S*1403 Session 108 (1989-1990)
S*1403(Rat #0634, Act #0521 of 1990) General Bill, By Bryan, J.C. Hayes and
H.S. Stilwell
A Bill to amend Sections 62-1-100, 62-1-201, 62-1-302, 62-2-109, 62-2-207,
62-2-301, 62-2-302, 62-2-402, 62-2-801, 62-3-108, 62-3-203, 62-3-301,
62-3-603, 62-3-605, 62-3-704, 62-3-706, 62-3-715, 62-3-801, 62-3-802,
62-3-803, 62-3-807, 62-3-904, 62-3-1001, 62-3-1003, 62-3-1201, 62-3-1303,
62-3-1304, 62-3-1305, 62-3-1306, 62-3-1307, 62-3-1308, 62-3-1309, 62-3-1310,
62-3-1312, 62-5-103, 62-5-433, 62-6-104, 62-7-302, 62-7-603, all as amended,
and Sections 62-1-308, 62-2-103, 62-2-104, 62--2-106, 62-2-107, 62-2-108,
62-2-206, 62-2-401, 62-2-502, 62-2-504, 62-2-507, 62-2-512, 62-2-605,
62-2-607, 62-2-701, 62-3-106, 62-3-109, 62-3-302, 62-3-306, 62-3-307,
62-3-403, 62-3-409, 62-3-412, 62-3-610, 62-3-705, 62-3-707, 62-3-719,
62-3-911, 62-3-914, 62-3-916, 62-3-1002, 62-3-1005, 62-3-1006, 62-3-1202A,
62-3-1203, 62-3-1204, 62-4-205, 62-5-101, 62-5-425, 62-5-503, 62-7-201,
62-7-204, 62-7-205, 62-7-408, 15-51-20, 20-1-80, 34-11-10, 34-11-130, and
34-15-10, Code of Laws of South Carolina, 1976, relating to the South Carolina
Probate Code and other related provisions of law, so as to revise
jurisdictional, procedural, testamentary, administrative, and other provisions
of the Probate Code and to conform related provisions or make them subject to
the revised provisions of the Probate Code; to amend the 1976 Code by adding
Section 62-7-604 so as to provide for a fiduciary's diversification of
investments; to add Sections 62-7-701 through 62-7-709 so as to provide for a
Uniform Trustees Powers Act; to add Section 62-5-501, relating to the
appointment of a power of attorney not affected by physical disability or
mental incompetence, so as to revise the requirements for the content of the
appointment and provide for the circumstances under which a power is
terminated; and to repeal Sections 12-7-2600, 12-16-1960, and Subsection (h)
of Section 62-3-914 relating to certain tax and estate provisions.-amended
title
03/15/90 Senate Introduced and read first time SJ-4
03/15/90 Senate Referred to Committee on Judiciary SJ-5
03/28/90 Senate Committee report: Favorable with amendment
Judiciary SJ-203
04/05/90 Senate Read second time SJ-28
04/05/90 Senate Ordered to third reading with notice of
amendments SJ-29
04/11/90 Senate Amended SJ-24
04/11/90 Senate Read third time and sent to House SJ-25
04/12/90 House Introduced and read first time HJ-189
04/12/90 House Referred to Committee on Judiciary HJ-190
04/25/90 House Committee report: Favorable with amendment
Judiciary HJ-21
05/03/90 House Debate adjourned until Tuesday, May 8, 1990 HJ-19
05/08/90 House Debate adjourned until Wednesday, May 9, 1990 HJ-21
05/09/90 House Debate adjourned until Thursday, May 10, 1990 HJ-18
05/10/90 House Amended HJ-18
05/10/90 House Read second time HJ-21
05/15/90 House Read third time and returned to Senate with
amendments HJ-12
05/16/90 Senate Non-concurrence in House amendment SJ-3
05/17/90 Senate Reconsidered SJ-18
05/17/90 Senate House amendment amended SJ-19
05/17/90 Senate Returned to House with amendments SJ-19
05/22/90 House Concurred in Senate amendment and enrolled HJ-4
05/30/90 Ratified R 634
06/05/90 Signed By Governor
06/05/90 Effective date 06/05/90
06/05/90 Act No. 521
07/02/90 Copies available
(A521, R634, S1403)
AN ACT TO AMEND SECTIONS 62-1-100, 62-1-201, 62-1-302, 62-2-109,
62-2-207, 62-2-301, 62-2-302, 62-2-402, 62-2-801, 62-3-108, 62-3-203,
62-3-301, 62-3-603, 62-3-605, 62-3-704, 62-3-706, 62-3-715, 62-3-801,
62-3-802, 62-3-803, 62-3-807, 62-3-904, 62-3-1001, 62-3-1003,
62-3-1201, 62-3-1303, 62-3-1304, 62-3-1305, 62-3-1306, 62-3-1307,
62-3-1308, 62-3-1309, 62-3-1310, 62-3-1312, 62-5-103, 62-5-433,
62-5-501, 62-6-104, 62-7-302, 62-7-603, ALL AS AMENDED, AND SECTIONS
62-1-308, 62-2-103, 62-2-104, 62-2-106, 62-2-107, 62-2-108, 62-2-206,
62-2-401, 62-2-502, 62-2-504, 62-2-507, 62-2-512, 62-2-605, 62-2-607,
62-2-701, 62-3-106, 62-3-109, 62-3-302, 62-3-306, 62-3-307, 62-3-403,
62-3-409, 62-3-412, 62-3-610, 62-3-705, 62-3-707, 62-3-719, 62-3-911,
62-3-914, 62-3-916, 62-3-1002, 62-3-1005, 62-3-1006, 62-3-1202A,
62-3-1203, 62-3-1204, 62-4-205, 62-5-101, 62-5-425, 62-5-503,
62-7-201, 62-7-204, 62-7-205, 62-7-408, 15-51-20, 20-1-80, 34-11-10,
34-11-130, AND 34-15-10, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE SOUTH CAROLINA PROBATE CODE AND OTHER RELATED
PROVISIONS OF LAW, SO AS TO REVISE JURISDICTIONAL, PROCEDURAL,
TESTAMENTARY, ADMINISTRATIVE, AND OTHER PROVISIONS OF THE PROBATE CODE
AND TO CONFORM RELATED PROVISIONS OR MAKE THEM SUBJECT TO THE REVISED
PROVISIONS OF THE PROBATE CODE AND TO REVISE THE REQUIREMENTS FOR THE
CONTENT OF THE APPOINTMENT AND PROVIDE FOR THE CIRCUMSTANCES UNDER
WHICH A POWER IS TERMINATED; TO AMEND THE 1976 CODE BY ADDING SECTION
62-7-604 SO AS TO PROVIDE FOR A FIDUCIARY'S DIVERSIFICATION OF
INVESTMENTS; TO ADD SECTIONS 62-7-701 THROUGH 62-7-709 SO AS TO
PROVIDE FOR A UNIFORM TRUSTEES POWERS ACT; AND TO REPEAL SECTIONS
12-7-2600, 12-16-1960, AND SUBSECTION (h) OF SECTION 62-3-914 RELATING
TO CERTAIN TAX AND ESTATE PROVISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
PART I
Effective date
SECTION 1. Section 62-1-100 of the 1976 Code is amended to read:
"Section 62-1-100. (a) Except as otherwise provided,
this Code takes effect July 1, 1987.
(b) Except as provided elsewhere in this Code, on the effective date
of this Code:
(1) the Code applies to any estates of decedents dying thereafter;
(2) the procedural provisions of the Code apply to any proceedings in
court then pending or thereafter commenced regardless of the time of
the death of decedent except to the extent that in the opinion of the
court the former procedure should be made applicable in a particular
case in the interest of justice or because of infeasibility of
application of the procedure of this Code;
(3) every personal representative, including a person administering an
estate of a minor or incompetent holding an appointment on that date,
continues to hold the appointment but has only the powers conferred by
this Code and is subject to the duties imposed with respect to any act
occurring or done thereafter;
(4) an act done before the effective date in any proceeding and any
accrued right is not impaired by this Code. Unless otherwise provided
in the Code, a substantive right in the decedent's estate accrues in
accordance with the law in effect on the date of the decedent's death.
If a right is acquired, extinguished, or barred upon the expiration of
a prescribed period of time which has commenced to run by the
provisions of any statute before the effective date, the provisions
remain in force with respect to that right;
(5) 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 62-2-502 is effective for all wills executed after
June 27, 1984, whether the testator dies before or after July 1,
1987."
Definition
SECTION 2. Section 62-1-201(4) of the 1976 Code is amended to
read:
"(4) Claims', in respect to estates of decedents and
protected persons, includes liabilities of the decedent or protected
person whether arising in contract, in tort, or otherwise, and
liabilities of the estate which arise at or after the death of the
decedent or after the appointment of a conservator, including funeral
expenses and expenses of administration. The term does not include
estate or inheritance taxes, or demands or disputes regarding title of
a decedent or protected person to specific assets alleged to be
included in the estate."
Definition
SECTION 3. Section 62-1-201 of the 1976 Code is amended by adding
item (12A) to read:
"(12A) Expense of administration' includes commissions
of personal representatives, fees and disbursements of attorneys, fees
of appraisers, and such other expenses that are reasonably incurred in
the administration of the estate."
Definition
SECTION 4. Section 62-1-201 of the 1976 Code is amended by adding
item (16A) to read:
"(16A) General power of appointment' means any power
that would cause income to be taxed to the fiduciary in his individual
capacity under Section 678 of the Internal Revenue Code and any power
that would be a general power of appointment, in whole or in part,
under Section 2041(a)(2) or 2514(c) of the Internal Revenue
Code."
Definition
SECTION 5. Section 62-1-201(36) of the 1976 Code is amended to
read:
"(36) Security' includes any note, stock, treasury
stock, bond, debenture, evidence of indebtedness, certificate of
interest, or participation in an oil, gas, or mining title or lease or
in payments out of production under such a title or lease, collateral
trust certificate, transferable share, voting trust certificate or, in
general, any interest or instrument commonly known as a security or
any certificate of interest or participation, any temporary or interim
certificate, receipt or certificate of deposit for, or any warrant or
right to subscribe to or purchase, any of the foregoing."
Definition
SECTION 6. Section 62-1-201 of the 1976 Code is amended by adding
item (36A) to read:
"(36A) Security interest' means any conveyance,
agreement, or arrangement in which personal property is used as
security."
Definition
SECTION 7. Item (44) of Section 62-1-201 is amended to read:
"(44) Trust' includes any express trust, private or
charitable, with additions thereto, wherever and however created. It
also includes a trust created or determined by judgment or decree
under which the trust is to be administered in the manner of an
express trust. Trust' excludes other constructive trusts, and it
excludes resulting trusts, conservatorships, personal representatives,
trust accounts as defined in Article 6 (Sections 62-6-101, ,et seq.),
custodial arrangements pursuant to the South Carolina Uniform Gifts to
Minors Act, Section 20-7-140, ,et seq., of the 1976 Code, business
trusts providing for certificates to be issued to beneficiaries,
common trust funds, voting trusts, security arrangements, liquidation
trusts, and trusts for the primary purpose of paying debts, dividends,
interest, salaries, wages, profits, pensions, or employee benefits of
any kind, and any arrangement under which a person is nominee or
escrowee for another."
Jurisdiction
SECTION 8. Section 62-1-302 of the 1976 Code is amended to read:
"Section 62-1-302. (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 (except that jurisdiction over the care,
custody, and control of the persons of minors is governed by Section
62-5-201) and incapacitated persons, including the mortgage and sale
of personal and real property owned by minors or incapacitated
persons, except that jurisdiction for approval of settlement of claims
in favor of or against minors or incapacitated persons is governed by
Section 62-5-433;
(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, on motion of any party, or by the court on its own motion,
made not later than ten days following the date on which all
responsive pleadings must be filed, must be removed to the circuit
court and in 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;
(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. The removal to the circuit court of an action or proceeding
within the exclusive jurisdiction of the probate court applies only to
the particular action or proceeding removed, and the probate court
otherwise retains continuing exclusive jurisdiction."
Appeals
SECTION 9. Section 62-1-308(a) of the 1976 Code is amended to
read:
"(a) Any person interested in any final order, sentence, or
decree of any probate court and considering himself injured thereby
may appeal therefrom to the circuit court in the same county. The
notice of intention to appeal to the circuit court must be filed in
the office of the circuit court and in the office of the probate court
and a copy thereof served on all parties within ten days after receipt
of written notice of the decision appealed from order, sentence, or
decree of the probate court. The grounds of appeal must be filed in
the office of the probate court and a copy thereof served on all
parties within forty-five days after receipt of written notice of the
order, sentence, or decree of the probate court."
Passing of share under certain conditions
SECTION 10. Section 62-2-103(3) of the 1976 Code is amended to
read:
"(3) if there is no surviving issue or parent, to the issue
of the parents or either of them by representation;"
Survival of heir
SECTION 11. Section 62-2-104 of the 1976 Code is amended to read:
"Section 62-2-104. Any person who fails to survive the
decedent by one hundred twenty hours is deemed to have predeceased the
decedent for purposes of Section 62-2-401 and intestate succession,
and the decedent's heirs are determined accordingly. If the time of
death of the decedent or of the person who would otherwise be an heir,
or the times of death of both, cannot be determined, and it cannot be
established that the person who would otherwise be an heir has
survived the decedent by one hundred twenty hours, it is deemed that
the person failed to survive for the required period. This section is
not to be applied where its application would result in a taking of
the intestate estate by the State under Section 62-1-105."
Representation
SECTION 12. Section 62-2-106 of the 1976 Code is amended to read:
"Section 62-2-106. If representation is called for by this
Code, the estate is divided into as many equal shares as there are
surviving heirs in the nearest degree of kinship and deceased persons
in the same degree who left issue who survive the decedent, each
surviving heir in the nearest degree receiving one share and the share
of each deceased person in the same degree being divided among his
issue in the same manner. If an interest created by intestate
succession is disclaimed, the beneficiary is not treated as having
predeceased the decedent for purposes of determining the generation at
which the division of the estate is to be made."
Relatives of half blood
SECTION 13. Section 62-2-107 of the 1976 Code is amended to read:
"Section 62-2-107. Relatives of the half blood inherit the
same share they would inherit if they were of the whole blood."
After born heirs
SECTION 14. Section 62-2-108 of the 1976 Code is amended to read:
"Section 62-2-108. Issue of the decedent (but no other
persons) conceived before his death but born within ten months
thereafter inherit as if they had been born in the lifetime of the
decedent."
Meaning of child
SECTION 15. Section 62-2-109(2) of the 1976 Code is amended to read:
"(2) In cases not covered by (1), a person born out of
wedlock is a child of the mother. That person is also a child of the
father if:
(i) the natural parents participated in a marriage ceremony before or
after the birth of the child, even though the attempted marriage is
void; or (ii) the paternity is established by an adjudication
commenced before the death of the father or within the later of eight
months after the death of the father or six months after the probate
of his estate and, if after his death, by clear and convincing proof,
except that the paternity established under this subparagraph
(ii) is ineffective to qualify the father or his kindred to inherit
from or through the child unless the father has openly treated the
child as his and has not refused to support the child."
Effect of election
SECTION 16. Section 62-2-206 of the 1976 Code is amended to read:
"Section 62-2-206. A surviving spouse is entitled to
benefits provided under or outside of the decedent's will, by any
homestead allowance, by Section 62-2-401, whether or not he elects to
take an elective share, but such amounts as pass under the will or by
intestacy, by any homestead allowance, and by Section 62-2-401 are to
be charged against the elective share pursuant to Section
62-2-207(a)."
Elective share
SECTION 17. Section 62-2-207 of the 1976 Code is amended to read:
"Section 62-2-207. (a) In the proceeding for an elective
share, all property (including beneficial interests) which passes or
has passed to the surviving spouse under the decedent's will or by
intestacy, by any homestead allowance, and by Section 62-2-401, 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
federal estate tax marital deduction pursuant to Section 2056 of the
Internal Revenue Code, as amended, 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).
(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 62-3-902."
Omitted spouse
SECTION 18. Section 62-2-301(a) of the 1976 Code is amended to read:
"(a) If a testator fails to provide by will for his
surviving spouse who married the testator after the execution of the
will, the omitted spouse, upon compliance with the provisions of
subsection (c), shall receive the same share of the estate he would
have received if the decedent left no will unless:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the spouse by transfer outside the will
and the intent that the transfer be in lieu of a testamentary
provision is shown by statements of the testator or from the amount of
the transfer or other evidence."
Children omitted from will
SECTION 19. Section 62-2-302 of the 1976 Code is amended to read:
"Section 62-2-302. (a) If a testator fails to provide in
his will for any of his children born or adopted after the execution
of his will, the omitted child, upon compliance with subsection (d),
receives a share in the estate equal in value to that which he would
have received if the testator had died intestate unless:
(1) it appears from the will that the omission was intentional; or
(2) when the will was executed the testator had one or more children
and devised substantially all his estate to the other parent of the
omitted child; or
(3) the testator provided for the child by transfer outside the will
and the intent that the transfer be in lieu of a testamentary
provision is shown by statements of the testator or from the amount of
the transfer or other evidence.
(b) If, at the time of execution of the will the testator fails
to provide in his will for a living child solely because he believes
that child to be dead, the child, upon compliance with subsection (d),
receives a share in the estate equal in value to that which he would
have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devises
made by the will abate as provided in Section 62-3-902.
(d) The child, and his guardian or conservator acting for
him, may claim a share as provided by this section by filing in the
court and mailing or delivering to 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."
Surviving spouse
SECTION 20. Section 62-2-401 of the 1976 Code is amended to read:
"Section 62-2-401. The surviving spouse of a decedent who
was domiciled in this State is entitled from the estate to a value not
exceeding five thousand dollars in excess of any security interests
therein in household furniture, automobiles, furnishings, appliances,
and personal effects. If there is no surviving spouse, minor or
dependent children of the decedent are entitled jointly to the same
value. If encumbered chattels are selected and if the value in excess
of security interests, plus that of other exempt property, is less
than five thousand dollars, or if there is not five thousand dollars
worth of exempt property in the estate, the spouse or children are
entitled to other assets of the estate, if any, to the extent
necessary to make up the five thousand dollar value. Rights to exempt
property and assets needed to make up a deficiency of exempt property
have priority over all claims against the estate except claims
described in Section 62-3-805(a)(1). These rights are in addition to
any right of homestead and personal property exemption otherwise
granted by law but are chargeable against and not in addition to any
benefit or share passing to the surviving spouse or children by the
will of the decedent unless otherwise provided, by intestate
succession, or by the elective share. Any surviving spouse or minor
or dependent children of the decedent who fails to survive the
decedent by one hundred twenty hours is deemed to have predeceased the
decedent for purposes of this section."
Exempt property
SECTION 21. Section 62-2-402 of the 1976 Code is amended to read:
"(a) If the estate is otherwise sufficient, property
specifically devised is not used to satisfy rights to exempt property.
Subject to this restriction, the surviving spouse, the guardians or
conservators of the minor children, or children who are adults may
select property of the estate as exempt property. The personal
representative may make these selections if the surviving spouse, the
children, or the guardians or conservators of the minor children are
unable or fail to do so within a reasonable time or if there are no
guardians or conservators of the minor children. The personal
representative may execute an instrument or deed of distribution to
establish the ownership of property taken as exempt property. The
personal representative or any interested person aggrieved by any
selection, determination, payment, proposed payment, or failure to act
under this section may petition the court for appropriate relief.
(b) The surviving spouse or the minor or dependent child, and
the minor's guardian or conservator acting for him, as the case may
be, may claim a share of exempt property as provided in this part by
filing in the court and mailing or delivering to the personal
representative, if any, a claim for such share within eight months
after the date of death, or within six months after the probate of the
decedent's will, whichever limitation last expires."
Execution
SECTION 22. Section 62-2-502 of the 1976 Code is amended to read:
"Section 62-2-502. Except as provided for writings within
Section 62-2-512 and wills within Section 62-2-505, every will, shall
be in writing signed by the testator or in the testator's name by some
other person in the testator's presence and by his direction, and
shall be signed by at least two persons each of whom witnessed either
the signing or the testator's acknowledgment of the signature or of
the will."
Subscribing witness
SECTION 23. Section 62-2-504 of the 1976 Code is amended to read:
"Section 62-2-504. No subscribing witness to any will,
testament, or codicil may be held incompetent to attest or prove the
same by reason of any devise, legacy, or bequest therein in favor of
such witness or the husband or wife of such witness, by reason of any
appointment therein of such witness or the husband or wife of such
witness to any office, trust, or duty, or by reason of any charge
therein of debts to any part of the estate in favor of such witness as
creditor. Any such devise, legacy, or bequest is valid and effectual,
if otherwise so, but unless there are two other and disinterested
witnesses then so far as the property, estate, or interest so devised
or bequeathed exceeds in value any property, estate, or interest to
which such witness or the husband or wife of such witness would be
entitled upon the failure to establish such will, testament, or
codicil, such devise, legacy, or bequest is null and void to the
extent of such excess. Any such appointment is valid, if otherwise
so, and the person so appointed, in such case, is entitled by law to
take or receive any commissions or other compensation on account
thereof."
Revocation by divorce, etc.
SECTION 24. Section 62-2-507 of the 1976 Code is amended to read:
"Section 62-2-507. If after executing a will the testator is
divorced or his marriage annulled or his spouse is a party to a valid
proceeding concluded by an order purporting to terminate all marital
property rights or confirming equitable distribution between spouses,
the divorce or annulment or order revokes any disposition or
appointment of property including beneficial interests made by the
will to the spouse, any provision conferring a general or special
power of appointment on the spouse, and any nomination of the spouse
as executor, trustee, conservator, or guardian, unless the will
expressly provides otherwise. Property prevented from passing to a
spouse because of revocation by divorce or annulment or order passes
as if the spouse failed to survive the decedent, and other provisions
conferring some power or office on the spouse are interpreted as if
the spouse failed to survive the decedent. If provisions are revoked
solely by this section, they are revived by testator's remarriage to
the former spouse. For purposes of this section, divorce or annulment
or order means any divorce or annulment or order which would exclude
the spouse as a surviving spouse within the meaning of subsections (b)
and (c) of Section 62-2-802. A decree of separate maintenance which
does not terminate the status of husband and wife is not a divorce for
purposes of this section. No change of marital or parental
circumstances other than as described in this section revokes a
will."
Written statement
SECTION 25. Section 62-2-512 of the 1976 Code is amended to read:
"Section 62-2-512. A will may refer to a written statement
or list to dispose of items of tangible personal property not
otherwise specifically disposed of by the will, other than money,
evidences of indebtedness, documents of title (as defined in Section
36-1-201(15)), securities (as defined in Section 36-8-102(1)(A)), and
property used in trade or business. To be admissible under this
section as evidence of the intended disposition, the writing must
either be in the handwriting of the testator or be signed by him and
must describe the items and the devisees with reasonable certainty.
The writing may be referred to as one to be in existence at the time
of the testator's death; it may be prepared before or after the
execution of the will; it may be altered by the testator after its
preparation; and it may be a writing which has no significance apart
from its effect upon the dispositions made by the will."
Specific devise of securities
SECTION 26. Section 62-2-605 of the 1976 Code is amended to read:
"Section 62-2-605. (a) If the testator intended a specific
devise of certain securities rather than the equivalent value thereof,
the specific devisee is entitled only to:
(1) as much of the devised securities as is a part of the
estate at the time of the testator's death;
(2) any additional or other securities of the same entity
owned by the testator by reason of action initiated by the entity
excluding any acquired by exercise of purchase options;
(3) securities of another entity owned by the testator as
a result of a merger, consolidation, reorganization, or other similar
action initiated by the entity;
(4) any additional securities of the entity owned by the
testator as a result of a plan of reinvestment if it is a regulated
investment company.
(b) Distributions prior to death with respect to a specifically
devised security not provided for in subsection (a) are not part of
the specific devise."
Nonexonoration
SECTION 27. Section 62-2-607 of the 1976 Code is amended to read:
"Section 62-2-607. A specific devise passes subject to any
mortgage, pledge, security interest or other lien existing at the date
of death, without right of exoneration, regardless of a general
directive in the will to pay debts."
Contracts
SECTION 28. Section 62-2-701 of the 1976 Code is amended to read:
"Section 62-2-701. A contract to make a will or devise, or
to revoke a will or devise, or not to revoke a will or devise, or to
die intestate, if executed after the effective date of this act, can
be established only by (1) provisions of a will of the decedent
stating material provisions of the contract; (2) an express reference
in a will of the decedent to a contract and extrinsic evidence proving
the terms of the contract; or (3) a writing signed by the decedent
evidencing the contract and extrinsic evidence proving the terms of
the contract. The execution of a joint will or mutual wills does not
create a presumption of a contract not to revoke the will or
wills."
Disclaimer
SECTION 29. Section 62-2-801 of the 1976 Code is amended by adding:
"(g) With the court's approval, a personal representative,
trustee, or similar fiduciary may disclaim any one or more of the
powers granted to the personal representative, trustee, or similar
fiduciary. Any disclaimer must be made by written instrument in the
manner provided in subsection (a) and has the same effect as in
subsection (d). The disclaimer of a power may be made binding on any
successor fiduciary, if the disclaiming fiduciary so declares when
making the disclaimer."
Proceedings within jurisdiction of court
SECTION 30. Section 62-3-106 of the 1976 Code is amended to read:
"Section 62-3-106. In proceedings within the jurisdiction
of the court where notice is required by this Code or by rule, and in
proceedings to construe probated wills or determine heirs which
concern estates that have not been and cannot now be opened for
administration, interested persons may be bound by the orders of the
court in respect to property in or subject to the laws of this State
by notice in conformity with Section 62-1-401. An order is binding as
to all who are given notice of the proceeding though less than all
interested persons are notified."
Probate, etc., proceedings
SECTION 31. Section 62-3-108 of the 1976 Code is amended to read:
"Section 62-3-108. No informal probate or appointment
proceeding or formal testacy or appointment proceeding, other than a
proceeding to probate a will previously probated at the testator's
domicile and appointment proceedings relating to an estate in which
there has been a prior appointment, may be commenced more than ten
years after the decedent's death, except (1) if a previous proceeding
was dismissed because of doubt about the fact of the decedent's death,
appropriate probate, appointment, or testacy proceedings may be
maintained at any time thereafter upon a finding that the decedent's
death occurred prior to the initiation of the previous proceeding and
the applicant or petitioner has not delayed unduly in initiating the
subsequent proceeding and if that previous proceeding was commenced
within the time limits of this section; (2) appropriate probate,
appointment, or testacy proceedings may be maintained in relation to
the estate of an absent, disappeared, or missing person for whose
estate a conservator has been appointed, at any time within three
years after the conservator becomes able to establish the death of the
protected person; and (3) a proceeding to contest an informally
probated will and to secure appointment of the person with legal
priority for appointment in the event the contest is successful may be
commenced within the later of eight months from the informal probate
or one year from the decedent's death. If no informal probate and no
formal testacy proceedings are commenced within ten years after the
decedent's death, and no proceedings under (2) above are commenced
within the applicable period of three years, it is incontestable that
the decedent left no will and that the decedent's estate passes by
intestate succession. These limitations do not apply to proceedings to
construe probated wills or determine heirs of an intestate. In cases
under (1) or (2) above, the date on which a testacy or appointment
proceeding is properly commenced is deemed to be the date of the
decedent's death for purposes of other limitations provisions of this
Code which relate to the date of death."
Statute of limitations
SECTION 32. Section 62-3-109 of the 1976 Code is amended to read:
"Section 62-3-109. The running of any statute of
limitations on a cause of action belonging to a decedent which had not
been barred as of the date of his death is suspended during the eight
months following the decedent's death but resumes thereafter unless
otherwise tolled."
Priority
SECTION 33. Section 62-3-203(a) of the 1976 Code is amended to read:
"(a) Whether the proceedings are formal or informal, persons
who are not disqualified have priority for appointment in the
following order:
(1) the person with priority as determined by a probated will
including a person nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the
decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent regardless of whether the decedent
died intestate and determined as if the decedent died intestate (for
the purposes of determining priority under this item, any heirs who
could have qualified under items (1), (2), (3), and (4) of subsection
(a) are treated as having predeceased the decedent);
(6) forty-five days after the death of the decedent, any creditor;
(7) four months after the death of the decedent, upon application by
the South Carolina Tax Commission, any person suitable to the court.
Any person with priority may nominate another, who shall have the same
priority as the person making the nomination."
Priority
SECTION 34. Section 62-3-203(d) of the 1976 Code is amended to read:
"(d) Appointment of one who does not have priority,
including priority resulting from renunciation or waiver, 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."
Informal probate
SECTION 35. Section 62-3-301(a)(1)(ii) of the 1976 Code is amended to
read:
"(ii) the name, and date of death of the decedent, his age,
and the county and state of his domicile at the time of death, and the
names and addresses of the spouse, children, heirs (regardless of
whether the decedent died intestate and determined as if the decedent
died intestate) and devisees, and the ages of any who are minors so
far as known or ascertainable with reasonable diligence by the
applicant;"
Informal probate
SECTION 36. Section 62-3-302 of the 1976 Code is amended to read:
"Section 62-3-302. Upon receipt of an application
requesting informal probate of a will, the court, upon making the
findings required by Section 62-3-303, shall issue a written statement
of informal probate. Informal probate is conclusive as to all persons
until superseded by an order in a formal testacy proceeding. No
defect in the application or procedure relating thereto which leads to
informal probate of a will renders the probate void."
Informal probate
SECTION 37. Section 62-3-306(b) of the 1976 Code is amended to read:
"(b) If an informal probate is granted, within thirty days
thereafter the applicant shall give written information of the probate
to the heirs (determined as if the decedent died intestate) and
devisees. The information must include the name and address of the
applicant, the date of execution of the will, and any codicil thereto,
the name and location of the court granting the informal probate, and
the date of the probate. The information must be delivered or sent by
ordinary mail to each of the heirs and devisees whose address is
reasonably available to the applicant. No duty to give information is
incurred if a personal representative is appointed who is required to
give the written information required by Section 62-3-705. An
applicant's failure to give information as required by this section is
a breach of his duty to the heirs and devisees but does not affect the
validity of the probate."
Informal appointment proceedings
SECTION 38. Section 62-3-307 of the 1976 Code is amended to read:
"Section 62-3-307. (a) Upon receipt of an application for
informal appointment of a personal representative other than a special
administrator as provided in Section 62-3-614, the court, after making
the findings required by Section 62-3-308, shall appoint the applicant
subject to qualification and acceptance; provided, that if the
decedent was a nonresident, the court shall delay the order of
appointment until thirty days have elapsed since death unless the
personal representative appointed at the decedent's domicile is the
applicant, or unless the decedent's will directs that his estate be
subject to the laws of this State.
(b) The status of a personal representative and the powers and
duties pertaining to the office are fully established by informal
appointment. An appointment, and the office of personal
representative created thereby, is subject to termination as provided
in Sections 62-3-608 through 62-3-612, but is not subject to
retroactive vacation."
Formal testacy proceedings
SECTION 39. Section 62-3-403(a) of the 1976 Code is amended to read:
"(a) Upon commencement of a formal testacy proceeding, the
court shall fix a time and place of hearing. Notice must be given in
the manner prescribed by Section 62-1-401 by the petitioner to the
persons herein enumerated and to any additional person who has filed a
demand for notice under Section 62-3-204. Notice must be given to the
following persons: the surviving spouse, children, and other heirs of
the decedent, (regardless of whether the decedent died intestate and
determined as if the decedent died intestate), the devisees, and
personal representatives named in any will that is being, or has been,
probated, or offered for informal or formal probate in the county, or
that is known by the petitioner to have been probated, or offered for
informal or formal probate elsewhere, and any personal representative
of the decedent whose appointment has not been terminated."
Formal testacy proceedings
SECTION 40. Section 62-3-409 of the 1976 Code is amended to read:
"Section 62-3-409. After the time required for any notice
has expired, upon proof of notice, and after any hearing that may be
necessary, if the court finds that the testator is dead, venue is
proper, and that the proceeding was commenced within the limitation
prescribed by Section 62-3-108, it shall determine the decedent's
domicile at death, his heirs, (regardless of whether the decedent died
intestate and determined as if the decedent died intestate), and his
state of testacy. Any will found to be valid and unrevoked must be
formally probated. Termination of any previous informal appointment
of a personal representative, which may be appropriate in view of the
relief requested and findings, is governed by Section 62-3-612. The
petition must be dismissed or appropriate amendment allowed if the
court is not satisfied that the alleged decedent is dead. A will from
a place which does not provide for probate of a will after death may
be proved for probate in this State by a duly authenticated
certificate of its legal custodian that the copy introduced is a true
copy and that the will has become effective under the law of the other
place."
Formal testacy proceedings
SECTION 41. Section 62-3-412 of the 1976 Code is amended to read:
"Section 62-3-412. Subject to appeal and subject to
vacation as provided herein and in Section 62-3-413, a formal testacy
order under Sections 62-3-409 through 62-3-411, including an order
that the decedent left no valid will and determining heirs, is final
as to all persons with respect to all issues concerning the decedent's
estate that the court considered or might have considered incident to
its rendition relevant to the question of whether the decedent left a
valid will, and to the determination of heirs, except that:
(1) The court shall entertain a petition for modification or
vacation of its order and probate of another will of the decedent if
it is shown that the proponents of the later-offered will were unaware
of its existence at the time of the earlier proceeding or were unaware
of the earlier proceeding and were given no notice thereof, except by
publication.
(2) If intestacy of all or part of the estate has been ordered,
the determination of heirs of the decedent may be reconsidered if it
is shown that one or more persons were omitted from the determination
and it is also shown that the persons were unaware of their
relationship to the decedent, were unaware of his death, or were given
no notice of any proceeding concerning his estate, except by
publication.
(3) A petition for vacation under either (1) or (2) above must be
filed prior to the earlier of the following time limits:
(i) If a personal representative has been appointed for the
estate, the time of entry of any order approving final distribution of
the estate.
(ii) Whether or not a personal representative has been
appointed for the estate of the decedent, the time prescribed by
Section 62-3-108 when it is no longer possible to initiate an original
proceeding to probate a will of the decedent.
(iii) Twelve months after the entry of the order sought to
be vacated.
(4) The order originally rendered in the testacy proceeding may
be modified or vacated, if appropriate under the circumstances by the
order of probate of the later-offered will or the order redetermining
heirs.
(5) The finding of the fact of death is conclusive as to the
alleged decedent only if notice of the hearing on the petition in the
formal testacy proceeding was sent by registered or certified mail
addressed to the alleged decedent at his last known address and the
court finds that a search under Section 62-3-403(b) was made. If the
alleged decedent is not dead, even if notice was sent and search was
made, he may recover estate assets in the hands of the personal
representative. In addition to any remedies available to the alleged
decedent by reason of any fraud or intentional wrongdoing, the alleged
decedent may recover any estate or its proceeds from distributees that
is in their hands, or the value of distributions received by them, to
the extent that any recovery from distributees is equitable in view of
all of the circumstances."
Bond
SECTION 42. Section 62-3-603 of the 1976 Code is amended to read:
"Section 62-3-603. Except as otherwise provided in this
section, no bond is required of a personal representative or successor
personal representative who is named in a will or when there is only a
single beneficiary named in a will who is also appointed as the
personal representative. Bond is 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 unless the court has determined at the time of
appointment that there is only a single qualified surviving heir
pursuant to the provisions of this Probate Code governing intestacy
and that the heir is appointed as the personal representative;
(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 62-3-605;
(6) upon appointment of a personal representative not named in a
will, unless otherwise provided in the will or in this section or
unless the personal representative is the sole beneficiary named in
the will.
No bond is required of a banking corporation or trust company
qualified under Section 34-15-10 when it is appointed to act as a
personal representative except under item (4). If, pursuant to
Section 62-3-203(a), the court appoints as personal representative a
nominee of a personal representative named in a will, or if bond is
required under item (6) of this section, the court may in its
discretion decide not to require bond."
Demand for bond
SECTION 43. Section 62-3-605 of the 1976 Code is amended to read:
"Section 62-3-605. 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 in an amount determined by the court as sufficient to protect
the interest of the person or creditor demanding bond, but the
requirement ceases if the person or creditor demanding bond ceases to
have an interest in the estate worth in excess of one 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."
Termination of appointment
SECTION 44. Section 62-3-610(a) of the 1976 Code is amended to read:
"(a) Unless otherwise provided an order closing an estate as
provided in Section 62-3-1001 terminates an appointment of a personal
representative."
Representative to proceed expeditiously
SECTION 45. Section 62-3-704 of the 1976 Code is amended to read:
"Section 62-3-704. A personal representative shall proceed
expeditiously with the settlement and distribution of a decedent's
estate under the supervision of the court, as follows:
(a) Immediately after his appointment he shall publish the notice to
creditors required by Section 62-3-801.
(b) Within ninety days after his appointment he shall file with the
court the inventory and appraisement required by Section 62-3-706.
(c) Upon the expiration of the relevant period, as set forth in
Section 62-3-807, the personal representative shall proceed to pay the
claims allowed against the estate, as provided in Section 62-3-807.
(d) Upon the expiration of the relevant period, as set forth in
Section 62-3-1001, the personal representative shall file the account,
proposal for distribution, petition for settlement of the estate,
proofs required by Section 62-3-1001, and proof of publication of
notice to creditors.
(e) The time periods stated herein for completing the above
requirements are not intended to supplant any other time periods
stated elsewhere in this Code. The court may on its own motion, or on
the motion of the personal representative or of any interested person,
extend the time for completing any of the requirements of
administration contained in Article 3 [Section 62-3-101 ,et seq.,]
including any of the above requirements, and especially including the
requirement to account, under Section 62-3-1001, in cases of estates
which remain significantly unadministered as of the expiration of the
relevant time period, either as to the marshalling of assets or as to
the allowance of claims.
(f) If a personal representative or trustee neglects or refuses to
comply with any provision of Section 62-3-706 he is liable to a
penalty of one thousand dollars for each separate failure or neglect
and the official bond of the personal representative or trustee is
liable therefor. This penalty must be recovered by the South Carolina
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."
Information to heirs
SECTION 46. Section 62-3-705 of the 1976 Code is amended to read:
"Section 62-3-705. Not later than thirty days after his
appointment every personal representative, except any special
administrator, shall give information of his appointment to the heirs
(regardless of whether the decedent died intestate and determined as
if the decedent died intestate) and devisees, including, if there has
been no formal testacy proceeding and if the personal representative
was appointed on the assumption that the decedent died intestate, the
devisees in any will mentioned in the application for appointment of a
personal representative. The information must be delivered or sent by
ordinary mail to each of the heirs and devisees whose address is
reasonably available to the personal representative. The duty does not
extend to require information to persons who have been adjudicated in
a prior formal testacy proceeding to have no interest in the estate.
The information must include the name and address of the personal
representative, indicate that it is being sent to persons who have or
may have some interest in the estate being administered, indicate
whether bond has been filed, and describe the court where papers
relating to the estate are on file. The personal representative's
failure to give this information is a breach of his duty to the
persons concerned but does not affect the validity of his appointment,
his powers, or other duties. A personal representative may inform
other persons of his appointment by delivery or ordinary first class
mail."
Duty of personal representative
SECTION 47. Section 62-3-706 of the 1976 Code is amended to read:
"Section 62-3-706. Within ninety days after his appointment,
a personal representative, who is not a special administrator or a
successor to another representative who has previously discharged this
duty, shall: (1) prepare an inventory 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."
Appraisers
SECTION 48. Section 62-3-707 of the 1976 Code is amended to read:
"Section 62-3-707. The personal representative may obtain
a qualified and disinterested appraiser to assist him in ascertaining
the fair market value as of the date of the decedent's death of any
asset the value of which may be subject to reasonable doubt.
Different persons may be employed to appraise different kinds of
assets included in the estate. The names and addresses of any
appraiser must be indicated on the inventory with the item or items he
appraised. Each appraiser shall execute the inventory, stating
thereon the item or items he appraised. On motion of any interested
person, the court may require that one or more qualified appraisers be
appointed to ascertain the fair market value of all or any part of the
estate or may approve one or more qualified appraisers."
Authorized transactions
SECTION 49. Section 62-3-715 of the 1976 Code is amended by adding a
new item (24) to read:
"(24) with the approval of the probate court or the
circuit court, compromise and settle claims and actions for wrongful
death, pain and suffering or both, and all claims and actions based on
causes of actions surviving, to personal representatives, arising,
asserted, or brought under or by virtue of any statute or act of this
State, any state of the United States, the United States, or any
foreign country."
Compensation of representative
SECTION 50. Section 62-3-719(a) of the 1976 Code is amended to read:
"(a) A personal representative shall for his care in the
execution of his duties receive a sum from estate funds not to exceed
five percent of the appraised value of the personal property of the
estate plus the sales proceeds of real property of the estate received
on sales directed or authorized by will or by proper court order,
except upon sales to the personal representative as purchaser. The
minimum commission payable is fifty dollars and no less, regardless of
the value of the personal property of the estate."
Notice to creditors
SECTION 51. Section 62-3-801 of the 1976 Code is amended to read:
"Section 62-3-801. (a) Unless notice has already been
given under this section, a personal representative upon his
appointment shall publish a notice to creditors once a week for three
successive weeks in a newspaper of general circulation in the county
announcing his appointment and address and notifying creditors of the
estate to present their claims within eight months after the date of
the first publication of the notice or be forever barred.
(b) A personal representative may give written notice by mail or
other delivery to any creditor, notifying the creditor to present his
claim within eight months from the published notice as provided in (a)
above, or within sixty days from the mailing or other delivery of such
notice, whichever is later, or be forever barred. Written notice is
the notice described in (a) above or a similar notice.
(c) The personal representative is not liable to any creditor or
to any successor of the decedent for giving or failing to give notice
under this section."
Statute of limitations
SECTION 52. Section 62-3-802 of the 1976 Code is amended to read:
"Section 62-3-802. (a) Unless an estate is insolvent,
the personal representative, with the consent of all successors whose
interests would be affected, may waive any defense of limitations
available to the estate. If the defense is not waived, no claim which
was barred by any statute of limitations at the time of the decedent's
death shall be allowed or paid.
(b) The running of any statute of limitations measured from some
other event than death or the giving of notice to creditors is
suspended during the eight months following the decedent's death but
resumes thereafter as to claims not barred pursuant to the sections
which follow.
(c) For purposes of any statute of limitations, the proper
presentation of a claim under Section 62-3-804 is equivalent to
commencement of a proceeding on the claim."
Limitations on claims
SECTION 53. Section 62-3-803 of the 1976 Code is amended to read:
"Section 62-3-803. (a) All claims against a decedent's
estate which arose before the death of the decedent, including claims
of the State and any subdivision thereof, whether due or to become
due, absolute or contingent, liquidated or unliquidated, founded on
contract, tort, or other legal basis, if not barred earlier by other
statute of limitations, are barred against the estate, the personal
representative, and the heirs and devisees of the decedent, unless
presented within the earlier of the following dates:
(1) one year after the decedent's death; or
(2) within the time provided by Section 62-3-801(b) for creditors who
are given actual notice, and within the time provided in Section
62-3-801(a) for all creditors barred by publication; provided, claims
barred by the nonclaim statute at the decedent's domicile before the
giving of notice to creditors barred in this State are also barred in
this State.
(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 the later of eight months after it arises,
or the time specified in subsection (a)(1).
(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; or
(3) collection of compensation for services rendered and reimbursement
for expenses advanced by the personal representative or by the
attorney or accountant for the personal representative of the
estate."
Payment of claims
SECTION 54. Section 62-3-807(a) of the 1976 Code is amended to read:
"(a) Upon the expiration of the applicable time limitation
provided in Section 62-3-803 for the presentation of claims, the
personal representative shall proceed to pay the claims allowed
against the estate in the order of priority prescribed, after making
provision for homestead, for exempt property under Section 62-2-401,
for claims already presented which have not yet been allowed or whose
allowance has been appealed, and for unbarred claims which may yet be
presented, including costs and expenses of administration. By petition
to the court in a proceeding for the purpose, or by appropriate motion
if the administration is under Part 5, a claimant whose claim has been
allowed but not paid as provided herein may secure an order directing
the personal representative to pay the claim to the extent that funds
of the estate are available for the payment."
Section deleted
SECTION 55. Section 62-3-904 of the 1976 Code is amended to read:
"Section 62-3-904." (RESERVED)
Partition
SECTION 56. Section 62-3-911 of the 1976 Code is amended to read:
"Section 62-3-911. When two or more heirs or devisees are
entitled to distribution of undivided interests in any personal or
real property of the estate, the personal representative or one or
more of the heirs or devisees may petition the court prior to the
closing of the estate, to make partition. After notice to the
interested heirs or devisees, the court shall partition the property
in kind if it can be fairly and equitably partitioned in kind. If not
subject to fair and equitable partition in kind, the court shall
direct the personal representative to sell the property and distribute
the proceeds."
Disposition of unclaimed assets
SECTION 57. Section 62-3-914(a) of the 1976 Code is amended to
read:
"(a) If after the expiration of eight 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 not be less than one month after the date of the first
publication of the notice."
Disposition of unclaimed assets
SECTION 58. Section 62-3-914(b) of the 1976 Code is amended to read:
"(b) The notice must be published once a week for three
successive weeks in a newspaper published in the county in which the
court is held. The 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."
Apportionment of taxes
SECTION 59. Section 62-3-916(c) of the 1976 Code is amended to
read:
"(c) (1) The court in which venue lies for the administration
of the estate of a decedent, on petition for the purpose, may
determine the apportionment of the tax.
(2) If the court finds that it is
inequitable to apportion interest and penalties in the manner provided
in subsection (b), because of special circumstances, it may direct
apportionment thereof in the manner it finds equitable.
(3) If the court finds that the assessment
of penalties and interest assessed in relation to the tax is due to
delay caused by the negligence of the fiduciary, the court may charge
him with the amount of the assessed penalties and interest.
(4) In any action to recover from any
person interested in the estate the amount of the tax apportioned to
the person in accordance with this Code, the determination of the
court in respect thereto shall be prima facie correct.
(5) The expenses reasonably incurred by
the fiduciary and by any other person interested in the estate in
connection with the determination of the amount and apportionment of
the tax shall be apportioned as provided in subsection (b) and charged
and collected as a part of the tax apportioned. If the court finds it
is inequitable to apportion the expenses as provided in subsection
(b), it may direct apportionment thereof equitably."
Apportionment of taxes
SECTION 60. Section 62-3-916(d)(1) is amended to read:
"(1) The personal representative or other person in
possession of the property of the decedent required to pay the tax may
withhold from any property distributable to any person interested in
the estate, upon its distribution to him, the amount of tax
attributable to his interest. If the property in possession of the
personal representative or other person required to pay the tax and
distributable to any person interested in the estate is insufficient
to satisfy the proportionate amount of the tax determined to be due
from the person, the personal representative or other person required
to pay the tax may recover the deficiency from the person interested
in the estate. If the property is not in the possession of the
personal representative or the other person required to pay the tax,
the personal representative or the other person required to pay the
tax may recover from any person interested in the estate the amount of
the tax apportioned to the person in accordance with this
section."
Petition for settlement, etc.
SECTION 61. Section 62-3-1001 of the 1976 Code is amended to read:
"Section 62-3-1001. (a) Within one year after the date of
the first publication of notice to creditors (or if a state or federal
estate tax return was filed, within thirty days after the receipt of a
state or federal estate tax closing letter, whichever is later), a
personal representative must file with the court the following:
(1) A full account in writing of his administration;
(2) A proposal for distribution;
(3) A petition for settlement of the estate, which may
request the court to determine testacy, if not previously determined,
to consider the final account or approve an accounting and
distribution, to construe any will or determine heirs, and adjudicate
the final settlement and distribution of the estate; and
(4) Proof that a notice of right to demand hearing and
copies of the account, the proposal for distribution, and the petition
for settlement of the estate have been sent to all interested persons
including all creditors or other claimants of whom the personal
representative is aware whose claims are neither paid nor barred.
(b) If the personal representative does not timely perform his
duties under subsection (a), any interested person may petition for an
order compelling the personal representative to perform his duties
under subsection (a). The court may issue an order requiring the
personal representative to perform his duties under subsection (a).
(c) After thirty days from the filing by the personal
representative of proof that a notice of right to demand hearing has
been sent to all persons entitled to such notice under subsection (a),
the court may enter an order or orders, on appropriate conditions,
determining testacy, 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. However, if any interested person files with the court a
written demand for hearing within thirty days after the personal
representative files proof that a notice of right to demand hearing
has been sent to all persons entitled to such notice under subsection
(a), the court may enter its order or orders only after notice to all
interested persons and hearing.
(d) If one or more heirs or devisees were omitted as parties in,
or were not given notice of, a previous formal testacy proceeding, the
court, on proper petition for an order of complete settlement of the
estate under this section, and after notice to the omitted or
unnotified persons and other interested parties determined to be
interested on the assumption that the previous order concerning
testacy is conclusive as to those given notice of the earlier
proceeding, may determine testacy as it affects the omitted persons
and confirm or alter the previous order of testacy as it affects all
interested persons as appropriate in the light of the new proofs. In
the absence of objection by an omitted or unnotified person, evidence
received in the original testacy proceeding constitutes prima facie
proof of due execution of any will previously admitted to probate, or
of the fact that the decedent left no valid will if the prior
proceedings determined this fact."
Final account of fiduciary
SECTION 62. Section 62-3-1002 of the 1976 Code is amended to read:
"Section 62-3-1002. No final account of a fiduciary shall be
allowed by the probate court unless such account shows, and the judge
of such court finds, that all taxes imposed by the provisions of
Chapter 7 of Title 12 upon such fiduciary, which have become payable,
have been paid, and that all taxes which may become due are secured by
bond, deposit, or otherwise. The certificate of the South Carolina Tax
Commission and the receipt for the amount of the tax therein certified
shall be conclusive as to the payment of the tax to the extent of such
certificate."
Final account of fiduciary
SECTION 63. Section 62-3-1003 of the 1976 Code is amended to read:
"Section 62-3-1003. No final account of a personal
representative in any probate proceeding who is required to file a
federal estate tax return may be allowed and approved by the court
before whom the proceeding is pending unless the court finds that the
tax imposed on the property by Chapter 16 of Title 12, including
applicable interest, has been paid in full or that no such tax is
due."
Rights of successors and creditors
SECTION 64. Section 62-3-1005 of the 1976 Code is amended to read:
"Section 62-3-1005. Unless previously barred by
adjudication and except as provided in the accounting, the rights of
successors and of creditors whose claims have not otherwise been
barred against the personal representative for breach of fiduciary
duty are barred unless a proceeding to assert the same is commenced
within six months after the filing of the account, proposal for
distribution of the estate, petition for settlement of the estate, and
proofs required by Section 62-3-1001. The rights thus barred do not
include rights to recover from a personal representative for fraud,
misrepresentation, or inadequate disclosure related to the settlement
of the decedent's estate."
Limitations on actions
SECTION 65. Section 62-3-1006 of the 1976 Code is amended to read:
"Section 62-3-1006. Unless previously adjudicated in a
formal testacy proceeding or in a proceeding settling the accounts of
a personal representative or otherwise barred, the claim of any
claimant to recover from a distributee who is liable to pay the claim,
and the right of any heir or devisee, or of a successor personal
representative acting in their behalf, to recover property improperly
distributed or the value thereof from any distributee is forever
barred at the later of (i) if a claim by a creditor of the decedent,
at one year after the decedent's death, and (ii) any other claimant
and any heir or devisee, at the later of three years after the
decedent's death or one year after the time of distribution thereof.
This section does not bar an action to recover property or value
received as the result of fraud."
Value of estate
SECTION 66. Section 62-3-1201(a)(1) of the 1976 Code is amended to
read:
"(1) state that the value of the entire probate estate (the
decedent's property passing under the decedent's will plus the
decedent's property passing by intestacy), wherever located, less
liens and encumbrances, does not exceed ten thousand dollars;"
Successor entitled to payment or delivery
SECTION 67. Section 62-3-1201(a)(5) of the 1976 Code is amended to
read:
"(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 successor is entitled to
payment or delivery of the property; and".
Administration of small estates
SECTION 68. Section 62-3-1202A of the 1976 Code is amended to
read:
"Section 62-3-1202A. When any person in this State dies
leaving a probate estate (the decedent's property passing under the
decedent's will plus the decedent's property passing by intestacy)
with a value, less liens and encumbrances, not exceeding ten thousand
dollars and exempt property, reasonable funeral expenses, and
reasonable and necessary medical and hospital expenses of the last
illness of the decedent, the probate judge may receive such estate and
pay these creditors as may present their duly attested claims in the
priority set forth in Section 62-3-805 and the residue, if any, to the
distributee or distributees of the estate without the requirement of
an administration."
Small estates, administration
SECTION 69. Section 62-3-1203 of the 1976 Code is amended to read:
"Section 62-3-1203. (a) If it appears from the inventory and
appraisal that the value of the entire probate estate (the decedent's
property passing under the decedent's will plus the decedent's
property passing by intestacy), less liens and encumbrances, does not
exceed ten thousand dollars and exempt property, costs and expenses of
administration, reasonable funeral expenses, and reasonable and
necessary medical and hospital expenses of the last illness of the
decedent, the personal representative, after giving notice to
creditors required by Section 62-3-801, but without giving additional
notice to creditors, may immediately disburse and distribute the
estate to the persons entitled thereto and file a closing statement as
provided in Section 62-3-1204.
(b) If it appears from an appointment proceeding that (1) the
appointed personal representative is either the sole devisee under the
probated will of a testate decedent or the sole heir of an intestate
decedent, or (2) the appointed personal representatives are the sole
devisees under the probated will of a testate decedent or the sole
heirs of an intestate decedent, the personal representative, after
giving notice to creditors as required by Section 62-3-801, may
immediately disburse and distribute the estate to the persons entitled
thereto and file a closing statement as provided in Section
62-3-1204."
Small estates; closing
SECTION 70. Section 62-3-1204 of the 1976 Code is amended to read:
"Section 62-3-1204. (a) Unless prohibited by order of the
court and except for estates being administered under Part 5 (Sections
62-3-501 et seq.,) a personal representative may close an estate
administered under the summary procedures of Section 62-3-1203 by
filing with the court, at any time after disbursement and distribution
of the estate, a verified statement stating that:
(1) either
(i) to the best knowledge of the personal
representative, the value of the entire probate estate (the decedent's
property passing under the decedent's will plus the decedent's
property passing by intestacy), less liens and encumbrances, did not
exceed ten thousand dollars and exempt property, costs, and expenses
of administration, reasonable funeral expenses, and reasonable and
necessary medical and hospital expenses of the last illness of the
decedent; or
(ii) the estate qualifies for summary administration
according to the provisions of subsection (b) of Section 62-3-1203;
(2) the personal representative has fully administered the
estate by disbursing and distributing it to the persons entitled
thereto;
(3) the personal representative has sent a copy of the
closing statement to all distributees of the estate and to all
creditors or other claimants of whom he is aware whose claims are
neither paid nor barred and has furnished a full account in writing of
his administration to the distributees whose interests are affected.
(b) If no actions or proceedings involving the personal
representative are pending in the court one year after the closing
statement is filed, the appointment of the personal representative
terminates."
Summons
SECTION 71. Section 62-3-1303 of the 1976 Code is amended to read:
"Section 62-3-1303. At any time after the qualification of
the personal representative, on application to the court by an
interested person requesting the sale of real estate of the deceased,
a summons shall be issued to the personal representative (if not the
petitioner), the heirs or devisees of the estate, and any other person
as required by the court in its discretion."
Form of summons
SECTION 72. Section 62-3-1304 of the 1976 Code is amended to read:
"Section 62-3-1304. The form of such summons must be in
like form as summonses for civil actions in the circuit courts."
Service of summons
SECTION 73. Section 62-3-1305 of the 1976 Code is amended to read:
"Section 62-3-1305. To such summons a copy of the petition
must be attached and copies of the summons and petition served on the
personal representative (if not the petitioner), the heirs or
devisees, and any other person as required by the court in its
discretion, in like manner as summonses and complaints are served in
civil actions in the circuit courts. If there are minors the court
shall appoint guardians ad litem who must be served with copies of the
summons and petition and the appointment and 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."
Service of process
SECTION 74. Section 62-3-1306 of the 1976 Code is amended to read:
"Section 62-3-1306. The sheriffs of the several counties in
this State are required to serve all processes which may be issued, if
so ordered by the court under the provisions of this Part, for which
they shall receive the same fees as are allowed them by law for
similar services, which must be paid from the proceeds of sale or by
the petitioner."
Publication
SECTION 75. Section 62-3-1307 of the 1976 Code is amended to read:
"Section 62-3-1307. If there is any party who resides
beyond the limits of this State or whose residence is unknown and who
does not consent in writing to the sale, the court may authorize
publication of the summons as provided by this Code and if such party
does not appear and show sufficient cause within the time named in the
summons the court shall enter of record his consent as confessed and
proceed with the sale."
Notice of pendency
SECTION 76. Section 62-3-1308 of the 1976 Code is amended to read:
"Section 62-3-1308. Upon the filing of the petition, the
petitioner shall file in the office of the clerk of the circuit court
a notice of pendency of action authorized by Sections 15-11-10 to
15-11-50 and upon the filing of such notice it has the same force and
effect as notice of pendency of action filed in an action in the
circuit court."
Time for return
SECTION 77. Section 62-3-1309 of the 1976 Code is amended to read:
"Section 62-3-1309. The time for return is at least thirty
days from the date of service. Should the personal representative (if
not the petitioner) or any of the heirs or devisees, or other parties,
if any, desire to 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
SECTION 78. Section 62-3-1310 of the 1976 Code is amended to read:
"Section 62-3-1310. The regular bond of the personal
representative must protect the creditors, heirs, devisees, or other
interested persons, if any, in the handling of the proceeds of sale by
the personal representative, but in case no such bond has been given,
the court shall require the giving of a bond by such personal
representative as provided in Sections 62-3-603, 62-3-604, and
62-3-605."
Release
SECTION 79. Section 62-3-1312 of the 1976 Code is amended to read:
"Section 62-3-1312. In case any lands of the deceased
subject to the lien of any judgment, mortgage, or other lien is sold
under the provisions of this Part the court may enter a release of the
lands so sold upon the records in the office of the clerk of court or
register of 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 may have cancellation of the same entered
on the record thereof. The foregoing does not relieve any judgment,
mortgage, or other lien creditor of the duty, as provided otherwise by
law, of releasing or canceling such liens. Each release satisfaction
or cancellation provided for herein must refer by proper notation to
the file number of such estate in the court. The provisions of this
section do not apply when the order of sale directs the sale of any
lands which must be sold subject to any existing mortgage, judgment,
or other lien, but only when such lands are sold freed and discharged
from all such liens."
Powers
SECTION 80. Section 62-4-205 of the 1976 Code is amended to read:
"Section 62-4-205. A domiciliary foreign personal
representative who has complied with Section 62-4-204 may exercise as
to assets (including real and personal property) in this State all
powers of a local personal representative and may maintain actions and
proceedings in this State subject to any conditions imposed upon
nonresident parties generally."
Definitions
SECTION 81. Section 62-5-101 of the 1976 Code is amended to read:
"Section 62-5-101. Unless otherwise apparent from the
context, in this Code:
(1) Incapacitated person' means any person who is impaired by reason
of mental illness, mental deficiency, physical illness or disability,
advanced age, chronic use of drugs, chronic intoxication, or other
cause (except minority) to the extent that he lacks sufficient
understanding or capacity to make or communicate responsible decisions
concerning his person or property;
(2) A protective proceeding' is a proceeding under the provisions of
Section 62-5-401 to determine if a person is an incapacitated person,
or to secure the administration of the estates of incapacitated
persons or minors;
(3) A protected person' is a minor or incapacitated person for whom a
conservator has been appointed or other protective order has been
made;
(4) A ward' is a person for whom a guardian has been appointed;
(5) A guardianship proceeding' is a proceeding under the provisions
of Part 3 of Article 5 (Section 62-5-301, et seq.) to determine if a
person is an incapacitated person, or to appoint a guardian for an
incapacitated person."
Payment of monies to minors, etc.
SECTION 82. Section 62-5-103 of the 1976 Code is amended to read:
"Section 62-5-103. Any person under a duty to pay or
deliver money or personal property to a minor or incapacitated person
may perform this duty in amounts not exceeding ten thousand dollars
per annum, by paying or delivering the money or property to:
(1) the minor if he is married;
(2) any person having the care and custody of the minor or
incapacitated person with whom the minor or incapacitated person
resides;
(3) a guardian of the minor or incapacitated person; or
(4) a financial institution incident to a deposit in a federally
insured savings account in the sole name of the minor or for the minor
under the Uniform Gifts to Minors Act and giving notice of the deposit
to the minor. This section does not apply if the person making
payment or delivery has actual knowledge that a conservator has been
appointed or proceedings for appointment of a conservator of the
estate of the minor or incapacitated person are pending. The persons,
other than the minor or incapacitated person or any financial
institution under (4) above, receiving money or property for a minor
or incapacitated person, are obligated to apply the money to the
support and education of the minor or incapacitated person, but may
not pay themselves except by way of reimbursement for out-of-pocket
expenses for goods and services necessary for the minor's or
incapacitated person's support. Any excess sums must be preserved for
future support of the minor or incapacitated person, and any balance
not so used and any property received for the minor or incapacitated
person must be turned over to the minor when he attains majority or to
the incapacitated person when he is no longer incapacitated. Persons
who pay or deliver in accordance with provisions of this section are
not responsible for the proper application thereof."
Duties and powers of conservator
SECTION 83. Section 62-5-425(c) of the 1976 Code is amended to read:
"(c) (1) When the conservator is satisfied that a
protected person's disability (other than minority) has ceased, then
he shall petition the court, and after determination by the court that
the disability has ceased in accordance with Section 62-5-430, the
conservator, after meeting all prior claims and expenses of
administration shall pay over and distribute all funds and properties
to the former protected person as soon as possible.
(2) When the conservator is satisfied that
a protected person's estate has a value of less than five thousand
dollars, then he may petition the court, and after determination by
the court that the protected person's estate has a value of less than
five thousand dollars, the court in its discretion may terminate the
conservatorship and order the conservator, after meeting all prior
claims and expenses of administration, to pay over and distribute all
funds and properties to or for the protected person as soon as
possible and in accordance with Section 62-5-103."
Procedure for settlement
SECTION 84. Section 62-5-433(B) of the 1976 Code is amended to read:
"(B) The settlement of any claim over ten thousand dollars
in favor of or against any minor or incapacitated person for the
payment of money or the possession of personal property must be
effected on his behalf in the following manner:
(1) The petitioner shall file with the court a verified petition
setting forth all of the pertinent facts concerning the claim,
payment, attorney's fees, and expenses, if any, and the reasons why,
in the opinion of the petitioner, the proposed settlement should be
approved. For all claims that exceed ten thousand dollars, the
verified petition must include a statement by the petitioner that, in
his opinion, the proposed settlement is in the best interests of the
minor or incapacitated person.
(2) If, upon consideration of the petition and after hearing the
testimony as it may require concerning the matter, the court concludes
that the proposed settlement is proper and in the best interests of
the minor or incapacitated person, the court shall issue its order
approving the settlement and authorizing the petitioner to consummate
it and, if the settlement requires the payment of money or the
delivery of personal property for the benefit of the minor or
incapacitated person, to receive the money or personal property and
execute a proper receipt and release or covenant not to sue therefor,
which is binding upon the minor or incapacitated person.
(3) The order authorizing the settlement must require that payment or
delivery of the money or personal property be made through the
conservator. If a conservator has not been appointed, the petitioner
shall, upon receiving the money or personal property, pay and deliver
it to the court pending the appointment and qualification of a duly
appointed conservator. If a party subject to the court order fails or
refuses to pay the money or deliver the personal property as required
by the order, he is liable and punishable as for contempt of court,
but failure or refusal does not affect the validity or conclusiveness
of the settlement."
Settlement of certain claims
SECTION 85. Section 62-5-433(C) of the 1976 Code is amended to read:
"(C) The settlement of any claim that does not exceed ten
thousand dollars in favor of or against a minor or incapacitated
person for the payment of money or the possession of personal property
may be effected in any of the following manners:
(1) If a conservator has been appointed, he may settle
the claim without court authorization or confirmation as provided in
Section 62-5-424, or he may petition the court for approval as
provided in items (1), (2), and (3) of subsection (B) above. If the
settlement requires the payment of money or the delivery of personal
property for the benefit of the minor or incapacitated person, the
conservator shall receive the money or personal property and execute a
proper receipt and release or covenant not to sue therefor, which is
binding upon the minor or incapacitated person.
(2) If a conservator has not been appointed, the
guardian or guardian ad litem must petition the court for approval of
the settlement as provided in items (1) and (2) of subsection (B)
above and without the appointment of a conservator. The payment or
delivery of money or personal property to or for a minor or
incapacitated person must be made in accordance with Section 62-5-103.
If a party subject to the court order fails or refuses to pay the
money or deliver the personal property as required by the order and in
accordance with Section 62-5-103, he is liable and punishable as for
contempt of court, but failure or refusal does not affect the validity
or conclusiveness of the settlement."
Settlement of certain claims
SECTION 86. Section 62-5-433(D) of the 1976 Code is amended to read:
"(D) The settlement of any claim that does not exceed two
thousand five hundred dollars in favor of or against any minor or
incapacitated person for the payment of money or the possession of
personal property may be effected by the parent or guardian of the
minor or incapacitated person without court approval of the settlement
and without the appointment of a conservator. If the settlement
requires the payment of money or the delivery of personal property for
the benefit of the minor or incapacitated person, the parent or
guardian shall receive the money or personal property and execute a
proper receipt and release or covenant not to sue therefor, which is
binding upon the minor or incapacitated person. The payment or
delivery of money or personal property to or for a minor or
incapacitated person must be made in accordance with Section
62-5-103."
Jurisdiction
SECTION 87. Section 62-5-503 of the 1976 Code is amended to read:
"Section 62-5-503. The probate court has concurrent
jurisdiction with the circuit courts of this State over all subject
matter related to the creation, exercise, and termination of powers of
attorney governed by the provisions of this Part, including the
approval of the sale of real and personal property by an
attorney-in-fact."
Right of survivorship
SECTION 88. Section 62-6-104(e) of the 1976 Code is amended to
read:
"(e) A right to survivorship arising from the express terms
of the account or under this section, a beneficiary designation in a
trust account, or a P.O.D. payee designation, cannot be changed by
will; however, a party who owns a joint account under the provisions
of Section 62-6-103(a) may effect such change by will to the extent of
his ownership if the will contains clear and convincing evidence of
his intent to do so."
Court has exclusive jurisdiction
SECTION 89. Section 62-7-201(a) of the 1976 Code is amended to
read:
"(a) Subject to the provisions of Section 62-1-302(c), the
probate court has exclusive jurisdiction of proceedings initiated by
interested parties concerning the internal affairs of trusts.
Proceedings which may be maintained under this section are those
concerning the administration and distribution of trusts, the
declaration of rights, and the determination of other matters
involving trustees and beneficiaries of trusts. These include, but
are not limited to, proceedings to:
(1) appoint or remove a trustee;
(2) review trustees' fees and to review and settle interim or final
accounts;
(3) ascertain beneficiaries, determine any question arising in the
administration or distribution of any trust including questions of
construction of trust instruments, to instruct trustees, and determine
the existence or nonexistence of any immunity, power, privilege, duty,
or right."
Court has concurrent jurisdiction
SECTION 90. Section 62-7-204 of the 1976 Code is amended to read:
"Section 62-7-204. The probate court has concurrent
jurisdiction with the circuit courts of this State of actions and
proceedings to determine the existence or nonexistence of trusts
created other than by will, of actions by or against creditors or
debtors of trusts, and of other actions and proceedings involving
trustees and third parties. Venue is determined by the rules
generally applicable to civil actions."
Review of proceedings
SECTION 91. Section 62-7-205 of the 1976 Code is amended to read:
"Section 62-7-205. On petition of an interested person,
after notice to all interested persons, the court may review the
propriety of employment of any person by a trustee including any
attorney, auditor, investment advisor or other specialized agent or
assistant, and the reasonableness of the compensation of any person so
employed, and the reasonableness of the compensation determined by the
trustee for his own services. Any person who has received excessive
compensation from a trust may be ordered to make appropriate refunds.
The provisions of this section do not apply to the extent there is a
contract providing for the compensation to be paid for the trustee's
services or if the trust directs otherwise."
Standard of care
SECTION 92. Section 62-7-302(a) of the 1976 Code is amended to read:
"(a) Except as otherwise provided by the terms or
limitations set forth in any will, agreement, court order, or other
instrument creating or defining the fiduciary's duties and powers (the
terms legal investment' or authorized investment' or words of
similar import, as used in any such instrument being taken, however,
to mean any investment which is permitted by the terms of this
section), in acquiring, investing, reinvesting, exchanging, retaining,
selling, and managing property for the benefit of another, a fiduciary
shall exercise the judgment and care under the circumstances then
prevailing, that a prudent person acting in a like capacity and
familiar with such matters would use to attain the purposes of the
fiduciary account. In making investment decisions, a fiduciary may
consider the general economic conditions, the anticipated tax
consequences of the investment, the anticipated duration of the
fiduciary account, the needs and objectives of its beneficiaries, and
other prevailing circumstances. Within the limitations of the
foregoing standard and considering individual investments as part of
an overall investment strategy, a fiduciary is authorized to:
(1) acquire and retain every kind of property and every kind of
investment, specifically including, but not by way of limitation,
bonds, debentures, and other corporate obligations, and stocks,
preferred or common, and securities of any open-end or closed-end
management-type investment company or investment trust registered
under the Federal Investment Company Act of 1940, as amended;
(2) retain property properly acquired, without limitation as to
time and without regard to its suitability for original purchase;
(3) retain the property received by such fiduciary on the
creation of the estate, guardianship, trust, or other fiduciary
account (including, in the case of a corporate fiduciary, stock or
other securities of its own issue or of its parent corporation's
issue) without regard to its suitability for original purchase;
(4) retain the securities into which corporate securities owned
by the fiduciary may be converted or which may be derived therefrom as
a result of merger, consolidation, stock dividends, splits,
liquidations, and similar procedures (and may exercise by purchase or
otherwise any rights, warrants, or conversion features attaching to
any such securities); and
(5) purchase or otherwise acquire and retain any security
underwritten by a syndicate, even if the fiduciary or its affiliate
(defined as any entity which owns or is owned by, in whole or in part,
the fiduciary or is owned by the same entity that owns the fiduciary)
participates or has participated as a member of the syndicate,
provided the fiduciary does not purchase the security from itself, its
affiliate, or from another member of the underwriting syndicate or its
affiliate pursuant to an implied or express reciprocal agreement
between the fiduciary or its affiliate, and such other member or its
affiliate, to purchase all or part of each other's underwriting
participation commitment within the syndicate. The propriety of an
investment decision is to be determined by what the fiduciary knew or
should have known at the time of the decision about the inherent
nature and expected performance of the investment, the attributes of
the portfolio, the general economic conditions, the anticipated tax
consequences of the investment, the anticipated duration of the
fiduciary account, the needs and objectives of the beneficiaries of
the account and other pertinent circumstances as they existed at the
time of the decision. Any determination of liability for investment
performance shall consider not only the performance of a particular
investment but also the performance of the portfolio as a whole. Any
fiduciary acting under a governing instrument shall not be liable to
anyone whose interests arise from that instrument for the fiduciary's
good faith reliance on the express provisions of such instrument. The
standards set forth in this section may be expanded, restricted, or
eliminated by express provisions in a governing instrument."
Determination and distribution of income
SECTION 93. Section 62-7-408 of the 1976 Code is amended to read:
"Section 62-7-408. Unless the will otherwise provides,
income from the assets of a decedent's estate after the death of the
testator and before distribution, including income from property used
to discharge liabilities, shall be determined in accordance with the
rules applicable to a trustee under this Part [Sections 62-7-401 et
seq.,] and distributed as follows:
(1) to specific legatees and devisees, the income from the
property bequeathed or devised to them respectively, less taxes,
ordinary repairs, and other expenses of management and operation of
the property, and an appropriate portion of interest accrued since the
death of the testator and of taxes imposed on income (excluding taxes
on capital gains) which accrue during the period of administration;
(2) (i) for one year after the first appointment of a
personal representative, to all other legatees and devisees, except
legatees of pecuniary bequests not in trust, the balance of the
income, less the balance of taxes, ordinary repairs, and other
expenses of management and operation of all property from which the
State is entitled to income, interest accrued since the death of the
testator, and taxes imposed on income (excluding taxes on capital
gains) which accrue during the period of administration, in proportion
to their respective interests in the undistributed assets of the
estate computed at times of distribution on the basis of inventory
value. Income received by a trustee under this section shall be
treated as income of the trust.
(ii) beginning one year after the first appointment of a
personal representative, to all other legatees and devisees, the
balance of the income less the balance of taxes, ordinary repairs, and
other expenses of management and operation of all property from which
the State is entitled to income, interest accrued since the death of
the testator, and taxes imposed on income (excluding taxes on capital
gains) which accrue during the period of administration, in proportion
to their respective interests in the undistributed assets of the
estate computed at times of distribution on the basis of inventory
value. Income received by a trustee under this section shall be
treated as income of the trust."
Powers of fiduciaries
SECTION 94. Section 62-7-603 of the 1976 Code is amended to read:
"Section 62-7-603. (A) Unless application of this section
is clearly and convincingly negated in the will, the trust document or
a written instrument appointing a fiduciary, the following provisions
apply to any fiduciary, whether acting as a sole fiduciary or as a
co-fiduciary:
(1) Any power conferred upon the fiduciary, in his capacity as a
fiduciary (and not including any power conferred upon him in his
capacity as a beneficiary), which would, except for this section,
constitute, in whole or in part, a general power of appointment cannot
be exercised by him in favor of himself, his estate, his creditors, or
the creditors of his estate.
(a) The fiduciary can, however, exercise the power in favor of someone
other than himself, his estate, his creditors and the creditors of his
estate.
(b) If a power comes within item (1) and the power is conferred upon
two or more fiduciaries, it can be exercised by the fiduciary or the
fiduciaries who are not disqualified from exercising the power as if
they were the only fiduciary or fiduciaries.
(c) If all of the serving fiduciaries are disqualified from exercising
a power, the court that would have jurisdiction to appoint a fiduciary
under the instrument, if there were no fiduciary currently serving,
shall exercise, or shall appoint a special fiduciary whose only power
is to exercise, the power that cannot be exercised by the other
fiduciaries by reason of item (1).
(d) For purposes of this section, Internal Revenue Code' has the same
meaning as in Section 12-7-20(11).
(2) Any power conferred upon the fiduciary in his capacity as a
fiduciary to allocate receipts and expenses as between income and
principal in his own favor, must be exercised in accordance with the
provisions of the Revised Uniform Principal and Income Act, as
contained in this South Carolina Probate Code.
(3) If a person holds legal title to property in a fiduciary capacity
and also has an equitable or beneficial title in the same property,
either by transfer, by declaration, or by operation of law, no merger
of the legal and the equitable titles shall occur unless:
(a) the fiduciary is the sole fiduciary and is also the sole current
and future beneficiary; and
(b) the legal title and the equitable title are of the same quality
and duration. If either one of these conditions is not met, no merger
may occur and the fiduciary relationship does not terminate.
(B) Items (1) and (2) of subsection (A) of this section do not
apply to revocable trusts in which the fiduciary of the trust is also
the creator of the trust and is living.
(C) This section applies to all fiduciary relationships in
existence on the effective date of this section and to all other
fiduciary relationships that come into existence after the effective
date of this section. The provisions of subsection (A) of this
section are declaratory of existing common law and neither modify nor
amend existing fiduciary relationships."
Reduction of proportionate value or share of investment
SECTION 95. The 1976 Code is amended by adding:
"Section 62-7-604. No fiduciary is required to reduce the
proportionate value or share of any single investment as it relates to
the entire value, share, or kind of the estate solely for the purpose
of reducing the investment risk that may be associated with the
estate, if the value or share of the single investment, considered
alone, is of prudent investment quality as provided in Section
62-7-302."
Uniform Trustees' Powers Act
SECTION 96. Article 7 of Title 62 of the 1976 Code is amended by
adding:
"PART 7
Uniform Trustees' Powers Act
Section 62-7-701. Citation. This Part may be cited as the
Uniform Trustees' Powers Act.
Section 62-7-702. Definitions. As used in this Part:
(1) trust' means an express trust created by a trust
instrument, including a will, whereby a trustee has the duty to
administer a trust asset for the benefit of a named or otherwise
described income or principal beneficiary, or both; trust' does not
include a resulting or constructive trust, a business trust which
provides for certificates to be issued to the beneficiary, an
investment trust, a voting trust, a security instrument, a trust
created by the judgment or decree of a court, a liquidation trust, or
a trust for the primary purpose of paying dividends, interests,
interest coupons, salaries, wages, pensions or profits, or employee
benefits of any kind, an instrument wherein a person is nominee or
escrowee for another, a trust created in deposits in any financial
institutions, or other trust the nature of which does not admit of
general trust administration;
(2) prudent man' means a trustee whose exercise of judgment
and care complies with the requirements of Section 62-7-302.
Section 62-7-703. Powers of Trustee Conferred by Trust or by
Law.
(a) The trustee has all powers conferred upon him by the
provisions of this Part unless limited in the trust instrument.
(b) An instrument which is not a trust under Section
62-7-702(1) may incorporate any provision of this Part by reference.
Section 62-7-704. Powers of Trustees Conferred by this Part.
(a) From time of creation of the trust until final distribution
of the assets of the trust, a trustee has the power to perform,
without court authorization, every act which a prudent man would
perform for the purposes of the trust including, but not limited to,
the powers specified in subsection (c).
(b) In the exercise of his powers including the powers granted
by this Part, a trustee has a duty to act with due regard to his
obligation as a fiduciary and is subject to the standards provided in
Section 62-7-302, including a duty to give consideration to available
tax exemptions, deductions, or credits for tax purposes. Tax'
includes, but is not limited to, any federal, state, or local income,
gift, estate, inheritance, generation-skipping transfer, or other
wealth transfer tax.
(c) A trustee has the power, subject to subsections (a) and (b):
(1) to collect, hold, and retain trust assets received from
a trustor until, in the judgment of the trustee, disposition of the
assets should be made; and the assets may be retained even though they
include an asset in which the trustee is personally interested;
(2) to receive additions to the assets of the trust;
(3) to continue or participate in the operation of any
business or other enterprise, and to effect incorporation,
dissolution, or other change in the form of the organization of the
business or enterprise;
(4) to acquire an undivided interest in a trust asset in
which the trustee, in any trust capacity, or anyone else, holds an
undivided interest;
(5) to invest and reinvest trust assets in accordance with
the provisions of the trust or as provided by law;
(6) to deposit trust funds in a bank, including a bank
operated by the trustee;
(7) to acquire or dispose of an asset, for cash or on
credit, at public or private sale; and to manage, develop, improve,
exchange, partition, change the character of, or abandon a trust asset
or any interest therein; and to encumber, mortgage, or pledge a trust
asset for a term within or extending beyond the term of the trust, in
connection with the exercise of any power vested in the trustee;
(8) to make ordinary or extraordinary repairs or
alterations in buildings or other structures, to demolish any
improvements, to raze existing or erect new party walls or buildings;
(9) to subdivide, develop, or dedicate land to public use;
or to make or obtain the vacation of plats and adjust boundaries; or
to adjust differences in valuation on exchange or partition by giving
or receiving consideration; or to dedicate easements to public use
without consideration;
(10) to enter for any purpose into a lease as lessor or
lessee with or without option to purchase or renew for a term within
or extending beyond the term of the trust;
(11) to enter into a lease or arrangement for exploration and
removal of minerals or other natural resources or enter into a pooling
or unitization agreement;
(12) to grant an option involving disposition of a trust
asset, or to take an option for the acquisition of any asset;
(13) to vote a security, in person or by general or limited
proxy;
(14) to pay calls, assessments, and any other sums
chargeable or accruing against or on account of securities;
(15) to sell or exercise stock subscription or conversion
rights; to consent, directly or through a committee or other agent, to
the reorganization, consolidation, merger, dissolution, or liquidation
of a corporation or other business enterprise;
(16) to hold a security in the name of a nominee or in
other form without disclosure of the trust, so that title to the
security may pass by delivery, but the trustee is liable for any act
of the nominee in connection with the stock so held;
(17) to insure the assets of the trust against damage or loss,
and the trustee against liability with respect to third persons;
(18) to borrow money to be repaid from trust assets or
otherwise; to advance money for the protection of the trust, and for
all expenses, losses, and liability sustained in the administration of
the trust or because of the holding or ownership of any trust assets,
for which advances with any interest the trustee has a lien on the
trust assets as against the beneficiary;
(19) to pay or contest any claim; to settle a claim by or
against the trust by compromise, arbitration, or otherwise; and to
release, in whole or in part, any claim belonging to the trust to the
extent that the claim is uncollectible;
(20) to pay taxes, assessments, compensation of the
trustee, and other expenses incurred in the collection, care,
administration, and protection of the trust;
(21) to allocate items of income or expense to either trust
income or principal, as provided in Part 4 of this article [62-7-401
et seq.,] but without regard to how such items are treated for tax
purposes;
(22) to pay any sum distributable to a beneficiary under
legal disability, without liability to the trustee, by paying the sum
to the beneficiary or by paying the sum for the use of the beneficiary
either to a legal representative appointed by the court, or if none,
to a relative;
(23) to effect distribution of property and money in
divided or undivided interests and to adjust resulting differences in
valuation;
(24) to employ persons, including attorneys, auditors,
investment advisors, or agents, even if they are associated with the
trustee, to advise or assist the trustee in the performance of his
administrative duties; to act without independent investigation upon
their recommendations; and instead of acting personally, to employ one
or more agents to perform any act of administration, whether or not
discretionary;
(25) to prosecute or defend actions, claims, or proceedings for
the protection of trust assets and of the trustee in the performance
of his duties;
(26) to execute and deliver all instruments which will
accomplish or facilitate the exercise of the powers vested in the
trustee.
Section 62-7-705. Trustee's Office Not Transferable. Unless
otherwise provided in the trust instrument, while continuing to act as
a trustee, the trustee may not transfer his office to another or
delegate the entire administration of the trust to a co-trustee or
another. The trustee may resign upon approval of the court.
Section 62-7-706. Power of Court to Permit Deviation or to
Approve Transactions Involving Conflict of Interest.
(a) This Part does not affect the power of the court for cause
shown and upon petition of the trustee or affected beneficiary and
upon appropriate notice to the affected parties to relieve a trustee
from any restrictions on his power that would otherwise be placed upon
him by the trust or by this Part.
(b) Subject to the provisions of Section 62-7-603, if the duty
of the trustee and his individual interest or his interest as trustee
of another trust, conflict in the exercise of a trust power, the power
may be exercised only by court authorization (except as provided in
items (1), (4), (6), (18), and (24) of subsection (c) of Section
62-7-704) upon petition of the trustee or any other interested person,
unless directed otherwise by the trust. Under this section, personal
profit or advantage to an affiliated or subsidiary company or
association is personal profit to any corporate trustee.
Section 62-7-707. Powers Exercisable by Joint
Trustees-Liability.
(a) Any power vested in three or more trustees may be exercised
by a majority, but a trustee who has not joined in exercising a power
is not liable to the beneficiaries or to others for the consequences
of the exercise; and a dissenting trustee is not liable for the
consequences of an act in which he joins at the direction of the
majority of the trustees, if he expressed his dissent in writing to
any of his co-trustees at or before the time of the joinder.
(b) If two or more trustees are appointed to perform a trust,
and if any of them is unable or refuses to accept the appointment, or,
having accepted, ceases to be a trustee, the surviving or remaining
trustees shall perform the trust and succeed to all the powers,
duties, and discretionary authority given to the trustees jointly.
(c) Unless directed otherwise by the court or by the trust
instrument, a successor trustee appointed by the court or by the trust
instrument succeeds to all the powers, duties, and discretionary
authority given to the predecessor trustee. Upon reasonable request,
a successor trustee is entitled to a statement of the accounts of the
trust from a predecessor trustee. A successor trustee may accept the
account rendered and shall be under no duty to examine the acts or
omissions of the predecessor trustee and shall not be liable for
failure to seek redress for any act or omission of the predecessor
trustee. The trustee of a testamentary trust may accept the account
rendered by a personal representative and shall be under no duty to
examine the acts or omissions of the predecessor personal
representative and shall not be liable for failure to seek redress for
any act or omission of the predecessor personal representative.
(d) This section does not excuse a co-trustee from liability for
failure either to participate in the administration of the trust or to
attempt to prevent a breach of trust.
Section 62-7-708. Third Persons Protected in Dealing with
Trustee. With respect to a third person dealing with a trustee or
assisting a trustee in the conduct of a transaction, the existence of
trust powers and their proper exercise by the trustee may be assumed
without inquiry. The third person is not bound to inquire whether the
trustee has power to act or is properly exercising the power; and a
third person, without actual knowledge that the trustee is exceeding
his powers or improperly exercising them, is fully protected in
dealing with the trustee as if the trustee possessed and properly
exercised the powers he purports to exercise. A third person is not
bound to assure the proper application of trust assets paid or
delivered to the trustee.
Section 62-7-709. Application of Part. Except as specifically
provided in the trust, the provisions of this Part apply to any trust
established before or after the effective date of this Part and to any
trust asset acquired by the trustee before or after the effective date
of this Part."
PART II
Actions to be brought
SECTION 97. Section 15-51-20 of the 1976 Code is amended to read:
"Section 15-51-20. Every such action shall be for the
benefit of the wife or husband and child or children of the person
whose death shall have been so caused, and, if there be no such wife,
husband, child or children, then for the benefit of the parent or
parents, and if there be none such, then for the benefit of the heirs
of the person whose death shall have been so caused. Every such
action shall be brought by or in the name of the executor or
administrator of such person."
Contracts of marriage to be void
SECTION 98. Section 20-1-80 of the 1976 Code is amended to read:
"Section 20-1-80. All marriages contracted while either of
the parties has a former wife or husband living shall be void. But
this section shall not extend to a person whose husband or wife shall
be absent for the space of five years, the one not knowing the other
to be living during that time, nor to any person who shall be divorced
or whose first marriage shall be declared void by the sentence of a
competent court."
Deposits
SECTION 99. Section 34-11-10 of the 1976 Code is amended to read:
"Section 34-11-10. Subject to the provisions of Sections
62-6-101, et seq., of the South Carolina Probate Code:
(a) when a deposit has been made in a bank, banking institution, or
depository transacting business in this State in the names of two or
more persons, payable to any of the depositors or payable to any of
the depositors or the survivor or survivors, the deposit or any part
thereof may be paid to any of the persons, whether the other or others
are living or not and the receipt or acquittance of the person or
persons paid is a valid and sufficient release and discharge for any
or all payments made.
(b) The pledge or hypothecation to any bank, banking institution,
or other depository transacting business in this State of all or part
of a deposit account in the names of two or more persons, payable to
any of the depositors or payable to any of the depositors or the
survivor or survivors, by any depositor or depositors, whether minor
or adult, upon whose signature or signatures withdrawals may be made
from the account is, unless the terms of the deposit account provide
specifically to the contrary, a valid pledge and transfer to the
institution of that portion of the account pledged or hypothecated.
For purposes of this section the term deposit' includes a
certificate of deposit."
Opening an account
SECTION 100. Section 34-11-130 of the 1976 Code is amended to read:
"Section 34-11-130. Subject to the provisions of Sections
62-6-101, et seq., of the South Carolina Probate Code, when an
account, including a certificate of deposit, is opened by a person
describing himself in the account title as trustee or custodian for
another and no other or further notice of the existence and terms of a
legal and valid trust than the description is given in writing to a
bank, banking institution, or other depository transacting business in
this State, in the event of the death of the person so described as
trustee or custodian the withdrawal value of the account or any part
thereof together with any earnings thereon may be paid to the person
for whom the account title indicates the account was opened. The
payment or delivery to any beneficiary, beneficiaries, or designated
person, or a receipt or acquittance signed by any beneficiary,
beneficiaries, or designated person, is for any payment or delivery a
valid and sufficient release and discharge of an institution for the
payment or delivery made."
Appointment of corporate executor
SECTION 101. Section 34-15-10 of the 1976 Code is amended to read:
"Section 34-15-10. Subject to the provisions of Sections
62-3-203 and 62-7-207, any banking corporation or trust company with
at least two hundred fifty thousand dollars total unimpaired capital
may be appointed executor of a will, codicil or writing testamentary,
administrator with the will annexed, administrator of the estate of
any person, receiver, assignee, guardian or trustee under a will or
instrument creating a trust for the care and management of property,
under the same circumstances, in the same manner and subject to the
same control by the court having jurisdiction of such appointment as a
legally qualified person. Any such appointment as guardian shall apply
to the estate and not to the person of the ward. Such corporation
shall not be required to receive or hold property or money or assume
or execute a trust under the provisions of this section without its
assent."
Analysis lines
SECTION 102. The analysis lines following each section of the 1976
Code, as contained in Section 96 are for informational purposes only
and are not part of the Code.
Repeal
SECTION 103. Sections 12-7-2600, 12-16-1960, and subsection (h) of
Section 62-3-914 of the 1976 Code are repealed.
Designation of attorney
SECTION 104. Section 62-5-501 of the 1976 Code, as last amended by
an act of 1990 bearing ratification number 576, is further amended to
read:
"Section 62-5-501. (A) Whenever a principal designates
another his attorney in fact by a power of attorney in writing and the
writing contains (1) the words This power of attorney is not affected
by physical disability or mental incompetence of the principal which
renders the principal incapable of managing his own estate', (2) the
words This power of attorney becomes effective upon the physical
disability or mental incompetence of the principal', or (3) similar
words showing the intent of the principal that the authority conferred
is exercisable notwithstanding his physical disability or mental
incompetence or either physical disability or mental incompetence, the
authority of the attorney in fact is exercisable by him as provided in
the power on behalf of the principal notwithstanding later physical
disability or mental incompetence of the principal or later
uncertainty as to whether the principal is dead or alive. The
authority of the attorney in fact to act on behalf of the principal
must be set forth in the power and may relate to any act, power, duty,
right, or obligation which the principal has or may acquire relating
to the principal or any matter, transaction, or property, including
the power to consent or withhold consent on behalf of the principal to
health care. The attorney in fact has a fiduciary relationship with
the principal and is accountable and responsible as a fiduciary. All
acts done by the attorney in fact pursuant to the power during a
period of physical disability or mental incompetence or uncertainty as
to whether the principal is dead or alive have the same effect and
inure to the benefit of and bind the principal or his heirs, devisees,
legatees, and personal representative as if the principal were alive,
mentally competent, and not disabled physically.
(B) An instrument to which this section is applicable also may
provide for successor attorneys in fact and provide conditions for
their succession, which may include an authorization for the court to
appoint a successor, and the succession may occur whether or not the
principal then is physically disabled or mentally incompetent. The
appointment of an attorney in fact under this section does not prevent
a person or his representative from applying to the court and having a
guardian or conservator appointed. Unless the power of attorney
provides otherwise, appointment of a guardian terminates all or part
of the power of attorney that relates to matters within the scope of
the guardianship, and appointment of a conservator terminates all or
part of the power of attorney that relates to matters within the scope
of the conservatorship.
(C) A power of attorney executed under the provisions of this
section must be executed and attested with the same formality and with
the same requirements as to witnesses as a will. In addition, the
instrument must be recorded in the same manner as a deed in the county
where the principal resides at the time the instrument is recorded.
After the instrument has been recorded, whether recorded before or
after the onset of the principal's physical disability or mental
incompetence, it is effective notwithstanding the mental incompetence
or physical disability. If the authority of the attorney in fact
relates solely to the person of the principal, the instrument is
effective without being recorded.
(D) The court, in its discretion, and at any time after the
onset of physical disability or mental incompetence, on motion of an
interested party or on its own motion, may require that an inventory
of all deposits, choses in action, and personal property must be filed
with the court, and a surety bond must be posted by the attorney in
fact in the manner and amount applicable to a protected person's
estate."
Time effective
SECTION 105. This act takes effect upon approval by the Governor.
Approved the 5th day of June, 1990.
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