased patient, the balance in the personal fund account must be applied to the maintenance and medical care account of the deceased patient.

Section 62-5-106.     (A)    For purposes of this section, 'incapacitated person' has the meaning set forth in Sections 62-5-101(1) and 62-5-401(2) and does not include a person protected only by reason of his minority.

(B)    Notwithstanding another provision of law, neither a guardianship of an incapacitated person established pursuant to Part 3 of this article or a conservatorship or other protective order for an incapacitated person established pursuant to Part 4 of this article terminates only because the ward or protected person attains the age of majority or other benchmark age.

Part 2

Jurisdiction

Section 62-5-201.     The family courts of this State have jurisdiction over the care, custody, and control of the persons of minors. Jurisdiction of the probate court is set forth in Section 62-1-302 and in Section 62-5-701 as to appointment of a guardian or issuance of a protective order for an adult. The probate court does not have jurisdiction over the care, custody, and control of the persons of minors, but does have jurisdiction over the property of minors.

REPORTER'S COMMENTS

The 2012 amendment to this section clarifies that the probate court has jurisdiction of guardianships and protective proceedings for adults, but only protective proceedings for a minor. The family court has jurisdiction over the person of a minor.

Part 3

Guardians of Incapacitated Persons

Section 62-5-301.     (a)    The parent of an incapacitated person may by will appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given twenty days prior written notice of intention to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.

(b)    The spouse of a married incapacitated person may by will appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given twenty days prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.

(c)    This State shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.

(d)    On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding section of this Part. Subject to the provisions of Sections 62-5-701 et seq., venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is committed to an institution pursuant to an order of a court of competent jurisdiction, venue is also in the county in which that court sits.

REPORTER'S COMMENTS

Prior to the 2012 amendment, Section 62-5-301 was Section 62-5-302.

The Section was amended to include reference to the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (Part 7).

Section 62-5-302.    The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.

(1)    A parent, by will, may appoint a guardian for an unmarried adult child whom the parent believes is an incapacitated person. The testamentary appointment by a parent becomes effective when, after having given twenty days prior written notice of intention to the incapacitated person and any person to whom notice is required under Section 62-5-303(1), the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if both parents are dead or the surviving parent is adjudged incapacitated prior to the will being probated. If both parents are deceased, an effective appointment by the surviving parent has priority over any appointment by the first deceased parent. The denial of probate in formal proceedings terminates a testamentary appointment of guardian under this section.

(2)    An individual, by will, may appoint a guardian for the individual's spouse whom the appointing spouse believes is an incapacitated person. The testamentary appointment by a spouse becomes effective when, after having given twenty days prior written notice of his intention to do so to the incapacitated person and any person to whom notice is required under Section 62-5-303(1), the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over a testamentary appointment by a parent, unless it is terminated by the denial of probate in formal proceedings. The denial of probate in formal proceedings terminates a testamentary appointment of guardian under this section.

(3)    Upon the filing of acceptance of testamentary appointment under a will probated at the testator's domicile in another state, this state shall recognize a testamentary appointment of a guardian effected by the filing of acceptance of appointment in the manner set forth in subsections (1) and (2) in the county in this state in which the incapacitated person resides.

(4)    Upon the filing of written objection to the testamentary appointment by the person for whom a testamentary appointment of guardian has been made or by any person to whom notice is required under Section 62-5-303(1), the appointment is terminated. The filing of written objection to the testamentary applicant shall be with the court in which the will was probated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding section of this Part.

(5)    The appointment of a guardian under this section is not an adjudication of incapacity.

(6)    Upon the testamentary appointment becoming effective, the testamentary guardian shall be deemed to have been appointed by the court and the court shall issue a certificate of appointment to the testamentary guardian who shall have all of the rights, duties and responsibilities of a guardian under this part.

REPORTER'S COMMENTS

Prior to the 2012 amendment, Section 62-5-302 was Section 62-5-301.

Section (1) provides for appointment of a guardian for an unmarried adult child by will of a parent. Notice is required to be given to those to whom notice is required in 62-5-303(1). Because of the presumption that an individual is not incapacitated until proven otherwise, the language of this subsection was amended to assume not the incapacity of the individual, but rather that the parent has a belief that the individual is incapacitated.

Section (2) provides for appointment of a guardian by will of a spouse. Similar changes were made to former Section 62-5-301(B) as were made to former Section 62-5-301(A).

Section (4) allows for the person for whom testamentary appointment is sought, as well as anyone to whom notice was required to be sent, to object to the appointment. If any of those entitled to object do so, the appointment is terminated.

Section (5) and (6) were added to clarify that the appointment of a guardian under this section is not an adjudication of incapacity and that once effective, a guardian appointed under this section is deemed to have the same rights, duties and responsibilities as a guardian appointed through court proceedings under this part.

Section 62-5-303.     (a)    The incapacitated person or a person interested in his welfare may petition for a finding of incapacity and appointment of a guardian.

(b)    Upon the filing and service of the summons and the petition the court shall send a visitor to the place where the allegedly incapacitated person resides to observe conditions and report in writing to the court. The court shall set a date for hearing on the issues of incapacity and unless the allegedly incapacitated person has counsel of his own choice, it shall appoint an attorney to represent him in the proceedings and that attorney shall have the powers and duties of a guardian ad litem. The person alleged to be incapacitated shall be examined by two examiners, one of whom shall be a physician appointed by the court who shall submit their reports in writing to the court. The person alleged to be incapacitated is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon his condition. He is entitled to be represented by counsel, to present evidence including testimony by a physician of his own choosing, to cross-examine witnesses, including the court-appointed examiners. The issue may be determined at a closed hearing if the person alleged to be incapacitated or his counsel so requests.

(1)    An alleged incapacitated person or any person interested in the welfare of the primary respondent may petition the court for a finding of incapacity and, if appropriate, for the appointment of a guardian with limitation or a guardian without limitation for the alleged incapacitated person. The guardianship proceeding is commenced by the filing and service of a summons and verified petition upon the primary respondent and those persons listed in item (2)(d).

(2)    The petition shall set forth, to the extent known or reasonably ascertainable, the following information:

(a)    the interest of the petitioner;

(b)    the name, age, and current address of the primary respondent;

(c)    the physical location of the primary respondent during the six month period immediately preceding the filing of the summons and petition; and, if the primary respondent was not physically present in South Carolina for that period, sufficient information on which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;

(d)    the names and addresses of the following persons whose identity and whereabouts are known or reasonably ascertainable:

(i)     the primary respondent's spouse;

(ii)    the primary respondent's adult children;

(iii)    if there is no spouse or adult child. the primary respondent's parents;

(iv)    if there is no spouse, adult child, or parent, at least one of the primary respondent's adult relatives with the nearest degree of kinship;

(v)    any person known to have been appointed as agent for the primary respondent under a general durable power of attorney or health care power of attorney;

(vi)    any person who under Section 62-5-305 has equal or greater priority for appointment as guardian with the person whose appointment the petition advocates;

(vii)    any person with whom the primary respondent resides outside of a health care facility, group home, homeless shelter, or prison; and

(viii)     any person, other than an unrelated employee or health care worker, who is known or reasonably ascertainable by the petitioner to have materially participated in caring for the primary respondent within the six month period preceding the filing of the petition with the court;

(e)    the name and address of the person whose appointment is sought and the basis of his priority for appointment;

(f)    the reason why guardianship is necessary, including a brief description of the nature and extent of the primary respondent's alleged incapacity;

(g)    whether the petitioner is requesting the appointment of a guardian with limitation or a guardian without limitation and, if a guardian without limitation is requested, the reason why a guardian with limitation is inappropriate; or, if a guardian with limitation is requested, the restrictions sought to be imposed on the primary respondent and the limitations sought to be imposed on the guardian's powers and duties; and

(h)    a general statement of the primary respondent's assets, with an estimate of its value, and the source and amount of any income of the primary respondent.

(3)    Upon the filing of the summons and petition with the court and proof of service of the summons and petition upon the primary respondent, the court must appoint a guardian ad litem for the primary respondent in accordance with Sections 62-5-810 et seq, and the guardian ad litem shall have the duties and responsibilities set forth in Sections 62-5-830. The appointment of a guardian ad litem under this section shall have no effect on the legal capacity of the primary respondent and shall not raise a presumption of incapacity of the primary respondent.

(4)    The primary respondent is not required to be represented by counsel but is entitled to be represented by counsel of his choosing. If the primary respondent is not represented by counsel, then:

(a)    upon the request of the primary respondent, the court may allow the primary respondent to proceed pro se or instruct the guardian ad litem to assist the primary respondent in obtaining counsel; or    

(b)    upon the request of the primary respondent, guardian ad litem, any party, or upon the court's own motion, the court may appoint counsel for the primary respondent. Nothing in this subsection shall be construed to require an attorney to accept an uncompensated appointment. During the pendency of any guardianship proceeding, any attorney purporting to represent the primary respondent shall file a notice of appearance with the court. Fees for counsel retained by a primary respondent who is determined to be incapacitated shall be subject to approval by the court.

(5)    Upon the filing of the summons and petition with the court and proof of service of the summons and petition upon the primary respondent, the court shall appoint an examiner, who shall be a physician, to examine the primary respondent and report to the court the physical and mental condition of the primary respondent. Upon the motion or written request of the guardian ad litem, the primary respondent, any party or on its own motion, the court may appoint one or more additional examiners, who may be a physician or any other person the court determines qualified to evaluate the primary respondent's alleged impairment. If the court appoints any additional examiners, the court shall set out in the order appointing the examiner why an additional examiner is necessary and why the appointed examiner is appropriate to serve in that capacity. Each examiner shall complete a verified report evaluating the condition of the primary respondent and file his original report with the court or deliver the original report to the guardian ad litem, who without undue delay must file the report with the court by the deadline set by the court, but not less than forty-eight hours prior to any hearing in which the report will be introduced as evidence. For good cause, the court may allow admission of an examiner's report filed less than forty-eight hours prior to the hearing. All parties to the proceeding are entitled to copies of examiners' reports. An examiner's report shall evaluate the condition of the primary respondent and shall contain, to the best information and belief of the examiner:

(a)    a description of the nature, type, and extent of the primary respondent's incapacity, including the primary respondent's specific functional impairments;

(b)    a diagnosis and assessment of the primary respondent's mental and physical condition, including a statement as to whether the primary respondent is on any medications that may affect his actions or demeanor;

(c)    where appropriate and consistent with the scope of the examiner's license, an evaluation of the primary respondent's ability to learn self-care skills, adaptive behavior, and social skills and a prognosis for improvement;

(d)    the date or dates of the examinations, evaluations, and assessments upon which the report is based;

(e)    the identity of those persons with whom the examiner met or consulted regarding the primary respondent's mental or physical condition; and

(f)    the signature of the examiner and the nature of any professional license held by the examiner. Unless otherwise directed by the court, in preparing a report for the court, the examiner may rely upon an examination conducted by the examiner within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith or malicious intent, an examiner appointed by the court and performing an examination and submitting a report under this section shall be immune from civil liability for any breach of patient confidentiality made in furtherance of his duties under this section. A report prepared pursuant to this section shall be admissible as evidence of the facts stated therein and the results of the examination or evaluation referred to therein.

(6)    As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties served, the court must hold a hearing on the merits of the petition. The primary respondent, all parties, and any person who has filed a demand for notice pursuant to subsection (7), must be given notice of the hearing as provided in Section 62-1-401. The primary respondent shall attend the hearing, unless excused by the court for good cause. In determining good cause, the court may consider affidavits submitted by the guardian ad litem or any interested persons.

(7)    Any interested person who desires to be notified before any order is made in a guardianship proceeding may file with the court a demand for notice. The court shall mail a copy of the demand to the guardian, if one has been appointed, or to the petitioner, if no guardian has been appointed. A demand for notice is not effective unless it contains a statement indicating the nature of the interest of the person filing the demand, his address or that of his attorney, and is effective only as to matters occurring after the filing of the demand.

(8)    After a hearing, or with the consent of all parties, upon the finding that a basis for the appointment of a guardian has been established as set forth in this section, the court shall make an appointment. A primary respondent represented by counsel may consent through counsel.

REPORTER'S COMMENTS

Section 62-5-303 was significantly revised by the 2012 amendment.

The revised section adds the requirement of a summons and clarifies that a petition must be verified.

The phrase 'any person interest in the welfare of the primary respondent' is intended to be broader than then term 'interested person' defined in 62-1-201. For example, it could include a friend, neighbor, or person residing with the primary respondent.

This section sets out the basic procedure for a finding of incapacity or appointment of a guardian. The section was also amended to provide for both guardianship with limitation and guardianship without limitation.

Section (2) provides detailed requirements for the content of a petition for appointment of conservator or other protective order. While the subsection requires the petitioner to provide only information known to the petitioner, it imposes on the petitioner a duty to engage in a reasonable effort to ascertain the required information. Specifying the required contents of the petition is in accordance with the recommendations of both the Wingspread conference on guardianship reform and the Commission on National Probate Court Standards. See Guardianship: An Agenda For Reform 9 (A.B.A. 1989); National Probate Court Standards, Standard 3.3.1, 'Petition' (1993).

Subsection (2)(g) emphasizes the importance of limited guardianship, the encouragement of which is a major theme of the Act. The petitioner, when requesting an unlimited guardianship, must state in the petition why a limited guardianship would not work. If a limited guardianship is requested, the petition must set out the recommended powers to be granted to the guardian.

A substantive change was made in that the appointment of a visitor is always optional under 62-5-314, but the appointment is no longer required at commencement of the action.

Subsection (3) provides for the appointment of a guardian ad litem, upon the filing and service of the verified petition for a finding of incapacity or appointment of a guardian. While appointment of a guardian ad litem occurs without a preliminary assessment of capacity by the court, the subsection makes it clear the mere appointment of the guardian ad litem does not impact the rights of the person allegedly in need of a guardian and the appointment is not evidence of incapacity.

With this revision, the roles of counsel and guardian ad litem have been separated. A guardian ad litem is required to be appointed in every case. A guardian ad litem must meet the qualifications set forth in Section 62-5-820, but the guardian ad litem is no longer required to be an attorney. If the guardian ad litem is an attorney, that person may not also serve as counsel for the primary respondent.

Subsection (4) provides that the primary respondent is not required to be represented by counsel, but is entitled to be represented by counsel of his own choosing. This subsection sets forth the options of the court when dealing with a primary respondent who is not represented by counsel. This section does not mandate the appointment of counsel, nor is the primary respondent required to be represented by counsel. If the court determines an unrepresented primary respondent should not proceed without counsel, the subsection authorizes the court to appoint counsel for the primary respondent. The subsection also suggests to the court the option of directing the guardian ad litem to assist the person in obtaining counsel. This would be particularly appropriate where the court felt the need for counsel and the person had adequate resources with which to pay counsel. The enhanced duties of the guardian ad litem established by Title 62, Article 5, Part 8, in conjunction with the enhanced qualification for persons acting as guardian ad litem should provide adequate protection of the interests of the person who is the subject of a guardianship proceeding in most cases.

Subsection (5) provides for the appointment of an examiner in connection with a proceeding for a finding of incapacity or appointment of a guardian, establishes the necessary qualification of the person who will serve as an examiner, sets forth the type of report the examiner is to produce, and the time within which the report is to be produced. Unlike prior law, only one examiner is required. A designated examiner, who is a physician, must be appointed. Additional designated examiners may be appointed by the court. The additional examiners may be physicians or any other person the court has determined is qualified to evaluate the primary respondent's alleged impairment. The subsection also clarifies prior law, by establishing the examiner may make his report from information obtained in an examination conducted prior to the examiner's appointment. If the examiner's report references an examination conducted prior to appointment, it must have been conducted within the 90 days immediately preceding the examiner's appointment; otherwise the examination must occur subsequent to the appointment.

Subsection (6) establishes the requirement of a hearing in regard to the petition, provides who must be given notice of the hearing, and the timing of notice. Note that the subsection mandates attendance at the hearing by the primary respondent absent a showing of good cause.

Subsection (7) provides a procedure for interested persons to obtain notice prior to orders being issued in the proceeding.

Subsection (8) establishes the requirement that the court issue an order in response to a petition and clarifies that such an order may arise by consent of all parties.

Section 62-5-304.     (A)(1)    The court shall exercise the authority conferred in this part so as to encourage the development of maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person's mental and adaptive limitations or other conditions warranting the procedure court's order.

(B)    The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person. The court, on appropriate findings, may:

(1)    treat the petition as one for a protective order under Section 62-5-401 and proceed accordingly;

(2)    enter another appropriate order; or

(3)    dismiss the proceeding.

(C)    The court, at the time of appointment or later, on its own motion or on appropriate petition or motion of the incapacitated person or other interested person, may limit the powers of a guardian otherwise conferred by this article and create a limited guardianship. A limitation on the statutory power of a guardian of an incapacitated person must be endorsed on the guardian's letters or, in the case of a guardian by parental or spousal appointment, must be reflected in letters issued at the time a limitation is imposed. Following the same procedure, a limitation may be removed or modified and appropriate letters issued.

(2)    The court may adjudicate the primary respondent as incapacitated only if it finds by clear and convincing evidence that the primary respondent is an incapacitated person as defined in Section 62-5-101. If the primary respondent is adjudicated as incapacitated and the primary respondent's identified needs cannot be met by less restrictive means, the court may appoint a guardian for the primary respondent.

(3)    In an order appointing a guardian, the court may appoint a guardian with limitation or a guardian without limitation.

(4)    The court shall provide a copy of its orders to all parties to the proceeding.

REPORTER'S COMMENTS

Section 62-5-304 was revised by the 2012 amendment to require a finding of incapacity to meet the clear and convincing standard of review. The court is to exercise its authority to encourage maximum self-reliance. Appointment orders are to be made only to the extent necessitated by the incapacitated person's mental and adaptive limitations. The court is to appoint a guardian only if the primary respondent is determined to be incapacitated, by clear and convincing evidence, and if the primary respondent's needs cannot be met by less restrictive means. The section permits the court to consider less restrictive alternatives to guardianship.

Section 62-5-305.     By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary first class mail at his address as listed in the court records and to his address as then known to the petitioner. In appointing a guardian, the court shall consider persons, who are otherwise qualified, in the following order of priority:

(1)    a guardian, other than a temporary or emergency guardian, currently acting for the ward in this State or elsewhere;

(2)    a person nominated to serve as guardian by the primary respondent prior to his incapacity;

(3)    an attorney in fact appointed by the primary respondent pursuant to Section 62-5-501, whose authority includes powers relating to the person of the incapacitated person;

(4)    the spouse of the primary respondent or a person nominated as testamentary guardian in the will of the primary respondent's deceased spouse;

(5)    an adult child of the primary respondent;

(6)    a parent of the primary respondent or a person nominated as testamentary guardian in the will of the primary respondent's deceased parent;

(7)    another relative of the primary respondent;

(8)    a person nominated by the person who is caring for the primary respondent or paying benefits to him.

With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian for the primary respondent. The court, acting in the best interest of the primary respondent, may decline to appoint a person having priority and appoint a person having a lower priority or no priority.

REPORTER'S COMMENTS

Section 62-5-305, formerly Section 62-5-311, was revised by the 2012 amendment to comply with the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (Part 7) giving highest priority to an individual currently serving as guardian. The list of priorities was further amended to allow a spouse to nominate a guardian by will as is allowed for a parent. Also, the court may deviate from the stated priorities if appointment of a proposed guardian, with lower priority, is in the best interests of the ward.

Section 62-5-306.     The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in Section 62-5-307. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward. (A)    Notwithstanding an adjudication of incapacity or the appointment of a guardian, and unless otherwise ordered by the court, every ward retains the following rights:

(1)    the right to a guardian who acts in the best interest of the ward;

(2)    the right to a guardian who is reasonably accessible to the ward;

(3)    the right to have the ward's property utilized to provide adequately for the ward's support, care, education, health, and welfare;

(4)    the right to communicate freely and privately with persons other than the guardian;

(5)    the right to a reasonably accessible telephone or similar communication device;

(6)    the right to meet or otherwise communicate with legal counsel outside the presence of the guardian;

(7)    the right to notify the court that the ward is being unjustly denied a right or privilege retained under or granted by this section or ordered by the court. Any person who knowingly interferes with transmission of this type of notification to the court may be adjudicated guilty of contempt.

(8)    the right to request re-adjudication of incapacity as set forth in Section 62-5-311(3); and

(9)    the right to the least restrictive form of guardianship and living environment practicable, taking into consideration the ward's functional limitations, personal needs, and identifiable preferences.

(B)    Unless an order of the court specifies otherwise, a finding of incapacity or the appointment of a guardian is not a determination that the ward lacks testamentary capacity or the capacity to create, amend or revoke a revocable trust.

REPORTER'S COMMENTS

Section 62-5-306 is a new section added by the 2012 amendment which lists the rights retained by the ward, unless otherwise ordered by the court. The section also addresses the common law rule that a finding of incapacity is not a determination that the ward lacks testamentary capacity.

Section 62-5-307.    (a)    After service of the summons and petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept his resignation and make any other order which may be appropriate.

(b)    An order adjudicating or readjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward may make a request for an order from the court that he is no longer incapacitated, and for removal of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.

(c)    Before acting upon any such petition or request, the court shall send a visitor to the residence of the present guardian and to the place where the ward resides or is detained to observe conditions and report in writing to the court. After reviewing the report of the visitor, the court may order termination of the ward's incapacity or a hearing following the procedures set forth in Section 62-5-303.

(A)    Unless the court's order specifies otherwise, an adjudication of incapacity or the appointment of a guardian without limitation shall remove from the ward the following rights and powers:

(1)    the right to marry;

(2)    the right to reside in a place of the ward's choosing;

(3)    the right to travel without the consent of the guardian;

(4)    except as otherwise provided in Section 62-5-306(A)(7) and (8), the right to bring or defend any action at law or equity;

(5)    the power to make, modify, or terminate contracts;

(6)    the power to refuse or consent to medical treatment.

(B)    Upon appointment of a guardian with limitation the court must set forth in the order which rights enumerated in the section are retained by the ward and which are removed from the ward.

(C)    Unless the court's order specifies otherwise, the appointment of a guardian suspends the authority of an agent who was previously appointed by the ward to act as an agent under a durable power of attorney for health care or other advance medical directive. The suspension of the authority of an agent does not abrogate any other directives included in a properly executed advance medical directive.

REPORTER'S COMMENTS

Section 62-5-307 is a new section added by the 2012 amendment that lists the rights which are lost when guardianship without limitation or full guardianship is sought. The court may specify that some or all of these rights are retained even in a guardianship without limitation, but the rights are lost if the court does not specify the rights are retained. For limited guardianship, the court must list the specific rights which are lost. For example, an individual may not have the capacity to understand his health care needs to the extent necessary to consent to treatment, but he may be able to understand and appreciate the benefits of one living arrangement over another. In that circumstance, a ward may lose the right to make health care decisions but may maintain the right to make decisions about where he resides.

Section 62-5-308.     A visitor is, with respect to guardianship proceedings, a person who is trained in law, nursing, or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings. By accepting appointment, a guardian submits personally to the jurisdiction of the court in any informal or formal proceeding relating to the guardianship that may be instituted by any interested person. However, all formal proceedings instituted by interested persons are governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.

REPORTER'S COMMENTS

Prior to the 2012 amendment, Section 62-5-308 was Section 62-5-305. The notice provisions under the previous section 62-5-305 were moved to section 62-5-303.

Section 62-5-309.     (A)    In a proceeding that is properly commenced by filing and service of the summons and petition for the appointment or removal of a guardian of an incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, the following persons must be properly served:

(1)    the ward or the person alleged to be incapacitated and his spouse, parents, and adult children;

(2)    a person who is serving as his guardian, conservator, or attorney in fact under a durable power of attorney pursuant to Section 62-5-501 or who has his care and custody;

(3)    if no other person is notified under item (1), at least one of his closest adult relatives, if one can be found.

(B)    Notice of hearing must be given as provided in Section 62-1-401. Waiver of notice by the person alleged to be incapacitated is not effective unless he attends the hearing or his waiver of notice is given by his attorneys or, in proceedings for removal, confirmed in an interview with the visitor, which may be done at any time. Representation of the alleged incapacitated person by a guardian ad litem is not necessary. Any guardian ad litem, attorney, examiner, visitor or guardian appointed in a guardianship proceeding is entitled to reasonable compensation from the ward's estate, as determined by the court. In addition, the court has discretion to award, from the ward's estate, reasonable fees and expenses to attorneys involved in the proceeding resulting in an adjudication of incapacity, the appointment of a guardian, or a protective order concerning the primary respondent.

REPORTER'S COMMENTS

Section 62-5-309 is a new section added by the 2012 amendment explaining how appointees are to be compensated and allowing attorneys to be compensated from the estate of the ward. This change is in response to the decision in Dowaliby v. Chambless, 544 S.E.2d 646 (S.C.App. 2001), and is intended to provide a statutory basis for the court, in its discretion, to award attorney's fees, to be paid from the ward's estate, to attorneys involved in the proceeding.

Section 62-5-310.     (A)    If the court makes emergency preliminary findings that:

(1)    a physician has certified to the court, orally or in writing, that the person is incapacitated;

(2)    no guardian has been appointed previously; and

(3)    the welfare of the incapacitated person requires immediate action; then the court, with or without petition or notice, may appoint a temporary guardian for a specified period not to exceed six months in accordance with the priorities set out in Section 62-5-311.

(B)    If the court makes emergency preliminary findings that:

(1)    the appointed guardian or temporary guardian is not effectively performing his duties; and

(2)    the welfare of the allegedly incapacitated person requires immediate action, then the court may appoint, with or without petition or notice, a temporary guardian for a specified period not to exceed six months in accordance with the priorities set out in Section 62-5-311.

(C)(1)    The court may itself exercise the power of temporary guardian, with or without petition or notice, if the court makes emergency preliminary findings that either no person appears to have authority to act on behalf of the incapacitated person or more than one person is authorized to make health care decisions for the incapacitated person, and these authorized persons disagree on whether certain care must be provided and:

(a)    the person has been adjudicated as being incapacitated, or a physician has certified to the court, orally or in writing, that the person is incapacitated; and

(b)    an emergency exists.

(2)    For health care purposes, 'emergency' means that a delay caused by (i) further attempts to locate a person authorized to make health care decisions or (ii) proceedings for appointment of a guardian would present a serious threat to the life, health, or bodily integrity of the incapacitated person.

(D)    If a temporary guardian is appointed without petition or notice under this section, a hearing to review the appointment must be held after petition and notice and within thirty days after the appointment of the temporary guardian.

(E)    A temporary guardian is entitled to the care and custody of the ward and the authority of a permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make reports the court requires. In other respects the provisions of law concerning guardians apply to temporary guardians.

(F)    A hearing concerning the need for appointment of a permanent guardian must be a hearing de novo as to all issues before the court. The authority and responsibility of a guardian for a ward terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation of the guardian as provided in Section 62-5-311. Termination does not affect the guardian's liability for prior acts or his obligation to account for funds and assets of his ward. Upon the death of the ward, the guardian shall file a certified copy of the ward's death certificate with the court having continuing jurisdiction over the ward within sixty days of the ward's death and, upon receipt, the court must issue a termination of appointment. Before the termination of the guardian's appointment, the court may require from the guardian an accounting of any assets held by the guardian on behalf of the ward.

REPORTER'S COMMENTS

Prior to the 2012 amendment Section 62-5-310 was Section 62-5-306. The last two sentences were added to previous Section 62-5-306 to create a procedure for notice to the court if the ward dies. In such event, the court may require an accounting for any assets held by the guardian.

Section 62-5-311.     (A)    Any competent person or a suitable institution may be appointed guardian of an incapacitated person.

(B)    Subject to a finding of good cause by the court, persons who are not disqualified have priority for appointment as guardian in the following order:

(1)    a person nominated to serve as guardian by the incapacitated person;

(2)    an attorney in fact appointed by the incapacitated person pursuant to Section 62-5-501, whose authority includes powers relating to the person of the incapacitated person;

(3)    the spouse of the incapacitated person. A person who claims to be a common law spouse of the incapacitated person has the burden of proving that status in order to qualify for appointment as a guardian under this provision. A decision by the probate court regarding the status of a common law spouse is for the purpose of guardianship appointment proceedings only and is not binding in any other court of law or in any administrative proceeding;

(4)    an adult child of the incapacitated person;

(5)    a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(6)    another relative of the incapacitated person;

(7)    a person nominated by the person who is caring for him or paying benefits to him.

(1)    Upon the filing of a summons and petition, and service upon the primary respondent, the guardian, and other parties set forth in Section 62-5-303(2)(d), the ward or any person interested in his welfare may file a summons and petition for the removal of a guardian and, if necessary, appointment of a successor guardian. If the court determines that it is in the best interests of the ward, the court may remove the guardian and, if necessary, appoint a successor guardian.

(2)(A)    If co-guardians are appointed by the court, one of the co-guardians may resign by filing a statement of resignation and, upon filing, the court may informally confirm the appointment of the remaining co-guardian as sole guardian for the ward or the court may, in its discretion, require the commencement of a formal proceeding under Section 62-5-303.

(B)    If no co-guardian is then serving, a guardian seeking to resign must file a summons and petition for discharge and appointment of a successor guardian. Upon the filing of a summons and petition by the guardian and service upon the primary respondent and other parties set forth in Section 62-5-303(2)(d), the court may accept the resignation of the guardian and make any other order which may be appropriate. Resignation of a guardian is not effective until a successor is appointed and has qualified.

(3)(A)    A request for an order readjudicating incapacity may be made by informal letter to the court by the guardian or the ward. Any person who knowingly interferes with the transmission of this type of request to the court or judge may be adjudged guilty of contempt. The court may issue an order specifying a minimum period, not exceeding one year, during which no petition for re-adjudication that the ward is no longer incapacitated may be filed without special leave of the court. Subject to this restriction, the ward or the guardian may petition or make a request for an order from the court that the ward is no longer incapacitated and for termination of the guardianship.

(B)    Before acting upon any such petition or request, the court shall send a guardian ad litem to the place where the ward resides or is detained to observe conditions and report in writing to the court. After reviewing the report, the court may order the termination of the ward's incapacity solely on the basis of the guardian ad litem's report or require the filing of a summons and petition for discharge and termination of the guardianship following the procedures set forth in Section 62-5-303. The court may issue an interim order, for a period not to exceed ninety days, regarding the care of the ward until a hearing is held and a final order is issued.

Reporter's Comments

Prior to the 2012 amendment, Section 62-5-311 was Section 62-5-307. The section was reorganized for clarity and amended to require a summons and petition and allow for an interim order pending a hearing and final order.

Section 62-5-312.     (a)    A guardian of an incapacitated person has the same powers, rights, and duties respecting his ward that a parent has respecting his unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court:

(1)    to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, he is entitled to custody of the person of his ward and may establish the ward's place of abode within or without this State.

(2)    If entitled to custody of his ward he shall make provision for the care, comfort, and maintenance of his ward and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of his ward is in need of protection.

(3)    A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service.

(4)    If no conservator for the estate of the ward has been appointed or if the guardian is also conservator, he may:

(i)     institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;

(ii)    receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but, he may not use funds from his ward's estate for room and board or services which he, his spouse, parent, or child have furnished the ward unless a charge for the services and/or room and board is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.

(5)    A guardian is required to report the condition of his ward and of the estate which has been subject to his possession or control, as required by the court or court rule, but at least on an annual basis.

(6)    If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this Code, and the guardian must account to the conservator for funds expended.

(b)    Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

(1)    The procedure for appointment of a temporary guardian with notice is as follows:

(A)    In the case of a person who has no guardian or temporary guardian:

(i)     following the filing of a summons and verified petition for appointment of guardian and service upon the primary respondent, any party may move the court for an order appointing a temporary guardian for the primary respondent;

(ii)    unless made during a hearing in open court, the motion shall be in writing, and shall state with particularity:

(a)    the name and address of the proposed temporary guardian and that person's relationship to the primary respondent;

(b)    to the extent known or reasonably ascertainable, those persons whose priority for appointment under Section 62-5-305 are higher than the priority of the proposed temporary guardian; and

(c)    why the appointment of a temporary guardian is necessary for the welfare of the primary respondent.

(B)    In the case of a person for whom a guardian or temporary guardian has previously been appointed, and that appointment has not been terminated through an adjudication of capacity:

(i)     any party may move the court for an order appointing a temporary guardian for the ward;

(ii)    unless made during a hearing in open court, the motion shall be in writing and shall state with particularity:

(a)    the name and address of the proposed temporary guardian and that person's relationship to the ward;

(b)    to the extent known or reasonably ascertainable, those persons whose priority for appointment under Section 62-5-305 are higher than the priority of the proposed temporary guardian;

(c)    why the current guardian or temporary guardian cannot or is not adequately fulfilling the guardian's duties to the ward; and

(d)    why the appointment of a temporary guardian is necessary for the welfare of the ward.

(C)    As soon as practicable after the filing of a motion for appointment of temporary guardian, the court shall set a hearing on the motion.

(D)    Notice of the hearing on the motion as provided in Section 62-1-401 must be given to the ward or primary respondent, and those persons listed in Section 62-5-303(2)(d).

(E)    At or following the hearing convened for the purpose of considering the appointment of a temporary guardian, the court may appoint a temporary guardian for a ward or primary respondent, if the court makes findings that:

(i)     no guardian has been appointed for the primary respondent or the guardian or temporary guardian for a ward is not effectively performing his duties;

(ii)    in the case of a person for whom there has been no adjudication of incapacity, a physician has certified to the court, orally or in writing, that the person is incapacitated; and

(iii)    the welfare of the ward or primary respondent requires immediate action.

(F)    An order appointing a temporary guardian shall:

(i)     set forth the duration of the appointment; which, except for good cause shown, shall not exceed six months;

(ii)    set forth a concise statement of the evidence submitted at the hearing;

(iii)    set forth the findings required under item (1)(E);

(iv)    state the reason temporary guardianship is necessary for the welfare of the primary respondent or ward; and

(v)    set forth whether the appointment is of a temporary guardian with limitation or a temporary guardian without limitation; and, if a temporary guardian with limitation, the powers and duties of the guardian.

(G)    To the extent practicable and consistent with the urgency of the needs of the primary respondent or ward, in appointing a temporary guardian the court shall consider persons, who are otherwise qualified, in the same order of priority it does in appointments of guardians under Section 62-5-305.

(2)    The procedure for the emergency appointment of a temporary guardian is as follows:

(A)    any person interested in the welfare of a ward or primary respondent, may file a motion for the emergency appointment of a temporary guardian;

(B)    upon receipt of the motion, the court may issue an order ex parte or schedule a hearing with such notice as the court may prescribe, all as the interests of justice and the needs of the ward or primary respondent require;

(C)    no order appointing a temporary guardian for a ward or primary respondent shall issue except as provided in Section 62-3-312(1), unless (i) the subject of the motion has previously been adjudicated incapacitated or (ii) a physician has certified to the court, orally or in writing, that in that physician's opinion the person is incapacitated, and it clearly appears from specific facts, shown by affidavit or by a verified petition for appointment of guardian, that an emergency exists;

(D)    an emergency order appointing a temporary guardian shall be endorsed with the date of issuance, filed in the record of the case, and served, together with a summons and verified petition for appointment of guardian, in the event no summons and verified petition have previously been served in the action and no guardian has previously been appointed, upon the ward or primary respondent, and those persons required to receive notice of a summons and petition for guardianship under Section 62-5-303;

(E)    an emergency order appointing a temporary guardian must state the nature of the emergency, and, if no notice was required, state the reason the order was granted without notice;

(F)    An emergency order appointing a temporary guardian shall expire by its terms within such time after entry, not to exceed thirty days, as the court fixes, unless within the time so fixed in the order, for good cause shown, the order is extended for a like period. The reasons for the extension shall be set forth in the order granting the extension;

(G)    on two days' notice to the party who obtained the emergency order appointing a temporary guardian, or upon shorter notice to that party as the court may prescribe, the primary respondent, ward, or any party opposed to the order may appear and move its dissolution or modification, and in that event, the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require;

(H)    unless limited by the court, an emergency temporary guardian has the powers and duties of a guardian without limitation;

(3)    The court may exercise the powers of temporary guardian, with or without petition or notice, if the court makes findings that:

(A)    no person appears to have authority to act on behalf of a person or more than one person is authorized to make health care decisions for the person, and these authorized persons disagree on whether certain care must be provided;

(B)    the person has been adjudicated as being incapacitated, or a physician has certified to the court, orally or in writing, that the person is incapacitated; and

(C)    an emergency exists.

(4)    For purposes of this section, 'emergency' means:

(A)(i)     no person appears to have authority to act on behalf of a ward or primary respondent;

(ii)     the guardian is not adequately fulfilling the guardian's duties to the ward;

(iii)     the agent acting pursuant to a durable power of attorney authorizing the agent to make health care decisions is not adequately fulfilling the agent's duties to the principal; or

(iv)    more than one person is authorized to make health care decisions for the person, and those authorized persons disagree on whether certain care will or will not be     provided; and

(B)    the delay associated with further attempts to locate a person authorized to make health care decisions for the person, to resolve a dispute between multiple persons authorized to act for the person, or to comply with the procedures set forth in subsection (1) would present a serious threat to the life, health, or bodily integrity of the ward or primary respondent.

(5)    The authority of a permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make any reports that the court requires. In general the provisions of law concerning guardians apply to temporary guardians.

(6)    A hearing concerning the need for appointment of a permanent guardian must be a hearing de novo as to all issues before the court.

REPORTER'S COMMENTS

Prior to the 2012 amendment, Section 62-5-312 was Section 62-5-310. The section provides for three possibilities: (1) a temporary guardian can be appointed after notice and a hearing, (2) if there is an emergency, a temporary guardian can be appointed ex parte, or (3) the court may act as a guardian in an emergency. All three procedures require the filing of a summons and petition. A temporary appointment requires proof that it is necessary for the welfare of the primary respondent or ward. An emergency appointment requires a finding that an emergency exists. Emergency is defined in the section and means that not only is there not someone acting on behalf of the ward or primary respondent's best interest, but also that delay would present a serious threat to the life, health, or bodily integrity of the ward or primary respondent. The emergency order is not to exceed 30 days unless the court finds, for good cause shown, that the order should be extended. A hearing on the need for appointment of a permanent guardian must be a de novo hearing on all issues before the court.

Section 62-5-313.     (a)    The court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, has jurisdiction over resignation, removal, accounting, and other proceedings relating to the guardianship.

(b)    If the court which appointed the guardian, or in which acceptance of appointment is filed, being the court in which proceedings subsequent to appointment are commenced, determines that the proceedings more appropriately belong in the court located where the ward resides, the first court shall notify the other court, in this or another state, and after consultation with the other court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

(1)    Except as otherwise limited by the court, a guardian shall:

(a)    make decisions regarding the ward's health, education, maintenance and support;

(b)    exercise authority only as necessitated by the ward's limitations and, to the extent possible, encourage the ward to participate in decisions, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs;

(c)    consider the expressed desires and personal values of the ward to the extent known to or reasonably ascertainable by the guardian;

(d)    act in the ward's best interest and exercise reasonable care, diligence, and prudence;

(e)    become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward's capacities, limitations, needs, opportunities, and physical and mental health;

(f)    take reasonable care of the ward's personal effects and bring protective proceedings if necessary to protect the property of the ward;

(g)    expend money of the ward that has been received by the guardian for the ward's current needs for health, education, maintenance and support;

(h)    conserve any excess money of the ward for the ward's future needs; provided, however, if a conservator has been appointed for the estate of the ward, the guardian immediately shall pay the ward's money and deliver the ward's property to the conservator;

(i)        immediately notify the court if the ward's condition has changed to the extent that the ward is capable of exercising rights previously removed; and

(j)     inform the court of any change in the ward's custodial dwelling or address.

(2)    Except as otherwise provided by law or by the court, a guardian shall have the following powers:

(a)    The guardian shall make decisions regarding the ward's health, education, maintenance and support.

(b)    A guardian of a ward has the same powers, rights, and duties respecting the ward that a parent has for an unemanicipated minor child, except that a guardian is not liable to third persons for acts of the ward nor is the guardian financially responsible for the ward solely by reason of his appointment as guardian. If a ward is in a facility licensed by the Department of Health and Environmental Control, the guardian is not responsible for placement in another facility or for providing care for the ward in the home of the guardian; however, the guardian is responsible for determining that the ward is receiving adequate and appropriate care and must cooperate in identifying alternative placement, if necessary, to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to the detention or commitment of the ward.

(c)    A guardian is entitled to custody of the person of his ward and may establish the ward's place of residence within this state. The guardian may establish the ward's place of residence outside of this state upon express authorization of the court and in accordance with the provisions of Section 62-5-714.

(d)    A guardian shall take reasonable care of his ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of the ward is in need of protection.

(e)    A guardian may give any consents, denials, or approvals that may be necessary to enable the ward to receive or refuse to receive medical or other professional care, counsel, treatment, or service, including institutional care. If there is no conservator and placement or care of the ward requires the execution of an admission agreement or other documents for the ward's placement in a facility, the guardian may execute such documents on behalf of the ward, without incurring personal liability as to the placement or care of the ward.

(f)    If no conservator for the estate of the ward has been appointed, the guardian may:

(i)     apply for and institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such duty;

(ii)    receive money and tangible property deliverable to the ward up to an aggregate sum of ten thousand dollars per calendar year and apply the money and property for support, care, and education of the ward. However, he may not use funds from his ward's estate for room and board or services which the guardian or the guardian's spouse, parent, or child have furnished the ward unless approved by application to the court after notice to at least one next of kin of the ward who has no interest in the application for approval. The court may approve or decline to approve any application for approval or in its discretion require the commencement of a formal proceeding for approval. A guardian must exercise care to conserve any excess funds for the ward's needs. If a guardian receives money or tangible property deliverable to the ward, he must account to the court for the receipt and disbursement of the property annually and, if the amount held exceeds the sum of ten thousand dollars, he must petition for the appointment of a conservator for the ward.

(g)    If reasonable under all of the circumstances, a guardian may delegate to the ward certain responsibilities for decisions affecting the ward's well-being.

(h)    A guardian, by a properly executed special durable power of attorney, may delegate to another person, for a period not to exceed sixty days, any of his powers regarding the care and custody of the ward. The original power of attorney must be filed with the court having jurisdiction over the guardianship.

(3)(a)    A guardian is entitled to reasonable compensation for services as guardian and to reimbursement for room, board, clothing, and other reasonable and proper expenses for the benefit of the ward, but only after application to the court for approval and notice to at least one next of kin of the ward who has no interest in the application for approval. The court may approve or decline to approve any application for approval or in its discretion require the commencement of a formal proceeding for approval. If a conservator, other than the guardian or one who is affiliated with the guardian, has been appointed for the estate of the ward, reasonable compensation and reimbursement to the guardian may be approved and paid by the conservator without order of the court.

(b)    A guardian who exercises reasonable care in choosing a third person providing medical or other care, treatment, or service for the ward is not liable for injury to the ward resulting from the wrongful conduct of the third person.

(4)    A guardian is required to report in writing the condition of his ward and of the ward's estate that has been subjected to the guardian's possession or control, as required by the court or court rule, but at least on an annual basis. The court shall receive and review the annual reports.

REPORTER'S COMMENTS

Prior to the 2102 amendment, Section 62-5-313 was Section 62-5-312. The section was amended to be consistent with the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (Part 7).

The duties of the guardian are listed under subsection (1) and pursuant to subsection (4) include a report to be made to the court as the court requires, but at least annually. The guardian is to become or remain knowledgeable about the condition of the ward, to consider the ward's expressed desires and values in making decisions, to encourage the ward to regain independence, and to perform other duties specifically listed.

Each court is encouraged to establish a system for monitoring guardianships, which would include, but not be limited to, mechanisms for assuring that annual reports are timely filed and reviewed. An independent monitoring system is crucial for a court to adequately safeguard against abuses in the guardianship cases. Monitors can be paid court personnel, court appointees or volunteers. For a comprehensive discussion of the various methods for monitoring guardianships, see Sally Balch Hurme, Steps to Enhance Guardianship Monitoring (A.B.A. 1991).

The National Probate Court Standards also provide for the filing of reports and procedures for monitoring guardianships. See National Probate Court Standards, Standards 3.3.14 'Reports by the Guardian,' and 3.3.15 'Monitoring of the Guardian' (1993). The National Probate Court Standards additionally contain recommendations relating to the need for periodic review of guardianships and sanctions for failures of guardians to comply with reporting requirements. See National Probate Court Standards, Standards 3.3.16 'Reevaluation of Necessity for Guardianship,' and 3.3.17 'Enforcement.'

The guardian has authority to make decisions on behalf of the ward, unless otherwise provided by law or the court. The section was amended to make it clear that the guardian is not financially responsible for the ward solely by reason of appointment as a guardian. The guardian is not required to provide care for the ward in the guardian's home. If the ward is in a facility licensed by DHEC, then the guardian does not have to place the ward in another facility, but does have to ensure that the ward is receiving adequate and appropriate care.

The guardian may receive money and tangible property deliverable to the ward up to an aggregate sum of $10,000 per calendar year and apply the money for the support, care, and education of the ward. If the cumulative amount exceeds $10,000, then the guardian must petition for the appointment of a conservator for the ward.

If reasonable to do so, the guardian may delegate responsibility for certain decisions to the ward. Also, for a period not to exceed sixty days, the guardian may delegate the care and custody of the ward under a properly executed special durable power of attorney. The original power of attorney must be filed with the court.

Subsection (3) provides that the guardian is entitled to reasonable compensation for services as guardian and reimbursement for expenses provided on behalf of the ward. The amount determined to be reasonable may vary from state to state and from one geographical area to another within a state. In addition, factors to be considered by the court in setting compensation will vary. Court approval is required unless a conservator, not affiliated with the guardian, has been appointed. Also, if the guardian exercises reasonable care in choosing a third person to provide care or services on behalf of the ward, the guardian is not liable for the wrongful conduct of the third person. The guardian is liable only if personally at fault.

Section 62-5-314.    At any time during a guardianship proceeding, the court may appoint a visitor to carry out the investigation as the court directs, including meeting with the primary respondent or ward and with the guardian, if a guardian has previously been appointed, conducting interviews, observing conditions, and reporting back in writing to the court as the court so directs. A copy of the reports must be promptly provided by the visitor to all parties.

REPORTER'S COMMENTS

Prior to the 2012 amendment, Section 62-5-314 was section 62-5-308. A visitor is defined in Section 62-5-101 (23). A visitor is not required in a guardianship proceeding, but the court may appoint a visitor at any time during the proceedings.

Section 62-5-315.     (1)    The court which appointed the guardian, or in which acceptance of a testamentary appointment has been filed, has jurisdiction over resignation, removal, accounting, modification, and other proceedings relating to the guardianship. The court which appointed the guardian must maintain jurisdiction over the guardianship until such time as:

(A)    the proceeding is terminated pursuant to Section 62-5-310, termination of guardianship at death of ward;

(B)    the proceeding is terminated pursuant to Section 62-5-311(3), termination of incapacity;

(C)     there is a completed transfer of the proceeding to another county's jurisdiction pursuant to subsection (2); or

(D)     there is a completed transfer of the proceedings to another state pursuant to Section 62-5-714.

(2)    If the court which appointed the guardian, or in which acceptance of appointment is filed, being the court in which proceedings subsequent to appointment are commenced, determines that the proceedings more appropriately belong:

(A)    in another county of this state, the first court shall notify the other court and, after consultation with the other court, determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever shall be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed; or

(B)    in another state, the first court shall follow the procedures set forth in Section 62-5-714.

REPORTER'S COMMENTS

Prior to the 2012 amendment Section 62-5-315 was previously section 62-5-313. The section was amended to provide consistency with the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (Part 7). A case may be transferred if it is in the ward's best interest to do so.

Part 4

Protection of Property of Persons Under Disability and Minors

Section 62-5-401.     After service of the summons and petition and notice of hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:

(1)    Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by his minority, or that funds are needed for his support and education and that protection is necessary or desirable to obtain or provide funds.

(2)    Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that (i) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and (ii) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds.

Subject to the provisions of Section 62-5-701 et seq., venue for proceedings under this part is:

(1)    in the county in this State where the primary respondent resides, whether or not a guardian has been appointed in another place; or

(2)    if the primary respondent does not reside in this State, in any county in this State where the primary respondent has property or has the right to take legal action.

REPORTER'S COMMENTS

This section consolidates venue for protective proceedings under Part 4. While the venue provisions are generally consolidated in this section, the section makes it clear that venue is subject to the provisions of the South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act (Part 7).

Section 62-5-402.     After the service of the summons and petition in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the probate court in which the summons and petition are filed has:

(1)    exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;

(2)    exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this State must be managed, expended, or distributed to or for the use of the protected person or any of his dependents; and

(3)    concurrent jurisdiction to determine the validity of claims for or against the person or estate of the protected person except as limited by Section 62-5-433.

(1)    Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor, if the court determines that: (i) a minor owns money or property that requires management or protection that cannot otherwise be provided, (ii) has or may have business affairs that may be jeopardized or prevented by his minority, or (iii) funds are needed for the health, education, maintenance, and support of the minor and a protective order is necessary or desirable in order to obtain or provide such funds.

(2)    Upon the filing of a summons and petition for appointment of a conservator or other protective order based upon minority, the summons and the petition shall be served upon the minor, the minor's living parents whose identity and whereabouts are known or reasonably ascertainable, and the person or persons having custody of the minor. After the time has elapsed for the filing of a response to the petition as to all parties served, the court may schedule a hearing on the matters alleged in the petition or, if the court is satisfied that the interests of the minor have been or will be adequately protected, the court may issue an order without the necessity of a hearing. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint a guardian ad litem for the minor, with the duties and responsibilities set forth in Section 62-5-830.

(3)    If a minor is receiving needs-based government benefits, including, but not limited to, Supplemental Security Income or Medicaid, the court may limit access to the funds for the minor's benefit to prohibit payment of those expenses that would be considered support by the Social Security Administration including, but not limited to, food and shelter expenses.

(4)    If prior to termination of a conservatorship based upon minority only, an interested person files a summons and petition for appointment of a conservator or other protective order under Section 62-5-403, the minor's conservatorship shall not be terminated until the petition is heard by the court.

REPORTER'S COMMENTS

This section sets out the basic procedure for the appointment of a conservator or entry of another protective order by reason of minority. This section is not applicable to actions involving minors who are also incapacitated; Section 62-5-403 is applicable to those cases. While the section requires service on the minor and others, after the time for response to the petition has expired, the section allows for the appointment of a conservator or other protective order without the necessity of a formal hearing. Subsection 3 of this section was added to enable the court to structure the assets of a minor so as not to interfere with any needs based government benefits to which the minor may be entitled to. Further, while a conservatorship solely by reason of minority would terminate when the protected person attains the age of majority, subsection 4 allows for the conservatorship to be continued past majority, if a petition for conservatorship or other protective order under Section 62-5-403 is pending when the minor attains majority.

Section 62-5-403.     Venue for proceedings under this part is:

(1)    In the place in this State where the person to be protected resides whether or not a guardian has been appointed in another place; or

(2)    If the person to be protected does not reside in this State, in any place where he has property.

(A)    Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if:

(1)    the court determines, by a preponderance of the evidence, the person is incapacitated or is unable to manage his property or affairs effectively for reasons of confinement, detention by a foreign power, or disappearance; and

(a)    the person has an agent under a durable power of attorney and the actions necessary to prevent waste or dissipation of the person's property are not being adequately performed by the agent under the durable power of attorney or are beyond the authority of the agent under the durable power of attorney; or

(b)    the person has no agent under a durable power of attorney and the person has property which will be wasted or dissipated or funds are needed for the health, education, maintenance or support of the person or for those entitled to be supported by the person and protection is necessary or desirable in order to obtain or provide such funds; and

(2)    the court determines, by a preponderance of the evidence, a protective order is necessary or desirable to create a special needs trust for a person who is disabled in accordance with Social Security Administration guidelines.

(B)    An alleged incapacitated person or any person interested in the estate, affairs, or welfare of the primary respondent may petition the court for the appointment of a conservator or for other appropriate protective order. A protective proceeding is commenced by the filing and service of a summons and verified petition for appointment of a conservator or other protective order, for reasons other than minority, upon the primary respondent and those persons listed in subsection (C)(4) of this section.

(C)    The petition shall set forth, to the extent known or reasonably ascertainable, the following information:

(1)    the interests of the petitioner;

(2)    the name, age, and current address of the primary respondent; and

(3)    the physical location of the primary respondent during the six month period immediately preceding the filing of the summons and petition, and, if the primary respondent was not physically present in South Carolina for that period, sufficient information on which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;

(4)    the names and addresses of the following persons:

(a)    the primary respondent's guardian, if any;

(b)    the primary respondent's spouse;

(c)    the primary respondent's adult children;

(d)    if there is no spouse or adult child, the primary respondent's parents;

(e)    if there is no spouse, adult child or parents, the primary respondent's nearest adult relative;

(f)    any person known to have been appointed as agent for the primary respondent under a general durable power of attorney or a health care power of attorney;

(g)    any person whose priority for appointment as conservator under Section 62-5-408 is equal to or greater than the priority for appointment of the person whose appointment the petition advocates;

(h)    any person with whom the primary respondent resides outside of a health care facility, group home, homeless shelter, or prison; and

(i)     if the conservatorship is for the purpose of receiving veterans' benefits, the Secretary of the Department of Veterans' Affairs;

(5)    a general statement of the primary respondent's assets with an estimate of its value, and the source and amount of any income, insurance, pension, or allowance to which the primary respondent is entitled;

(6)    the reason why appointment of a conservator or other protective order is necessary, including a brief description of the nature and extent of the primary respondent's alleged incapacity; and

(7)    if the appointment of a conservator is requested, the name and address of the person whose appointment is sought, the basis of his priority for appointment, and any limitations or restrictions sought to be imposed on the conservator's powers and duties.

(D)    Upon the filing of the summons and petition with the court and proof of service of the summons and petition upon the primary respondent, the court must appoint a guardian ad litem for the primary respondent in accordance with Part 8, Article 5, Title 62, and the guardian ad litem shall have the duties and responsibilities set forth in Part 8, Article 5, Title 62. Unless otherwise ordered by the court, the appointment of a guardian ad litem under this section will not affect the rights of the primary respondent and will not raise a presumption of incapacity of the primary respondent.

(E)(1)    The primary respondent is entitled to retain counsel of his or her choosing. If the primary respondent is not represented by counsel, then:

(i)        the court may allow the primary respondent to proceed pro se or shall instruct the guardian ad litem to assist the primary respondent in obtaining counsel; or

(ii)    upon the request of the guardian ad litem, the primary respondent, any party, or upon the court's own motion, the court may appoint counsel for the primary respondent.

(2)    This subsection shall not be construed to require an attorney to accept an uncompensated appointment. During the pendency of any protective proceeding, any attorney purporting to represent the primary respondent shall file a notice of appearance with the court. Attorney's fees for counsel appointed under this section shall be subject to approval by the court.

(F)    Except in cases governed by Section 62-5-431, relating to veterans' benefits, upon the filing of the summons and petition with the court in which the petitioner alleges the primary respondent is incapacitated and proof of service of the summons and petition upon the primary respondent, the court must appoint an examiner, who shall be a physician, to examine the primary respondent and report to the court the physical and mental condition of the primary respondent. Upon motion or written request of the guardian ad litem, the primary respondent, any interested party, or upon the court's own motion, the court may appoint one or more additional examiners, who may be a physician or any other person the court determines qualified to evaluate the primary respondent's alleged impairment. If the court appoints any additional examiners, the court shall set out in the order appointing the examiner why an additional examiner is necessary and why the appointed examiner is appropriate to serve in that capacity. Each examiner shall complete a verified report evaluating the condition of the primary respondent and file an original report with the court or deliver the original report to the guardian ad litem, who, without undue delay must file the report with the court by the deadline set by the court, but not less than forty-eight hours prior to any hearing in which the report will be introduced as evidence. For good cause, the court may allow admission of an examiner's report filed less than forty-eight hours prior to the hearing. All parties to the proceeding are entitled to a copy of each examiner's report. A examiner's report shall evaluate the condition of the primary respondent and shall contain, to the best information and belief of the examiner: (i) a description of the nature, type, and extent of the primary respondent's incapacity, including the primary respondent's specific functional impairments, (ii) a diagnosis and assessment of the primary respondent's mental and physical condition, including a statement as to whether the primary respondent is on any medications that may affect his actions or demeanor, (iii) where appropriate and consistent with the scope of the examiner's license, an evaluation of the primary respondent's ability to learn self-care skills, adaptive behavior, and social skills and a prognosis for improvement, (iv) the date or dates of the examinations, evaluations, and assessments upon which the report is based, (v) the identity of those persons with whom the examiner met or consulted regarding the primary respondent's mental or physical condition, and (vi) the signature of the examiner and the nature of the professional license held by the examiner. Unless otherwise directed by the court, in preparing a report for the court, the examiner may rely upon an examination of the primary respondent conducted by the examiner subsequent to his appointment or within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith or malicious intent, an examiner appointed by the court and performing an examination and submitting a report under this section shall be immune from civil liability for any breach of patient confidentiality made in furtherance of his duties under this section. A report prepared pursuant to this section shall be admissible as evidence of the facts stated in the report and the results of the examination or evaluation referred to in the report.

(G)    As soon as the interests of justice may allow, but after the time for response to the petition has elapsed as to all parties served, the court shall hold a hearing on the merits of the petition. The primary respondent, all parties, and any person who has filed a demand for notice pursuant to subsection (H), must be given notice of the hearing as provided in Section 62-1-401. The primary respondent shall attend the hearing unless excused by the court for good cause. In determining good cause, the court may consider affidavits submitted by the guardian ad litem or any interested persons. Nothing in this section prohibits all parties not in default from waiving a hearing on any petition, and the court for good cause may entertain a consent order on any petition. A primary respondent represented by counsel may consent through counsel.

(H)    Any interested person who desires to be notified before any order is made in a protective proceeding may file with the court a demand for notice. The court shall mail a copy of the demand to the conservator, if one has been appointed, or to the petitioner, if no conservator has been appointed. A demand for notice is not effective unless it contains a statement indicating the nature of the interest of the person filing the demand, his address or that of his attorney, and is effective only as to matters occurring after the filing of the demand.

(I)    After a hearing, or with the consent of all parties, upon finding that a basis for the appointment of a conservator or other protective order has been established as set forth in this section, the court shall make an appointment or other protective order.

(J)    Any person interested in the estate, affairs or welfare of a person who is unable to manage his property or affairs effectively for reasons of confinement, detention by a foreign power, or disappearance may petition the court for appointment of a conservator or for other protective order for such person under this section; provided, however, the appointment of an examiner shall not be required for a person who is confined, detained or missing.

REPORTER'S COMMENTS

Section 62-5-403 was significantly revised by the 2012 amendment.

The revised section adds the requirement of a summons and clarifies that a petition must be verified.

This section sets out the basic procedure for the appointment of a conservator or entry of another protective order for reasons other than minority.

The phrase 'any person interested in the estate, affairs, or welfare of the primary respondent' is intended to be broader than then term 'interested person' defined in 62-1-201. For example, it could include a friend, neighbor, or person residing with the primary respondent.

Subsection (A) sets out the conditions under which the appointment of a conservator or other protective order is appropriate. In order to preserve any advance planning by the primary respondent, the revised subsection emphasizes the importance of looking first to agents under a durable power of attorney, before appointing a conservator or issuing a protective order. Nothing in the section precludes a party from questioning the validity of a power of attorney or seeking the removal of an agent under a power of attorney for breach or dereliction of duty. Further the section acknowledges that necessary actions may be beyond the authority given to an agent under a durable power of attorney. A major addition to the reasons for the appointment of a conservator or protective order is the need to create a special needs trust for a disabled person. For this subsection to apply the disabled person need not be incapacitated, but must be disabled under social security guidelines. It is not necessary the individual be actually receiving social security disability or SSI benefits.

Subsection (B) provides who may commence a proceeding for the appointment of a conservator or other protective order, how to commence the proceeding, and who must be served in connection with the proceeding. This section makes it clear the petition used to commence the proceeding must be verified by the petitioner.

Subsection (C) provides detailed requirements for the content of a petition for appointment of conservator or other protective order. While the subsection requires the petitioner to provide only information known to the petitioner, it imposes on the petitioner a duty to engage in a reasonable effort to ascertain the required information. Specifying the required contents of the petition is in accordance with the recommendations of both the Wingspread conference on guardianship reform and the Commission on National Probate Court Standards. See Guardianship: An Agenda For Reform 9 (A.B.A. 1989); National Probate Court Standards, Standard 3.3.1, 'Petition' (1993).

Subsection (D) provides for the appointment of a guardian ad litem, upon the filing and service of the verified petition for appointment of conservator or other protective order. While appointment of a guardian ad litem occurs without a preliminary assessment of capacity by the court, the subsection makes it clear the mere appointment of the guardian ad litem does not impact the rights of the person allegedly in need of a conservator or protective order and the appointment is not evidence of incapacity.

With this revision, the roles of legal counsel and guardian ad litem have been separated. While a guardian ad litem is required to be appointed in every case, unlike prior law, it is not necessary for the guardian ad litem to be an attorney. Further, if the guardian ad litem is an attorney, that person may not also serve as counsel for the primary respondent in the proceeding. This revision eliminates the conflict which existed under prior law between the role of legal counsel as advocate for the primary respondent and the role of guardian ad litem, who has duties to both the primary respondent and the court.

Subsection (E) provides that the primary respondent is not required to be represented by counsel, but is entitled to be represented by counsel of his own choosing. This subsection sets forth the options of the court when dealing with a primary respondent who is not represented by counsel. This section does not mandate the appointment of counsel, nor is the primary respondent required to be represented by counsel. If the court determines an unrepresented primary respondent should not proceed without counsel, the subsection authorizes the court to appoint counsel for the primary respondent. The subsection also suggests to the court the option of directing the guardian ad litem to assist the person in obtaining counsel. This would be particularly appropriate where the court felt the need for counsel and the person had adequate resources with which to pay counsel. The enhanced duties of the guardian ad litem established by Title 62, Article 5, Part 8, in conjunction with the enhanced qualification for persons acting as guardian ad litem should provide adequate protection of the interests of the person who is the subject of a protective proceeding in most cases.

Subsection (F) provides for the appointment of an examiner in connection with a proceeding for the appointment of a conservator or other protective order, establishes the necessary qualification of the person who will serve as an examiner, sets forth the type of report the examiner is to produce, and the time within which the report is to be produced. A designated examiner who is a physician must be appointed. Additional designated examiners may be appointed by the court. The additional examiners may be physicians or any other person the court has determined is qualified to evaluate the primary respondent's alleged impairment. The subsection also clarifies prior law by establishing the examiner may make his report from information obtained in an examination conducted prior to the examiner's appointment. If the examiner's report references an examination conducted prior to appointment, it must have been conducted within the 90 days immediately preceding the examiner's appointment; otherwise the examination must occur subsequent to the appointment.

Subsection (G) establishes the requirement of a hearing in regard to the petition, provides who must be given notice of the hearing, and sets forth the timing of notice. Note that the subsection mandates attendance at the hearing by the primary respondent absent a showing of good cause.

Subsection (H) provides a procedure for interested persons to obtain notice prior to orders being issued in the proceeding.

Subsection (I) establishes the requirement that the court issue an order in response to a petition and clarifies that such an order may arise by consent of all parties. If the petition contains an allegation of incapacity on behalf of the primary respondent, he must be represented by counsel in order to consent.

Subsection (J) clarifies that the appointment of an examiner is not necessary, in the absence of an allegation of incapacity. An examiner would be unnecessary in cases of detention or missing persons.

Section 62-5-401 puts venue for proceedings in the county of residence of the person to be protected, or if he resides out of state, where his property lies.

Section 62-5-404.     (a)    The person to be protected, any person who is interested in his estate, affairs, or welfare, including his parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order.

(b)    The petition shall set forth to the extent known, the interest of the petitioner; the name, age, residence, and address of the person to be protected; the name and address of his guardian, if any; the name and address of his nearest relative known to the petitioner; a general statement of his property with an estimate of the value thereof, including any compensation, insurance, pension, or allowance to which he is entitled; and the reason why appointment of a conservator or other protective order is necessary. If the appointment of a conservator is requested, the petition also shall set forth the name and address of the person whose appointment is sought and the basis of his priority for appointment.

The court has the following powers which may be exercised directly or through a conservator with respect to the estate and affairs of protected persons:

(A)    During the pendency of a proceeding for the appointment of a conservator or other protective order, any party or other person interested in the estate, affairs or welfare of the primary respondent may file with the court a motion for temporary relief in regard to the property or financial affairs of the primary respondent.

(B)    Unless made in open court, the motion shall be in writing and shall describe the nature of the temporary relief sought and state the reasons the temporary relief is in the best interest of the primary respondent.

(C)    Upon receipt of the motion, the court may issue an order ex parte or schedule a hearing with such notice as the court may prescribe, all as the interests of justice or the needs of the primary respondent require.

(D)    Notwithstanding any other provision of this section, no order for temporary relief will issue other than following a hearing with notice to all parties as provided in Section 62-1-401 unless it appears from specific facts, shown by affidavit or evident from the petition, that the requested relief is necessary to provide for the health and welfare of the primary respondent or those dependent upon the primary respondent for support or to prevent the property of the primary respondent from being wasted and there is insufficient time to hold a noticed hearing.

(E)    Notice of any temporary relief granted shall be given to all parties as soon thereafter as practicable. If relief was granted without a noticed hearing, on two days' notice to the party who obtained the order for temporary relief, or on shorter notice to that party as the court may prescribe, the primary respondent, or any party opposed to the order may appear and move its dissolution or modification, and in that event, the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require.

(F)    Except as otherwise provided by the court, any order granting temporary relief under this section shall terminate upon the court's final ruling on the merits of the pending petition for conservatorship or protective order.

(G)(1)    Upon finding that a basis for an appointment or other protective order exists with respect to a minor solely for reason of minority, the court has all of the powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family, and members of his household.

(2)    Upon finding that a basis for an appointment or other protective order exists for reasons other than minority, the court has all of the powers over the person's real and personal property and financial affairs which such person could exercise if not under disability, except the power to make a will.

REPORTER'S COMMENTS

This Section was revised by the 2012 amendment and provides a procedure for obtaining temporary relief pending a determination in a protective proceeding and sets forth a general description of the power of the court after it determines the appointment of a conservator or issuance of a protective order is appropriate.

Subsection (A) establishes the procedure for seeking an order of temporary relief in regard to the affairs of the primary respondent in a protective proceeding. The subsection provides that any person interested in the affairs of the primary respondent may move the court for an order of temporary relief during the pendency of a protective proceeding. The phrase 'other person interested in the estate, affairs, or welfare of the primary respondent' is intended to be broader than then term 'interested person' defined in 62-1-201. For example, it could include a friend, neighbor, or person residing with the primary respondent. Note that no such order may issue prior to the filing and service of a summons and petition. While the subsection authorizes the court to issue ex parte orders in response to the motion for temporary relief, the subsection emphasizes that absent exigent circumstances the court should schedule a hearing on the motion and provide notice to all parties to the proceeding. The subsection also provides for a procedure for the primary respondent or any party to the proceeding to seek dissolution of an order of temporary relief.

Subsection (B) delineates the powers of the court over the affairs of a minor.

Subsection (C) delineates the powers of the court over the affairs of a primary respondent after a finding the basis for an appointment of conservator or issuance of protective order exists.

Section 62-5-405.     (a)    After filing of the summons and the petition for appointment of a conservator or other protective order, the person to be protected must be served personally with the summons and petition. The following persons also must be properly served: the spouse and the adult children of the person to be protected, or if none, his parents or nearest adult relatives if there are no parents, and other persons as the court may direct.

(b)    Notice of hearing on a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to the person to be protected, to any person who has filed a request for notice under Section 62-5-406, to interested persons, and to other persons as the court may direct. Notice must be given in accordance with Section 62-1-401. Waiver of notice of hearing by the person to be protected is not effective unless he attends the hearing or waiver of notice is given by his attorney.

(A)(1)    When it is established in a proper proceeding that a basis exists as described in Section 62-5-402 or Section 62-5-403 for affecting the property and affairs of the primary respondent, the court, without appointing a conservator, may authorize, direct, or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the primary respondent. Protective arrangements include, but are not limited to, payment, delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.

(2)    When it has been established in a proper proceeding that a basis exists as described in Section 62-5-402 or Section 62-5-403 for affecting the property and affairs of the primary respondent, the court, without appointing a conservator, may authorize, direct, or ratify any contract, trust, or other transaction relating to the primary respondent's financial affairs or involving the primary respondent's estate if the court determines that the transaction is in the best interests of the primary respondent.

(B)    Before approving a protective arrangement or other transaction under this section, the court shall consider whether, in view of the primary respondent's disability, the primary respondent needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section. The special conservator shall have the authority conferred by the court's order, shall file any and all reports as required by the court and shall serve until discharged by order of the court.

(C)(1)    When it is established in a proper proceeding that a basis exists as described in Section 62-5-403 for affecting the property and affairs of the primary respondent, the court may exercise or authorize a conservator or a special conservator to exercise any of the powers set forth in subsection (D).

(2)    If the power sought to be exercised in subsection (D) is requested concurrently with the petition under Section 62-5-403, in addition to those persons required to be served under section 62-5-403, all of the primary respondent's known heirs and devisees are also required to be served with the summons and petition.

(3)    If the power sought to be exercised in subsection (D) is requested subsequent to the appointment of a conservator, then the primary respondent and all of the primary respondent's known heirs and devisees are required to be served with the summons and petition requesting the requested relief.

(D)    The following powers may be authorized by the court after hearing or with the consent of all necessary parties:

(1)    to make gifts as the court, in its discretion, believes would be made by the primary respondent if the primary respondent were competent;

(2)    to convey or release the primary respondent's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;

(3)    to create or amend revocable trusts or create irrevocable trusts of property of the primary respondent's estate that may extend beyond the primary respondent's disability or life, including the creation or funding of a special needs trust or a pooled fund trust for a minor who has been determined to be disabled;

(4)    to fund trusts;

(5)    to exercise the primary respondent's right to elect options and change beneficiaries under insurance and annuity policies and to surrender policies for their cash value;

(6)    to exercise the primary respondent's right to an elective share in the estate of the primary respondent's deceased spouse;

(7)    to disclaim or renounce any interest by testate or intestate succession or by inter vivos transfer; and

(8)    to ratify any such actions taken on the behalf of the primary respondent.

(E)    In exercising or approving a conservator's or special conservator's exercise of the powers set forth in subsection (D) above, the court shall, to the extent ascertainable, give primary weight to what the primary respondent would do under the circumstances if the primary respondent capable of acting independently. The court may also consider:

(1)    the financial needs and legal obligations of the primary respondent, including the needs of individuals to whom the primary respondent owes an obligation of support:

(2)    possible reduction of taxes, including, but not limited to, income, estate, and inheritance taxes;

(3)    the primary respondent's eligibility or potential eligibility for governmental assistance;

(4)    the primary respondent's previous pattern of giving or level of support;

(5)    the primary respondent's existing estate plan; and

(6)    the primary respondent's life expectancy and the probability that the conservatorship will terminate before the primary respondent's death.

(F)    In exercising or approving a conservator's or special conservator's exercise of the powers set forth in subsection (D), the court shall set forth in the court's record specific findings upon which the court bases its ruling. For purposes of issuing a consent order under subsection (D), a guardian ad litem may consent on behalf of the primary respondent.

REPORTER'S COMMENTS

As revised by the 2012 amendment this encompasses former Section 62-5-409 and a portion of Section 62-5-408. Consistent with the philosophy of this article that a conservator be appointed only as a last resort, this section authorizes the court, in lieu of appointing a conservator, to order a variety of less intrusive 'protective arrangements.' A protective arrangement typically involves a single transaction such as a sale of land or the entry of a contract for care. The procedure for obtaining a protective arrangement is similar to that required for the appointment of a conservator. A summons and petition must be filed, and notice must be given to the appropriate parties.

The code section provides that the court may authorize a protective arrangement or single transaction without the appointment of a conservator; however, the section also introduces the concept of a special conservator. The role of the special conservator is to carry out only those tasks that are specifically ordered by the court.

Subsection (C) lists powers the court can exercise over the assets of a protected person, but which require notice to parties who may not normally be served with the summons and petition for a conservator or other protective order. The reason is these actions may affect what a non-party would receive by way of inheritance from the protected person. The subsection deals with both the situation of a request for the action in an original petition, and a request for the action in a proceeding after a conservator has been appointed.

Subsection (D) takes the opportunity to suggest the use of consent orders, to mitigate disputes that may arise.

Subsection (E) lists the factors the court should consider in determining whether it should approve or facilitate a protective arrangement described in subsection (D). Subsection (E) makes it clear the decision to approve or disapprove a request for a protective proceeding described in subsection (D) should be primarily based on the decision that the protected person would have made, if of full capacity. In that regard the court should take into consideration the protected person's personal values and expressed desires, past and present, when making decisions. Carrying out the protected person's intent or probable intent is a major theme of this part. In this regard, this section probably confirms what the law is already. Even in the absence of a statute, the conservator should consider the protected person's probable wishes, particularly with respect to gifts and other estate planning related transactions.

Subsection (F) provides guidance to the court on what should be included in an order approving a protective arrangement described in subsection (D).

The authority confirmed by this section may be used to engage in tax planning on behalf of the protected person. For example, by making annual exclusion gifts, the federal estate tax liability at the protected person's death may be substantially reduced. However, this section can also be used for non-tax transactions. Transfers may be made to qualify the protected person for governmental programs, or the court may continue the protected person's prior pattern of giving to charities and others.

Section 62-5-406.     Any interested person who desires to be notified before any order is made in a protective proceeding may file with the court a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the request to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and his address, or that of his attorney, and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings. Unless an order of the court specifies otherwise, a finding of incapacity and appointment of a conservator or other protective order is not a determination that the protected person lacks testamentary capacity or the capacity to create, amend or revoke a revocable trust.

REPORTER'S COMMENTS

This section makes it clear that a finding of incapacity for purposes of appointment of a conservator or other protective order is not a finding as to testamentary capacity.

Section 62-5-407.     (a)    Upon the filing of a summons and petition for appointment of a conservator or other protective order because of minority, and after service of the summons and the petition, the court may set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if fourteen years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem. If the minor already has an attorney, that attorney shall act as his guardian ad litem.

(b)    Upon the filing of a summons and petition for appointment of a conservator or other protective order for reasons other than minority, and after service of the summons and the petition, the court shall set a date for hearing. Unless the person to be protected has counsel of his own choice, the court must appoint a lawyer to represent him who then has the powers and duties of a guardian ad litem. If the protected person already has representation by an attorney that attorney shall act as his guardian ad litem. If the alleged disability is mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, or chronic intoxication, the court shall direct that the person to be protected be examined by one or more physicians designated by the court, preferably physicians who are not connected with any institution in which the person is a patient or is detained.

(c)    After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order. (A)    Unless the court's order specifies otherwise, the appointment of a conservator shall remove from the protected person the following rights and privileges, which to the extent authorized in Section 62-5-422, and pending further order of the court, shall thereafter reside in the conservator acting on behalf of the protected person:

(1)    the power to buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under Section 62-5-422;

(2)    the power to make, modify, or terminate contracts; and

(3)    the right to bring or defend any action at law or equity.

Nothing in this section shall prevent the protected person from notifying the court that the protected person is being unjustly denied a right or privilege granted by this part or requesting removal of the conservator or termination of the conservatorship under Section 62-5-428.

(B)    Unless the court's order specifies otherwise, the appointment of a conservator suspends the authority of an agent who was previously appointed by the protected person to act as an agent under financial provisions of a durable power of attorney. The authority of an agent to make health care decisions or authority granted by other advance directives regarding health care is unaffected by the appointment of a conservator. The court may, with appropriate findings, permanently terminate the authority of an agent under a durable or nondurable power of attorney.

REPORTER'S COMMENTS

Under the 2012 amendment, this section sets forth the rights and privileges lost by a protected person upon the appointment of a conservator. The court can override this section by court order.

Subsection (B) provides that, upon the appointment of a conservator, the authority of an agent under a durable power of attorney executed by the protected person is suspended. Note the agent's authority is only suspended and not revoked. It the court determines at some point in the future a conservator is no longer necessary, the authority of the agent under the power of attorney is revived.

Note that the appointment of a conservator has no impact on the authority of an agent under a health care power of attorney. However, the appointment of a guardian under Section 62-5-303 would affect the authority of such an agent.

Section 62-5-408.     The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:

(1)    While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing upon such notice by the court as is reasonable under the circumstances, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the person to be protected as may be required for his benefit or the benefit of his dependents; however, notice of such actions of the court shall be given to interested parties as soon thereafter as practicable.

(2)    After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family, and members of his household.

(3)(a)    After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and of his estate and fulfillment of his legal obligations of support of dependents, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to:

(i)        make gifts as the court, in its discretion, believes would be made by the person if he were competent;

(ii)    convey or release the person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;

(iii)    exercise or release the person's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;

(iv)    enter into contracts;

(v)    create or amend revocable trusts or create irrevocable trusts of property of the estate which may extend beyond the person's disability or life;

(vi)    fund trusts;

(vii)    exercise options of the disabled person to purchase securities or other property;

(viii)    exercise the person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;

(ix)    exercise the person's right to an elective share in the estate of the person's deceased spouse;

(x)    renounce any interest by testate or intestate succession or by inter vivos transfer; and

(xi)    ratify any such actions taken on the person's behalf.

(b)    In order to exercise, or direct the exercise of the court's authority in any powers set forth in item (a), the court must entertain a petition in which the specific relief sought is set forth, the incapacitated person, his known heirs, devisees, donees, and beneficiaries are made parties to the action, and which contains a statement that the person either is incapable of consenting or has consented to the proposed exercise of power.

(c)    In exercising the powers set forth in item (b), the court also must inquire into and consider any known lifetime gifts or the estate plan of the person, the terms of any revocable trust of which he is grantor, and any contract, transfer, or joint ownership arrangements with provisions for payment or transfer of benefits or interests at his death to another which he may have originated. In exercising the court's authority set forth in item (b), the court must set forth in the record specific findings upon which it has based its ruling.

(4)    An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person, except to the extent the order affects his estate or affairs.

(1)    The court may appoint an individual, or a corporation with the power to serve as trustee, as conservator of the estate of the primary respondent. The court in appointing a conservator shall consider persons, who are otherwise qualified, in the following order of priority:

(a)    a person previously appointed as conservator, guardian of property, or other like fiduciary for the primary respondent by another court of competent jurisdiction;

(b)    an individual or corporation nominated by the primary respondent if he is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make a reasoned choice;

(c)    an attorney in fact appointed by the primary respondent pursuant to Section 62-5-501;

(d)    the spouse of the primary respondent.

(e)    an adult child of the primary respondent;

(f)    a parent of the primary respondent;

(g)    the person nearest in kinship to the primary respondent who is willing to accept the appointment;

(h)    a person with whom the primary respondent resides outside of a health care facility, group home, homeless shelter, or prison; and

(i)     a person nominated by a health care facility caring for the primary respondent.

A person whose priority is based upon the status under items (a), (c), (d), (e), (f), or (g), may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as conservator for the primary respondent and in the best interest of the primary respondent. The court, acting in the best interest of the primary respondent, may decline to appoint a person having higher priority and appoint a person having lesser priority or no priority.

(2)    A probate judge or an employee of the probate court shall not serve as a conservator of an estate of a protected person. However, a probate judge or an employee of the probate court may serve as a conservator of the estate of a family member if the service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, 'family member' means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.

REPORTER'S COMMENTS

The 2012 amendments expand former Section 62-5-410. The section provides a detailed tiered system for determining who should be given priority for appointment as conservator for a protected person. A change from prior law is the addition in the list of priorities of a person with whom the primary respondent resides, regardless of kinship. While the court must consider persons in the order listed, nothing prevents a court from deviating from the order of priority in the best interest of the primary respondent.

Section 62-5-409.     (a)    If it is established in a proper proceeding that a basis exists as described in Section 62-5-401 for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct, or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.

(b)    When it has been established in a proper proceeding that a basis exists as described in Section 62-5-401 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct, or ratify any contract, trust, or other transaction relating to the protected person's financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.

(c)    Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.

Except upon a finding of good cause, the court must require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the conservator according to law and must approve all sureties. When bond is required, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the protected person and of the income expected from the personal estate during the next calendar year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. Good cause for waiver of the bond includes, but is not limited to, the establishment of a properly executed restricted account agreement with a domestic financial institution, as defined in Section 62-6-101, in which the funds are deposited and held in a manner that prevents their unauthorized disposition or other similar restrictive arrangements. The court may authorize an unrestricted or unbonded account to be used by the conservator for expenses on behalf of the protected person, and all activity in the account shall be reported by the conservator as required by the court. Upon application of the conservator or another interested person, or upon the court's own motion, the court may: (a) order the creation, change, or termination of an account, (b) increase or reduce the amount of the bond, (c) release sureties, (d) dispense with security or securities, or (e) permit the substitution of another bond with the same or different sureties.

REPORTER'S COMMENTS

As revised by the 2012 amendment this was formerly Section 62-5-411. This section continues its bias toward conservators being bonded. Changes to prior law include guidance on the meaning of good cause for purposes of waiving the requirement of bond.

Section 62-5-410.     (a)    The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:

(1)    a conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;

(2)    an individual or corporation nominated by the protected person if he is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;

(3)    an attorney in fact appointed by such protected person pursuant to Section 62-5-501;

(4)    the spouse of the protected person;

(5)    an adult child of the protected person;

(6)    a parent of the protected person, or a person nominated by the will of a deceased parent;

(7)    any other relative of the protected person;

(8)    a person nominated by the person who is caring for him or paying benefits to him.

(b)    A person in priorities (1), (4), (5), (6), or (7) may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority.

(c)    A probate judge or an employee of the probate court shall not serve as a conservator of an estate of a protected person; however, a probate judge or an employee of the probate court may serve as a conservator of the estate of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, 'family member' means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.

The following requirements and provisions apply to any bond required under Section 62-5-409:

(1)    sureties shall be jointly and severally liable with the conservator and with each other;

(2)    by executing an approved bond of a conservator, the surety consents to the jurisdiction of the court in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;

(3)    after service of a summons and petition by a successor conservator or any interested person, or upon the court's own motion, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;

(4)    subject to applicable statutes of limitation, the bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted;

(5)    no proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

REPORTER'S COMMENTS

As moved by the 2012 amendment, this was formerly Section 62-5-412. There are no substantive changes from the prior law.

Section 62-5-411.     The court, unless for good cause stated, shall require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law and will approve all sureties. If bond is required, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the protected person and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in Section 62-6-101, in a manner that prevents their unauthorized disposition. Upon application of the conservator or another interested person, or upon the court's own motion, the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, or permit the substitution of another bond with the same or different sureties. A denial of an application by the court is not an adjudication and does not preclude a formal proceeding. By accepting appointment, a conservator submits personally to the jurisdiction of the court in any informal or formal proceeding relating to the conservatorship estate. Notice of any proceeding shall be delivered to the conservator.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this was formerly Section 62-5-413. The section establishes that acceptance of the office of conservator constitutes consent to the jurisdiction of South Carolina courts. Notice of any proceeding against a person for whom a conservator has been appointed must be delivered to the conservator.

Section 62-5-412.     (a)    The following requirements and provisions apply to any bond required under Section 62-5-411:

(1)    Sureties shall be jointly and severally liable with the conservator and with each other;

(2)    By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;

(3)    After service of a summons and petition by a successor conservator or any interested person, or upon the court's own motion, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;

(4)    Subject to applicable statutes of limitation, the bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.

(b)    No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation. Any guardian ad litem, attorney, examiner, conservator, or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the protected person's estate, as determined by the court. In addition, the court has discretion to award, from the protected person's estate, reasonable fees and expenses to attorneys involved in the proceeding resulting in a protective order.

REPORTER'S COMMENTS

As amended by the 2012 amendments, this was formerly Section 62-5-414. This section explains how appointees are to be compensated and allows attorneys to be compensated from the estate of the protected person. This change is in response to the decision in Dowaliby v. Chambless, 544 S.E.2d 646 (S.C.App. 2001) and is intended to provide a statutory basis for the court, in its discretion, to award attorney's fees, to be paid from the protected person's estate, to attorneys involved in the proceeding.

Section 62-5-413.     By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner. The court may remove a conservator for good cause or accept the resignation of a conservator. After the death, resignation, or removal of a conservator, the court may, if necessary appoint a successor conservator who succeeds to the title and powers of his predecessor. The removal of a conservator or the discharge of a conservator based upon resignation and, if necessary, the appointment of a successor conservator, shall be in accordance with the procedure set forth in Section 62-5-428. Resignation of a conservator is not effective until approved by the court.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this was formerly Section 62-5-415. The section references new procedures for the appointment of a successor conservator under Section 62-5-428. The section also clarifies that a conservator's resignation is not effective until a new conservator is appointed. This precludes a conservator from resigning and abandoning a protected person without court action.

Section 62-5-414.     If not otherwise compensated for services rendered, any visitor, lawyer, physician, conservator, or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate, as determined by the court. (A)    In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees as described by Section 62-7-804.

(B)    A conservator may exercise authority only as necessitated by the limitations of the protected person, and to the extent possible, shall encourage the protected person to participate in decisions, act in the person's own behalf, and develop or regain the ability to manage the protected person's estate and business affairs.

(C)    At any time the court determines appropriate, it may order a conservator to file a plan for protecting, managing, expending, and distributing the assets of the protected person's estate. The plan must be approved, disapproved, or modified by the court, in informal or formal proceedings, as the court deems appropriate. Nothing in this section requires the court to oversee or approve the investment choices made by the conservator. The plan must be based on the actual needs of the protected person, take into consideration the best interest of the protected person and be updated, modified and revised as the needs and circumstances of the protected person require. The conservator shall include in the plan:

(1)    a statement of the extent to which the protected person may be able to develop or recover the ability to manage the person's property and any planned steps to develop or restore the person's ability;

(2)    an estimate of the duration of the conservatorship; and

(3)    projections of expenses and resources.

(D)    In investing an estate, selecting assets of the estate for distribution, and invoking powers of revocation or withdrawal available for the use and benefit of the protected person and exercisable by the conservator, a conservator shall take into account any estate plan of the protected person known to the conservator and may examine the will and any other donative, nominative, or other appointive instrument of the protected person.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this was formerly Section 62-5-417. The section establishes the duties of a conservator. This section adds the requirement that a conservator consult with and allow the protected person to participate in the management and application of his assets. The section also introduces the concept of a plan. This clarifies the authority of the probate court to require the conservator to submit a plan for the administration of a protected person's estate. The section also requires the conservator to take into account the protected person's estate plan when making decisions on investments, distributions, and other matters affecting the protected person's assets. This obligation was unclear under prior law.

Section 62-5-415.     The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of his predecessor. Within sixty days after appointment, every conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with the conservator's oath or affirmation that it is complete and accurate to the best of the conservator's knowledge, information and belief. The court may, for good cause shown, grant an extension to file the inventory. The conservator shall provide a copy of the inventory to the protected person's guardian, if any, and any other persons the court may direct.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this was formerly Section 62-5-418. The section requires the conservator to file an inventory 60 days after his appointment, unless that date is extended by the probate court. The prior version of this section provided a list of persons who were to be given copies of the inventory. This section requires a copy be delivered only to the protected person's guardian, if he has one, and leaves to the probate court the decision of who else should be given a copy. The statement under prior law requiring the conservator to keep suitable records and make the same available to any interested person has been eliminated. The requirement to keep records and make them available is now fully covered under Section 62-5-416.

Section 62-5-416.     (a)    Upon filing a petition and summons with the appointing court, a person interested in the welfare of a person for whom a conservator has been appointed may request an order (1) requiring bond or security or additional bond or security, or reducing bond, (2) requiring an accounting for the administration of the trust, (3) directing distribution, (4) removing the conservator and appointing a temporary or successor conservator, or (5) granting other appropriate relief. The petition and summons must be served upon the conservator and other persons as the court may direct.

(b)    Upon application to the appointing court, a conservator may request instructions concerning his fiduciary responsibility. A denial of the application by the court is not an adjudication and does not preclude a formal proceeding.

(c)    After notice and hearing as the court may direct, the court may give appropriate instructions or make any appropriate order.

(A)    A conservator shall report to the court regarding his administration of the estate annually, upon resignation or removal, on termination of the protected person's minority or disability, upon the death of the protected person, and at other times as the court directs. The conservator may petition in formal proceedings under section 62-5-428 for:

(1)    an order allowing an intermediate report of a conservator, and adjudicating liabilities concerning the matters adequately disclosed in the accounting; and

(2)    an order allowing a final report and adjudicating all previously unsettled liabilities relating to the conservatorship.

(B)    A report must state or contain:

(1)    an accounting of receipts and disbursements during the period for which the report is made;

(2)    a list of the assets of the estate under the conservator's control and the location of those assets; and

(3)    any recommended changes in the plan for the conservatorship as well as a recommendation as to the continued need for conservatorship and any recommended changes in the scope of the conservatorship.

(C)(1)    The conservator shall provide a copy of the report to the protected person if he can be located, has attained the age of fourteen years, and has sufficient mental capacity to understand the report, and to any parent or guardian with whom the protected person resides.

(2)    The court may appoint a guardian ad litem to review a report or plan, interview the protected person or conservator, and make any other investigation the court directs.

(3)    In connection with a report, the court may order a conservator to submit the assets of the estate to an appropriate examination in any manner directed by the court.

REPORTER'S COMMENTS

As revised by the 2012 amendment this section expands former Section 62-5-419. It provides a more detailed description of the type of report a conservator is to produce, and when the report is to be produced. If further provides a more restricted listing of who is to receive a copy of the report.

Section 62-5-417.     In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees as described by Section 62-7-933.

The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact, unless otherwise provided in the court's order. Neither the appointment of a conservator or the establishment of a trust in accordance with Article 6, Chapter 6, Title 44, is a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest.

REPORTER'S COMMENTS

As revised by the 2012 amendments, this section was formerly Section 62-5-420. This section deletes the last phrase of the last sentence of former Section 62-5-420 which read 'but this section does not restrict the ability of a person to make specific provision by contract or dispositive instrument or other transaction.' The rights of a protected person following the appointment of a conservator is now more fully covered in Section 62-5-407.

Section 62-5-418.     Within thirty days after his appointment, every conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with his oath or affirmation that it is complete and accurate so far as he is informed. The court may, for good cause shown, increase the allotted time. The conservator shall provide a copy thereof to the protected person if he can be located, has attained the age of fourteen years, and has sufficient mental capacity to understand these matters, and to any parent or guardian with whom the protected person resides. The conservator shall keep suitable records of his administration and exhibit the same on request of any interested person.

Letters of conservatorship are evidence of vesting title of the protected person's assets in the conservator, unless otherwise provided in the court's order. An order terminating a conservatorship transfers all assets of the estate from the conservator to the protected person or his successors. Letters or certificates of conservatorship and terminations of appointment shall be filed and recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the counties of this State or other states where the protected person owns real estate, as is appropriate.

Conservators may file letters of conservatorship with credit reporting agencies.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly Section 62-5-421. The primary change from prior law is the express permission for the conservator to file the letters of conservatorship with credit reporting agencies.

Section 62-5-419.     Every conservator shall account to the court for his administration of the trust annually and upon his resignation or removal, and at other times as the court may direct. On termination of the protected person's minority or disability a conservator shall account to the court. Upon the filing and service of summons and petition for approval of accounting, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to his liabilities concerning the matters shown in connection with it and an order, made upon notice and hearing, allowing a final account adjudicates as to all unsettled liabilities of the conservator to the protected person or his successors relating to the conservatorship concerning the matters shown. In connection with an account, the court may require a conservator to submit to a physical check of the estate in his control, to be made in a manner the court may specify.

Any sale or encumbrance to a conservator, his spouse, agent, or attorney, or any corporation, trust, or other entity in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest by the conservator is void unless the transaction is approved by the court in a proceeding in accordance with the procedure set forth in Section 62-5-428.

REPORTER'S COMMENTS

As revised by the 2012 amendment this section was formerly Section 62-5-422. The wording of the former section left to the probate court's discretion the procedure to follow in approving transactions involving self dealing by the conservator. The section directs the court to use the procedure established in Section 62-5-428.

Section 62-5-420.     The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact. Neither the appointment of a conservator nor the establishment of a trust in accordance with Title 44, Chapter 6, Article 6, is a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provision by contract or dispositive instrument relating to a conservator.

A person who in good faith either assists a conservator or deals with him for value in any transaction, other than those requiring a court order or approval as required in this part, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 62-5-424 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this was formerly Section 62-5-423.

This section provides protection to bona fide purchasers for value of the property of a protected person when dealing with his conservator. The purpose of this section is to facilitate commercial transactions by negating the traditional duty of inquiry found under the common law of trusts. Even the third party's actual knowledge that the third party is dealing with a conservator does not require that the third party inquire into the possession of or propriety of the conservator's exercise of a power. Nor is the third party, contrary to the common law, responsible for the proper application of funds or property delivered to the conservator. But consistent with the emphasis on limited conservatorship, the protection extended to third parties is not unlimited. Third parties are charged with knowledge of restrictions on the authority of conservators when the restrictions are endorsed on the conservator's letters.

The protections provided by this section are limited by the last sentence of the section which provides that this section will be superseded by statutes relating to commercial transactions, such as the uniform commercial code, or by statutes relating to the transfer of securities.

Section 62-5-421.     Letters of conservatorship transfer all assets of a protected person to the conservator. An order terminating a conservatorship transfers all assets of the estate from the conservator to the protected person or his successors. Letters of conservatorship, and orders terminating conservatorships, shall be filed and recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the other counties where the protected person owns real estate.

(1)    Except as otherwise provided in subsections (2) and (3), the interest of a protected person in property vested in a conservator is not transferable or assignable by the protected person.

(2)    A person without knowledge of the conservatorship who in good faith and for security or substantially equivalent value receives delivery from a protected person of tangible personal property of a type normally transferred by delivery of possession is protected as if the protected person had valid title.

(3)    A third party who deals with the protected person with respect to property vested in a conservator is entitled to any protection provided by law.

REPORTER'S COMMENTS

This section provides a spendthrift effect for property of the protected person vested in the conservator. The section, like Section 62-5-420, is designed to allow the estate to be administered with a minimum of interference, and to make clear that the conservator, with respect to the property of the conservatorship, occupies a role similar to that of a trustee. The section is also designed to protect the estate, and hence the protected person, against possibly abusive or improvident claims. But some significant exceptions are recognized to protect the rights of third parties. An attempted transfer or assignment by the protected person, while ineffective to affect property rights, may give rise to a claim against the protected person for restitution or damages.

Subsection (2) addresses a special situation. While title to certain tangible personal property, such as an automobile, is transferred by means of a document of title, title to most tangible personal property is transferred simply by delivery of possession. Sales of such property are often casual, and purchasers do not usually inquire into the source of the seller's title. Upon the conservator's appointment, title to a protected person's tangible personal property, like title to the protected person's other assets, is transferred from the protected person to the conservator. But this transfer of title will normally not be known to a prospective purchaser, particularly if the tangible personal property is still in the protected person's possession. The effect of this subsection is to generally validate the title of such casual purchasers. The conservator may contest the purchaser's title only if the purchaser failed to pay full value, the purchaser knew of the conservatorship, or the purchaser, based on the circumstances, should have inquired into the conservatorship's existence.

Subsection (3) clarifies that this section does not supersede protections third parties may have under other law, such as under the statutes regulating commercial transactions.

Section 62-5-422.     Any sale or encumbrance to a conservator, his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is void unless the transaction is approved by the court after notice to interested persons and others as directed by the court.

(A)    Except as otherwise qualified or limited by the court in its order of appointment and endorsed on the letters and certificates of appointment, a conservator, acting reasonably in the best interest of the protected person and in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation, to:

(1)    invest and reinvest funds of the estate as would a trustee, subject to the requirements of Section 62-7-804;

(2)    collect, hold, and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which the conservator personally is interested;

(3)    receive additions to the estate;

(4)    deposit estate funds in a financial institution including a financial institution operated by the conservator;

(5)    make ordinary or extraordinary repairs or alterations to buildings or other structures, demolish, improve, raze or erect existing or new partywalls or buildings;

(6)    vote a security, in person or by general or limited proxy;

(7)    pay calls, assessments, and other sums chargeable or accruing against or on account of securities;

(8)    sell or exercise stock subscription or conversion rights;

(9)    consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise whose stock or shares are publicly held;

(10)    hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for an act of the nominee in connection with the stock so held;

(11)    insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;

(12)    borrow money to be repaid from estate assets or otherwise;

(13)    advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of estate assets and the conservator shall have a lien on the estate as against the protected person for advances so made;

(14)(a)    pay or contest a claim except as limited by Section 62-5-432;

(b)    settle a claim by or against the estate of the protected person by compromise, arbitration, or otherwise except as limited by Section 62-5-432; and

(c)    release, in whole or in part, a claim belonging to the estate to the extent that the claim is uncollectible;

(15)    pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate;

(16)    allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;

(17)    pay a sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the protected person or the distributee or by paying the sum for the use of the protected person or the distributee either to his guardian or, if none, to a relative or other person with custody of his person;

(18)(a)    employ persons, including attorneys, auditors, investment advisors, or agents even though they are associated with the conservator to advise or assist the conservator in the performance of his administrative duties; and

(b)    to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform an act of administration, whether or not discretionary;

(19)    prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties;

(20)    execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator; and

(21)    enter into a lease of a residence for the protected person for a term not exceeding one year.

(B)    A conservator acting reasonably in the best interest of the protected person and in efforts to accomplish the purpose for which he was appointed may file an application with the court requesting authority to:

(1)    continue or participate in the operation of any unincorporated business or other enterprise;

(2)    acquire an undivided interest in an estate asset in which the conservator, in a fiduciary capacity, holds an undivided interest;

(3)(a)    acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and

(b)    to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(4)(a)    subdivide, develop, or dedicate land to public use;

(b)    to make or obtain the vacation of plats and adjust boundaries;

(c)    to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and

(d)    to dedicate easements to public use without consideration;

(5)    enter into a lease as lessor or lessee, other than a residential lease described in subsection (A)(21);

(6)    enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(7)    grant an option involving disposition of an estate asset, or take an option for the acquisition of any asset;

(8)    undertake another act considered necessary or reasonable by the conservator and the court for the preservation and management of the estate;

(9)    make gifts to charitable organizations and for other religious, charitable, eleemosynary, or educational purposes which are tax deductible as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent of the income from the estate, if and only if the estate is ample to provide for the purposes implicit in the distributions authorized by Section 62-5-423;

(10)(a)    encumber, mortgage, or pledge an asset for a term extending within or beyond the term of the conservatorship;

(b)    pay a reasonable fee to the conservator for services rendered; and

(c)    adopt an appropriate budget for routine expenditures of the protected person;

(11)    reimburse the conservator for monies paid to or on behalf of the protected person;

(12)    exercise or release the primary respondent's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;

(13)    enter into contracts; and

(14)    exercise options of the primary respondent to purchase securities or other property.

(C)(1)    The court may approve or deny any application for approval filed by the conservator under item (3), without notice, or may, in its discretion require the commencement of a formal proceeding under Section 62-5-428.

(2)    A conservator may apply to the court for ratification of any action taken in good faith. The court may approve or deny the application, without notice, or may, in its discretion require the commencement of a formal proceeding under Section 62-5-428.

(3)    A conservator may request instructions concerning the conservator's fiduciary responsibility and may make requests for expenditure of funds for the protected person by filing an application with the court, or by commencing a formal proceeding in accordance with Section 62-5-428. If application is made, the court may approve or deny the application without notice, or may, in its discretion require formal proceedings.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly section 62-5-424. This section sets out the powers of a conservator in administration.

Subsection (A) sets out twenty-one specifically itemized powers which a conservator has and may exercise without court authorization or confirmation, unless such powers have been limited by the court. There is a requirement that the conservator must act reasonably in the best interest of the protected person. Subsection (A)(1) grants the conservator authority to invest and reinvest funds of the estate as would a trustee and imposes the requirements of Section 62-7-804. Subsection (A)(21) grants the power to 'enter into a lease of a residence for the protected person for a term not exceeding one year.'

Subsection (B) requires the conservator to file an application to the court requesting authority to exercise any of the fourteen powers set forth. Upon the filing of such an application, the court may approve or deny without notice or may require the conservator to commence a formal proceeding under section 62-5-428.

Subsection (C)(2) allows the conservator to file an application for ratification of an action taken in good faith. The court may approve or deny without notice or may require the conservator to commence a formal proceeding under Section 62-5-428.

Subsection (C)(3) allows the conservator to file an application requesting instructions or expenditures or to commence a formal proceeding under Section 62-5-428. If an application is filed, the court may approve or deny without notice or may require a formal proceeding under Section 62-5-428.

Section 62-5-423.     A person who in good faith either assists a conservator or deals with him for value in any transaction other than those requiring a court order as provided in Sections 62-5-408 and 62-5-422, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 62-5-426 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.     (A)    A conservator may expend or distribute sums from the estate, without further court authorization, for the health, education, maintenance and support of the protected person and his dependents in accordance with the following principles:

(1)    The expenditures must be consistent with the court-approved plan under section 62-5-414, if any.

(2)    The conservator is to consider recommendations relating to the appropriate standard of health, education, maintenance and support for the protected person made by a parent or guardian, if any. The conservator may not be surcharged for sums paid to persons or organizations furnishing health, education, maintenance or support to the protected person pursuant to the recommendations of a parent or guardian unless the conservator has actual knowledge that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.

(3)    The conservator is to expend or distribute sums reasonably necessary for the health, education, maintenance and support of the protected person with due regard to: (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him, (ii) the accustomed standard of living of the protected person and members of his household, and (iii) other funds or sources used for the support of the protected person.

(4)    The conservator may expend funds of the estate for the support of persons legally dependent on the protected person.

(B)(1)    Funds expended under this section may be paid by the conservator to any person, including the protected person, to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.

(2)    If the conservator determines that it is reasonably necessary to supply funds to the protected person, the conservator may provide such funds to the protected person through reasonable financial methods, including, but not limited to, checks, currency, debit card, or allowance. All funds so provided shall be reported on the accountings as required by the court.

(C)    When a person who is incapacitated solely by reason of minority attains the age of majority or is emancipated by the family court, his conservator, after meeting expenses of administration, shall pay over and distribute all remaining funds and properties to the former protected person as soon as practicable pursuant to Section 62-5-428(4), unless a:

(1)    protective order has been issued because the protected person is incapacitated; or

(2)    protective proceeding or other petition with regard to the protected person is pending.

A protected person under the age of eighteen who is married shall remain a minor for purposes of this subsection until the person attains the age of the age of majority or emancipation.

(D)    When the conservator is satisfied that a protected person's incapacity has ceased, the conservator shall petition the court, and after determination by the court that the incapacity has ceased in accordance with Section 62-5-428, the conservator, after paying outstanding expenses of administration and any claims approved by the court, shall pay over and distribute all remaining funds and properties to the former protected person as soon as practicable.

(E)    When the conservator is satisfied that a protected person's estate has a value of less than ten thousand dollars, he may file an application with the court for termination of the conservatorship and permission to pay the remaining funds and properties to or for benefit of the protected person in accordance with Section 62-5-103. The court may approve or deny the application, without notice, or may, in its discretion require the commencement of a formal proceeding under Section 62-5-428. If the court determines that the protected person's estate has a value of less than ten thousand dollars, the court may on its own accord, in its discretion, terminate the conservatorship and order the conservator, after paying outstanding expenses of administration and any claims approved by the court, to pay over and distribute all remaining funds and properties to or for the protected person as soon as practicable in accordance with Section 62-5-103.

(F)(1)    If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into the conservator's possession, inform the personal representative or a beneficiary named in the will of the delivery, and retain the estate for delivery to a duly appointed personal representative of the deceased protected person or other persons entitled thereto. If after thirty days from the death of the protected person no person has been appointed personal representative and no application or petition for appointment is pending in the court, the conservator may apply for appointment as personal representative. The conservator shall deliver the estate of the deceased protected person to his duly appointed personal representative or other persons entitled thereto under the law.

(2)    A person shall not be disqualified as a personal representative of a deceased protected person solely by reason of his having been appointed or acting as conservator for that protected person.

REPORTER'S COMMENTS

As revised by the 2012 amendments, this section was formerly section 62-5-425. This section sets out the principles to be followed by the conservator in making distributions. Subsection (1)(A) requires that if there is a court approved plan under section 62-5-414, expenditures must be consistent with that plan.

Subsection (B)(2) is an addition allowing the conservator, when reasonably necessary, to allow the protected person access to funds through mechanisms including a checking account, a debit card, or cash.

Subsection (C) directs distribution to a former minor upon attaining majority unless there is an existing protective order based on incapacity or a protective proceeding or other petition is pending.

Subsection (D) provides that the conservator shall petition the court for a redetermination of capacity of the protected person if the conservator is satisfied that the incapacity has ceased.

Subsection (E) allows the conservator to file an application for termination of the conservatorship if the conservator is satisfied that the protected person's estate is less than $10,000.00. Even without application, the court may terminate the conservatorship if the value is less than $10,000.00.

Subsection (F)(1) provides for distribution at the death of the protected person. The conservator is required to deliver any will of the protected person in his possession to the court and to notify the personal representative or a beneficiary that he has done so.

Subsection (F)(2) provides that previous service as a conservator for the protected person does not disqualify the conservator from serving as personal representative of the estate of the protected person.

Section 62-5-424.     (A)    A conservator has power without court authorization or confirmation to invest and reinvest funds of the estate as would a trustee.

(B)    A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation, to:

(1)    collect, hold, and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he personally is interested;

(2)    receive additions to the estate;

(3)    invest and reinvest estate assets in accordance with subsection (A);

(4)    deposit estate funds in a bank including a bank operated by the conservator;

(5)    make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish improvement, to raze existing or erect new party-walls or buildings;

(6)    vote a security, in person or by general or limited proxy;

(7)    pay calls, assessments, and other sums chargeable or accruing against or on account of securities;

(8)    sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise whose stock or shares are publicly held;

(9)    hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for an act of the nominee in connection with the stock so held;

(10)    insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;

(11)    borrow money to be repaid from estate assets or otherwise; advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of estate assets and the conservator has a lien on the estate as against the protected person for advances so made;

(12)    pay or contest a claim except as limited by Section 62-5-433; settle a claim by or against the estate of the protected person by compromise, arbitration, or otherwise except as limited by Section 62-5-433; and release, in whole or in part, a claim belonging to the estate to the extent that the claim is uncollectible;

(13)    pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate;

(14)    allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;

(15)    pay a sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or if none, to a relative or other person with custody of his person;

(16)    employ persons, including attorneys, auditors, investment advisors, or agents even though they are associated with the conservator to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform an act of administration, whether or not discretionary;

(17)    prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties; and

(18)    execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.

(C)    A conservator acting reasonably in efforts to accomplish the purpose for which he was appointed may act with court approval to:

(1)    continue or participate in the operation of any unincorporated business or other enterprise;

(2)    acquire an undivided interest in an estate asset in which the conservator, in a fiduciary capacity, holds an undivided interest;

(3)    acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(4)    subdivide, develop, or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;

(5)    enter into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;

(6)    enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(7)    grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset;

(8)    undertake another act considered necessary or reasonable by the conservator and the court for the preservation and management of the estate;

(9)    make gifts to charitable organizations and for other religious, charitable, eleemosynary, or educational purposes which are tax deductible as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent of the income from the estate, if and only if the estate is ample to provide for the purposes implicit in the distributions authorized by Section 62-5-425;

(10)    encumber, mortgage, or pledge an asset for a term extending within or beyond the term of the conservatorship.

The court may, at the time of appointment or at any time thereafter, limit the powers of a conservator otherwise conferred by Sections 62-5-422 and 62-5-423, or previously conferred by the court, and may at any time relieve the conservator of any limitation previously imposed by the court. If the court limits any power conferred on the conservator by Section 62-5-422 or Section 62-5-423, the limitation shall be endorsed upon his letters of appointment and upon any certificate evidencing his appointment. Notwithstanding the foregoing, the failure to endorse any limitation upon the conservator's letters or certificate shall not relieve the conservator of the limitation imposed by order of the court.

REPORTER'S COMMENTS

As revised by the 2012 amendments, this section was former Section 62-5-426. This section permits the court to limit the powers of a conservator or relieve the conservator of a previously imposed limitation. It further provides that limitations be endorsed on the letters of appointment, but failure to so endorse does not relieve the conservator of the limitations.

Section 62-5-425.     (a)    A conservator may expend or distribute sums from the principal of the estate without court authorization or confirmation for the support, education, care, or benefit of the protected person and his dependents in accordance with the following principles:

(1)    The conservator is to consider recommendations relating to the appropriate standard of support, education, and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education, or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.

(2)    The conservator is to expend or distribute sums reasonably necessary for the support, education, care, or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person.

(3)    The conservator may expend funds of the estate for the support of persons legally dependent on the protected person.

(4)    Funds expended under this subsection may be paid by the conservator to any person, including the protected person, to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.

(b)    When a minor who has not been adjudged disabled under Section 62-5-401(2) attains his majority or is emancipated, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible. An individual under the age of eighteen who is also married shall remain a minor for purposes of this subsection until attaining majority or emancipation.

(c)(1)    When the conservator is satisfied that a protected person's disability (other than minority) has ceased, then he shall petition the court, and after determination by the court that the disability has ceased in accordance with Section 62-5-430, the conservator, after meeting all prior claims and expenses of administration shall pay over and distribute all funds and properties to the former protected person as soon as possible.

(2)    When the conservator is satisfied that a protected person's estate has a value of less than five thousand dollars, then he may petition the court, and after determination by the court that the protected person's estate has a value of less than five thousand dollars, the court in its discretion may terminate the conservatorship and order the conservator, after meeting all prior claims and expenses of administration, to pay over and distribute all funds and properties to or for the protected person as soon as possible and in accordance with Section 62-5-103.

(d)    If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after thirty days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under Section 62-3-204 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in Section 62-3-308 and Parts 6 through 10 of Article 3 [Sections 62-3-601 et seq. through Sections 62-3-1001 et seq.] except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.

(e)    A person shall not be disqualified as an executor of a deceased protected person solely by reason of his having been appointed and acting conservator of that protected person.

In investing the estate, and in selecting assets of the estate for distribution, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court must take into account any known estate plan of the protected person, any revocable trust of which the protected person is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which the protected person may have originated.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly Section 62-5-427 and provides that the conservator and the court must take into account any known estate plan of the protected person, in making investments, in distribution of assets, and in exercising certain other powers.

Section 62-5-426.     The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by Sections 62-5-424 and 62-5-425, or previously conferred by the court, and may at any time relieve him of any limitation. If the court limits any power conferred on the conservator by Section 62-5-424 or Section 62-5-425, the limitation shall be endorsed upon his letters of appointment and upon any certificate evidencing his appointment.

If a creditor has notice of appointment of a conservator, all pleadings must be served upon the conservator. Within thirty days after the conservator becomes aware of a proceeding in which the protected person is a party, the conservator must notify the court. The conservator may request instructions from the court as necessary.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly Section 62-5-428 which has been substantially modified. If the creditor has notice that there is a conservator appointed, the conservator must be served with the pleadings. When the conservator becomes aware of such a proceeding, he must notify the court and may seek instructions.

Section 62-5-427.     In investing the estate, and in selecting assets of the estate for distribution under subsections (a) and (b) of Section 62-5-425, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, any revocable trust of which he is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated.

(1)    Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(2)    The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(3)    Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable.

(4)    Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.

REPORTER'S COMMENTS

As amended by the 2012 amendment, this section was formerly section 62-5-429.

Subsection (1) relieves a conservator of personal liability for contracts properly entered into in his fiduciary capacity unless he fails to reveal his representative capacity and identify the estate in the contract.

Subsection (2) relieves the conservator from obligations arising from ownership or control of property and tort liability unless he is personally at fault.

Subsection (3) states that claims may be asserted by proceeding against the conservator in his fiduciary capacity, whether or not he is individually liable.

Subsection (4) addresses how questions of liability between the conservator and the estate may be determined.

Section 62-5-428.     (a)(1)    A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods:

(i)     the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed;

(ii)    the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of court and deliver or mail a copy of the statement to the conservator.

(2)    A claim is considered presented on the first to occur of receipt of the written statement of claim by the conservator or the filing of the claim with the court. Every claim which is disallowed in whole or part by the conservator is barred so far as not allowed unless the claimant files and properly serves a summons and petition for allowance in the court or commences a proceeding against the conservator not later than thirty days after the mailing of the notice of disallowance or partial disallowance if the notice warns the claimant of the impending bar. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance.

(b)    A claimant whose claim has not been paid may petition, by service of the summons and the petition, the court for determination of his claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is initiated against a protected person, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.

(c)    If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference must be given to prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration.

(1)(A)     Upon filing of a summons and petition with the appointing court, the protected person, the conservator, or interested person may request an order:

(i)     requiring bond or security or additional bond or security, or reducing bond;

(ii)    requiring an accounting for the administration of the conservatorship;

(iii)    directing distributions from the protected person's estate when the conservator has denied the request and has declined to file an application for expenditure;

(iv)    removing the conservator and appointing a temporary or successor conservator;

(v)    limiting or expanding the conservatorship;

(vi)    adjudicating liabilities pursuant to Section 62-5-416(1);

(vii)    authorizing a transaction involving a conflict of interest pursuant to Section 62-5-419;

(viii)    authorizing or approving an action of the conservator pursuant to Section 62-5-422(B);

(ix)    accepting the resignation of the conservator and appointing a temporary or successor conservator, if necessary;

(x)    terminating a conservatorship for reasons other than death or attaining majority; and

(xi)    granting other appropriate relief.

(B)    The procedure for obtaining orders subsequent to appointment is as follows:

(i)     Upon the filing of a summons and petition, the summons and petition shall be served upon the protected person, the conservator, the guardian, if any, the spouse of the protected person, the adult children whose whereabouts are reasonably ascertainable of the protected person, the parents of the protected person, if there is no spouse or adult child, any person who, under section 62-5-408, has equal or greater priority for appointment as the appointed conservator, any person with whom the protected person resides outside of a health care facility, group home, homeless shelter, or prison, and if the conservatorship is for the purpose of receiving veterans' benefits, the Secretary of the Department of Veterans' Affairs.

(ii)    The petition shall state the relief sought and the reasons the relief is necessary, desirable or beneficial for the protected person.

(iii)    After the filing of the summons and petition with the court and service upon the protected person, the court shall appoint a guardian ad litem for the protected person, with the duties and responsibilities set forth in Section 62-5-830.

(iv)    As soon as the interests of justice may allow, but after the time for response to the petition has elapsed as to all parties served, the court shall hold a hearing on the merits of the petition. The protected person and all parties not in default must be given notice of the hearing as provided in Section 62-1-401. Nothing in this section prohibits all parties not in default from waiving a hearing on a petition and the court for good cause may entertain a consent order on any petition.

(v)    The court may issue interim orders, for a period not to exceed ninety days, regarding the assets of the protected person until a hearing is held and a final order is issued.

(2)    Upon the death of the protected person, the conservator or the personal representative of the deceased protected person's estate may make application for the termination of the conservatorship and approval of the final accounting of the administration of the conservatorship estate. Notice must be given to those persons as the court may direct.

(3)    Upon the death of the protected person, the conservator may make application for the approval of payment of funeral expenses. Notice must be given to those persons as the court may require.

(4)    Subject to the provisions of Section 62-5-423(C), upon the protected person's attaining the age of majority or being emancipated by the family court, the conservator shall make application for the termination of the conservatorship and the approval of the final accounting of the administration of the conservatorship. Notice must be given to the former protected person and such other persons as the court directs. Following approval of the accounting, final distribution of the remaining funds and properties as ordered by the court and the filing of proof of distribution, the court will terminate the conservatorship.

(5)    Following the procedure set forth in subsection (B)(1), the protected person or any person interested in his welfare may petition for an order adjudicating or readjudicating the protected person's incapacity. The court may issue an order to specify a minimum period, not exceeding one year, during which no petition for adjudication that the protected person is no longer incapacitated may be filed without special leave of the court. Subject to this restriction, the protected person or the conservator may petition the court that the protected person is no longer incapacitated, and for termination of the protective order, which must be proved by a preponderance of the evidence.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly Section 62-5-430, which has been significantly expanded.

Subsection (1) addresses the procedure for requesting an order after the initial establishment of the conservatorship.

Subsection (2) allows for termination of a conservatorship upon the death of the protected person by application to the court. The conservator may also apply for approval of payment of funeral expenses.

Subsection (4) addresses petitions for adjudication and re-adjudication of incapacity. The court may restrict the filing of a petition for adjudication.

Section 62-5-429.     (a)    Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the court of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(b)    The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(c)    Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable therefor.

(d)    Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.

(A)    Any person indebted to a protected person, or having possession of property of or an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:

(1)    that no protective proceeding relating to the protected person is pending in this State; and

(2)    that the foreign conservator is entitled to payment or to receive delivery.

(B)    If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this State, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.

REPORTER'S COMMENTS

This section provides for payment of debts and delivery of property to a foreign conservator without local proceedings.

Section 62-5-430.     (A)    The protected person, the conservator, or any other interested person, by service of a summons and petition, may request that the court terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The court, upon determining after notice and hearing, that the disability of the protected person has ceased, may terminate the conservatorship.

(B)    The protected person, his personal representative, or the conservator may make application for the termination of the conservatorship when the protected person has attained his majority or if the protected person is deceased. Notice must be given to those persons as the court may direct.

(A)    If a conservator has not been appointed in this State and a petition for a protective order is not pending in this State, a conservator appointed in another state, after giving notice to the appointing court of an intent to register, may register the protective order in this State by filing in any appropriate county of this state a certified copy of the letters of office in the register of deeds and also filing a clocked copy of the letters of office, a certified copy of the order, and any bond in the probate court.

(B)    Upon registration of a protective order from another state, the conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed upon nonresident parties.

(C)    A court of this State may grant any relief available under this part and other law of this State to enforce a registered order.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly 62-5-432. It matches Sections 62-5-717 and 62-5-718 which address registration of a protective order from another state when the protected person is an adult. It is included here to clarify that this would also apply to protective orders for minors.

Section 62-5-431.     Any person indebted to a protected person, or having possession of property of or an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:

(1)    that no protective proceeding relating to the protected person is pending in this State;

(2)    that the foreign conservator is entitled to payment or to receive delivery.

If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this State, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.

(A)    For purposes of this section:

(1)    The term 'VA' means the United States Department of Veterans' Affairs or its successor.

(2)    The terms 'estate' and 'income' shall include only monies received by a conservator from the VA, all real and personal property acquired in whole or in part with such monies, and all earnings, interest, and profits derived from such monies.

(3)    The term 'benefits' means all monies payable by the United States through the VA.

(4)    The term 'Secretary' means the Secretary of the United States Department of Veterans' Affairs or its successor.

(5)    The term 'protected person' means a beneficiary of the VA.

(6)    The term 'conservator' means any person acting as a fiduciary for any protected person.

(B)(1)    Whenever, pursuant to any law of the United States or regulation of the VA, the secretary requires, prior to payment of benefits, that a conservator be appointed for a protected person, the appointment shall be made in the manner provided in Section 62-5-403, except to the extent this section requires otherwise. The petition shall show that the person to be protected has been rated incapable of handling his estate and monies on examination by the VA in accordance with the laws and regulations governing the VA.

(2)    When a petition is filed for the appointment of a conservator and a certificate of the Secretary or his representative is filed setting forth the fact that the appointment of a conservator is a condition precedent to the payment of any monies due the protected person by the VA, the certificate shall be prima facie evidence of the necessity for the appointment and no examiner's report shall be required.

(C)(1)    Except as hereinafter provided or as otherwise permitted by the VA, no person shall serve as conservator of any protected person if such proposed conservator shall at that time be acting as conservator for five protected persons. Upon presentation of a petition by an attorney of the VA under this section alleging that a conservator is acting in a fiduciary capacity for more than five protected persons and requesting his discharge as a conservator of any protected person for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from the conservator and shall discharge such conservator in all requested cases. The limitations of this section shall not apply when the conservator is a bank or trust company acting for protected persons' estates.

(2)    The conservator shall file such inventory, accountings, exhibits or other pleadings with the court as provided by law and copies shall be filed with the VA.

(3)    Every conservator shall invest the surplus funds in his protected person's estate in such securities, or otherwise, as allowed by law, and in which the conservator shall have no interest. The funds may be invested, without prior court authorization, in direct interest-bearing obligations of this state or of the United States and in obligations the interest and principal of which are both unconditionally guaranteed by the United States Government.

(4)    Whenever a copy of any public record is required by the VA to be used in determining the eligibility of any person to participate in benefits made available by the VA, the official charged with the custody of the public record shall without charge provide the applicant for the benefits or any person acting on his behalf or the representative of the VA with a certified copy of the record.

(D)    The Secretary or his successor is and shall be a party in interest:

(1)    in any proceeding brought under any law of this State for the appointment, confirmation, recognition, or removal of any conservator of a minor, or of a mentally incompetent person, to whom or on whose behalf benefits have been paid or are payable by the VA, its predecessor or successor;

(2)    in any conservatorship proceeding involving such person or his estate;

(3)    in any suit or other proceeding arising out of the administration of such person's estate or assets; and

(4)    in any proceeding the purpose of which is the removal of the disability of minority or of mental incompetency of such person.

(E)    In any case or proceeding involving property or funds of the minor or mentally incompetent person not derived from the VA, the VA shall not be a necessary party but may be a proper party to such proceedings. This section shall not apply unless the VA designates in a writing filed with the Secretary of State, the name and address of its chief attorney, acting chief attorney or other agent within this State as a person authorized to accept service of process or upon whom process may be served.

(F)    For services as conservator of funds paid from the VA, compensation payable to the conservator shall not exceed five percent of the income of the protected person during any year. If extraordinary services are rendered by any such conservator the court may, upon application of the conservator and notice to the VA as provided in this section, authorize additional compensation payable from the estate of the protected person. No compensation shall be allowed on the corpus of an estate derived from payments from the VA. The conservator may be allowed reimbursement from the estate of his protected person for reasonable premiums paid by him to any corporate surety upon his bond.

REPORTER'S COMMENTS

As revised by the 2012 amendments, this section is a distillation of provisions of the Uniform Veterans' Guardianship Act, which was formerly Part 6, Article 5, Title 62. This section should be taken into consideration whenever the primary respondent is receiving or will receive moneys from the VA. In general, the proceeding is the same as that contained in section 62-5-403, except that a certificate of the Secretary or his representative replaces the necessity for an examiner and there may be a limit on the number of persons for whom a conservator may act.

Section 62-5-432.     If no local conservator has been appointed and no petition in a protective proceeding is pending in this State, then, except as provided in Section 62-5-431, a domiciliary foreign conservator may file with the court in this State in all counties in which property belonging to the protected person is located, authenticated copies of his appointment and of any official bond he has given. Thereafter, he may exercise as to assets in this State all powers of a local conservator and maintain actions and proceedings in this State subject to any conditions imposed upon nonresident parties generally.

(A)    For purposes of this section, the following definitions shall apply:

(1)    'Court' means the probate court or the circuit court of the county in which the minor or incapacitated person resides or any court of this State in which a legal action regarding the claim in favor of or against the minor or incapacitated person has been properly commenced.

(2)    'Claim' means the net or actual amount payable to or on behalf of or paid by the minor or incapacitated person as a result of the settlement of a legal matter resulting in the payment of money or the delivery of real or personal property.

(3)    'Conservator' means:

(a)    for residents of this state a conservator appointed for the minor or incapacitated person by the probate court for the county in which the minor or incapacitated person resides; and

(b)    for a nonresident of this State, a person appointed by a court in the state of residence of the minor or incapacitated person and who has authority and duties similar to those of a conservator in this state or a person appointed conservator for a nonresident by a probate court in this state in a county where the nonresident has property or the right to take legal action.

(B)(1)    The settlement of any claim in favor of or against any minor or incapacitated person, for whom a conservator has previously been appointed and is serving, only may be effected by the conservator for such minor or incapacitated person.

(2)    The settlement of any claim that does not exceed ten thousand dollars in favor of or against any minor or incapacitated person shall be effected by the conservator for the minor or incapacitated person or, if no conservator has previously been appointed, may be effected by: (i) the parent or guardian of the minor, (ii) a guardian appointed under Part 3 of this article for an incapacitated person, or (iii) a guardian ad litem appointed by the court for the minor or incapacitated person. The settlement of the claim may be effected without court approval and without the subsequent appointment of a conservator for the minor or incapacitated person. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the payment or delivery must be made to a conservator previously appointed for the minor or incapacitated person or, if no conservator has been previously appointed, shall be made in accordance with Section 62-5-103, in which case the person receiving the money or personal property on behalf of the minor or incapacitated person shall be authorized to execute a proper receipt and release or covenant not to sue therefor, which shall be binding upon the minor or incapacitated person.

(3)    The settlement of any claim exceeding ten thousand dollars in favor of or against a minor or incapacitated person requires the appointment of a conservator for the minor or incapacitated person unless one has been previously appointed and is serving. If a conservator concludes that settlement of the claim exceeding ten thousand dollars in favor of or against his ward is in the best interest of the ward he may enter into the settlement as follows:

(a)    subject to limitations placed upon a conservator by the appointing court, if the claim is twenty-five thousand dollars or less, the conservator may settle the claim without court authorization or confirmation, or the conservator may file with the court an application or motion for approval as provided item (4). If the settlement requires an application the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the conservator shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which shall be binding upon the minor or incapacitated person.

(4)    Settlement of a claim with a value exceeding twenty-five thousand dollars requires court approval which the conservator may attain only as follows:

(a)    The conservator must file with the court an application or motion setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the conservator, the proposed settlement is fair and reasonable and should be approved by the court. The application or motion must include a statement by the conservator that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated person. Notice of hearing must be given to the minor or incapacitated person's guardian, the spouse, any adult children whose whereabouts are known or reasonably ascertainable, and if there is no spouse or adult children, the parents whose whereabouts are known or reasonably ascertainable. The court may approve or deny any application or motion for approval of a settlement filed by the conservator after notice and a hearing, or may in its discretion require the commencement of a formal proceeding under Section 62-5-428.

(b)    If, upon consideration of the petition and after hearing the testimony as it may require concerning the matter, the court concludes that the proposed settlement is proper and in the best interests of the minor or incapacitated person, the court shall issue its order approving the settlement and authorizing the conservator to consummate it and execute a proper receipt and release or covenant not to sue therefor, which shall be binding upon the minor or incapacitated person.

(c)    Except as provided in subitem (d), the order authorizing the settlement must require that payment or delivery of the money or personal property to or in favor of a minor or incapacitated person be paid to the conservator for the benefit of the minor or incapacitated person.

(d)    If based upon the facts set forth in the application or motion or presented during the hearing, the probate court finds it is in the best interest of the minor or incapacitated person, the court may order any settlement proceeds placed in a special needs trust which complies with the provisions of 42 U.S.C. 1396p(d)(4)(A) or in a pooled fund trust which complies with the provisions of 42 USC 1396p(d)(4)(C).

(e)    If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, the party may be found to be liable and punishable for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.

REPORTER'S COMMENTS

As revised by the 2012 amendment, this section was formerly Section 62-5-433 which has been substantially modified. It addresses The settlement of claims in favor of or against a minor or incapacitated person.

Item (A) contains definitions applicable to this section.

Item (B)(1) states that if a conservatorship is in place, only the conservator may settle the claim.

Item (B)(2) addresses claims not in excess of $10,000.00. Such claims may be settled by a conservator. If no conservator has been appointed, the claim may be settled by the parent, guardian or guardian ad litem of a minor or by a guardian for an incapacitated person without court approval and without appointment of a conservator. If there is a conservator, any funds or property would be delivered to the conservator. If there is no conservator, funds or property could be delivered in accordance with 62-5-103.

Item (B)(3) addresses claims over $10,000.00 and requires the appointment of a conservator to effect the settlement.

Item (B)(4) states that for claims of $25,000.00 or less, the conservator, unless his authority has been limited by the court, may settle the claim without court approval or may file an application or motion for approval. For claims in excess of $25,000.00, the conservator must file an application or motion for approval.

Section 62-5-433.     (A)(1)    For purposes of this section and for any claim exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated person, 'court' means the circuit court of the county in which the minor or incapacitated person resides or the circuit court in the county in which the suit is pending. For purposes of this section and for any claim not exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated person, 'court' means either the circuit court or the probate court of the county in which the minor or incapacitated person resides or the circuit court or probate court in the county in which the suit is pending.

(2)    'Claim' means the net or actual amount accruing to or paid by the minor or incapacitated person as a result of the settlement.

(3)    'Petitioner' means either a conservator appointed by the probate court for the minor or incapacitated person or the guardian or guardian ad litem of the minor or incapacitated person if a conservator has not been appointed.

(B)    The settlement of any claim over twenty-five thousand dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property must be effected on his behalf in the following manner:

(1)    The petitioner must file with the court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed twenty-five thousand dollars, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated person.

(2)    If, upon consideration of the petition and after hearing the testimony as it may require concerning the matter, the court concludes that the proposed settlement is proper and in the best interests of the minor or incapacitated person, the court shall issue its order approving the settlement and authorizing the petitioner to consummate it and, if the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, to receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person.

(3)    The order authorizing the settlement must require that payment or delivery of the money or personal property be made through the conservator. If a conservator has not been appointed, the petitioner shall, upon receiving the money or personal property, pay and deliver it to the court pending the appointment and qualification of a duly appointed conservator. If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.

(C)    The settlement of any claim that does not exceed twenty-five thousand dollars in favor of or against a minor or incapacitated person for the payment of money or the possession of personal property may be effected in any of the following manners:

(1)    If a conservator has been appointed, he may settle the claim without court authorization or confirmation, as provided in Section 62-5-424, or he may petition the court for approval, as provided in items (1), (2), and (3) of subsection (B). If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the conservator shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person.

(2)    If a conservator has not been appointed, the guardian or guardian ad litem must petition the court for approval of the settlement, as provided in items (1) and (2) of subsection (B), and without the appointment of a conservator. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103. If a party subject to the court order fails or refuses to pay the money or deliver the personal property, as required by the order and in accordance with Section 62-5-103, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.

(D)    The settlement of any claim that does not exceed two thousand five hundred dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property may be effected by the parent or guardian of the minor or incapacitated person without court approval of the settlement and without the appointment of a conservator. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the parent or guardian shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103.

(1)    An adult, who is not incapacitated but is disabled, may petition the court to create and establish a special needs trust for his benefit in compliance with 42 USC 1396p(d)(4)(A). Upon the filing of an application together with the written statement of a physician stating that the petitioner is competent to manage his property, the court may issue an order creating and establishing a special needs trust in the form and substance submitted by the petitioner. The court shall have no responsibility to assure the validity of the trust or its effectiveness in accomplishing the intended purpose and shall have no ongoing responsibility to monitor the trust.

(2)    The court shall have authority to create and establish a special needs trust for an incapacitated person in compliance with 42 U.S.C. 1396(d)(4)(A) and to order the placement of the incapacitated person's funds into such a trust or into a pooled trust in compliance with 42 U.S.C. 1396(d)(4)(C) for the benefit of incapacitated persons under its authority to issue protective orders pursuant to the procedure set forth in Section 62-5-401 et seq.

(3)    In the case of a disabled minor primary respondent, the court shall have authority to create and establish a special needs trust in compliance with 42 U.S.C. 1396(d)(4)(A) if the court determines it is in the primary respondent's best interest. The court also shall have the authority to order the placement of the minor's funds into such a trust or into a pooled trust in compliance with 42 U.S.C. 1396(d)(4)(C) for the benefit of a minor under its authority to issue protective orders pursuant to the procedure set forth in Section 62-5-401 et seq., even though the terms of the trust extend beyond the age of majority.

REPORTER'S COMMENTS

The 2012 amendment added this section.

Subsection (1) clarifies that the court has jurisdiction to create a special needs trust for an adult who is disabled, but not incapacitated. The court is authorized to create such a trust in the form submitted by the petitioner and is not responsible for the validity of the trust or for monitoring of the trust.

Subsection (2) affirms the court's authority to create a special needs trust for an incapacitated person and to order the placement of the incapacitated person's funds into a special needs trust or a pooled trust.

Subsection (3) confirms the court's authority to create a special needs trust for a disabled minor and to order the placement of the disabled minor's funds into a special needs trust or pooled trust even though the trust extends beyond the age of majority.

A special needs trust or pooled trust is appropriate for a minor or adult who meets the disability requirements referenced in 42 U.S.C. 1396P(d)(4).

Section 62-5-434.    The settlement of any claim involving a minor completed between July 1, 1987, and September 24, 1987, is presumed facially valid whether effectuated with or without court approval.

Section 62-5-435.     Neither the court which may have approved a settlement nor a person who completed the settlement of a minor's claim but did not seek court approval during this time period is liable for their good faith exercise of discretion in approving or completing the settlement.

Part 5

Powers Durable Power of Attorney

Section 62-5-501. (A)    Whenever a principal designates another his attorney in fact by a power of attorney in writing and the writing contains (1) the words 'This power of attorney is not affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate', (2) the words 'This power of attorney becomes effective upon the physical disability or mental incompetence of the principal', or (3) similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his physical disability or mental incompetence or either physical disability or mental incompetence, the authority of the attorney in fact is exercisable by him as provided in the power on behalf of the principal notwithstanding later physical disability or mental incompetence of the principal or later uncertainty as to whether the principal is dead or alive. The power may define 'physical disability' or 'mental incompetence' and may set forth the procedures for determining whether the principal is physically disabled or mentally incompetent. If no definition of mental incompetence or procedures for determining mental incompetence are set forth, and the authority of the attorney in fact relates solely to health care, mental incompetence is to be determined according to the standards and procedures for inability to consent under Section 44-66-20(6) of the Adult Health Care Consent Act. The authority of the attorney in fact to act on behalf of the principal must be set forth in the power and may relate to any act, power, duty, right, or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property, including the power to consent or withhold consent on behalf of the principal to health care. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary. All acts done by the attorney in fact pursuant to the power during a period of physical disability or mental incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees, and personal representative as if the principal were alive, mentally competent, and not disabled physically.

(B)    An instrument to which this section is applicable also may provide for successor attorneys in fact and provide conditions for their succession, which may include an authorization for the court to appoint a successor, and the succession may occur whether or not the principal then is physically disabled or mentally incompetent. The appointment of an attorney in fact under this section does not prevent a person or his representative from petitioning the court to have a guardian or conservator appointed. Unless the power of attorney provides otherwise, appointment of a guardian terminates all or part of the power of attorney that relates to matters within the scope of the guardianship, and appointment of a conservator terminates all or part of the power of attorney that relates to matters within the scope of the conservatorship.

(C)    A power of attorney executed under the provisions of this section must be executed and attested with the same formality and with the same requirements as to witnesses as a will. In addition, the instrument must be recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded. After the instrument has been recorded, whether recorded before or after the onset of the principal's physical disability or mental incompetence, it is effective notwithstanding the mental incompetence or physical disability. If the authority of the attorney in fact relates solely to the person of the principal, the instrument is effective without being recorded.

(D)    A power of attorney as provided for under this section is valid if:

(1)    executed in compliance with this section; or

(2)    its execution complies with the law at the time of execution of the jurisdiction where the instrument was executed and it is recorded as required by subsection (C). Notwithstanding the provisions of Section 30-5-30, a valid power of attorney as provided for under this section which is executed in another jurisdiction may be recorded as though it complies with the provisions of subsection (C) of this section.

(E)    A properly executed durable power of attorney that authorizes an attorney in fact to make health care decisions or other decisions regarding the principal is valid whether or not it was executed after May 14, 1990.

(F)(1)    A third person in this State who receives or is presented with a valid power of attorney executed pursuant to this section, and has not received actual written notice of its revocation or termination, must not refuse to honor the power of attorney if it contains the following provision or a substantially similar provision:

'No person who may act in reliance upon the representations of my attorney-in-fact for the scope of authority granted to the attorney-in-fact shall incur any liability as to me or to my estate as a result of permitting the attorney-in-fact to exercise this authority, nor is any such person who deals with my attorney-in-fact responsible to determine or ensure the proper application of funds or property.'

As used in this subsection, 'to honor' a power of attorney means to deal with the attorney-in-fact as if the attorney-in-fact were the principal, personally present and acting on his own behalf within the scope of the powers granted to the attorney-in-fact.

(2)    Unless the third person actually has received written notice of the revocation or termination of a valid power of attorney executed in accordance with this section, a third person in this State who receives or is presented with a power of attorney:

(a)    does not incur liability to the principal or the principal's estate by reason of acting upon the authority of it or permitting the attorney-in-fact to exercise authority;

(b)    is not required to inquire whether the attorney-in-fact has power to act or is properly exercising the power; or

(c)    is not responsible to determine or ensure the proper application of assets, funds, or property belonging to the principal.

(3)    A 'third person' means an individual, a corporation, an organization, or other legal entity for purposes of this subsection.

(G)(1)    An attorney-in-fact is entitled to reimbursement for expenses and compensation for services as provided in the power of attorney. In the absence of a provision in the power of attorney regarding reimbursement or compensation, or both:

(a)    an attorney-in-fact is entitled to reimbursement for all reasonable costs and expenses actually incurred and paid by the attorney-in-fact on the principal's behalf;

(b)    an attorney-in-fact, upon the approval of the probate court, is entitled to reasonable compensation based upon the responsibilities he assumed and the effort he expended; and

(c)    if two or more attorneys-in-fact are serving together, the compensation paid must be divided by them in a manner as they agree or as determined by a court of competent jurisdiction if they fail to agree.

(2)    An interested person may petition a court of competent jurisdiction to review the propriety and reasonableness of payment for reimbursement or compensation to the attorney-in-fact, and an attorney-in-fact who has received excessive payment may be ordered to make appropriate refunds to the principal.

Section 62-5-502.     (a)    The death, disability, or incompetence of any principal who has executed a power of attorney in writing does not revoke or terminate the agency as to the attorney-in-fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees, and personal representatives.

(b)    An affidavit, executed by the attorney-in-fact or agent stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

(c)    This section shall not be construed to alter or affect any provision for revocation or termination contained in the power of attorney.

Section 62-5-503.     The probate court has concurrent jurisdiction with the circuit courts of this State over all subject matter related to the creation, exercise, and termination of powers of attorney governed by the provisions of this Part, including the approval of the sale of real and personal property by an attorney-in-fact.

Section 62-5-504.     (A)    As used in this section:

(1)    'Agent' or 'health care agent' means an individual designated in a health care power of attorney to make health care decisions on behalf of a principal.

(2)    'Declaration of a desire for a natural death' or 'declaration' means a document executed in accordance with the South Carolina Death with Dignity Act or a similar document executed in accordance with the law of another state.

(3)    'Health care' means a procedure to diagnose or treat a human disease, ailment, defect, abnormality, or complaint, whether of physical or mental origin. It also includes the provision of intermediate or skilled nursing care; services for the rehabilitation of injured, disabled, or sick persons; and placement in or removal from a facility that provides these forms of care.

(4)    'Health care power of attorney' means a durable power of attorney executed in accordance with this section.

(5)    'Health care provider' means a person, health care facility, organization, or corporation licensed, certified, or otherwise authorized or permitted by the laws of this State to administer health care.

(6)    'Life-sustaining procedure' means a medical procedure or intervention which serves only to prolong the dying process. Life-sustaining procedures do not include the administration of medication or other treatment for comfort care or alleviation of pain. The principal shall indicate in the health care power of attorney whether the provision of nutrition and hydration through medically or surgically implanted tubes is desired.

(7)    'Permanent unconsciousness' means a medical diagnosis, consistent with accepted standards of medical practice, that a person is in a persistent vegetative state or some other irreversible condition in which the person has no neocortical functioning, but only involuntary vegetative or primitive reflex functions controlled by the brain stem.

(8)    'Nursing care provider' means a nursing care facility or an employee of the facility.

(9)    'Principal' means an individual who executes a health care power of attorney. A principal must be eighteen years of age or older and of sound mind.

(10)    'Separated' means that the principal and his or her spouse are separated pursuant to one of the following:

(a)    entry of a pendente lite order in a divorce or separate maintenance action;

(b)    formal signing of a written property or marital settlement agreement;

(c)    entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

(B)(1)    A health care power of attorney is a durable power of attorney pursuant to Section 62-5-501. Sections that refer to a durable power of attorney or judicial interpretations of the law relating to durable powers of attorney apply to a health care power of attorney to the extent that they are not inconsistent with this section.

(2)    This section does not affect the right of a person to execute a durable power of attorney relating to health care pursuant to other provisions of law but which does not conform to the requirements of this section. If a durable power of attorney for health care executed under Section 62-5-501 or under the laws of another state does not conform to the requirements of this section, the provisions of this section do not apply to it. However, a court is not precluded from determining that the law applicable to nonconforming durable powers of attorney for health care is the same as the law set forth in this section for health care powers of attorney.

(3)    To the extent not inconsistent with this section, the provisions of the Adult Health Care Consent Act apply to the making of decisions by a health care agent and the implementation of those decisions by health care providers.

(4)    In determining the effectiveness of a health care power of attorney, mental incompetence is to be determined according to the standards and procedures for inability to consent under Section 44-66-20(6), except that certification of mental incompetence by the agent may be substituted for certification by a second physician. If the certifying physician states that the principal's mental incompetence precludes the principal from making all health care decisions or all decisions concerning certain categories of health care, and that the principal's mental incompetence is permanent or of extended duration, no further certification is necessary in regard to the stated categories of health care decisions during the stated duration of mental incompetence unless the agent or the attending physician believes the principal may have regained capacity.

(C)(1)    A health care power of attorney must:

(a)    be substantially in the form set forth in subsection (D) of this section;

(b)    be dated and signed by the principal or in the principal's name by another person in the principal's presence and by his direction;

(c)    be signed by at least two persons, each of whom witnessed either the signing of the health care power of attorney or the principal's acknowledgment of his signature on the health care power of attorney. Each witness must state in an affidavit as set forth in subsection (D) of this section that, at the time of the execution of the health care power of attorney, to the extent the witness has knowledge, the witness is not related to the principal by blood, marriage, or adoption, either as a spouse, lineal ancestor, descendant of the parents of the principal, or spouse of any of them; not directly financially responsible for the principal's medical care; not entitled to any portion of the principal's estate upon his decease under a will of the principal then existing or as an heir by intestate succession; not a beneficiary of a life insurance policy of the principal; and not appointed as health care agent or successor health care agent in the health care power of attorney; and that no more than one witness is an employee of a health facility in which the principal is a patient, no witness is the attending physician or an employee of the attending physician, or no witness has a claim against the principal's estate upon his decease;

(d)    state the name and address of the agent. A health care agent must be an individual who is eighteen years of age or older and of sound mind. A health care agent may not be a health care provider, or an employee of a provider, with whom the principal has a provider-patient relationship at the time the health care power of attorney is executed, or an employee of a nursing care facility in which the principal resides, or a spouse of the health care provider or employee, unless the health care provider, employee, or spouse is a relative of the principal.

(2)    The validity of a health care power of attorney is not affected by the principal's failure to initial any of the choices provided in Section 4, 6, or 7 of the Health Care Power of Attorney form or to name successor agents. If the principal fails to indicate either of the statements in Section 7 concerning provision of artificial nutrition and hydration, the agent does not have authority to direct that nutrition and hydration necessary for comfort care or alleviation of pain be withheld or withdrawn.

(D)    A health care power of attorney executed on or after January 1, 2007 must be substantially in the following form:

INFORMATION ABOUT THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

1. THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISION FOR YOURSELF. THIS POWER INCLUDES THE POWER TO MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT. UNLESS YOU STATE OTHERWISE, YOUR AGENT WILL HAVE THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE.

2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENTS OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU WANT TO BE SURE YOU RECEIVE. YOUR AGENT WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. YOU MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE SPACE TO COMPLETE THE STATEMENT.

3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.

4. YOU HAVE THE RIGHT TO REVOKE THIS DOCUMENT, AND TERMINATE YOUR AGENT'S AUTHORITY, BY INFORMING EITHER YOUR AGENT OR YOUR HEALTH CARE PROVIDER ORALLY OR IN WRITING.

5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER, OR OTHER PERSON TO EXPLAIN IT TO YOU.

6. THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF THESE PERSONS MUST EITHER WITNESS YOUR SIGNING OF THE POWER OF ATTORNEY OR WITNESS YOUR ACKNOWLEDGMENT THAT THE SIGNATURE ON THE POWER OF ATTORNEY IS YOURS.

THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

A. YOUR SPOUSE, YOUR CHILDREN, GRANDCHILDREN, AND OTHER LINEAL DESCENDANTS; YOUR PARENTS, GRANDPARENTS, AND OTHER LINEAL ANCESTORS; YOUR SIBLINGS AND THEIR LINEAL DESCENDANTS; OR A SPOUSE OF ANY OF THESE PERSONS.

B. A PERSON WHO IS DIRECTLY FINANCIALLY RESPONSIBLE FOR YOUR MEDICAL CARE.

C. A PERSON WHO IS NAMED IN YOUR WILL, OR, IF YOU HAVE NO WILL, WHO WOULD INHERIT YOUR PROPERTY BY INTESTATE SUCCESSION.

D. A BENEFICIARY OF A LIFE INSURANCE POLICY ON YOUR LIFE.

E. THE PERSONS NAMED IN THE HEALTH CARE POWER OF ATTORNEY AS YOUR AGENT OR SUCCESSOR AGENT.

F. YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR PHYSICIAN.

G. ANY PERSON WHO WOULD HAVE A CLAIM AGAINST ANY PORTION OF YOUR ESTATE (PERSONS TO WHOM YOU OWE MONEY).

IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO MORE THAN ONE WITNESS MAY BE AN EMPLOYEE OF THAT FACILITY.

7. YOUR AGENT MUST BE A PERSON WHO IS 18 YEARS OLD OR OLDER AND OF SOUND MIND. IT MAY NOT BE YOUR DOCTOR OR ANY OTHER HEALTH CARE PROVIDER THAT IS NOW PROVIDING YOU WITH TREATMENT; OR AN EMPLOYEE OF YOUR DOCTOR OR PROVIDER; OR A SPOUSE OF THE DOCTOR, PROVIDER, OR EMPLOYEE; UNLESS THE PERSON IS A RELATIVE OF YOURS.

8. YOU SHOULD INFORM THE PERSON THAT YOU WANT HIM OR HER TO BE YOUR HEALTH CARE AGENT. YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. IF YOU ARE IN A HEALTH CARE FACILITY OR A NURSING CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.

HEALTH CARE POWER OF ATTORNEY

(S.C. STATUTORY FORM)

1. DESIGNATION OF HEALTH CARE AGENT

I, __________, hereby appoint:

(Principal)

(Agent's Name) ___

(Agent's Address) ___

Telephone: home: __________ work: __________ mobile: ______ as my agent to make health care decisions for me as authorized in this document.

Successor Agent: If an agent named by me dies, becomes legally disabled, resigns, refuses to act, becomes unavailable, or if an agent who is my spouse is divorced or separated from me, I name the following as successors to my agent, each to act alone and successively, in the order named:

a. First Alternate Agent:

Address: ___

Telephone: home: _____ work: _____ mobile: ____

b. Second Alternate Agent:

Address: ___

Telephone: home: _____ work: _____ mobile: ____

Unavailability of Agent(s): If at any relevant time the agent or successor agents named here are unable or unwilling to make decisions concerning my health care, and those decisions are to be made by a guardian, by the Probate Court, or by a surrogate pursuant to the Adult Health Care Consent Act, it is my intention that the guardian, Probate Court, or surrogate make those decisions in accordance with my directions as stated in this document.

2. EFFECTIVE DATE AND DURABILITY

By this document I intend to create a durable power of attorney effective upon, and only during, any period of mental incompetence, except as provided in Paragraph 3 below.

3. HIPAA AUTHORIZATION

When considering or making health care decisions for me, all individually identifiable health information and medical records shall be released without restriction to my health care agent(s) and/or my alternate health care agent(s) named above including, but not limited to, (i) diagnostic, treatment, other health care, and related insurance and financial records and information associated with any past, present, or future physical or mental health condition including, but not limited to, diagnosis or treatment of HIV/AIDS, sexually transmitted disease(s), mental illness, and/or drug or alcohol abuse and (ii) any written opinion relating to my health that such health care agent(s) and/or alternate health care agent(s) may have requested. Without limiting the generality of the foregoing, this release authority applies to all health information and medical records governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC 1320d and 45 CFR 160-164; is effective whether or not I am mentally competent; has no expiration date; and shall terminate only in the event that I revoke the authority in writing and deliver it to my health care provider.

4. AGENT'S POWERS

I grant to my agent full authority to make decisions for me regarding my health care. In exercising this authority, my agent shall follow my desires as stated in this document or otherwise expressed by me or known to my agent. In making any decision, my agent shall attempt to discuss the proposed decision with me to determine my desires if I am able to communicate in any way. If my agent cannot determine the choice I would want made, then my agent shall make a choice for me based upon what my agent believes to be in my best interests. My agent's authority to interpret my desires is intended to be as broad as possible, except for any limitations I may state below.

Accordingly, unless specifically limited by the provisions specified below, my agent is authorized as follows:

A. To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, medication, and the use of mechanical or other procedures that affect any bodily function, including, but not limited to, artificial respiration, nutritional support and hydration, and cardiopulmonary resuscitation.

B. To authorize, or refuse to authorize, any medication or procedure intended to relieve pain, even though such use may lead to physical damage, addiction, or hasten the moment of, but not intentionally cause, my death.

C. To authorize my admission to or discharge, even against medical advice, from any hospital, nursing care facility, or similar facility or service.

D. To take any other action necessary to making, documenting, and assuring implementation of decisions concerning my health care, including, but not limited to, granting any waiver or release from liability required by any hospital, physician, nursing care provider, or other health care provider; signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in my name, and at the expense of my estate to force compliance with my wishes as determined by my agent, or to seek actual or punitive damages for the failure to comply.

E. The powers granted above do not include the following powers or are subject to the following rules or limitations:

___

___

___

5. ORGAN DONATION (INITIAL ONLY ONE)

My agent may ___; may not ___ consent to the donation of all or any of my tissue or organs for purposes of transplantation.

6. EFFECT ON DECLARATION OF A DESIRE FOR A NATURAL DEATH (LIVING WILL)

I understand that if I have a valid Declaration of a Desire for a Natural Death, the instructions contained in the Declaration will be given effect in any situation to which they are applicable. My agent will have authority to make decisions concerning my health care only in situations to which the Declaration does not apply.

7. STATEMENT OF DESIRES CONCERNING LIFE-SUSTAINING TREATMENT

With respect to any Life-Sustaining Treatment, I direct the following:

(INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS)

(1) ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment.

OR

(2) ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TREATMENT. I do not want my life to be prolonged and I do not want life-sustaining treatment:

a. if I have a condition that is incurable or irreversible and, without the administration of life-sustaining procedures, expected to result in death within a relatively short period of time; or

b. if I am in a state of permanent unconsciousness.

OR

(3) ___ DIRECTIVE FOR MAXIMUM TREATMENT. I want my life to be prolonged to the greatest extent possible, within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedures.

8. STATEMENT OF DESIRES REGARDING TUBE FEEDING

With respect to Nutrition and Hydration provided by means of a nasogastric tube or tube into the stomach, intestines, or veins, I wish to make clear that in situations where life-sustaining treatment is being withheld or withdrawn pursuant to Paragraph 7, (INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS):

(1) ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged by tube feeding if my agent believes the burdens of tube feeding outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality as well as the possible extension of my life in making this decision.

OR

(2) ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TUBE FEEDING. I do not want my life prolonged by tube feeding.

OR

(3) ___ DIRECTIVE FOR PROVISION OF TUBE FEEDING. I want tube feeding to be provided within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedure, and without regard to whether other forms of life-sustaining treatment are being withheld or withdrawn.

IF YOU DO NOT INITIAL ANY OF THE STATEMENTS IN PARAGRAPH 8, YOUR AGENT WILL NOT HAVE AUTHORITY TO DIRECT THAT NUTRITION AND HYDRATION NECESSARY FOR COMFORT CARE OR ALLEVIATION OF PAIN BE WITHDRAWN.

9. ADMINISTRATIVE PROVISIONS

A. I revoke any prior Health Care Power of Attorney and any provisions relating to health care of any other prior power of attorney.

B. This power of attorney is intended to be valid in any jurisdiction in which it is presented.

BY SIGNING HERE I INDICATE THAT I UNDERSTAND THE CONTENTS OF THIS DOCUMENT AND THE EFFECT OF THIS GRANT OF POWERS TO MY AGENT.

I sign my name to this Health Care Power of Attorney on this ___ day of ___, 20 __. My current home address is:

___

Principal's Signature: ___

Print Name of Principal: ___

I declare, on the basis of information and belief, that the person who signed or acknowledged this document (the principal) is personally known to me, that he/she signed or acknowledged this Health Care Power of Attorney in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence. I am not related to the principal by blood, marriage, or adoption, either as a spouse, a lineal ancestor, descendant of the parents of the principal, or spouse of any of them. I am not directly financially responsible for the principal's medical care. I am not entitled to any portion of the principal's estate upon his decease, whether under any will or as an heir by intestate succession, nor am I the beneficiary of an insurance policy on the principal's life, nor do I have a claim against the principal's estate as of this time. I am not the principal's attending physician, nor an employee of the attending physician. No more than one witness is an employee of a health facility in which the principal is a patient. I am not appointed as Health Care Agent or Successor Health Care Agent by this document.

Witness No. 1

Signature: _________________________ Date: ___

Print Name: ____________________ Telephone: ___

Address: ___

___

Witness No. 2

Signature: _________________________ Date: ___

Print Name: ____________________ Telephone: ___

Address: ___

___

(This portion of the document is optional and is not required to create a valid health care power of attorney.)

STATE OF SOUTH CAROLINA

COUNTY OF ___

The foregoing instrument was acknowledged before me by Principal on _______________, 20 ____________.

Notary Public for South Carolina ___

My Commission Expires: ___

(E)    A health care agent has, in addition to the powers set forth in the health care power of attorney, the following specific powers:

(1)    to have access to the principal's medical records and information to the same extent that the principal would have access, including the right to disclose the contents to others;

(2)    to contract on the principal's behalf for placement in a health care or nursing care facility or for health care related services, without the agent incurring personal financial liability for the contract;

(3)    to hire and fire medical, social service, and other support personnel responsible for the principal's care;

(4)    to have the same health care facility or nursing care facility visitation rights and privileges of the principal as are permitted to immediate family members or spouses.

(F)(1)    The agent is not entitled to compensation for services performed under the health care power of attorney, but the agent is entitled to reimbursement for all reasonable expenses incurred as a result of carrying out the health care power of attorney or the authority granted by this section.

(2)    The agent's consent to health care or to the provision of services to the principal does not cause the agent to be liable for the costs of the care or services.

(G)    If a principal has been diagnosed as pregnant, life-sustaining procedures may not be withheld or withdrawn pursuant to the health care power of attorney during the course of the principal's pregnancy. This subsection does not otherwise affect the agent's authority to make decisions concerning the principal's obstetrical and other health care during the course of the pregnancy.

(H)    A health care provider or nursing care provider having knowledge of the principal's health care power of attorney has a duty to follow directives of the agent that are consistent with the health care power of attorney to the same extent as if they were given by the principal. If it is uncertain whether a directive is consistent with the health care power of attorney, the health care provider, nursing care provider, agent, or other interested person may apply to the probate court for an order determining the authority of the agent to give the directive.

(I)    An agent acting pursuant to a health care power of attorney shall make decisions concerning the principal's health care in accordance with the principal's directives in the health care power of attorney and with any other statements of intent by the principal that are known to the agent and are not inconsistent with the directives in the health care power of attorney. If a principal has a valid Declaration of a Desire for a Natural Death pursuant to Title 44, Chapter 77, the declaration must be given effect in any situation to which it is applicable. The agent named in the health care power of attorney has authority to make decisions only in situations to which the declaration does not apply. However, nothing herein prevents the principal or a person designated by the principal in the declaration from revoking the declaration as provided in Section 44-77-80.

(J)(1)    A person who relies in good faith upon a person's representation that he is the person named as agent in a health care power of attorney is not subject to civil or criminal liability or disciplinary action for recognizing the agent's authority.

(2)    A health care provider or nursing care provider who in good faith relies on a health care decision made by an agent or successor agent is not subject to civil or criminal liability or disciplinary action on account of relying on the decision.

(3)    An agent who in good faith makes a health care decision pursuant to a health care power of attorney is not subject to civil or criminal liability on account of the substance of the decision.

(K)(1)    The principal may appoint one or more successor agents in the health care power of attorney in the event an agent dies, becomes legally disabled, resigns, refuses to act, is unavailable, or, if the agent is the spouse of the principal, becomes divorced or separated from the principal. A successor agent will succeed to all duties and powers given to the agent in the health care power of attorney.

(2)    If no agent or successor agent is available, willing, and qualified to make a decision concerning the principal's health care, the decision must be made according to the provisions of and by the person authorized by the Adult Health Care Consent Act.

(3)    All directives, statements of personal values, or statements of intent made by the principal in the health care power of attorney must be treated as exercises of the principal's right to direct the course of his health care. Decisions concerning the principal's health care made by a guardian, by the probate court, or by a surrogate pursuant to the Adult Health Care Consent Act, must be made in accordance with the directions stated in the health care power of attorney.

(L)(1)    A health care power of attorney may be revoked in the following ways:

(a)    by a writing, an oral statement, or any other act constituting notification by the principal to the agent or to a health care provider responsible for the principal's care of the principal's specific intent to revoke the health care power of attorney; or

(b)    by the principal's execution of a subsequent health care power of attorney or the principal's execution of a subsequent durable power of attorney under Section 62-5-501 if the durable power of attorney states an intention that the health care power of attorney be revoked or if the durable power of attorney is inconsistent with the health care power of attorney.

(2)    A health care provider who is informed of or provided with a revocation of a health care power of attorney immediately must record the revocation in the principal's medical record and notify the agent, the attending physician, and all other health care providers or nursing care providers who are responsible for the principal's care.

(M)    The execution and effectuation of a health care power of attorney does not constitute suicide for any purpose.

(N)    No person may be required to sign a health care power of attorney in accordance with this section as a condition for coverage under an insurance contract or for receiving medical treatment or as a condition of admission to a health care or nursing care facility.

(O)    Nothing in this section may be construed to authorize or approve mercy killing or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

(P)    The absence of a health care power of attorney by an adult patient does not give rise to a presumption of his intent to consent to or refuse death prolonging procedures. Nothing in this section impairs other legal rights or legal responsibilities which a person may have to effect the provision or the withholding or withdrawal of life-sustaining procedures in a lawful manner.

(Q)(1)    If a person coerces or fraudulently induces another person to execute a health care power of attorney, falsifies or forges a health care power of attorney, or wilfully conceals, cancels, obliterates, or destroys a revocation of a health care power of attorney, and the principal dies as a result of the withdrawal or withholding of treatment pursuant to the health care power of attorney, that person is subject to prosecution in accordance with the criminal laws of this State.

(2)    Nothing in this section prohibits a person from informing another person of the existence of this section, delivering to another person a copy of this section or a form for a health care power of attorney, or counseling another person in good faith concerning the execution of a health care power of attorney.

(3)    If a person wilfully conceals, cancels, defaces, obliterates, or damages a health care power of attorney without the principal's consent, or falsifies or forges a revocation of a health care power of attorney, or otherwise prevents the implementation of the principal's wishes as stated in a health care power of attorney, that person breaches a duty owed to the principal and is responsible for payment of any expenses or other damages incurred as a result of the wrongful act.

(R)    A physician or health care facility electing for any reason not to follow an agent's instruction that life-sustaining procedures be withheld or withdrawn as authorized in the health care power of attorney shall make a reasonable effort to locate a physician or health care facility that will follow the instruction and has a duty to transfer the patient to that physician or facility. If a nurse or other employee of a health care provider or nursing care provider gives notice that the employee does not wish to participate in the withholding or withdrawal of life-sustaining procedures as directed by an agent, a reasonable effort shall be made by the physician and the health care provider or nursing care provider to effect the withholding or withdrawal of life-sustaining procedures without the participation of the employee.

(S)(1)    Notwithstanding the requirements of subsections (C) and (D) of this section, any document or writing containing the following provisions is deemed to comply with the requirements of this section:

(a)    the name and address of the person who meets the requirements of subsection (C)(1)(d) and is authorized to make health care related decisions if the principal becomes mentally incompetent;

(b)    the types of health care related decisions that the health care agent is authorized to make;

(c)    the signature of the principal;

(d)    the signature of at least two persons who witnessed the principal's signature and who meet the requirements of subsection (C)(1)(c); and

(e)    the attestation of a notary public.

(2)    Additionally, any document that meets the requirements of subsection (S)(1) and also provides expressions of the principal's intentions or wishes with respect to the following health care issues authorizes the health care agent to act in accordance with these provisions:

(a)    organ donations;

(b)    life-sustaining treatment;

(c)    tube feeding;

(d)    other kinds of medical treatment that the principal wishes to have or not to have;

(e)    comfort and treatment issues;

(f)    provisions for interment or disposal of the body after death; and

(g)    any written statements that the principal may wish to have communicated on his behalf.

SOUTH CAROLINA COMMENTS

The 2010 amendment revised this subsection (H) to allow the health care provider, nursing care provider, agent, or other interested person to 'apply,' rather than 'petition,' the probate court for an order. An 'application' is defined in Section 62-1-201(1) and does not require a summons or petition.

Section 62-5-505.     The validity of a durable power of attorney that authorizes an attorney to make health care decisions regarding the principal properly executed pursuant to Section 62-5-501 of the 1976 Code before or after the effective date of this act is not affected by the amendments to Part 5, Article 5, Title 62 of the 1976 Code contained in this act.

Section 62-5-501.    (A)    To create a durable power of attorney, a principal must

(1)    Designate another as agent in a written instrument,

(2)    Provide in the instrument the principal's intent that the authority conferred is exercisable notwithstanding the incapacity of the principal, using the words 'This power of attorney is not affected by the incapacity of the principal which renders the principal incapable of managing his own estate' or the words 'This power of attorney becomes effective upon the incapacity of the principal', or words of similar intent,

(3)    Execute and attest the durable power of attorney with the same formality and with the same requirements as to witnesses of a will as set forth in Section 62-2-502, and

(4)    Prove or acknowledge the durable power of attorney as set forth in Section 30-5-30.

(B)    A principal's signature on a durable power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgements.

(C)    Notwithstanding the provisions of Section 30-5-30, a valid durable power of attorney executed in another jurisdiction may be recorded as though it complies with Section 30-5-30.

(D)    A durable power of attorney may be recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded. Subject to subsection (E), an instrument that meets the requirements set forth in subsection (A) above is effective notwithstanding the incapacity of the principal, even if that instrument is not recorded.

(E)    An instrument meeting the requirements set forth in subsection (A) above must be recorded upon the request of a third party presented with it, except that the recording is not necessary if the instrument is a Health Care Power of Attorney pursuant to Section 62-5-524.

(F)    An agent's good faith exercise of authority under a durable power of attorney prior to its recording relates back to the effective date of such instrument and does not constitute an improper or invalid act solely because the instrument was not recorded prior to the agent's exercise of authority.

REPORTER'S COMMENTS:

This section applies only to durable powers of attorney. The 2012 amendments reorganized former Section 62-5-501 for purposes of readability and clarity. The amendments differ from the Uniform Power of Attorney Act in that the default rule in the Uniform Act is that a power of attorney is durable unless otherwise provided in the power of attorney. The amendments do not change the long-standing rule in South Carolina that certain words need to be stated in a power of attorney for it to be durable. The term 'physical disability or mental incompetence' has been replaced with the term 'incapacity,' which is defined in Section 62-5-505. The term 'attorney in fact' has been replaced with the term 'agent.' This section sets forth the execution requirements for a durable power of attorney. Recordation is not required unless requested by a third party. There are attestation requirements in connection with the proper execution of a durable power of attorney. These requirements are not intended to require a self proving affidavit, as is the case with a will.

Section 62-5-502.     (A)    The agent under a durable power of attorney has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary pursuant to the provisions of this part and of South Carolina law.

(B)    Except as set forth in this part, the authority of the agent to act on behalf of the principal under a durable power of attorney must be set forth in the power and may relate to any act, power, duty, right, or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property, including the power to consent or withhold consent on behalf of the principal to health care.

(C)    The meaning and effect of a durable power of attorney is determined by the law of the jurisdiction indicated in the durable power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the durable power of attorney was executed.

(D)    All acts done by the agent pursuant to a durable power of attorney during a period of the principal's incapacity or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees, and personal representative as if the principal were alive and not incapacitated.

REPORTER'S COMMENTS:

The 2012 amendments retain in this section portions of former Section 62-5-501(A). The agent's fiduciary duty is described in greater detail in section 62-5-509. The section also incorporates section 107 of the Uniform Power of Attorney Act.

Section 62-5-503.     (A)    A durable power of attorney is effective when executed unless the instrument provides that it becomes effective at a future date or upon the occurrence of a future event or contingency.

(B)    If a durable power of attorney becomes effective upon the occurrence of a future event or contingency, the principal may authorize in the instrument itself one or more persons to determine in writing that the event or contingency has occurred.

REPORTER'S COMMENTS:

This section is a portion of Section 109 of the Uniform Power of Attorney Act.

Section 62-5-504.     (A)    A durable health care power of attorney that relates to health care may be created under the provisions of Section 62-5-524 or may be created pursuant to other provisions of law.

(B)    If the durable power of attorney relates solely to health care then it is not required to be recorded as set forth in Section 62-5-501 in order to be effective during the incapacity of the principal.

(C)    A properly executed durable power of attorney that authorizes an agent to make health care decisions regarding the principal is valid whether or not it was executed after May 14, 1990.

(D)    The validity of a durable power of attorney that authorizes an attorney to make health care decisions regarding the principal properly executed pursuant to Section 62-5-501 of the 1976 Code before or after the effective date of this act is not affected by the amendments to Part 5, Article 5, Title 62 of the 1976 Code contained in this act.

Section 62-5-505.     (A)    The instrument may define 'incapacity' or 'incapacitated' and may set forth the procedures for determining the incapacity of the principal or whether the principal is incapacitated.

(B)    If a durable power of attorney becomes effective upon the incapacity of the principal, the principal may authorize one or more persons to determine that the principal is incapacitated. A person authorized by the principal to make such a determination may act as the principal's personal representative as defined in and pursuant to the Health Insurance Portability and Accountability Act, Section 1171 through 1179 of the Social Security Act, 42 U.S.C. 1320d, as amended, and applicable regulations, to obtain access to the principal's health care information and may communicate with the principal's health care providers.

(C)    If a durable power of attorney becomes effective upon the incapacity of the principal and the principal has not authorized a person to determine that the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, then the durable power of attorney becomes effective upon a determination in a writing or other record that:

(1)    The principal is incapacitated, pursuant to the definitions or procedures set forth in the durable power of attorney for determining the principal's incapacity, as certified under penalty of perjury by a licensed physician who has personally examined the principal; or

(2)    If the durable power of attorney does not define incapacity or incapacitated, then such terms shall mean the inability of an individual to manage property or business affairs because the individual:

(a)    has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or

(b)    is:

(i)     missing;

(ii)    detained, including incarcerated in a penal system; or

(iii)    outside the United States and unable to return.

(D)    If no person authorized by the principal is able or willing to determine that the principal is incapacitated, then a person having priority to make health care decisions for the principal pursuant to S.C. Code Section 44-66-30, as amended, may act as the principal's personal representative as defined in and pursuant to the Health Insurance Portability and Accountability Act, Section 1171 through 1179 of the Social Security Act, 42 U.S.C. 1320d, as amended, and applicable regulations, to obtain access of the principal's health care information and may communicate with the principal's health care providers.

(E)    No licensed physician who, in good faith, makes a determination as set forth above of the principal's incapacity shall be subject to liability because of such determination.

REPORTER'S COMMENTS:

This section adopts and modifies a portion of section 109 of the Uniform Power of Attorney Act to set forth provisions regarding the definition of incapacity. The section also provides a safe harbor for a physician who in good faith makes a determination as to physical disability or mental incompetence as set forth in this section.

Section 62-5-506.        A durable power of attorney may provide for successor agents to any agent and provide conditions for their succession, which may include an authorization for the court or the agent to appoint a successor, and the succession may occur whether or not the principal is incapacitated when the succession occurs.

REPORTER'S COMMENTS

As part of the reorganization of former Section 62-5-501, the 2012 amendments moved former Section 62-5-501(b) into different sections. This section used to be part of former Section 62-5-501(b) and is now a slightly modified stand-alone section.

Section 62-5-507.     Except as otherwise provided in the durable power of attorney, a person accepts appointment as an agent under a durable power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.

REPORTER'S COMMENTS

The 2012 amendments adopted section 113 of the Uniform Power of Attorney Act to clarify when a person accepts appointment as an agent under a power of attorney. There was no corresponding statute before the amendment.

Section 62-5-508.    (A)    Unless the durable power of attorney provides a different method for an agent's resignation, an agent may resign by giving written notice to the principal and, if the principal is incapacitated within the meaning of section 62-5-505, written notice must also be given as follows:

(1)    to the conservator or guardian, if one has been appointed for the principal, and a co-agent or successor agent; or

(2)    if there is no person described in subsection (1), to:

(a)    the principal's caregiver;

(b)    another person reasonably believed by the agent to have sufficient interest in the principal's welfare; or

(c)    a governmental agency having authority to protect the welfare of the principal.

(B)    Unless the durable power of attorney provides a different method for an agent's removal by the principal, the principal may remove an agent by giving written notice to the agent.

(C)    If the durable power of attorney was recorded, the agent's written notice of resignation and the principal's written notice of removal must be recorded in the same manner as a deed in the county where the durable power of attorney was recorded. If the durable power of attorney was not recorded, the agent's written notice of resignation and the principal's notice of removal may be recorded in the same manner as a deed in the county where the principal resides at the time of resignation or removal.

(D)    Upon such resignation or removal, the attorney shall thereupon be divested of all authority under the durable power of attorney.

(E)    An agent's authority terminates when:

(1)    the principal revokes the authority;

(2)    the principal dies;

(3)    an action is commenced for divorce, annulment, or for termination of all marital property rights or for equitable distribution as to a spouse named as agent, unless the durable power of attorney otherwise provides; or

(4)    an agent dies, becomes incapacitated, is removed, or resigns.

(F)    Unless the durable power of attorney provides otherwise, an agent's authority is exercisable until the authority terminates under (E), notwithstanding a lapse of time since the execution of the durable power of attorney.

REPORTER'S COMMENTS

The 2012 amendments adopted a modified version of section 118 of the Uniform Power of Attorney Act methods for an agent's resignation and the principal's removal of the agent.

Section 62-5-509.    (A)    Notwithstanding provisions in the durable power of attorney, an agent that has accepted appointment is a fiduciary who shall:

(1)    act in good faith; and

(2)    act only within the scope of authority granted in the durable power of attorney.

(B)    Except as otherwise provided in the durable power of attorney, an agent that has accepted appointment shall:

(1)    act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest;

(2)    act loyally for the principal's benefit;

(3)    act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest;

(4)    act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;

(5)    keep a record of all receipts, disbursements, and transactions made on behalf of the principal and account to the principal or the principal's designee upon demand of the principal or the principal's designee;

(6)    cooperate with a person that has authority to make health-care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest; and

(7) attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including:

(a) the value and nature of the principal's property;

(b) the principal's foreseeable obligations and need for maintenance;

(c) minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and

(d)    eligibility for a benefit, a program, or assistance under a statute or regulation.

(C)    An agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the principal's estate plan.

(D)    An agent that acts with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(E)    If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent's representation that the agent has special skills or expertise, the special skills or expertise must be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.

(F)    Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

(G)    An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises reasonable care, competence, and diligence in selecting and monitoring the person.

REPORTER'S COMMENTS

The 2012 amendments adopt the bulk of section 114 of the Uniform Power of Attorney Act to set forth the duties of an agent in detail.

Section 62-5-510.     (A)    Subject to subsections (B) (C), (D), (E), and (F), if a durable power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Sections 62-5-511 through 62-5-514 and any other specific power as expressly provided in the durable power of attorney,

(B)    Subject to subsections (A), (C), (D), (E), and (F), if the subjects over which authority is granted in a durable power of attorney are similar or overlap, the broadest authority controls.

(C)    Authority granted in a durable power of attorney is exercisable with respect to property that the principal has when the durable power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the durable power of attorney is executed in this state.

(D)    Notwithstanding anything contained in Section 62-5-511 or anything in this part to the contrary, an agent under a durable power of attorney may do the following on behalf of the principal or with the principal's property only if the durable power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another written agreement or instrument to which the authority or property is subject:

(1)    make a gift;

(2)    create or change rights of survivorship;

(3)    create or change a beneficiary designation;

(4)    delegate authority granted under the durable power of attorney;

(5)    waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;

(6)    exercise fiduciary powers that the principal has authority to delegate;

(7)    disclaim property, including a power of appointment;

(8)    access any safe deposit box rented by the principal; or

(9)    create, amend, revoke or terminate a trust.

(E)    Notwithstanding a grant of authority to do an act described in subsection (D), unless the durable power of attorney otherwise expressly provides, an agent that is not an ancestor, spouse, or descendant of the principal may not exercise authority under a durable power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise.

(F)    Notwithstanding the foregoing, and notwithstanding anything in this Part to the contrary, a principal may expressly modify, reject, or omit any part or all authority contained in Sections 62-5-512 through 62-5-514.

REPORTER'S COMMENTS

The 2012 amendments modify and adopt section 201 of the Uniform Power of Attorney Act to set forth authority that requires a specific grant and to clarify the effect of a grant of general authority. The general authority includes, but is not limited to, the authority found in sections 62-5-511 through 62-5-514.

Section 62-5-511.    (A)    An agent has authority described in this article if the durable power of attorney expressly refers to general authority with respect to the descriptive term for the subjects stated in Sections 62-5-512 through 62-5-514 or expressly cites the section in which the authority is described.

(B)    An express reference in a durable power of attorney to general authority with respect to the descriptive term for a subject in Sections 62-5-512 through 62-5-514 or an express citation to a section of Sections 62-5-512 through 62-5-514 incorporates the entire section as if it were set out in full in the durable power of attorney.

(C)    Notwithstanding the foregoing, and notwithstanding anything in this Part to the contrary, a principal may expressly modify, reject, or omit any part or all authority contained in Sections 62-5-512 through 62-5-5-514.

REPORTER'S COMMENTS

The 2012 amendments modify and adopt section 202 of the Uniform Power of Attorney Act relating to the incorporation of certain authority in a power of attorney. This authority includes, but is not limited to, the powers in sections 62-5-512 through 62-5-514, all of which are modified versions of the Uniform Act. Of course, the principal may modify the authority incorporated by reference, and it is the intent to leave the drafting to the drafter.

Section 62-5-512.        By executing a durable power of attorney that incorporates by reference a subject described in Sections 62-5-513 through 62-5-514 or that grants to an agent authority to do all acts that a principal could do pursuant to Section 62-5-510(A), a principal authorizes the agent, with respect to that subject, to:

(1)    demand, receive, and obtain by litigation or otherwise, money or another thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;

(2)    subject to the limitations of 62-5-510(D), contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;

(3)    execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal's property and attaching it to the durable power of attorney;

(4)    initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;

(5)    seek on the principal's behalf the assistance of a court or other governmental agency to carry out an act authorized in the durable power of attorney;

(6)    engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor even though they are associated with the agent to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform an act of administration, whether or not discretionary;

(7)    prepare, execute, and file a record, report, application, appeal, or other document to safeguard or promote the principal's interest under a statute or regulation;

(8)    communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;

(9)    access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means, and access the principal's files and accounts in electronic format including obtaining the principal's user names and passwords;

(10)    waive, release, or renounce any fiduciary position to which the principal has been appointed.

(11)    deposit money in and withdraw money from accounts in a regulated financial-service institution in the name of the principal, including by automatic withdrawals and electronic debits and other forms of electronic processing;

(12)    subject to the terms of a document or an agreement governing an entity ownership interest, and unless the power of attorney provides otherwise, with respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, create and/or continue a business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital;

(13)    with respect to stocks or other securities, exercise the rights of an absolute owner, including the right to:

(a)    vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement;

(b)    hold a security in the name of a nominee or in other form so that title may pass by delivery;

(c)    pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and

(d)    deposit the securities with a depositary or other regulated financial-service institution;

(14)    pay taxes, assessments, compensation of employees and agents of the principal, and other expenses incurred in carrying out the powers given to the agent;

(15)    prepare or cause to be prepared and file tax returns for federal, state, and local taxes;

(16)    contribute to, and make withdrawals from any employee benefit or retirement plan, annuity, or life insurance owned by the principal and exercise the principal's rights thereunder to roll over, exchange, and transfer the account to a new custodian;

(17)    prosecute or defend an action, claim, or judicial proceeding in any jurisdiction for or against the principal;

(18)    expend sums for the health, education, maintenance and support of the principal and the principal's dependents;

(19)    apply for government benefits for the principal;

(20)    file a claim for an elective share or other statutory entitlement in any proceeding involving the principal;

(21)    enter into agreements for the admission, discharge, and care of the principal with any assisted living, nursing home, hospital, rehabilitative, respite, in home, or other care providers, including hiring and firing home health care and other providers of services to the principal;

(22)    to do any other act necessary, appropriate, incident, or convenient to the exercise of the foregoing powers.

REPORTER'S COMMENTS

The 2012 amendments modify and adopt section 203 of the Uniform Power of Attorney Act. The section has also been modified to incorporate many of the powers available to trustees, guardians, and conservators.

Section 62-5-513.    Subject to the provisions of 62-5-510, language in a durable power of attorney granting general authority with respect to real property authorizes the agent to:

(1)    demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;

(2)    sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;

(3)    pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4)    release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property which exists or is asserted;

(5)    manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:

(a)    insuring against liability or casualty or other loss;

(b)    obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;

(c)    paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with them; and

(d)    purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;

(6)    use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;

(7)    participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:

(a)    selling or otherwise disposing of them;

(b)    exercising or selling an option, right of conversion, or similar right with respect to them; and

(c)    exercising any voting rights in person or by proxy;

(8)    change the form of title of an interest in or right incident to real property; and

(9)    dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.

REPORTER'S COMMENTS

This section is a modified version of Section 204 of the Uniform Power of Attorney Act.

Section 62-5-514.    Subject to the provisions of 62-5-510, language in a durable power of attorney granting general authority with respect to tangible personal property authorizes the agent to:

(1)    demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;

(2)    sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or, otherwise dispose of tangible personal property or an interest in tangible personal property;

(3)    grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;

(4)    release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;

(5)    manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:

(a)    insuring against liability or casualty or other loss;

(b)    obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;

(c)    paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with taxes or assessments;

(d)    moving the property from place to place;

(e)storing the property for hire or on a gratuitous bailment; and

(f)    using and making repairs, alterations, or improvements to the property; and

(6)    change the form of title of an interest in tangible personal property.

REPORTER'S COMMENTS

This section is a modified version of Section 205 of the Uniform Power of Attorney Act.

Section 62-5-515.     (A)    The death of any principal who has executed a durable power of attorney in writing does not revoke or terminate the agency as to the agent, or other person who, without actual knowledge of the death, of the principal, acts in good faith under the durable power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees, and personal representatives.

(B)    An affidavit, executed by the agent stating that he did not have, at the time of doing an act pursuant to the durable power of attorney, actual knowledge of the revocation or termination of the durable power of attorney by death is, in the absence of fraud, conclusive proof of the non-revocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.

(C)    This section shall not be construed to alter or affect any provision for revocation or termination contained in the durable power of attorney.

REPORTER'S COMMENTS

The 2012 amendments incorporate the provisions of former Section 62-5-502.

Section 62-5-516.    (A)    As used in this section:

(1)    A third person' means an individual, corporation, organization, or other legal entity. A third person that conducts activities through employees is without knowledge of a fact relating to a durable power of attorney, to a principal, or to an agent if the employee conducting the transaction involving the instrument is without the actual knowledge of the fact.

(2)    'To honor' a durable power of attorney means to deal with the agent as if the agent were the principal, personally present and acting on the principal's own behalf within the general scope of the powers granted to the agent under the durable power of attorney.

(B)    Subject to subsection (C), a third person that receives or is presented with a durable power of attorney, executed as provided in Section 62-5-501, or a recorded copy thereof, who has not received actual written notice of its revocation or termination, must honor the agent's requested exercise of authority, if such authority is within the general scope of the powers granted to the agent, under any of the following circumstances:

(1)    the instrument contains the following provision or a substantially similar provision:

'No person who may act in reliance upon the representations of my agent for the scope of authority granted to the agent shall incur any liability as to me or to my estate as a result of permitting the agent to exercise this authority, nor is any such person who deals with my agent responsible to determine or insure the proper application of funds or property.'; or

(2)    the agent signs and presents to the third person a written certificate as provided in Section 62-5-517; or

(3)    the instrument does not include language expressly prohibiting or restricting the action the agent desires to take.

(C)    Before honoring a durable power of attorney, a third person may require that:

(1)    the instrument have been recorded,

(2)    the agent sign a written certificate as provided in Section 62-5-517, and

(3)    an English translation of the durable power of attorney be provided if the durable power of attorney contains, in whole or in part, language other than English.

(D)    Unless the third person actually has received written notice of the revocation or termination of a durable power of attorney, a third person that honors a durable power of attorney:

(1)    does not incur liability to the principal or the principal's estate by reason of acting upon the authority of it or permitting the agent to exercise authority;

(2)    is not required to inquire whether the agent has the power to exercise the requested authority where such authority is within the general scope of the powers granted under the durable power of attorney; and

(3)    is not responsible to determine or ensure the proper application of assets, funds, or property belonging to the principal.

(E)    A third person that wrongfully refuses to honor a durable power of attorney is subject to:

(1)    a court order mandating acceptance of the durable power of attorney;

(2)    liability for reasonable attorney's fees and costs incurred in any action or proceeding that confirms the validity of the durable power of attorney or mandates acceptance of the durable power of attorney; and

(3)    damages resulting to the principal caused by such refusal to honor the durable power of attorney without reasonable cause.

REPORTER'S COMMENTS

This section clarifies the rights of a third party presented with a durable power of attorney as well as the rights of an agent who presents a power of attorney to a third party.

Section 62-5-517. The following optional form or a similar form may be used by an agent to certify facts concerning a durable power of attorney.

AGENT'S CERTIFICATION AS TO THE VALIDITY OF DURABLE POWER OF ATTORNEY AND AGENT'S AUTHORITY

State of _____________________________

[County] of___________________________]

I, _____________________________________________ (Name of Agent), [certify] under penalty of perjury that __________________________________________(Name of Principal) granted me authority as an agent or successor agent in a durable power of attorney dated ________________________.

I further [certify] that to my knowledge:

(1) the Principal is alive and has not revoked the durable power of attorney or my authority to act under the durable power of attorney and the durable power of attorney and my authority to act under the durable power of attorney have not terminated;

(2) the authority I am exercising is within the scope of authority granted under the durable power of attorney;

(3) if the durable power of attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred; and

(4) if I was named as a successor agent, the prior agent is terminated.

SIGNATURE AND ACKNOWLEDGMENT

____________________________________________        _______________

Agent's Signature                                Date

____________________________________________

Agent's Name Printed

____________________________________________

____________________________________________

Agent's Address

____________________________________________

Agent's Telephone Number

This document was acknowledged before me on __________________________,

(Date)

by______________________________________.

(Name of Agent)

____________________________________________        (Seal)

Signature of Notary

My commission expires: ________________________

REPORTER'S COMMENTS

The 2012 amendments adopt for the most part the form set forth in Section 302 of the Uniform Power of Attorney Act as an example of a form to be used to certify facts concerning a power of attorney.

Section 62-5-518.     In addition to other remedies provided by law and except as otherwise provided in the durable power of attorney, an agent that violates the provisions of Section 62-5-501 et seq. is liable to the principal or the principal's successors-in-interest for the amount required to:

(1)    restore the value of the principal's property to what it would have been had the violation not occurred; and

(2)    reimburse the principal or the principal's successors in interest for reasonable attorney's fees and costs paid by the principal or the principal's successors in interest or on the principal's behalf.

REPORTER'S COMMENTS

The 2012 amendments adopt a modified version of section 117 of the Uniform Power of Attorney Act to describe the liability of an agent. These remedies are in addition to other remedies at law or equity.

Section 62-5-519.    (A)    Unless the durable power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal and to compensation that is reasonable under the circumstances. If two or more attorneys-in-fact are serving together, the compensation paid must be divided by them in a manner as they agree or as determined by a court of competent jurisdiction if they fail to agree.

(B)    An interested person as defined in Section 62-5-520 may petition a court of competent jurisdiction to review the propriety and reasonableness of payment for reimbursement or compensation to the agent, and an agent who has received excessive payment may be ordered to make appropriate refunds to the principal.

REPORTER'S COMMENTS

The 2012 Amendments incorporate the provisions of Uniform Power of Attorney Act Section 112 and former section 62-5-5-501(G)(1) and (2). The amendments eliminate the need to petition the court for reimbursement and compensation unless the power of attorney provides otherwise. The amendments also clarify who is an interested person for purposes of petitioning the court for review of reimbursement or compensation.

Section 62-5-520.    (A)    The following persons may petition a court of competent jurisdiction to construe a durable power of attorney, to review the agent's conduct, and to grant appropriate relief:

(1)    the principal or the agent;

(2)    a guardian, conservator, or other fiduciary acting for the principal;

(3)    a person authorized to make health-care decisions for the principal;

(4)    the principal's spouse, parent, or adult descendant;

(5)    an individual who would qualify as an intestate heir of the principal;

(6)    a person named as a beneficiary to receive any property, benefit, or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate;

(7)    a governmental agency having regulatory authority to protect the welfare of the principal;

(8)    the principal's caregiver or another person that demonstrates sufficient interest in the principal's welfare; and

(9)    a person asked to accept the durable power of attorney.

(B)    Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the durable power of attorney.

REPORTER'S COMMENTS

The 2012 amendments incorporate the provisions of section 116 of the Uniform Power of Attorney Act. The amendments expand the provisions regarding judicial relief and define those interested persons who may petition the court for such relief. The section also describes when a petition may be dismissed on the principal's motion.

Section 62-5-521.    The probate court has concurrent jurisdiction with the circuit courts of this State over all subject matter related to the creation, exercise, and termination of powers of attorney governed by the provisions of this Part.

REPORTER'S COMMENTS

The 2012 amendments retained this portion of former Section 62-5-503. The amendments delete the reference in the former statute to the approval of the sale of real or personal property. Depending on the wording of the power of attorney, such approval may or may not be necessary, but it is not required under all circumstances.

Section 62-5-522.    The appointment of an agent in a durable power of attorney does not prevent the agent, any other person or his representative from applying to the court for the appointment of a guardian or conservator for the principal. To the extent the court determines that the appointment of a guardian or conservator is appropriate, appointment of a guardian suspends or terminates all or part of the durable power of attorney that relates to matters within the scope of the guardianship pursuant to Section 62-5-307(C), and appointment of a conservator suspends or terminates all or part of the durable power of attorney that relates to matters within the scope of the conservatorship pursuant to 62-5-407(B).

REPORTER'S COMMENTS

The 2012 amendments incorporate and slightly modify a portion of former Section 62-5-501(b).

Section 62-5-523.    (A)    A durable power of attorney executed in this state after the effective date of this section, is valid if executed in compliance with Section 62-5-501.

(B)    A durable power of attorney executed in this state before the effective date of this section is valid if its execution complied with the laws of this state as they existed at the time of execution.

(C)    A durable power of attorney executed other than in this state is valid in this state if, when the durable power of attorney was executed, the execution complied with:

(1)    the law of the jurisdiction that determines the meaning and effect of the durable power of attorney pursuant to Section 62-5-502; or

(2)    the requirements for a military durable power of attorney pursuant to 10 U.S.C. Section 1044b, as amended.

(D)    Except as otherwise provided by statute other than this part, a photocopy or electronically transmitted copy of an original recorded durable power of attorney has the same effect as the original recorded durable power of attorney .

REPORTER'S COMMENTS:

The 2012 amendments clarify the rules regarding validity of durable powers of attorney. The amendments incorporate section 62-5-501(d) and section 106 of the uniform power of attorney act. The amendments also confirm that a copy of an original recorded durable power of attorney has the same effect as the original.

Section 62-5-524.    (A)    As used in this section:

(1)    'Agent' or 'health care agent' means an individual designated in a health care power of attorney to make health care decisions on behalf of a principal.

(2)    'Declaration of a desire for a natural death' or 'declaration' means a document executed in accordance with the South Carolina Death with Dignity Act or a similar document executed in accordance with the law of another state.

(3)    'Health care' means a procedure to diagnose or treat a human disease, ailment, defect, abnormality, or complaint, whether of physical or mental origin. It also includes the provision of intermediate or skilled nursing care; services for the rehabilitation of injured, disabled, or sick persons; and placement in or removal from a facility that provides these forms of care.

(4)    'Health care power of attorney' means a durable power of attorney executed in accordance with this section.

(5)    'Health care provider' means a person, health care facility, organization, or corporation licensed, certified, or otherwise authorized or permitted by the laws of this State to administer health care.

(6)    'Life-sustaining procedure' means a medical procedure or intervention which serves only to prolong the dying process. Life-sustaining procedures do not include the administration of medication or other treatment for comfort care or alleviation of pain. The principal shall indicate in the health care power of attorney whether the provision of nutrition and hydration through medically or surgically implanted tubes is desired.

(7)    'Permanent unconsciousness' means a medical diagnosis, consistent with accepted standards of medical practice, that a person is in a persistent vegetative state or some other irreversible condition in which the person has no neocortical functioning, but only involuntary vegetative or primitive reflex functions controlled by the brain stem.

(8)    'Nursing care provider' means a nursing care facility or an employee of the facility.

(9)    'Principal' means an individual who executes a health care power of attorney. A principal must be eighteen years of age or older and of sound mind.

(10)    'Separated' means that the principal and his or her spouse are separated pursuant to one of the following:

(a)    entry of a pendente lite order in a divorce or separate maintenance action;

(b)    formal signing of a written property or marital settlement agreement;

(c)    entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

(B)(1)    A health care power of attorney is a durable power of attorney pursuant to Section 62-5-501. Sections that refer to a durable power of attorney or judicial interpretations of the law relating to durable powers of attorney apply to a health care power of attorney to the extent that they are not inconsistent with this section.

(2)    This section does not affect the right of a person to execute a durable power of attorney relating to health care pursuant to other provisions of law but which does not conform to the requirements of this section. If a durable power of attorney for health care executed under Section 62-5-501 or under the laws of another state does not conform to the requirements of this section, the provisions of this section do not apply to it. However, a court is not precluded from determining that the law applicable to nonconforming durable powers of attorney for health care is the same as the law set forth in this section for health care powers of attorney.

(3)    To the extent not inconsistent with this section, the provisions of the South Carolina Adult Health Care Consent Act apply to the making of decisions by a health care agent and the implementation of those decisions by health care providers.

(4)    In determining the effectiveness of a health care power of attorney, mental incompetence is to be determined according to the standards and procedures for inability to consent under Section 44-66-20(6), except that certification of mental incompetence by the agent may be substituted for certification by a second physician. If the certifying physician states that the principal's mental incompetence precludes the principal from making all health care decisions or all decisions concerning certain categories of health care, and that the principal's mental incompetence is permanent or of extended duration, no further certification is necessary in regard to the stated categories of health care decisions during the stated duration of mental incompetence unless the agent or the attending physician believes the principal may have regained capacity.

(C)(1)    A health care power of attorney must:

(a)    be substantially in the form set forth in subsection (D) of this section;

(b)    be dated and signed by the principal or in the principal's name by another person in the principal's presence and by his direction;

(c)    be signed by at least two persons, each of whom witnessed either the signing of the health care power of attorney or the principal's acknowledgment of his signature on the health care power of attorney. Each witness must declare as set forth in subsection (D) of this section that, at the time of the execution of the health care power of attorney, to the extent the witness has knowledge, the witness is not related to the principal by blood, marriage, or adoption, either as a spouse, lineal ancestor, descendant of the parents of the principal, or spouse of any of them; not directly financially responsible for the principal's medical care; not entitled to any portion of the principal's estate upon his decease under a will of the principal then existing or as an heir by intestate succession; not a beneficiary of a life insurance policy of the principal; and not appointed as health care agent or successor health care agent in the health care power of attorney; and that no more than one witness is an employee of a health facility in which the principal is a patient, no witness is the attending physician or an employee of the attending physician, or no witness has a claim against the principal's estate upon his decease;

(d)    state the name and address of the agent. A health care agent must be an individual who is eighteen years of age or older and of sound mind. A health care agent may not be a health care provider, or an employee of a provider, with whom the principal has a provider-patient relationship at the time the health care power of attorney is executed, or an employee of a nursing care facility in which the principal resides, or a spouse of the health care provider or employee, unless the health care provider, employee, or spouse is a relative of the principal.

(2)    The validity of a health care power of attorney is not affected by the principal's failure to initial any of the choices provided in Section 4, 6, or 7 of the Health Care Power of Attorney form or to name successor agents. If the principal fails to indicate either of the statements in Section 7 concerning provision of artificial nutrition and hydration, the agent does not have authority to direct that nutrition and hydration necessary for comfort care or alleviation of pain be withheld or withdrawn.

(D)    A health care power of attorney executed on or after January 1, 2007 must be substantially in the following form:

INFORMATION ABOUT THIS DOCUMENT

THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:

1. THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISION FOR YOURSELF. THIS POWER INCLUDES THE POWER TO MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT. UNLESS YOU STATE OTHERWISE, YOUR AGENT WILL HAVE THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE.

2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENTS OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU WANT TO BE SURE YOU RECEIVE. YOUR AGENT WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. YOU MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE SPACE TO COMPLETE THE STATEMENT.

3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.

4. YOU HAVE THE RIGHT TO REVOKE THIS DOCUMENT, AND TERMINATE YOUR AGENT'S AUTHORITY, BY INFORMING EITHER YOUR AGENT OR YOUR HEALTH CARE PROVIDER ORALLY OR IN WRITING.

5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER, OR OTHER PERSON TO EXPLAIN IT TO YOU.

6. THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF THESE PERSONS MUST EITHER WITNESS YOUR SIGNING OF THE POWER OF ATTORNEY OR WITNESS YOUR ACKNOWLEDGMENT THAT THE SIGNATURE ON THE POWER OF ATTORNEY IS YOURS.

THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:

A. YOUR SPOUSE, YOUR CHILDREN, GRANDCHILDREN, AND OTHER LINEAL DESCENDANTS; YOUR PARENTS, GRANDPARENTS, AND OTHER LINEAL ANCESTORS; YOUR SIBLINGS AND THEIR LINEAL DESCENDANTS; OR A SPOUSE OF ANY OF THESE PERSONS.

B. A PERSON WHO IS DIRECTLY FINANCIALLY RESPONSIBLE FOR YOUR MEDICAL CARE.

C. A PERSON WHO IS NAMED IN YOUR WILL, OR, IF YOU HAVE NO WILL, WHO WOULD INHERIT YOUR PROPERTY BY INTESTATE SUCCESSION.

D. A BENEFICIARY OF A LIFE INSURANCE POLICY ON YOUR LIFE.

E. THE PERSONS NAMED IN THE HEALTH CARE POWER OF ATTORNEY AS YOUR AGENT OR SUCCESSOR AGENT.

F. YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR PHYSICIAN.

G. ANY PERSON WHO WOULD HAVE A CLAIM AGAINST ANY PORTION OF YOUR ESTATE (PERSONS TO WHOM YOU OWE MONEY).

IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO MORE THAN ONE WITNESS MAY BE AN EMPLOYEE OF THAT FACILITY.

7. YOUR AGENT MUST BE A PERSON WHO IS 18 YEARS OLD OR OLDER AND OF SOUND MIND. IT MAY NOT BE YOUR DOCTOR OR ANY OTHER HEALTH CARE PROVIDER THAT IS NOW PROVIDING YOU WITH TREATMENT; OR AN EMPLOYEE OF YOUR DOCTOR OR PROVIDER; OR A SPOUSE OF THE DOCTOR, PROVIDER, OR EMPLOYEE; UNLESS THE PERSON IS A RELATIVE OF YOURS.

8. YOU SHOULD INFORM THE PERSON THAT YOU WANT HIM OR HER TO BE YOUR HEALTH CARE AGENT. YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. IF YOU ARE IN A HEALTH CARE FACILITY OR A NURSING CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.

HEALTH CARE POWER OF ATTORNEY

(S.C. STATUTORY FORM)

1. DESIGNATION OF HEALTH CARE AGENT

I, __________, hereby appoint:

(Principal)

(Agent's Name)    

(Agent's Address)    

Telephone: home: __________ work: __________ mobile: ______ as my agent to make health care decisions for me as authorized in this document.

Successor Agent: If an agent named by me dies, becomes incapacitated, resigns, refuses to act, becomes unavailable, or if an agent who is my spouse is divorced or separated from me, I name the following as successors to my agent, each to act alone and successively, in the order named:

A. First Alternate Agent:

Address:    

Telephone: home: _____ work: _____ mobile: ____

B. Second Alternate Agent:

Address:    

Telephone: home: _____ work: _____ mobile: ____

Unavailability of Agent(s): If at any relevant time the agent or successor agents named here are unable or unwilling to make decisions concerning my health care, and those decisions are to be made by a guardian, by the Probate Court, or by a surrogate pursuant to the Adult Health Care Consent Act, it is my intention that the guardian, Probate Court, or surrogate make those decisions in accordance with my directions as stated in this document.

2. EFFECTIVE DATE AND DURABILITY

By this document I intend to create a durable power of attorney effective upon, and only during, any period of mental incompetence, except as provided in Paragraph 3 below.

3. HIPAA AUTHORIZATION

When considering or making health care decisions for me, all individually identifiable health information and medical records shall be released without restriction to my health care agent(s) and/or my alternate health care agent(s) named above including, but not limited to, (i) diagnostic, treatment, other health care, and related insurance and financial records and information associated with any past, present, or future physical or mental health condition including, but not limited to, diagnosis or treatment of HIV/AIDS, sexually transmitted disease(s), mental illness, and/or drug or alcohol abuse and (ii) any written opinion relating to my health that such health care agent(s) and/or alternate health care agent(s) may have requested. Without limiting the generality of the foregoing, this release authority applies to all health information and medical records governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC 1320d and 45 CFR 160-164; is effective whether or not I am mentally competent; has no expiration date; and shall terminate only in the event that I revoke the authority in writing and deliver it to my health care provider.

4. AGENT'S POWERS

I grant to my agent full authority to make decisions for me regarding my health care. In exercising this authority, my agent shall follow my desires as stated in this document or otherwise expressed by me or known to my agent. In making any decision, my agent shall attempt to discuss the proposed decision with me to determine my desires if I am able to communicate in any way. If my agent cannot determine the choice I would want made, then my agent shall make a choice for me based upon what my agent believes to be in my best interests. My agent's authority to interpret my desires is intended to be as broad as possible, except for any limitations I may state below.

Accordingly, unless specifically limited by the provisions specified below, my agent is authorized as follows:

A. To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, medication, and the use of mechanical or other procedures that affect any bodily function, including, but not limited to, artificial respiration, nutritional support and hydration, and cardiopulmonary resuscitation.

B. To authorize, or refuse to authorize, any medication or procedure intended to relieve pain, even though such use may lead to physical damage, addiction, or hasten the moment of, but not intentionally cause, my death.

C. To authorize my admission to or discharge, even against medical advice, from any hospital, nursing care facility, or similar facility or service.

D. To take any other action necessary to making, documenting, and assuring implementation of decisions concerning my health care, including, but not limited to, granting any waiver or release from liability required by any hospital, physician, nursing care provider, or other health care provider; signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in my name, and at the expense of my estate to force compliance with my wishes as determined by my agent, or to seek actual or punitive damages for the failure to comply.

E. The powers granted above do not include the following powers or are subject to the following rules or limitations:

5. ORGAN DONATION (INITIAL ONLY ONE)

My agent may ___; may not ___ consent to the donation of all or any of my tissue or organs for purposes of transplantation.

6. EFFECT ON DECLARATION OF A DESIRE FOR A NATURAL DEATH (LIVING WILL)

I understand that if I have a valid Declaration of a Desire for a Natural Death, the instructions contained in the Declaration will be given effect in any situation to which they are applicable. However, if the terms of the Declaration of a Desire for a Natural Death conflict with the Health Care Power of Attorney, the terms of the Declaration of a Desire for a Natural Death shall control if it is signed at the same time as or after this Health Care Power of Attorney. My agent will have authority to make decisions concerning my health care only in situations to which the Declaration does not apply.

7. STATEMENT OF DESIRES CONCERNING LIFE-SUSTAINING TREATMENT

With respect to any Life-Sustaining Treatment, I direct the following:

(INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS)

A. ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment.

OR

B. ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TREATMENT. I do not want my life to be prolonged and I do not want life-sustaining treatment:

1. if I have a condition that is incurable or irreversible and, without the administration of life-sustaining procedures, expected to result in death within a relatively short period of time; or

2. if I am in a state of permanent unconsciousness.

OR

C. ___ DIRECTIVE FOR MAXIMUM TREATMENT. I want my life to be prolonged to the greatest extent possible, within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedures.

8. STATEMENT OF DESIRES REGARDING TUBE FEEDING

With respect to Nutrition and Hydration provided by means of a nasogastric tube or tube into the stomach, intestines, or veins, I wish to make clear that in situations where life-sustaining treatment is being withheld or withdrawn pursuant to Paragraph 7, (INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS):

A. ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged by tube feeding if my agent believes the burdens of tube feeding outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality as well as the possible extension of my life in making this decision.

OR

B. ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TUBE FEEDING. I do not want my life prolonged by tube feeding.

OR

C. ___ DIRECTIVE FOR PROVISION OF TUBE FEEDING. I want tube feeding to be provided within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedure, and without regard to whether other forms of life-sustaining treatment are being withheld or withdrawn.

IF YOU INITIAL ANY OF THE STATEMENTS IN PARAGRAPH 8, YOUR AGENT WILL STILL HAVE AUTHORITY TO DIRECT THAT NUTRITION AND HYDRATION NECESSARY FOR COMFORT, CARE OR ALLEVIATION OF PAIN BE WITHDRAWN.

9. ADMINISTRATIVE PROVISIONS

A. I revoke any prior Health Care Power of Attorney and any provisions relating to health care of any other prior power of attorney.

B. This power of attorney is intended to be valid in any jurisdiction in which it is presented.

BY SIGNING HERE I INDICATE THAT I UNDERSTAND THE CONTENTS OF THIS DOCUMENT AND THE EFFECT OF THIS GRANT OF POWERS TO MY AGENT.

I sign my name to this Health Care Power of Attorney on this ___ day of ___, 20 __. My current home address is:

Principal's Signature:    

Print Name of Principal:    

I declare, on the basis of information and belief, that the person who signed or acknowledged this document (the principal) is personally known to me, that he/she signed or acknowledged this Health Care Power of Attorney in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence. I am not related to the principal by blood, marriage, or adoption, either as a spouse, a lineal ancestor, descendant of the parents of the principal, or spouse of any of them. I am not directly financially responsible for the principal's medical care. I am not entitled to any portion of the principal's estate upon his decease, whether under any will or as an heir by intestate succession, nor am I the beneficiary of an insurance policy on the principal's life, nor do I have a claim against the principal's estate as of this time. I am not the principal's attending physician, nor an employee of the attending physician. No more than one witness is an employee of a health facility in which the principal is a patient. I am not appointed as Health Care Agent or Successor Health Care Agent by this document.

Witness No. 1

Signature: _________________________ Date:    

Print Name: ____________________ Telephone:    

Address:    

Witness No. 2

Signature: _________________________ Date:    

Print Name: ____________________ Telephone:    

Address:    

(This portion of the document is optional and is not required to create a valid health care power of attorney.)

STATE OF SOUTH CAROLINA

COUNTY OF    

The foregoing instrument was acknowledged before me by Principal on _______________, 20 ____________.

Notary Public for South Carolina    

My Commission Expires:    

(E)    A health care agent has, in addition to the powers set forth in the health care power of attorney, the following specific powers:

(1)    to have access to the principal's medical records and information to the same extent that the principal would have access, including the right to disclose the contents to others;

(2)    to contract on the principal's behalf for placement in a health care or nursing care facility or for health care related services, without the agent incurring personal financial liability for the contract;

(3)    to hire and fire medical, social service, and other support personnel responsible for the principal's care;

(4)    to have the same health care facility or nursing care facility visitation rights and privileges of the principal as are permitted to immediate family members or spouses.

(F)(1)    The agent is not entitled to compensation for services performed under the health care power of attorney, but the agent is entitled to reimbursement for all reasonable expenses incurred as a result of carrying out the health care power of attorney or the authority granted by this section.

(2)    The agent's consent to health care or to the provision of services to the principal does not cause the agent to be liable for the costs of the care or services.

(G)    If a principal has been diagnosed as pregnant, life-sustaining procedures may not be withheld or withdrawn pursuant to the health care power of attorney during the course of the principal's pregnancy. This subsection does not otherwise affect the agent's authority to make decisions concerning the principal's obstetrical and other health care during the course of the pregnancy.

(H)    A health care provider or nursing care provider having knowledge of the principal's health care power of attorney has a duty to follow directives of the agent that are consistent with the health care power of attorney to the same extent as if they were given by the principal. If it is uncertain whether a directive is consistent with the health care power of attorney, the health care provider, nursing care provider, agent, or other interested person may petition the probate court for an order determining the authority of the agent to give the directive.

(I)    An agent acting pursuant to a health care power of attorney shall make decisions concerning the principal's health care in accordance with the principal's directives in the health care power of attorney and with any other statements of intent by the principal that are known to the agent and are not inconsistent with the directives in the health care power of attorney. If a principal has a valid Declaration of a Desire for a Natural Death pursuant to Title 44, Chapter 77, the declaration must be given effect in any situation to which it is applicable. The agent named in the health care power of attorney has authority to make decisions only in situations to which the declaration does not apply. To the extent that the terms of a Declaration of a Desire for a Natural Death and a health care power of attorney conflict, the terms of the later executed document shall control, provided that the terms of a Declaration of a Desire for a Natural Death shall control if the two documents are executed simultaneously. However, nothing herein prevents the principal or a person designated by the principal in the declaration from revoking the declaration as provided in Section 44-77-80.

(J)(1)    A person who relies in good faith upon a person's representation that he is the person named as agent in a health care power of attorney is not subject to civil or criminal liability or disciplinary action for recognizing the agent's authority.

(2)    A health care provider or nursing care provider who in good faith relies on a health care decision made by an agent or successor agent is not subject to civil or criminal liability or disciplinary action on account of relying on the decision.

(3)    An agent who in good faith makes a health care decision pursuant to a health care power of attorney is not subject to civil or criminal liability on account of the substance of the decision.

(K)(1)    The principal may appoint one or more successor agents in the health care power of attorney in the event an agent dies, becomes legally disabled, resigns, refuses to act, is unavailable, or, if the agent is the spouse of the principal, becomes divorced or separated from the principal. A successor agent will succeed to all duties and powers given to the agent in the health care power of attorney.

(2)    If no agent or successor agent is available, willing, and qualified to make a decision concerning the principal's health care, the decision must be made according to the provisions of and by the person authorized by the South Carolina Adult Health Care Consent Act.

(3)    All directives, statements of personal values, or statements of intent made by the principal in the health care power of attorney must be treated as exercises of the principal's right to direct the course of his health care. Decisions concerning the principal's health care made by a guardian, by the probate court, or by a surrogate pursuant to the South Carolina Adult Health Care Consent Act, must be made in accordance with the directions stated in the health care power of attorney.

(L)(1)    A health care power of attorney may be revoked in the following ways:

(a)    by a writing, an oral statement, or any other act constituting notification by the principal to the agent or to a health care provider responsible for the principal's care of the principal's specific intent to revoke the health care power of attorney; or

(b)    by the principal's execution of a subsequent health care power of attorney or the principal's execution of a subsequent durable power of attorney under Section 62-5-501 if the durable power of attorney states an intention that the health care power of attorney be revoked or if the durable power of attorney is inconsistent with the health care power of attorney.

(2)    A health care provider who is informed of or provided with a revocation of a health care power of attorney immediately must record the revocation in the principal's medical record and notify the agent, the attending physician, and all other health care providers or nursing care providers who are responsible for the principal's care.

(M)    The execution and effectuation of a health care power of attorney does not constitute suicide for any purpose.

(N)    No person may be required to sign a health care power of attorney in accordance with this section as a condition for coverage under an insurance contract or for receiving medical treatment or as a condition of admission to a health care or nursing care facility.

(O)    Nothing in this section may be construed to authorize or approve mercy killing or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.

(P)    The absence of a health care power of attorney by an adult patient does not give rise to a presumption of his intent to consent to or refuse death prolonging procedures. Nothing in this section impairs other legal rights or legal responsibilities which a person may have to effect the provision or the withholding or withdrawal of life-sustaining procedures in a lawful manner.

(Q)(1)    If a person coerces or fraudulently induces another person to execute a health care power of attorney, falsifies or forges a health care power of attorney, or willfully conceals, cancels, obliterates, or destroys a revocation of a health care power of attorney, and the principal dies as a result of the withdrawal or withholding of treatment pursuant to the health care power of attorney, that person is subject to prosecution in accordance with the criminal laws of this State.

(2)    Nothing in this section prohibits a person from informing another person of the existence of this section, delivering to another person a copy of this section or a form for a health care power of attorney, or counseling another person in good faith concerning the execution of a health care power of attorney.

(3)    If a person willfully conceals, cancels, defaces, obliterates, or damages a health care power of attorney without the principal's consent, or falsifies or forges a revocation of a health care power of attorney, or otherwise prevents the implementation of the principal's wishes as stated in a health care power of attorney, that person breaches a duty owed to the principal and is responsible for payment of any expenses or other damages incurred as a result of the wrongful act.

(R)    A physician or health care facility electing for any reason not to follow an agent's instruction that life-sustaining procedures be withheld or withdrawn as authorized in the health care power of attorney shall make a reasonable effort to locate a physician or health care facility that will follow the instruction and has a duty to transfer the patient to that physician or facility. If a nurse or other employee of a health care provider or nursing care provider gives notice that the employee does not wish to participate in the withholding or withdrawal of life-sustaining procedures as directed by an agent, a reasonable effort shall be made by the physician and the health care provider or nursing care provider to effect the withholding or withdrawal of life-sustaining procedures without the participation of the employee.

(S)(1)    Notwithstanding the requirements of subsections (C) and (D) of this section, any document or writing containing the following provisions is deemed to comply with the requirements of this section:

(a)    the name and address of the person who meets the requirements of subsection (C)(1)(d) and is authorized to make health care related decisions if the principal becomes mentally incompetent;

(b)    the types of health care related decisions that the health care agent is authorized to make;

(c)    the signature of the principal;

(d)    the signature of at least two persons who witnessed the principal's signature and who meet the requirements of subsection (C)(1)(c); and

(e)    the attestation of a notary public.

(2)    Additionally, any document that meets the requirements of subsection (S)(1) and also provides expressions of the principal's intentions or wishes with respect to the following health care issues authorizes the health care agent to act in accordance with these provisions:

(a)    organ donations;

(b)    life-sustaining treatment;

(c)    tube feeding;

(d)    other kinds of medical treatment that the principal wishes to have or not to have;

(e)    comfort and treatment issues;

(f)    provisions for interment or disposal of the body after death; and

(g)    any written statements that the principal may wish to have communicated on his behalf.

REPORTER'S COMMENTS

The 2012 amendments changed former Section 62-5-504 to provide that in case of a conflict between a health care power of attorney and a Declaration of Desire for a Natural Death, the later executed document shall control. If the two documents are executed contemporaneously, then the terms of the Declaration shall control.

Part 6

Uniform Veterans' Guardianship Act

Section 62-5-601.     This part [Sections 62-5-601 et seq.] may be cited as the 'Uniform Veterans' Guardianship Act'.

Section 62-5-602.     As used in this part [Sections 62-5-601 et seq.]:

(1)    The term 'Veterans' Administration' means the United States Veterans' Administration or its successor.

(2)    The terms 'estate' and 'income' shall include only monies received by the guardian from the Veterans' Administration and all earnings, interest, and profits derived therefrom.

(3)    The term 'benefits' means all monies payable by the United States through the Veterans' Administration.

(4)    The term 'Administrator' means the Administrator of Veterans' Affairs of the United States or his successor.

(5)    The term 'ward' means a beneficiary of the Veterans' Administration.

(6)    The term 'guardian' means any person acting as a fiduciary for any ward, including a committee for a person over twenty-one years old.

Section 62-5-603.     Whenever, pursuant to any law of the United States or regulation of the Veterans' Administration, the Administrator requires, prior to payment of benefits, that a guardian be appointed for a ward, such appointment shall be made in the manner hereinafter provided.

Section 62-5-604.     A summons and petition for the appointment of a guardian may be filed in any court of competent jurisdiction by or on behalf of any person who under existing law is entitled to priority of appointment. If there be no person so entitled or if the person so entitled shall neglect or refuse to file such a summons and petition within thirty days after the mailing of notice by the Veterans' Administration to the last known address of such person indicating the necessity of such filing, a summons and petition for such appointment may be filed in any court of competent jurisdiction by or on behalf of any responsible person residing in this State.

SOUTH CAROLINA COMMENTS

The 2010 amendment revised this section to clarify that a summons and petition are required to commence a formal proceeding, including a proceeding for appointment of a guardian under the Uniform Veteran's Guardianship Act as contained in Part 6. See 2010 amendments to certain definitions in S.C. Code Sections 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-5-605.     The petition for such an appointment shall set forth (a) the name, age and place of residence of the ward, (b) the names and places of residence of the nearest relatives, if known, (c) the fact that such ward is entitled to receive monies payable by or through the Veterans' Administration and (d) the amount of monies then due and the amount of probable future payments.

The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward.

In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent on examination by the Veterans' Administration in accordance with the laws and regulations governing the Veterans' Administration.

Section 62-5-606.     When a petition is filed for the appointment of a guardian of a minor ward a certificate of the Administrator or his representative, setting forth the age of such minor as shown by the records of the Veterans' Administration and the fact that the appointment of a guardian is a condition precedent to the payment of any monies due the minor by the Veterans' Administration, shall be prima facie evidence of the necessity for such an appointment.

Section 62-5-607.     When a petition is filed for the appointment of a guardian of a mentally incompetent ward a certificate of the Administrator or his representative, setting forth the fact that such person has been rated incompetent by the Veterans' Administration on examination in accordance with the laws and regulations governing the Veterans' Administration and that the appointment of a guardian is a condition precedent to the payment of any monies due such person by the Veterans' Administration, shall be prima facie evidence of the necessity for such appointment.

Section 62-5-608.     Upon the filing and service of summons and petition for the appointment of a guardian, under the provisions of this part the court shall cause such notice to be given as is provided by law.

SOUTH CAROLINA COMMENTS

The 2010 amendment revised this section to clarify that a summons and petition are required in a formal proceeding, including a proceeding for appointment of a guardian under the Uniform Veteran's Guardianship Act as contained in Part 6. See 2010 amendments to certain definitions in S.C. Code Section 62-1-201 and also see Sections 14-23-280, 62-1-304, and Rules 1 and 81, SCRCP.

Section 62-5-609.     Before making an appointment under the provisions of this part [Sections 62-5-601 et seq.], the court shall be satisfied that the guardian whose appointment is sought is a fit and proper person to be appointed. Upon the appointment being made the guardian shall execute and file a bond to be approved by the court in an amount not less than the sum then due and estimated to become payable during the ensuing year. The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship laws of this State. The court may, from time to time, require the guardian to file an additional bond.

When a bond is tendered by a guardian with personal sureties, such sureties shall file with the court a certificate under oath which shall describe the property owned by them both real and personal, and that they are each worth the sum named in the bond as the penalty thereof over and above all their debts and liabilities and exclusive of property exempt from execution.

Section 62-5-610.     Except as hereinafter provided it shall be unlawful for any person to accept appointment as guardian of any ward if such proposed guardian shall at that time be acting as guardian for five wards. Upon presentation of a petition by an attorney of the Veterans' Administration under this section alleging that a guardian is acting in a fiduciary capacity for more than five wards and requesting his discharge as a guardian of any such ward for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from such guardian and shall discharge such guardian in such case.

The limitations of this section shall not apply when the guardian is a bank or trust company acting for the wards' estates only. An individual may be guardian of more than five wards if they are all members of the same family.

Section 62-5-611.     Every guardian who has received or shall receive on account of his ward any monies from the Veterans' Administration, its predecessors or successors, shall file with the court, annually, on the anniversary date of the appointment, in addition to such other accounts as may be required by the court, a full, true, and accurate account under oath of all monies so received by him and of all disbursements thereof and showing the balance thereof in his hands at the date of such account and how such balance is invested.

Section 62-5-612.     Such guardian, at the time of filing his account, shall exhibit all securities or investments shown by the account to have been acquired with funds so received and then on hand and described therein to (a) an officer of the bank or other depository wherein such securities are held for safekeeping, (b) an authorized representative of the corporation which is surety on his bond, (c) the clerk or other officer of a court of record in this State or (d) upon the request of the guardian or other interested party, to any other reputable person designated by the court. The person to whom such assets are so exhibited shall certify in writing that he has examined such securities or investments and identified them as those described in the account; provided, however, if such depository is the guardian, such certifying officer shall be an officer other than the officer verifying the account. Or, in lieu of exhibiting such securities to any of the persons mentioned above, the guardian may exhibit such securities or investments to the court, who shall endorse on the account and copy thereof a certificate that the securities or investments shown therein as on hand were each in fact exhibited to him and that those exhibited to him were the same as those shown in the account. Such certificate and the certificate of an official of the bank in which are deposited any funds for which the guardian is accountable, showing the amount of the deposit, shall be filed by the guardian with his account.

Section 62-5-613.     If any guardian shall fail to file any account of the monies received by him from the Veterans' Administration on account of his ward within thirty days after such account is required by either the court or the Administration or shall fail to furnish the Veterans' Administration a copy of his accounts as required by this part [Sections 62-5-601 et seq.], such failure shall be grounds for removal.

Section 62-5-614.     If the guardian is accountable for property derived from sources other than the Veterans' Administration, he shall be accountable as is or may be required under the applicable law of this State pertaining to the property of minors or persons of unsound mind who are not beneficiaries of the Veterans' Administration.

Section 62-5-615.     Every guardian shall invest the surplus funds in his ward's estate in such securities, or otherwise, as allowed by law, and in which the guardian shall have no interest, but only upon prior order of the court. Such funds may be invested, without prior court authorization, in direct interest-bearing obligations of this State or of the United States and in obligations the interest and principal of which are both unconditionally guaranteed by the United States Government.

Section 62-5-616.     A guardian shall not apply any portion of the estate of his ward for the support and maintenance of any person other than his ward, except upon order of the court after a hearing, notice of which has been given the proper office of the Veterans' Administration in the manner provided in Sections 62-5-622 and 62-5-623.

Section 62-5-617.     Whenever a copy of any public record is required by the Veterans' Administration to be used in determining the eligibility of any person to participate in benefits made available by the Administration, the official charged with the custody of such public record shall without charge provide the applicant for such benefits or any person acting on his behalf or the representative of the Veterans' Administration with a certified copy of such record.

Section 62-5-618.     Compensation payable to guardians shall not exceed five per cent of the income of the ward during any year. If extraordinary services are rendered by any such guardian the court may, upon petition and after hearing thereon, authorize additional compensation therefor payable from the estate of the ward. Notice of such petition and hearing shall be given the proper office of the Veterans' Administration in the manner provided in Sections 62-5-622 and 62-5-623. No compensation shall be allowed on the corpus of an estate received from a preceding guardian. The guardian may be allowed from the estate of his ward reasonable premiums paid by him to any corporate surety upon his bond.

Section 62-5-619.     When a minor ward for whom a guardian has been appointed under the provisions of this chapter or other laws of this State has attained his majority and, if incompetent, is declared competent by the Veterans' Administration and the court and when any incompetent ward, not a minor, is declared competent by the Administration and the court, the guardian shall, upon making a satisfactory accounting, be discharged upon a petition filed for that purpose.

If no further income is anticipated by the guardian and the funds held by the guardian do not exceed one thousand dollars, the guardian may pay such funds to the ward if the ward is eighteen years of age and is competent. If the ward is incompetent, the guardian may pay the sum to his conservator if one has been previously appointed. If no conservator exists, then the guardian shall pay to the father or mother of the ward, if living, or either, and if neither is living then to a duly appointed conservator. When the final disbursement has been made and satisfactorily accounted for, the guardian may then be discharged upon a petition filed for that purpose.

Section 62-5-620.     The Administrator or his successor is and shall be a party in interest (a) in any proceeding brought under any law of this State for the appointment, confirmation, recognition, or removal of any guardian of a minor, or of a mentally incompetent person, to whom or on whose behalf benefits have been paid or are payable by the Veterans' Administration, its predecessor or successor, (b) in any guardianship proceeding involving such person or his estate, (c) in any suit or other proceeding arising out of the administration of such person's estate or assets and (d) in any proceeding the purpose of which is the removal of the disability of minority or of mental incompetency of such person. In any case or proceeding involving property or funds of such minor or mentally incompetent person not derived from the Veterans' Administration, the Veterans' Administration shall not be a necessary party but may be a proper party to such proceedings. This section shall not apply unless the Veterans' Administration shall designate in writing filed with the Secretary of State, its chief attorney, acting chief attorney or other agent within this State as a person authorized to accept service of process or upon whom process may be served.

Section 62-5-621.     A certified copy of each of the accounts filed pursuant to Section 62-5-611 and a signed duplicate of each of the certificates filed with the court shall be sent by the guardian to the office of the Veterans' Administration having jurisdiction over the area in which such court is located. A duplicate signed copy or certified copy of any petition, motion, or other pleading which is filed in the guardianship proceeding or in any proceeding for the purpose of removing the disability of minority or of mental incapacity shall be furnished by the person filing the same to the office of the Veterans' Administration concerned.

Section 62-5-622.     The court, unless hearing be waived in writing by an attorney of the Veterans' Administration, shall fix a time and place for the hearing on such account, petition, or other pleading not less than fifteen days nor more than thirty days from the date of filing the same, unless a different available date be stipulated in writing. Unless waived in writing, written notice of the time and place of such hearing shall be given to the aforesaid Veterans' Administration office not less than fifteen days prior to the date fixed for the hearing. Such notice may be given by mail, in which event it shall be deposited in the mails not less than fifteen days prior to such date.

Section 62-5-623.     Notice of such hearing shall in like manner be given to the guardian and to any other person entitled to notice. The court, or clerk thereof, shall mail to the Veterans' Administration office a copy of each order entered in any guardianship proceeding wherein the Veterans' Administration is an interested party.

Section 62-5-624.     This part shall be construed liberally to secure the beneficial intents and purposes thereof and shall apply only to beneficiaries of the Veterans' Administration. This part shall also be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact substantially identical legislation.

RESERVED.

Part 7

South Carolina Adult Guardianship

and Protective Proceedings Jurisdiction Act

Section 62-5-700.     This act part may be cited as the 'South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act'.

REPORTER'S COMMENTS

The title to the Act succinctly describes the Act's scope. The Act applies only to court jurisdiction and related topics for adults for whom the appointment of a guardian or conservator or other protective order is being sought or has been issued.

The drafting committee of the Uniform Law Commission elected to limit the Act to adults for two reasons. First, jurisdictional issues concerning guardians for minors are subsumed by the Uniform Child Custody Jurisdiction and Enforcement Act (1997). Second, while the UCCJEA does not address conservatorship and other issues involving the property of minors, all of the problems and concerns that led the Uniform Law Commission to appoint a drafting committee involved adults.

Part 7 is a slightly modified version of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act drafted by the Uniform Law Commission

Section 62-5-701.     Notwithstanding another provision of law, this part provides the exclusive jurisdictional basis for a court of this State to appoint a guardian or issue a protective order for an adult.

REPORTER'S COMMENTS

All guardianship proceedings and protective proceedings for an adult incapacitated person must comply with the provisions of Part 7.

Section 62-5-702.As used in this part, the term:

(1) 'Adult' means an individual who has attained eighteen years of age or who has been emancipated by a court of competent jurisdiction.

(2) 'Conservator' means a person appointed by a court to manage an estate of a protected person.

(3) 'Court' means a probate court in this State or a court in another state with the same jurisdiction as a probate court in this State.

(4) 'Emergency' means circumstances that will likely result in substantial harm to a respondent's health, safety, or welfare or substantial economic loss or expense.

(5) 'Guardian' means a person who has qualified as a guardian of an incapacitated person pursuant to a court appointment, but excludes one who is a guardian ad litem or a statutory guardian.

(6) 'Guardianship order' means an order appointing a guardian.

(7) 'Guardianship proceeding' means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.

(8) 'Home state' means the state in which the respondent was physically present, including a period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or if none, the state in which the respondent was physically present, including a period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition.

(9) 'Incapacitated person' means an adult for whom a guardian or conservator has been appointed.

(10) 'Party' means the respondent, petitioner, guardian, conservator, or other person allowed by the court to participate in a guardianship or protective proceeding.

(11) 'Person', except in the term 'incapacitated person' or 'protected person', means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or another legal or commercial entity.

(12) 'Protected person' means an adult for whom a protective order has been issued.

(13) 'Protective order' means an order appointing a conservator or a court order relating to the management of property of an incapacitated person.

(14) 'Protective proceeding' means a judicial proceeding in which a protective order is sought or has been issued.

(15) 'Record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(16) 'Respondent' means an adult for whom a protective order or the appointment of a guardian is sought.

(17) 'Significant-connection state' means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available. In determining pursuant to Sections 62-5-707 and 62-5-714(E) whether a respondent has a significant connection with a particular state, the court shall consider the:

(a) location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;

(b) length of time the respondent at any time was physically present in the state and the duration of any absence;

(c) location of the respondent's property; and

(d) extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.

(18) 'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or a territory or insular possession subject to the jurisdiction of the United States.

(19) 'Ward' means a person for whom a guardian has been appointed. The terms used in this part have the same definition as set forth in Section 62-5-101.

Section 62-5-703.     The A court of this State may treat a foreign country as if it were a state for the purpose of applying this part.

REPORTER'S COMMENTS

This section addresses application of the Act to guardianship and protective orders issued in other countries. A foreign order is not enforceable pursuant to the registration procedures of Sections 62-5-716 through 62-5-718, but a court in this country may otherwise apply this Act to a foreign proceeding as if the foreign country were an American state. Consequently, a court may conclude that the court in the foreign country has jurisdiction because it constitutes the primary respondent's 'home state' or 'significant-connection state' and may therefore decline to exercise jurisdiction on the ground that the court of the foreign country has a higher priority under Section 62-5-707. Or the court may treat the foreign country as if it were a state of the United States for purposes of applying the transfer provisions of Sections 62-5-714 through 62-5-715.

This section addresses similar issues to but differs in result from Section 105 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997). Under the UCCJEA, the United States court must honor a custody order issued by the court of a foreign country if the order was issued under factual circumstances in substantial conformity with the jurisdictional standards of the UCCJEA. Only if the child custody law violates fundamental principles of human rights is enforcement excused. Because guardianship regimes vary so greatly around the world, particularly in civil law countries, it was concluded that under this Act a more flexible approach was needed. Under this Act, a court may but is not required to recognize the foreign order.

The fact that a guardianship or protective order of a foreign country cannot be enforced pursuant to the registration procedures of Sections 62-7-716 through 62-5-718 does not preclude enforcement by the court under some other provision or rule of law.

Section 62-5-704.     (A)    The A court of this State may communicate with a court in another state concerning a proceeding arising pursuant to this article part. The court shall allow the parties to participate in a discussion between courts on the merits of a proceeding. Except as otherwise provided in subsection (B), the court shall make a record of the communication. When a discussion on the merits of a proceeding between courts is held, the record must show that the parties were given an opportunity to participate, must summarize the issues discussed, and must list the participants to the discussion. In all other matters except as provided in subsection (B), the record may be limited to the fact that the communication occurred.

(B)    Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record. A court may allow the parties to a proceeding to participate in any communications held pursuant to this subsection.

REPORTER'S COMMENTS

This section emphasizes the importance of communications among courts with an interest in a particular matter. Most commonly, this would include communication between courts of different states to resolve an issue of which court has jurisdiction to proceed under Sections 62-5-707 through 62-5-713. It would also include communication between courts of different states to facilitate the transfer of a guardianship or conservatorship to a different state under Sections 62-5-714 through 62-5-715. Communication can occur in a variety of ways, including by electronic means. This section does not prescribe the use of any particular means of communication.

The court may authorize the parties to participate in the communication; but, unless there is to be a discussion on the merits, the Act does not mandate participation or require that the court give the parties notice of any communication. Communication between courts is often difficult to schedule and participation by the parties may be impractical. Phone calls or electronic communications often have to be made after-hours or whenever the schedules of judges allow. When issuing a jurisdictional or transfer order, the court should set forth the extent to which a communication with another court may have been a factor in the decision.

South Carolina amended the Uniform Act to provide that the parties to a proceeding must be given an opportunity to participate in any discussion between courts on the merits of a proceeding.

This section does not prescribe the extent of the record that the court must make, leaving that issue to the court. A record might include notes or transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of a telephone call, a memorandum summarizing a conversation, and email communications. No record need be made of relatively inconsequential matters such as scheduling, calendars, and court records.

Section 110 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997) addresses similar issues as this section but is more detailed. As is the case with several other provisions of this Act, the drafters of this Act concluded that the more varied circumstances of adult guardianship and protective proceedings suggested a need for greater flexibility.

Section 62-5-705.    (A)    In a guardianship or protective proceeding in this State, the court may request the appropriate court of another state to do any of the following:

(1)    hold an evidentiary hearing;

(2)    order a person in that state to produce evidence or give testimony evidence pursuant to procedures of that state;

(3)    order that an evaluation or assessment be made of the primary respondent, or order any appropriate investigation of a person involved in a proceeding;

(4)    order an appropriate investigation of a person involved in a proceeding;

(5)    forward to the court of this State a certified copy of the transcript or other record of a hearing pursuant to item (1) or another proceeding, any evidence otherwise produced presented pursuant to item (2), and an evaluation or assessment prepared in compliance with an order the request pursuant to item (3) or (4);

(6)(5)    issue an order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the primary respondent or the incapacitated or protected person; and

(7)(6)    issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 C.F.R. Section 164.504.

(B)    If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (A), the a court of this State has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

REPORTER'S COMMENTS

Subsection (A) of this section is similar to Section 112(a) of the Uniform Child Custody Jurisdiction and Enforcement Act (1997), although modified to address issues of concern in adult guardianship and protective proceedings and with the addition of subsection (A)(6), which addresses the release of health information protected under HIPAA. Subsection (B), which clarifies that a court has jurisdiction to respond to requests for assistance from courts in other states even though it might otherwise not have jurisdiction over the proceeding, is not found in although probably implicit in the UCCJEA.

Court cooperation is essential to the success of this Act. This section is designed to facilitate such court cooperation. It provides mechanisms for courts to cooperate with each other in order to decide cases in an efficient manner without causing undue expense to the parties. Courts may request assistance from courts of other states and may assist courts of other states.

This section does not address assessment of costs and expenses, leaving that issue to local law. Should a court have acquired jurisdiction because of a party's unjustifiable conduct, Section 62-5-711(B) authorizes the court to assess against the party all costs and expenses, including attorney's fees.

Section 62-5-706.     (A)    In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this State for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.

(B)    In a guardianship or protective proceeding, a court in this State may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. The A court of this State shall cooperate with the court courts of the other state states in designating an appropriate location for the deposition or testimony.

(C)    Documentary evidence transmitted from another state to a court of this State by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

REPORTER'S COMMENTS

This section is similar to Section 111 of the Uniform Child Custody Jurisdiction and Enforcement Act (1997). That section was in turn derived from Section 316 of the Uniform Interstate Family Support Act (1992) and the much earlier and now otherwise obsolete Uniform Interstate and International Procedure Act (1962).

This section is designed to fill the vacuum that often exists in cases involving an adult with interstate contacts when much of the essential information about the individual is located in another state.

Subsection (A) empowers the court to initiate the gathering of out-of-state evidence, including depositions, written interrogatories and other discovery devices. The authority granted to the court in no way precludes the gathering of out-of-state evidence by a party, including the taking of depositions out-of-state.

Subsections (B) and (C) clarify that modern modes of communication are permissible for the taking of depositions and receipt of documents into evidence.

This section is consistent with and complementary to the Uniform Interstate Depositions and Discovery Act (2007), which specifies the procedure for taking depositions in other states.

Section 62-5-707.    The court has jurisdiction to appoint a guardian or issue a protective order for a respondent if:

(1)    this State is the primary respondent's home state;

(2)    on the date the petition is filed, this State is a significant-connection state; and

(a)    the primary respondent does not have a home state or a court of the primary respondent's home state has declined to exercise jurisdiction because this State is a more appropriate forum; or

(b)    the primary respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state and, before the court makes the appointment or issues the order:

(i)        a petition for an appointment or order is not filed in the primary respondent's home state;

(ii)    an objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and

(iii)    the court concludes that it is an appropriate forum pursuant to the factors provided in Section 62-5-710(C);

(3)    this State does not have jurisdiction pursuant to either item (1) or (2), the primary respondent's home state and all significant-connection states have declined to exercise jurisdiction because this State is the more appropriate forum, and jurisdiction in this State is consistent with the constitutions of this State and the United States; or

(4) the requirements for special jurisdiction pursuant to Section 62-5-708 are met.

REPORTER'S COMMENTS

Similar to the Uniform Child Jurisdiction and Enforcement Act (1997), this Act creates a three-level priority for determining which state has jurisdiction to appoint a guardian or issue a protective order; the home state (62-5-101(11)), followed by a significant-connection state (62-5-101(21)), followed by other jurisdictions. The principal objective of this section is to eliminate the possibility of dual appointments or orders except for the special circumstances specified in Section 62-7-708.

While this section is the principal provision for determining whether a particular court has jurisdiction to appoint a guardian or issue a protective order, it is not the only provision. As indicated in the cross-reference in subsection (4), a court that does not otherwise have jurisdiction under Section 62-5-707 may have jurisdiction under the special circumstances specified in Section 62-5-708.

Pursuant to subsection (1), the home state has primary jurisdiction to appoint a guardian or conservator or issue another type of protective order. This jurisdiction terminates if the state ceases to be the home state, if a court of the home state declines to exercise jurisdiction under Section 62-5-710 on the basis that another state is a more appropriate forum, or, as provided in Section 62-5-709, a court of another state has appointed a guardian or issued a protective order consistent with this Act. The standards by which a home state that has enacted the Act may decline jurisdiction on the basis that another state is a more appropriate forum are specified in Section 62-5-710. Should the home state not have enacted the Act, subsection (1) does not require that the declination meet the standards of Section 62-5-710.

Once a petition is filed in a court of the primary respondent's home state, that state does not cease to be the primary respondent's home state upon the passage of time even though it may be many months before an appointment is made or order issued and during that period the primary respondent is physically located. Only upon dismissal of the petition can the court cease to be the home state due to the passage of time. Under the definition of 'home state,' the six-month physical presence requirement is fulfilled or not on the date the petition is filed.

A significant-connection state has jurisdiction under two possible bases; subsections (2)(a) and (2)(b). Under subsection (2)(a), a significant-connection state has jurisdiction if the individual does not have a home state or if the home state has declined jurisdiction on the basis that the significant-connection state is a more appropriate forum.

Subsection (2)(b) is designed to facilitate consideration of cases where jurisdiction is not in dispute. Subsection (2)(b) allows a court in a significant-connection state to exercise jurisdiction even though the primary respondent has a home state and the home state has not declined jurisdiction. The significant-connection state may assume jurisdiction under these circumstances, however, only in situations where the parties are not in disagreement concerning which court should hear the case. Jurisdiction may not be exercised by a significant-connection state under subsection (2)(b) if (1) a petition has already been filed and is still pending in the home state or other significant-connection state; or (2) prior to making the appointment or issuing the order, a petition is filed in the primary respondent's home state or an objection to the court's jurisdiction is filed by a person required to be notified of the proceeding. Additionally, the court in the significant-connection state must conclude that it is an appropriate forum applying the factors listed in Section 62-5-710.

There is nothing comparable to subsection (2)(b) in the Uniform Child Custody Jurisdiction and Enforcement Act (1997). Under Section 201 of the UCCJEA a court in a significant-connection state acquires jurisdiction only if the child does not have a home state