S*530 Session 107 (1987-1988)
S*0530(Rat #0244, Act #0171 of 1987) General Bill, By Senate Judiciary
A Bill to amend Act 539 of 1986, relating to the South Carolina Probate Code,
so as to make certain technical and substantive changes in the Probate Code
relating to jurisdiction, definitions, elective share provisions, probate
proceedings and administration, distributions and devises, sale of real
estate, protection of financial institutions, other procedural matters, and
effective date, reconciliation, and transition provisions, to amend Section
14-23-650, Code of Laws of South Carolina, 1976, relating to the furnishing of
descriptions of lands to the probate court where the will omits the
description, so as to provide that this description must be furnished to the
probate court of every county where the decedent owned real estate, to amend
Section 20-1-50, relating to legitimacy of children of marriages after the
absence of a spouse for a period of seven years, so as to reduce this time to
five years, to amend Sections 20-7-1770, and 20-7-1820, both as amended, and
20-7-1825, relating to adoptions so as to revise and further provide for these
adoption provisions, to amend Section 30-9-60, relating to indexing of passage
of title to real property by will or inheritance, so as to change certain
references in the Section to "personal representative" and to delete other
references, to amend the 1976 Code by adding Section 21-21-25 so as to provide
that the father or mother of a child, if one parent is dead, may dispose of
custody of a child under certain conditions; by adding Section 21-21-35 so as
to provide that the disposition of the custody of a child as authorized by
Section 21-21-25 is effective against any person claiming custody of the child
as guardian; by adding Section 21-21-45 so as to authorize damages to any
person wrongfully detaining the child when custody has been so disposed; and
by adding Section 21-21-55 so as to authorize certain powers to the person who
has custody of the child; and to repeal Sections 12-15-1360, 12-15-1370,
12-15-1620, 12-15-1630, 12-15-1640 and 12-15-1650, relating to certain estate
and estate tax provisions.-amended title
03/17/87 Senate Introduced, read first time, placed on calendar
without reference SJ-922
03/18/87 Senate Read second time
03/18/87 Senate Ordered to third reading with notice of amendments
04/23/87 Senate Amended SJ-1504
04/23/87 Senate Special order SJ-1504
04/29/87 Senate Motion to reconsider amendment; adj. deb. on
motion SJ-1597
04/30/87 Senate Amendment reconsidered and tabled SJ-1634
04/30/87 Senate Read third time and sent to House SJ-1634
05/05/87 House Introduced and read first time HJ-2411
05/05/87 House Referred to Committee on Judiciary HJ-2412
05/27/87 House Committee report: Favorable with amendment
Judiciary HJ-3227
06/01/87 House Amended HJ-3381
06/01/87 House Debate interrupted HJ-3388
06/02/87 House Amended HJ-3405
06/02/87 House Read second time HJ-3409
06/03/87 House Read third time HJ-3561
06/03/87 House Returned HJ-3561
06/03/87 Senate House amendment amended SJ-2682
06/03/87 Senate Returned SJ-2683
06/03/87 House Concurred in Senate amendment and enrolled HJ-3641
06/25/87 Ratified R 244
06/30/87 Signed By Governor
07/09/87 Effective date 07/01/87
07/09/87 Act No. 171
07/23/87 See act for exceptions to effective date
07/23/87 Copies available
(A171, R244, S530)
AN ACT TO AMEND ACT 539 OF 1986, RELATING TO THE SOUTH CAROLINA PROBATE CODE,
SO AS TO MAKE CERTAIN TECHNICAL AND SUBSTANTIVE CHANGES IN THE PROBATE CODE
RELATING TO JURISDICTION, DEFINITIONS, ELECTIVE SHARE PROVISIONS, PROBATE
PROCEEDINGS AND ADMINISTRATION, DISTRIBUTIONS AND DEVISES, SALE OF REAL ESTATE,
PROTECTION OF FINANCIAL INSTITUTIONS, OTHER PROCEDURAL MATTERS, AND EFFECTIVE
DATE, RECONCILIATION, AND TRANSITION PROVISIONS; TO AMEND SECTION 14-23-650, CODE
OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE FURNISHING OF DESCRIPTIONS OF
LANDS TO THE PROBATE COURT WHERE THE WILL OMITS THE DESCRIPTION, SO AS TO PROVIDE
THAT THIS DESCRIPTION MUST BE FURNISHED TO THE PROBATE COURT OF EVERY COUNTY
WHERE THE DECEDENT OWNED REAL ESTATE; TO AMEND SECTION 20-1-50, RELATING TO
LEGITIMACY OF CHILDREN OF MARRIAGES AFTER THE ABSENCE OF A SPOUSE FOR A PERIOD
OF SEVEN YEARS, SO AS TO REDUCE THIS TIME TO FIVE YEARS; TO AMEND SECTIONS
20-7-1770, AND 20-7-1820, BOTH AS AMENDED, AND 20-7-1825, RELATING TO ADOPTIONS,
SO AS TO REVISE AND FURTHER PROVIDE FOR THESE ADOPTION PROVISIONS; TO AMEND
SECTION 30-9-60, RELATING TO THE INDEXING OF PASSAGE OF TITLE TO REAL PROPERTY
BY WILL OR INHERITANCE, SO AS TO CHANGE CERTAIN REFERENCES IN THE SECTION TO
"PERSONAL REPRESENTATIVE" AND TO DELETE OTHER REFERENCES; TO AMEND THE
1976 CODE BY ADDING SECTION 21-21-25 SO AS TO PROVIDE THAT THE FATHER OR MOTHER
OF A CHILD, IF ONE PARENT IS DEAD, MAY DISPOSE OF CUSTODY OF A CHILD UNDER
CERTAIN CONDITIONS, BY ADDING SECTION 21-21-35 SO AS TO PROVIDE THAT THE
DISPOSITION OF THE CUSTODY OF A CHILD AS AUTHORIZED BY SECTION 21-21-25 IS
EFFECTIVE AGAINST ANY PERSON CLAIMING CUSTODY OF THE CHILD AS GUARDIAN, BY ADDING
SECTION 21-21-45 SO AS TO AUTHORIZE DAMAGES TO ANY PERSON WRONGFULLY DETAINING
THE CHILD WHEN CUSTODY HAS BEEN SO DISPOSED, AND BY ADDING SECTION 21-21-55 SO
AS TO AUTHORIZE CERTAIN POWERS TO THE PERSON WHO HAS CUSTODY OF THE CHILD; AND
TO REPEAL SECTIONS 12-15-1360, 12-15-1370, 12-15-1620, 12-15-1630, 12-15-1640,
AND 12-15-1650 RELATING TO CERTAIN ESTATE AND ESTATE TAX PROVISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
Definition revised
SECTION 1. Item (1) of Section 1-201, as contained in Section 1 of Act 539 of
1986, is amended to read:
"(1) 'Application' means a written request to the probate court for an
order or statement of informal probate or appointment under Part 3 of Article
III."
Definition revised
SECTION 2. Item (5) of Section 1-201, as contained in Section 1 of Act 539 of
1986, is amended to read:
"(5) 'Court' means the court or branch having jurisdiction in matters as
provided in this Code."
Jurisdiction
SECTION 3. Section 1-302, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 1-302. Subject Matter Jurisdiction.
(a) To the full extent permitted by the Constitution, and except as otherwise
specifically provided hereinafter, 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, and determination of heirs and successors of decedents and estates of
protected persons;
(2) protection of minors and incapacitated persons, including the mortgage
and sale of personal and real property owned by minors or incapacitated persons;
(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; to
record, index, and dispose of copies of marriage certificates; and the issuance
of certified copies of such licenses and certificates;
(5) the performance of the duties of the clerk of the circuit and family
courts of the county in which such probate court is held when there is a vacancy
in the office of clerk of court for any reason and in proceedings in eminent
domain for the acquisition of rights-of-way by railway companies, canal
companies, governmental entities, or public utilities when such clerk is
disqualified by reason of ownership of or interest in any lands over which it is
sought to obtain such rights-of-way;
(6) the involuntary commitment of persons suffering from mental illness,
mental retardation, alcoholism, drug addiction, and active pulmonary
tuberculosis.
(b) The probate court's jurisdiction over matters involving wrongful death or
actions under the survival statute shall extend only to the approval of
settlements as provided by law.
(c) 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 shall be removed, not later than ten
days following issues being joined, to the circuit court either by the probate
court or on motion of any party and in such cases the circuit court shall proceed
upon the matter de novo:
(1) formal proceedings for the probate of wills and for the appointment of
personal representatives named in wills;
(2) construction of wills;
(3) actions to try title;
(4) trusts; and
(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."
Meaning of child
SECTION 4. Item (1) of Section 2-109, as contained in Section 1 of Act 539 of
1986, is amended to read:
"(1) from the date the final decree of adoption is entered, and except as
otherwise provided in Section 20-7-1825, 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."
Elective share
SECTION 5. Section 2-201, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-201. Right of Elective Share.
(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 2-202, the share to be satisfied as
detailed in Sections 2-206 and 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
2-802."
Probate estate for elective share
SECTION 6. Section 2-202, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-202. Probate Estate.
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."
Proceedings for elective share
SECTION 7. Section 2-205, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-205. Proceedings for Elective Share; Time Limit.
(a) The surviving spouse may elect to take his elective share in the probate
estate by filing in the court and mailing or delivering to the personal
representative, if any, a 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, 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 2-206 and 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."
Charging spouse with gifts received; liability of others for balance of elective
share
SECTION 8. Section 2-207, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-207. Charging Spouse With Gifts Received; Liability of Others
for Balance of Elective Share.
(a) In the proceeding for an elective share, all property of the probate estate
which passes or has passed to the surviving spouse, or which would have passed
to the spouse but was renounced, is applied first to satisfy the elective share
and to reduce any contributions due from other recipients of transfers included
in the probate estate. For purposes of this subsection the value of the electing
spouse's beneficial interest in any property which would qualify for the South
Carolina Estate Tax Marital Deduction pursuant to Section 12-15-60 of the 1976
Code, as effective on January 1, 1986, shall be computed at the full value of any
such qualifying property (qualifying for these purposes to be determined without
regard to whether an election has been made to treat the property as qualified
terminable interest property, pursuant to Section 2056(b)(7)(B)(v) of the
Internal Revenue Code of 1986, as amended, through December 31, 1986).
(b) Remaining property of the probate estate is so applied that liability for
the balance of the elective share of the surviving spouse shall be satisfied from
the probate estate, with devises abating in accordance with Section 3-902."
Spouse's claim
SECTION 9. Subsection (c) of Section 2-301, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(c) The spouse may claim a share as provided by this section 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."
Child's claim
SECTION 10. Subsection (d) of Section 2-302, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(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 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."
Claim of exempt property
SECTION 11. Subsection (b) of Section 2-402, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(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."
Notarization of witness to will's signature
SECTION 12. Section 2-503, as contained in Section 1 of Act 539 of 1986 is
amended by adding a new subsection to read:
"(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."
Choice of law as to execution
SECTION 13. Section 2-505, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-505. Choice of Law as to Execution.
A written will is valid if executed in compliance with Section 2-502 either at
the time of execution or at the date of the testator's death or if its execution
complies with the law at the time of execution of (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."
Effect of provision for survivorship on succession to joint tenancy
SECTION 14. Section 2-804, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-804. Effect of Provision for Survivorship on Succession to
Joint Tenancy.
When any person is seized or possessed of any estate of joint tenancy at the
time of his death, such joint tenancy is deemed to have been severed by the death
of the joint tenant and such estate is distributable as a tenancy in common
unless the instrument which created the joint tenancy expressly provides for a
right of survivorship, in which case the severance shall not occur."
Delivery of will to judge of probate; filing
SECTION 15. Section 2-901, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 2-901. Delivery of Will to Judge of Probate; Filing.
Every executor, devisee, legatee, trustee, guardian, attorney, or other person
having in his possession, custody, or control any last will and testament,
including any codicil or codicils thereto, of any person dying must within thirty
days after notice or knowledge of the 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 such judge
of probate shall file the same in his court and if proceedings for the probate
are not begun within thirty days he must publish a notice of such delivery and
filing in one of the newspapers in his county for fifteen days. 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. Any person who intentionally or
fraudulently destroys, suppresses, conceals, or 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, 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."
Devolution of estate at death; restrictions
SECTION 16. Section 3-101, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-101. Devolution of Estate at Death; Restrictions.
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 3-709,
3-710, and 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 3-709,
3-710, and 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."
Probate, testacy, and appointment proceedings; ultimate time limit
SECTION 17. Section 3-108, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-108. Probate, Testacy, and Appointment Proceedings; Ultimate
Time Limit.
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 twelve months from the informal probate or three years 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."
Priority among persons seeking appointment as personal representative;
notification to Tax Commission
SECTION 18. Section 3-203, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-203. Priority Among Persons Seeking Appointment as Personal
Representative.
(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;
(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 Tax Commission, any person suitable to the court.
(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 except a 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, including priority
resulting from renunciation, may be made only in formal 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.
(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.
(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 Tax Commission
thereof together with his opinion as to whether or not any part of the estate is
likely to be taxable."
Demand for notice of order or filing concerning decedent's estate
SECTION 19. Section 3-204, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-204. Demand for Notice of Order or Filing Concerning
Decedent's Estate.
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
clerk shall mail a copy of the demand to the personal representative if one has
been appointed. After filing of a demand, no order or filing to which the demand
relates may be made or accepted without notice as prescribed in Section 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."
Informal appointment application
SECTION 20. Item (4) of subsection (a) of Section
3-301, as contained in Section 1 of Act 539 of 1986, is amended to read:
"(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 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 3-203."
Formal testacy proceedings; uncontested cases; hearings and proof
SECTION 21. Section 3-405, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-405. Formal Testacy Proceedings; Uncontested Cases; Hearings
and Proof.
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 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 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."
Formal testacy proceedings; contested cases; testimony of attesting witnesses
when testimony not required
SECTION 22. Section 3-406, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-406. Formal Testacy Proceedings; Contested Cases; Testimony
of Attesting Witnesses.
(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 is conclusively presumed, 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."
Formal testacy proceedings; burdens in contested cases
SECTION 23. Section 3-407, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-407. Formal Testacy Proceedings; Burdens in Contested Cases.
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."
Bond not required; exceptions
SECTION 24. Section 3-603, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-603. Bond Not Required Without Court Order; Exceptions.
Except as otherwise provided in this section, no bond is required of a personal
representative who is named in a will. Bond will be required in the following
cases: (1) upon the appointment of a special administrator; (2) upon the
appointment of a personal representative of an intestate estate; (3) upon
appointment of a nonresident personal representative unless bond is expressly
excused in the will; (4) when a personal representative is appointed to
administer an estate under a will containing an express requirement of bond; or
(5) when bond is required under Section 3-605. No bond is required of any
banking corporation or trust company qualified under Section 34-15-10 when it is
appointed to act as a personal representative except under items (4) and (5)
above."
Demand for bond by interested person or creditor
SECTION 25. Section 3-605, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-605. Demand For Bond by Interested Person.
Any person apparently having an interest in the estate worth in excess of one
thousand dollars, or any creditor having a claim in excess of one 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, but the requirement ceases if the person or creditor demanding bond
ceases to have an interest in the estate worth in excess of one thousand dollars
or a claim in excess of one 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."
Personal representative to proceed with court sanction; penalty against personal
representative.
SECTION 26. Section 3-704, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-704. Personal Representative to Proceed with Court Sanction.
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 3-801.
(b) Within sixty days after his appointment he shall file with the court the
inventory and appraisement required by Section 3-706.
(c) Upon the expiration of eight months from the date of first publication of
the notice to creditors, the personal representative shall proceed to pay the
claims allowed against the estate, as provided in Section 3-807.
(d) Upon the expiration of the relevant period, as set forth in Section
3-1003, the personal representative shall file the account, proposal for
distribution, proofs required by Section 3-1003, and proof of publication of
notice to creditors.
(e) 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 III including any of the
above requirements, and especially including the requirement to account, under
Section 3-1003, 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) If a personal representative or trustee neglects or refuses to comply with
any provision of Section 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 Tax Commission for the use of the State and an action for the
recovery thereof may be brought by the Tax Commission in any court of competent
jurisdiction and upon collection must be paid into the state treasury. But the
Commission, upon good cause shown, may, in its discretion, excuse the penalty or
any part thereof. The probate court, after a hearing and any notice the court
may require, may remove the personal representative and appoint another personal
representative."
Duty of personal representative; inventory and appraisement
SECTION 27. Section 3-706, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-706. Duty of Personal Representative; Inventory and
Appraisement.
Within sixty 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 of property
owned by the decedent at the time of his death, together with such other
information as may be required by the South Carolina Tax Commission, 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 with the court; (3) mail a copy to interested persons who request
it. The court, upon application of the personal representative, may extend the
time for filing or making the inventory and appraisement."
Powers of personal representative
SECTION 28. Subsection (a) of Section 3-711, as contained in Act 539 of 1986,
is amended to read:
"(a) Until termination of his appointment or unless otherwise provided
in Section 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."
Effect of execution and delivery of deed by personal representative
SECTION 29. Subsection (3) of Section 3-715, as contained in Act 539 of 1986,
is amended to read:
"(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."
Transaction authorized for personal representative revised
SECTION 30. Subsection (9) of Section 3-715, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(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 3-711(b);".
Notice to creditors
SECTION 31. Section 3-801, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-801. Notice to Creditors.
Unless notice has already been given under this section, a personal
representative upon his appointment shall publish a notice 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."
Statutes of limitations
SECTION 32. Section 3-802, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-802. Statutes of Limitations.
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. The running of any statute of limitations
measured from some other event than death and advertisement for claims against
a decedent 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. For purposes of any statute of limitations, the proper presentation of
a claim under Section 3-804 is equivalent to commencement of a proceeding on the
claim."
Limitations on presentation of claims
SECTION 33. Section 3-803, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-803. Limitations on Presentation of Claims.
(a) All claims against a decedent's estate which arose before 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, if not
barred earlier by other statutes of limitations, are barred against the estate,
the personal representative, and the heirs and devisees of the decedent, unless
presented as follows:
(1) within eight months after the date of the first publication of notice
to creditors if notice is given in compliance with Section 3-801; provided,
claims barred by the nonclaim statute at the decedent's domicile before the first
publication for claims in this State are also barred in this State;
(2) within three years after the decedent's death, if notice to creditors
has not been published.
(b) 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;
(2) any other claim, within eight months after it arises.
(c) Nothing in this section affects or prevents:
(1) any proceeding to enforce any mortgage, pledge, lien, or other security
interest upon property of the estate; or
(2) to the limits of the insurance protection only, any proceeding to
establish liability of the decedent or the personal representative for which he
is protected by liability insurance."
Presentation of claims
SECTION 34. Subsection (1) of Section 3-804, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(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. The claim
is deemed presented on the first to occur of receipt 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 the security, the nature of any uncertainty, and the due date
of a claim not yet due does not invalidate the presentation made."
Presentation of claims
SECTION 35. Subsection (3) of Section 3-804, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(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."
Allowance of claims and disallowance
SECTION 36. Subsection (a) of Section 3-806, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(a) As to claims presented in the manner described in Section 3-804
within the time limit prescribed in Section 3-803, the personal representative
may mail a notice to any claimant stating that the claim has been disallowed.
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 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. Failure of the personal representative
to mail notice to a claimant of action on his claim for thirty days after the
time for original presentation of the claim has expired has the effect of a
notice of disallowance with warning of the impending bar."
Allowance of claims
SECTION 37. Subsection (d) of Section 3-806, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(d) Unless otherwise provided in any judgment in another court entered
against the personal representative, allowed claims bear interest at the legal
rate (as determined according to Section 34-31-20(A)) for the period commencing
thirty days 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."
Payment of claims
SECTION 38. Subsection (a) of Section 3-807, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(a) Upon the expiration of eight months from the date of the first
publication of the notice to creditors, 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, 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."
Successors' rights if no administration
SECTION 39. Section 3-901, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-901. Successors' Rights if no Administration.
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."
Interest on general pecuniary devise not in trust
SECTION 40. Section 3-904, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-904. Interest on General Pecuniary Devise.
General pecuniary devises not in trust bear interest at the legal rate (as
determined according to Section 34-31-20(A)) beginning one year after the first
appointment of a personal representative until payment, unless a contrary intent
is indicated by the will."
Distribution in kind; valuation; method; authority of personal representatives
and trustees
SECTION 41. Section 3-906, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-906. Distribution in Kind; Valuation; Method.
(a) Unless a contrary intention is indicated by the will, 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 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;
(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
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. 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 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 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."
Distribution in kind; evidence
SECTION 42. Section 3-907, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-907. Distribution in Kind; Evidence.
If distribution in kind (whether real or personal property) is made, the
personal representative shall execute an instrument or deed of distribution
assigning, transferring, or releasing the assets to the distributee as evidence
of the distributee's title to the property."
Distribution; right or title of distributee
SECTION 43. Section 3-908, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-908. Distribution; Right or Title of Distributee.
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."
Purchasers from distributees protected
SECTION 44. Section 3-910, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-910. Purchasers from Distributees Protected.
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 is prima facie evidence
that such transfer was made for value."
Disposition of unclaimed assets
SECTION 45. Section 3-914, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-914. Disposition of Unclaimed Assets.
(a) If after the expiration of twelve months from the appointment of the
personal representative of any 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 any person supposed to be
entitled as heir or devisee of the estate or whether any person who, if living,
would be entitled as heir or devisee of this estate be dead or not, 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 to be 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 be the first Monday in a month and must not be
less than three months after the date of the notice.
(b) The notice must be published once a week for six successive weeks in a
newspaper published in the county in which the court is held. The first
publication of the notice must be made within ten days after the date of the
notice and the newspaper must be designated by the court. 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 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 therein 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 so made 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 so appearing is disputed by the personal
representative, any heir or devisee of the decedent or the legal representatives
of any heir or devisee, the court must proceed to hear and determine the
controversy. If the controversy is determined against the person so appearing,
distribution of the estate must be made as prescribed in subsection (d); but if
the controversy be determined in favor of the party so appearing he is considered
to be the person whose whereabouts or the fact of whose death was unknown. The
determination in either case, however, is subject to appeal as provided in
Section 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 any 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, however, to be subject
to appeal as provided in Section 1-308.
(h) Except as provided in this article, nothing contained herein prevents any
person whose whereabouts was unknown at the time of the distribution of the
estate and who within three years after the distribution of the estate appears
and claims his distributive share as heir or devisee from recovering from the
other heirs and devisees between whom the estate has been divided or any of them
his share or that portion thereof as the heir or devisee may have received from
the estate over and above his individual share by reason of the absence of the
person whose whereabouts was not known at the time of the distribution."
Termination of administration
SECTION 46. Subsection (a) of Section 3-1001, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(a) A personal representative or any interested person may petition for
an order of complete settlement of the estate. The personal representative may
petition at any time, and any other interested person may petition after one year
from the appointment of the original personal representative except that no
petition under this section may be entertained until the time for presenting
claims which arose prior to the death of the decedent has expired. The petition
may request the court to determine testacy, if not previously determined, to
consider the final account or compel or approve an accounting and distribution,
to construe any will or determine heirs and adjudicate the final settlement and
distribution of the estate. After notice to all interested persons and hearing,
the court may enter an order or orders, on appropriate conditions, determining
the persons entitled to distribution of the estate, and, as circumstances
require, 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."
Formal proceedings terminating testate administration; order construing will
without adjudicating testacy
SECTION 47. Section 3-1002, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1002. Formal Proceedings Terminating
Testate Administration; Order Construing Will Without Adjudicating Testacy.
A personal representative administering an estate under an informally probated
will or any devisee under an informally probated will may petition for an order
of settlement of the estate which will not adjudicate the testacy status of the
decedent. The personal representative may petition at any time, and a devisee
may petition after one year, from the appointment of the original personal
representative, except that no petition under this section may be entertained
until the time for presenting claims which arose prior to the death of the
decedent has expired. The petition may request the court to consider the final
account or compel or approve an accounting and distribution, to construe the will
and adjudicate final settlement and distribution of the estate. After notice to
all devisees and the personal representative and hearing, the court may enter an
order or orders, on appropriate conditions, determining the persons entitled to
distribution of the estate under the will, and, as circumstances require,
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 devisee who is a
party to the proceeding and those he represents. If it appears that a part of
the estate is intestate, the proceedings must be dismissed or amendments made to
meet the provisions of Section 3-1001."
Formal proceedings accounting for administration; testate or intestate; order of
protection
SECTION 48. Section 3-1003, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1003. Formal Proceedings Accounting
For Administration; Testate or Intestate; Order of Protection.
(a) A personal representative shall file with the court a full account in
writing of his administration. Where the personal representative is not required
to file an estate tax return with the South Carolina Tax Commission, he shall
file his account within one year after the date of the first publication of
notice to creditors. Where the personal representative is required to file an
estate tax return with the South Carolina Tax Commission, he shall file his
account within thirty days after his receipt of a South Carolina estate tax
closing letter. He shall also file a proposal for distribution of the estate,
as well as proof that copies of the account and proposal for distribution have
been sent to all distributees of the estate whose interests are affected thereby
and to all creditors or other claimants of whom he is aware whose claims are
neither paid nor barred.
(b) The personal representative or any interested person may petition for an
order of settlement of the account within thirty days of its filing. The
petition may request the court to consider the account, to approve the account
and distribution, to construe any will and adjudicate the settlement and
distribution of the estate. After notice to all interested persons and the
personal representative and hearing, the court may enter an order or orders, on
appropriate conditions, determining the persons entitled to distribution of the
estate, and, as circumstances require, 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."
Subsequent administration
SECTION 49. Section 3-1008, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1008. Subsequent Administration.
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 petition 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."
Collection of personal property by affidavit
SECTION 50. Section 3-1201, as contained in Section 1 of Act 539 of 1986 is
amended to read:
"Section 3-1201. Collection of Personal Property by Affidavit.
(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 estate, wherever located, less liens
and encumbrances, does not exceed ten 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 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 at the time of his death and only upon the judge's
satisfaction that the affiant is entitled to payment or delivery of the property;
and
(6) be filed in the probate court.
(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)."
Only procedure for sale of lands by court; exceptions
SECTION 51. Section 3-1301, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1301. Only Procedure for Sale of Lands by Court.
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."
Sale of real estate
SECTION 52. Section 3-1302, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1302. Sale of Real Estate.
The court may, as herein provided, authorize the sale of the real estate of
such deceased person."
Issuance of summons upon application for sale
SECTION 53. Section 3-1303, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1303. Issuance of Summons Upon Application for Sale.
On application to the court at any time after the qualification of any personal
representative requesting the sale of real estate of the deceased, the court
shall forthwith issue a summons to the heirs or devisees of the estate requiring
them to appear at such time as may be fixed in the summons to show cause, if any
they might have, why such real estate should not be sold."
Form of summons
SECTION 54. Section 3-1304, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1304. Form of Summons.
The form of such summons must be as follows: 'You are hereby required to
appear at the court of ____________ to be held at_______ courthouse, for
__________ County, on the _________ day of ________ , A.D._____________ to show
cause, if any you can, why so much of the real estate of _____________ should
not be sold and the proceeds thereof paid over to _____________ , personal
representative of __________ . Given under my hand and seal this ________ day
of________ , A.D. 19__ Judge of ___________ '."
Service of summons and petition
SECTION 55. Section 3-1305, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1305. Service of Summons and Petition.
To such summons a copy of the petition must be attached and copies of the
summons and petition served on the parties interested 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 acceptance of such guardian
endorsed on the petition. Nothing herein contained precludes any of the parties
from accepting service of the summons and petition or from consenting to the sale
as prayed for in the petition."
Execution of process must be by sheriff
SECTION 56. Section 3-1306, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1306. Execution of Process Must be by Sheriff.
The sheriffs of the several counties in this State are required to serve all
processes which may be issued 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."
Publication as to nonresidents and parties with unknown residences
SECTION 57. Section 3-1307, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1307. Publication as to Nonresidents and Parties With Unknown
Residences.
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
shall advertise for his appearance by 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."
Filing notice of pendency of action
SECTION 58. Section 3-1308, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1308. Filing Notice of Pendency of Action.
Upon the filing of the petition the court 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."
Time for return; sale of real estate after hearing and notice
SECTION 59. Section 3-1309, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1309. Time for Return; Sale of Real Estate After Hearing and
Notice.
The time for return is at least thirty days from the date of service. Should
any of the heirs-at-law or devisees desire to make a return 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 and return and if the court
decides that the real estate 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 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."
Bond for handling of proceeds by personal representative
SECTION 60. Section 3-1310, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1310. Bond for Handling of Proceeds by Personal
Representative.
The regular bond of the personal representative must protect the creditors,
heirs, and devisees in the handling of the proceeds of sale by the personal
representative but in case no such bond has been given the court shall require
the giving of a bond by such personal representative as provided in Sections
3-603 and 3-605."
Filing of papers; requirement of returns
SECTION 61. Section 3-1311, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1311. Filing of Papers; Requirement of Returns.
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."
Entry of releases of liens on property sold
SECTION 62. Section 3-1312, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 3-1312. Entry of Releases of Liens on Property Sold.
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 shall
enter a release of the lands so sold upon the records in the office of the clerk
of court or register of mesne conveyances 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 shall have cancellation of the same entered on the record thereof. The
foregoing duties may not be imposed upon the probate judge in case such mortgage,
judgment, or other creditor has such liens released or canceled within thirty
days following the sale of such lands nor may any judgment, mortgage, or other
lien creditor be relieved 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."
Payment or delivery discharges
SECTION 63. Section 4-202, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 4-202. Payment or Delivery Discharges.
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."
Resident creditor notice
SECTION 64. Section 4-203, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 4-203. Resident Creditor Notice.
Payment or delivery under Section 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."
Delegation of guardian's powers
SECTION 65. Section 5-104, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 5-104. Delegation of Guardian's Powers.
A guardian of an incapacitated person, by a properly executed power of
attorney, may delegate
to another person, for a period not exceeding six
months, any of his powers regarding care and custody of the incapacitated
person."
Family court jurisdiction of minors
SECTION 66. Section 1, Part 2 of Article V of Act 539 of 1986 is amended by
adding:
"Section 5-201. Family Court Jurisdiction of Minors.
The family courts of this State have jurisdiction over the care, custody, and
control of the persons of minors."
Protective proceedings; request for notice; interested person
SECTION 67. Section 5-406, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 5-406. Protective Proceedings; Request
for Notice; Interested Person.
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."
Final discharge of guardian; paying out funds less than one thousand dollars
SECTION 68. Section 5-619, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 5-619. Final Discharge of Guardian; Paying Out Funds Less than
One Thousand Dollars.
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."
Ownership
SECTION 69. Subsection (c) of Section 6-103, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(c) Unless a contrary intent is manifested by the terms of the account
or the deposit agreement or there is clear and convincing evidence of an
irrevocable trust, a trust account belongs beneficially to the trustee during his
lifetime, and if two or more parties are named as trustee on the account, during
their lifetimes beneficial rights as between them are governed by subsection (a)
of this section. If there is an irrevocable trust, the account belongs
beneficially to the beneficiary."
Applicability to multiple party accounts
SECTION 70. Subsection (f) of Section 6-104, as contained in Section 1 of Act
539 of 1986, is amended to read:
"(f) The provisions of Section 6-104(a), (b), and (c) are applicable to
all multiple-party accounts created subsequent to the effective date of this
section, and unless there is clear and convincing evidence of a different
intention at the time the account was created, to all multiple-party accounts
created prior to the effective date of this section."
Rights of creditors
SECTION 71. Section 6-107, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 6-107. Rights of Creditors.
Subject to the provisions contained in Section 3-916, no multiple-party account
is effective against an estate of a deceased party to transfer to a survivor sums
needed to pay debts, taxes, and expenses of administration, if other assets of
the estate are insufficient; a surviving party, P.O.D. payee, or beneficiary who
receives payment from a multiple-party account after the death of a deceased
party is liable to account to his personal representative for amounts the
decedent owned beneficially immediately before his death to the extent necessary
to discharge the claims and charges mentioned above remaining unpaid after
application of the decedent's estate. No proceeding to assert this liability may
be commenced unless the personal representative has received a written demand by
a creditor of the decedent, and no proceeding may be commenced later than two
years following the death of the decedent. Sums recovered by the personal
representative must be administered as part of the decedent's estate. This
section does not affect the right of a financial institution to make payment on
multiple-party accounts according to the terms thereof or make it liable to the
estate of a deceased party unless before payment the institution has been served
with an order of the probate court."
Financial institution protection; payment on signature of one party; exceptions
SECTION 72. Section 6-108, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 6-108. Financial Institution Protection; Payment on Signature
of One Party.
Financial institutions may enter into multiple-
party accounts to the same extent that they may enter into single-party accounts.
Any multipleparty account may be paid, on request, to any one or more of the
parties, unless a contrary intent is manifested by the terms of the account or
the deposit agreement. A financial institution may not be required to inquire
as to the source of funds received for deposit to a multiple-party account, or
to inquire as to the proposed application of any sum withdrawn from an account,
for purposes of establishing net contributions."
Financial institution protection; payment after death or disability; joint
account; exceptions
SECTION 73. Section 6-109, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 6-109. Financial Institution Protection; Payment After Death
or Disability; Joint Account.
Unless a contrary intent is manifested by the terms of the account or the
deposit agreement, any sums in a joint account may be paid, on request, to any
party without regard to whether any other party is incapacitated or deceased at
the time the payment is demanded; but payment may not be made to the personal
representative or heirs of a deceased party unless proofs of death are presented
to the financial institution showing that the decedent was the last surviving
party or unless there is no right of survivorship under Section 6-104."
Financial institution protection; payment of P.O.D. account; exceptions
SECTION 74. Section 6-110, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 6-110. Financial Institution Protection; Payment of P.O.D.
Account.
Unless a contrary intent is manifested by the terms of the account or the
deposit agreement, any P.O.D. account may be paid, on request, to any original
party to the account. Payment may be made, on request, to the P.O.D. payee or to
the personal representative or heirs of a deceased P.O.D. payee upon presentation
to the financial institution of proof of death showing that the P.O.D. payee
survived all persons named as original payees. Payment may be made to the
personal representative or heirs of a deceased original payee if proof of death
is presented to the financial institution showing that his decedent was the
survivor of all other persons named on the account either as an original payee
or as P.O.D. payee."
Financial institution protection; payment of trust account; exceptions
SECTION 75. Section 6-111, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 6-111. Financial Institution Protection; Payment of Trust
Account.
Unless a contrary intent is manifested by the terms of the account or the
deposit agreement, any trust account may be paid, on request, to any trustee.
Unless the financial institution has received written notice that the beneficiary
has a vested interest not dependent upon his surviving the trustee, payment may
be made to the personal representative or heirs of a deceased trustee if proof
of death is presented to the financial institution showing that his decedent was
the survivor of all other persons named on the account either as trustee or
beneficiary. Payment may be made, on request, to the beneficiary or to the
personal representative or heirs of a deceased beneficiary upon presentation to
the financial institution of proof of death showing that the beneficiary or
beneficiaries survived all persons named as trustees."
Effect of such conveyance
SECTION 76. Section 7-209, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 7-209. Effect of Such Conveyance.
Such conveyance or assurance, to be had and made as stated in Section 7-208,
is as effectual in law, to all intents and purposes, as if the infant was, at the
time making such conveyance or assurance, of the full age of eighteen
years."
Duty to inform and account to beneficiaries
SECTION 77. Section 7-303, as contained in Section 1 of Act 539 of 1986, is
amended to read:
"Section 7-303. Duty to Inform and Account to Beneficiaries.
From the time at which a trust becomes irrevocable, the trustee shall keep the
beneficiaries of the trust reasonably informed of
the trust and its administration and, in addition:
(a) within thirty days after his acceptance of the trust, the trustee shall
inform in writing the current beneficiaries and if possible one or more persons
who under Section 1-403 may represent beneficiaries with future interest of his
name and address;
(b) upon reasonable request, the trustee shall provide the beneficiary with
a copy of the terms of the trust which describe or affect his interest and with
relevant information about the assets of the trust and the particulars relating
to the administration;
(c) upon reasonable request, a beneficiary is entitled to a statement of the
accounts of the trust annually and on termination of the trust or change of the
trustee."
Effective date; exceptions
SECTION 78. Section 5 of Act 539 of 1986 is amended to read:
"Section 5. (a) Except as otherwise provided, this act 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 wills of decedents dying thereafter;
(2) the Code applies 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. 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) any rule of construction or presumption provided in this Code applies
to instruments executed and multiple-party accounts opened before the effective
date unless there is a clear indication of a contrary intent.
(c) Section 2-502 is effective for all wills executed after June 27, 1984,
whether the testator dies before or after July 1, 1987."
Description of lands furnished
SECTION 79. Section 14-23-650 of the 1976 Code is amended to read:
"Section 14-23-650. Whenever a will omits to set forth a description of
the lands thereby devised the person offering such will for probate is required
to furnish to the judge of probate of
every county where the decedent owned real estate a sufficient description of
such lands, to be entered by the judge in the book referred to in Section
14-23-630(9). The judge of probate, in addition to his charges for probate of
wills allowed by law, is entitled to charge one dollar for each index of devises
of real estate made by him, to be paid by the executor or party probating the
will."
Deduction of period for legitimacy
SECTION 80. Section 20-1-50 of the 1976 Code is amended to read:
"Section 20-1-50. The issue of all marriages contracted after the absence
of a husband or wife
for a period of five years, such husband or wife not being heard from or known
to be living during that period of time, are legitimate and declared to be legal
heirs of their parents."
Adoptions
SECTION 81. Section 20-7-1770 of the 1976 Code, as last amended by Act 539 of
1986, is further amended to read:
"Section 20-7-1770. (A) After the final decree of adoption is entered,
the relationship of parent and child and all the rights, duties, and other legal
consequences of the natural relationship of parent and child exist between the
adoptee, the adoptive parent, and the kindred of the adoptive parent.
(B) After a final decree of adoption is entered, the biological parents of the
adoptee are relieved of all parental responsibilities and have no rights over the
adoptee.
(C) Notwithstanding any other provision to the contrary in this section, the
adoption of a child by an adoptive parent does not in any way change the legal
relationship between the child and either biological parent of the child whose
parental responsibilities and rights are not expressly affected by the final
decree."
Adoptions
SECTION 82. Section 20-7-1820 of the 1976 Code, as last amended by Act 539 of
1986, is further amended to read:
"Section 20-7-1820. Any person may adopt his spouse's child, and any
person may adopt a child to whom he is related by blood or marriage. In the
adoption of these children:
(a) no investigation or report required under the provisions of Section
20-7-1740 is required unless otherwise directed by the court;
(b) no accounting by the petitioner of all disbursements required under the
provisions of Section 20-7-1775 is required unless the accounting is ordered by
the court; and
(c) upon good cause shown, the court may waive the requirement, pursuant to
Section 20-7-1760, that the final hearing must not be held prior to ninety days
after the filing of the adoption petition."
Adoptions
SECTION 83. Section 20-7-1825 of the 1976 Code is amended to read:
"Section 20-7-1825. An adult person may be adopted by any other adult
person with the consent of the person to be adopted or his guardian, and with the
consent of the spouse, if any, of a sole adoptive parent, filed in writing with
the court. The provisions of Sections 20-7-1650 through 20-7-1770 and Section
2-109 of the South Carolina Probate Code do not apply to the adoption of an adult
person. A petition therefor must be filed with the court of common pleas or a
court having concurrent jurisdiction in the county where the adoptive parents
reside.
After a hearing on the petition and after those investigations as the court
considers advisable, if the court finds that it is to the best interests of the
persons involved, a decree of adoption may be entered which has the legal
consequences stated in Section 2-109."
References changed and deleted
SECTION 84. Section 30-9-60 of the 1976 Code is amended to read:
"Section 30-9-60. Whenever any will, properly proven, is filed in the
office of any probate court of any county of this State or any estate is properly
filed for administration under the supervision of any probate court of this State
and such will devises real property to a named individual, or in any case under
the administration of the probate court when the heirs are, in the judgment of
the probate judge, definite and certain, the probate judge, before discharging
the personal representative, shall tender to the clerk of court or office of
register of mesne conveyances in counties having such office, in writing, a
statement showing the name of the deceased owner as grantor and the name of the
devisee, heir or heirs as grantee or grantees and the clerk or register shall
index them as if the transfer of property had been made by deed. The clerk of
court or register of mesne conveyances shall charge the judge of probate the
index fee as herein prescribed and the judge of probate shall charge the index
fee as a cost of the estate. In indexing the transfer the clerk of court or
register of mesne conveyances shall designate the file, book and page number, or
package numbers of the probate court in which the administration of the estate
is filed."
Reconciliation table and cross reference index revised
SECTION 85. (A) Chapter 19 of the Reconciliation Table of Act 539 of 1986,
which Reconciliation Table was added by the provisions of Section 2 of Act 539
of 1986, is amended to read:
"Chapter 19 - Guardians and Wards Generally
21-19-10 Jurisdiction
of probate
judge Repealed 5-102
21-19-20 Venue of proceedings
relative to
guardianship estates
Repealed 5-402
5-403
21-19-30 Venue for
appointments of
guardians;
ascertaining
sufficiency of bond
in certain cases Repealed 5-411
21-19-40 Bond of guardians Repealed 5-411
21-19-50 Temporary letter of
guardianship; bond Repealed 5-310
5-409
5-411
21-19-60 Prerequisites for
appointment of
nonresident guardian
or conservator Repealed 5-411
5-305
5-413
21-19-70 Full recognition of
nonresident
guardianship
proceedings for
distribution of
personal estate Repealed 4-204
5-431
5-432
21-19-80 Citation of guardian
or conservator removed
from State Repealed 5-301
5-410
21-19-90 Revocation of
appointment of absent
guardian or
conservator Repealed 5-301
5-410
21-19-100 Petition for change
of guardianship
when ward moves from
county Repealed
21-19-110 Account and delivery
of personal estate
when ward moves from
county Repealed
21-19-120 Guardians may invest
in endowment insurance
or educational
insurance
policies Repealed 5-424(b)
7-302
21-19-130 Inventory and annual
return by guardian
or conservator Repealed 5-418
21-19-140 Annual accounts Repealed 5-419
21-19-150 Account in case of
death of guardian
not represented by
executor or
administrator Repealed 5-419
21-19-160 Situations in which
guardian shall apply
for partition Repealed 5-424
(d)(3)
21-19-170 Proceedings against
sureties for recovery
of decree against
guardian Repealed 5-412
21-19-180 Commissions Repealed 5-312
5-414
21-19-190 Commissions of
deceased guardians Repealed 5-312
5-414
21-19-200 Guardians for
mentally retarded
persons Repealed 5-303
5-408
21-19-210 Appointment of and
situation for limited
guardians of property
of mentally retarded
persons Repealed 5-408
21-19-220 Termination of
guardianship for
mentally retarded
person; hearing Repealed 5-430
21-19-230 Standby and alternate
guardians for
mentally retarded
persons Repealed 5-301
5-303
5-401
5-408
5-409
21-19-240 Corporations as
guardians of mentally
retarded persons Repealed 5-311
5-410
21-19-250 Application of
general guardian laws
to guardianships for
mentally retarded
persons Repealed Art. V
Parts
3 & 4
21-19-260 Appeals by mentally
retarded persons Repealed 1-308"
(B) Chapter 21 of the Reconciliation Table of Act 539 of 1986, which
Reconciliation Table was added by the provisions of Section 2 of Act 539 of 1986,
is amended to read:
"Chapter 21 - Natural and Parentally-Appointed
Guardians
21-21-10 Rights and duties of
parents in regard to
their minor children
generally Redesignated as
20-7-100 of the
1976 Code
21-21-15 Appointment of
guardian for
protection of estate
of minor or
incompetent Repealed 5-401
21-21-20 Manner in which
custody of minors
may be disposed of
(20-7-1530) Repealed 5-408
21-21-30 Persons against whom
disposition of
custody shall be
valid (20-7-1540) Repealed 5-408
21-21-40 Custodian may maintain
action for recovery
of children and
damages (20-7-1550) Repealed 5-408
21-21-50 Custodian shall have
rights of guardian
(20-7-120) Repealed 5-408
21-21-60 Returns and accounts
shall be made to
probate judge
(20-7-130) Repealed 5-408"
(C) Subsection (2) of Section 3 of Act 539 of 1986 is amended to read:
"(2) The following is a cross-reference index which shows which
provisions of the South Carolina Probate Code necessitated or suggested changes
in the provisions of the 1976 Code which were amended in subsection (1) of this
section.
1976 Code Section South Carolina Probate
Code Sections
12-15-270 4-201
4-203
14-23-1150 1-302
5-102
7-201
7-204
15-9-450 3-203
3-206
5-305
5-411
5-413
7-201
7-206
7-207
7-304
15-51-30 2-109
2-609
20-7-1770 2-109
20-7-1820 2-109
44-23-10 5-401."
Repeal
SECTION 86. (A) Section 12-15-1360 of the 1976 Code, which was formerly
Section 21-15-410 of the 1976 Code and made Section 12-15-1360 effective July 1,
1987, by the provisions of Act 539 of 1986, is repealed. This repeal also
includes the former provisions of Section 21-15-410.
(B) Section 12-15-1370 of the 1976 Code, which was formerly Section 21-15-420
of the 1976 Code and made Section 12-15-1370 effective July 1, 1987, by the
provisions of Act 539 of 1986, is repealed. This repeal also includes the former
provisions of Section 21-15-420.
(C) Section 12-15-1620 of the 1976 Code, which was formerly Section 21-15-40
of the 1976 Code and made Section 12-15-1620 effective July 1, 1987, by the
provisions of Act 539 of 1986, is repealed. This repeal also includes the former
provisions of Section 21-15-40.
(D) Section 12-15-1630 of the 1976 Code, which was formerly Section 21-15-1760
of the 1976 Code and made Section 12-15-1630 effective July 1, 1987, by the
provisions of Act 539 of 1986, is repealed. This repeal also includes the former
provisions of Section 21-15-1760.
(E) Section 12-15-1640 of the 1976 Code, which was formerly Section 21-15-1770
of the 1976 Code and made Section 12-15-1640 effective July 1, 1987, by the
provisions of Act 539 of 1986, is repealed. This repeal also includes the former
provisions of Section 21-15-1770.
(F) Section 12-15-1650 of the 1976 Code, which was formerly Section 21-15-1780
of the 1976 Code and made Section 12-15-1650 effective July 1, 1987, by the
provisions of Act 539 of 1986, is repealed. This repeal also includes the former
provisions of Section 21-15-1780.
Disposal of custody of child
SECTION 87. The 1976 Code is amended by adding:
"Section 21-21-25. The father of any child under the age of twenty-one
years and not married, if the mother is dead, or the mother of any such child,
the father being dead, whether the father or mother is under the age of
twenty-one years, or of full age, may by deed executed and recorded according to
law or by last will and testament, made and probated according to law, dispose
of the custody and tuition of the child while he remains under the age of
twenty-one years to any other person, in possession or remainder. No deed is
valid unless signed by both father and mother, if both are living and no such
deed, except a deed to an agency or department of this State authorized by law
to receive or place the custody of children, is effective unless approved upon
petition by a family court or family court judge of this State.
Nothing in this section may be construed to abrogate, lessen, or interfere with
the right and duty of a court of competent jurisdiction at any time to transfer
and assign the custody of a child for its best interest."
Disposal of custody of child
SECTION 88. The 1976 Code is amended by adding:
"Section 21-21-35. The disposition of the custody of the child as
provided in Section 21-21-25 is effective against any person claiming the custody
of the child as guardian."
Disposal of custody of child
SECTION 89. The 1976 Code is amended by adding:
"Section 21-21-45. Any person to whom the custody of any child has been
so disposed or devised may maintain an action against any person who wrongfully
takes away or detains the child for the recovery of the child and may recover
damages in the action for benefit of the child."
Disposal of custody of child
SECTION 90. The 1976 Code is amended by adding:
"Section 21-21-55. Any person to whom the custody of any child has been
so disposed or devised may take into his possession to and for the use, support,
and education of the child all property, real and personal, which by deed or will
has been conveyed, devised, or bequeathed to the child, until he attains the age
of twenty-one years or for a lesser time as may be fixed by the deed or will, and
may receive and receipt for the proceeds of any life insurance taken out by the
parent for the benefit of the child and do all acts in relation to the child
which a guardian appointed according to law might do. The family court may, in
its discretion, require a return of the property and an annual accounting for the
rents, profits, and income of the property."
Time effective
SECTION 91. Except as otherwise provided in Section 78, this act takes effect
July 1, 1987. |