TITLE 62 . SOUTH CAROLINA PROBATE CODE
CHAPTER 1. General Provisions, Definitions, and Probate Jurisdiction of Court
Part 1
Short Title, Construction, General Provisions
SECTION 62-1-100. Effective date.
(a) Except as otherwise provided, this Code takes effect July 1, 1987.
(b) Except as provided elsewhere in this Code, on the effective date of this Code:
(1) the Code applies to any estates of decedents dying thereafter;
(2) the procedural provisions of the Code apply to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this Code;
(3) every personal representative, including a person administering an estate of a minor or incompetent holding an appointment on that date, continues to hold the appointment but has only the powers conferred by this Code and is subject to the duties imposed with respect to any act occurring or done thereafter;
(4) an act done before the effective date in any proceeding and any accrued right is not impaired by this Code. Unless otherwise provided in the Code, a substantive right in the decedent's estate accrues in accordance with the law in effect on the date of the decedent's death. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the effective date, the provisions remain in force with respect to that right;
(5) a rule of construction or presumption provided in this code applies to multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent.
(c) Section 62-2-502 is effective for all wills executed after June 27, 1984, whether the testator dies before or after July 1, 1987.
HISTORY: 1986 Act No. 539, § 5; 1987 Act No. 171, § 78; 1990 Act No. 522, Part I, § 1; 1997 Act No. 152, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-101. Short title.
Sections 62-1-101 et seq. shall be known and may be cited as the South Carolina Probate Code. References in Sections 62-1-101 et seq. to the term "Code", unless the context clearly indicates otherwise, shall mean the South Carolina Probate Code.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-102. Purposes; rules of construction.
(a) This Code shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this Code are:
(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;
(2) to discover and make effective the intent of a decedent in the distribution of his property;
(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(4) to facilitate use and enforcement of certain trusts;
(5) to make uniform the law among the various jurisdictions.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-103. Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this Code, the principles of law and equity supplement its provisions.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-104. Severability.
If any provision of this Code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Code which can be given effect without the invalid provision or application and to this end the provisions of this Code are declared to be severable.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-105. Construction against implied repeal.
This Code is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-106. Effect of fraud and evasion.
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Code or if fraud is used to avoid or circumvent the provisions or purposes of this Code, any person injured thereby may: (i) obtain appropriate relief against the perpetrator of the fraud and (ii) restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not, but only to the extent of any benefit received. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-107. Evidence as to death or status.
In proceedings under this Code the South Carolina Rules of Evidence are applicable unless specifically displaced by the Code.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-108. Acts by holder of general power.
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power. The term "presently exercisable general power of appointment" includes a testamentary general power of appointment having no conditions precedent to its exercise other than the death of the holder, the validity of the holder's last will and testament, and the inclusion of a provision in the will sufficient to exercise this power.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-109. Duties and obligations of lawyer and person serving as a fiduciary.
Unless expressly provided otherwise in a written employment agreement, the creation of an attorney-client relationship between a lawyer and a person serving as a fiduciary shall not impose upon the lawyer any duties or obligations to other persons interested in the estate, trust estate, or other fiduciary property, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. This section is intended to be declaratory of the common law and governs relationships in existence between lawyers and persons serving as fiduciaries as well as such relationships hereafter created.
HISTORY: 1994 Act No. 449, § 2; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-110. Fiduciary and lawyer, privileged communication.
Whenever an attorney-client relationship exists between a lawyer and a fiduciary, communications between the lawyer and the fiduciary shall be subject to the attorney-client privilege unless waived by the fiduciary, even though fiduciary funds may be used to compensate the lawyer for legal services rendered to the fiduciary. The existence of a fiduciary relationship between a fiduciary and a beneficiary does not constitute or give rise to any waiver of the privilege for communications between the lawyer and the fiduciary.
HISTORY: 2008 Act No. 211, § 1, eff May 13, 2008; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-111. Authority to award costs and expenses.
In a formal proceeding, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the estate that is the subject of the controversy.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-112. Inherent power of court.
The inherent power of the court to impose penalties for contempt extends to all filing requirements, proceedings, judgments, and orders of the court. The court has the power to grant a motion to proceed in forma pauperis.
HISTORY: 2017 Act No. 87 (S.415), § 1, eff January 1, 2019.
Part 2
Definitions
SECTION 62-1-201. General definitions.
Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or parts, and unless the context otherwise requires, in this Code:
(1) "Application" means a written request to the probate court for an order. An application does not require a summons and is not governed by or subject to the rules of civil procedure adopted for the circuit court.
(2) "Beneficiary", as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and, as it relates to a charitable trust, includes any person entitled to enforce the trust.
(3) "Child" includes any individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
(4) "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
(5) "Court" means the court or branch having jurisdiction in matters as provided in this Code.
(6) "Conservator" means a person who is appointed by a court to manage the estate of a protected person.
(7) "Devise", when used as a noun, means a testamentary disposition of real or personal property, including both devise and bequest as formerly used, and when used as a verb, means to dispose of real or personal property by will.
(8) "Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
(9) "Disability" means cause for a protective order as described by Section 62-5-401.
(10) "Distributee" means any person who has received property of a decedent from his personal representative other than as creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(11) "Estate" includes the property of the decedent, trust, or other person whose affairs are subject to this Code as originally constituted and as it exists from time to time during administration.
(12) "Exempt property" means that property of a decedent's estate which is described in Section 62-2-401.
(13) "Expense of administration" includes commissions of personal representatives, fees and disbursements of attorneys, fees of appraisers, and such other expenses that are reasonably incurred in the administration of the estate.
(14) "Fair market value" is the price that property would sell for on the open market that would be agreed on between a willing buyer and a willing seller, with neither being required to act, and both having reasonable knowledge of the relevant facts.
(15) "Fiduciary" includes personal representative, guardian, conservator, and trustee.
(16) "Foreign personal representative" means a personal representative of another jurisdiction.
(17) "Formal proceedings" means actions commenced by the filing of a summons and petition with the probate court and service of the summons and petition upon the interested persons. Formal proceedings are governed by and subject to the rules of civil procedure adopted for circuit courts and other rules of procedure in this title.
(18) "Guardian" means a person appointed by the court as guardian, but excludes one who is a guardian ad litem.
(19) "General power of appointment" means any power that would cause income to be taxed to the fiduciary in his individual capacity under Section 678 of the Internal Revenue Code and any power that would be a general power of appointment, in whole or in part, under Section 2041(a)(2) or 2514(c) of the Internal Revenue Code.
(20) "Heirs" means those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent.
(21) "Incapacitated person" is as defined in Section 62-5-101.
(22) "Informal proceedings" means those commenced by application and conducted without notice to interested persons by the court for probate of a will or appointment of a personal representative. Informal proceedings are not governed by or subject to the rules of civil procedure adopted for the circuit court.
(23) "Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(24) "Issue" of a person means all his lineal descendants whether natural or adoptive of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this Code.
(25) "Lease" includes an oil, gas, or other mineral lease.
(26) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(27) "Minor" means a person who is under eighteen years of age, excluding a person under the age of eighteen who is married or emancipated as decreed by the family court.
(28) "Mortgage" means any conveyance, agreement, or arrangement in which real property is used as security.
(29) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
(30) "Organization" includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal entity.
(31) "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
(32) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(33) "Personal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
(34) "Petition" means a complaint as defined in the rules of civil procedure adopted for the circuit court. A petition requires a summons and is governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.
(35) "Probate estate" means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy.
(36) "Proceeding" includes action at law and suit in equity.
(37) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(38) "Protected person" is as defined in Section 62-5-101.
(39) "Protective proceeding" is as defined in Section 62-5-101.
(40) "SCACR" means the South Carolina Appellate Court Rules.
(41) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
(42) "Security interest" means any conveyance, agreement, or arrangement in which personal property is used as security.
(43) "Settlement" in reference to a decedent's estate includes the full process of administration, distribution, and closing.
(44) "Special administrator" means a personal representative as described by Sections 62-3-614 through 62-3-618.
(45) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(46) "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
(47) "Successors" means those persons, other than creditors, who are entitled to property of a decedent under his will or this Code.
(48) "Testacy proceeding" means a formal proceeding to establish a will or determine intestacy.
(49) "Trust" includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article 6 (Sections 62-6-101, et seq.), custodial arrangements pursuant to the South Carolina Uniform Transfers to Minors Act, Article 6, Chapter 5, Title 63, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
(50) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
(51) "VA" means the United States Department of Veterans Affairs or its successor.
(52) "Ward" is as defined in Section 62-5-101.
(53) "Will" includes codicil and any testamentary instrument that merely appoints an executor or revokes or revises another will.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, §§ 1, 2; 1990 Act No. 521, §§ 2-7; 1997 Act No. 152, § 2; 2010 Act No. 244, § 1, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014; 2016 Act No. 278 (S.777), § 2, eff June 9, 2016; 2022 Act No. 128 (H.3821), § 2, eff April 4, 2022.
Part 3
Scope, Jurisdiction, and Courts
SECTION 62-1-301. Territorial application.
Except as otherwise provided in this Code, this Code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected domiciled in this State, (2) the property of nonresidents located in this State or property coming into the control of a fiduciary who is subject to the laws of this State, (3) incapacitated persons and minors in this State, (4) survivorship and related accounts in this State, and (5) trusts subject to administration in this State.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-302. Subject matter jurisdiction; concurrent jurisdiction with family court.
(a) To the full extent permitted by the Constitution, and except as otherwise specifically provided, the probate court has exclusive original jurisdiction over all subject matter related to:
(1) estates of decedents, including the contest of wills, construction of wills, determination of property in which the estate of a decedent or a protected person has an interest, and determination of heirs and successors of decedents and estates of protected persons, except that the circuit court also has jurisdiction to determine heirs and successors as necessary to resolve real estate matters, including partition, quiet title, and other actions pending in the circuit court;
(2) subject to Part 7, Article 5:
(i) protective proceedings and guardianship proceedings under Article 5;
(ii) gifts made pursuant to the South Carolina Uniform Transfers to Minors Act under Article 6, Chapter 5, Title 63;
(iii) matters involving the establishment, administration, or termination of a special needs trust for disabled individuals;
(3) trusts, inter vivos or testamentary, including the appointment of successor trustees;
(4) the issuance of marriage licenses, in form as provided by the Bureau of Vital Statistics of the Department of Health and Environmental Control; record, index, and dispose of copies of marriage certificates; and issue certified copies of the licenses and certificates;
(5) the performance of the duties of the clerk of the circuit and family courts of the county in which the probate court is held when there is a vacancy in the office of clerk of court and in proceedings in eminent domain for the acquisition of rights of way by railway companies, canal companies, governmental entities, or public utilities when the clerk is disqualified by reason of ownership of or interest in lands over which it is sought to obtain the rights of way; and
(6) the involuntary commitment of persons suffering from mental illness, intellectual disability, alcoholism, drug addiction, and active pulmonary tuberculosis.
(b) The court's jurisdiction over matters involving wrongful death or actions under the survival statute is concurrent with that of the circuit court and extends only to the approval of settlements as provided in Sections 15-51-41 and 15-51-42 and to the allocation of settlement proceeds among the parties involved in the estate.
(c) The probate court has jurisdiction to hear and determine issues relating to paternity, common-law marriage, and interpretation of marital agreements in connection with estate, trust, guardianship, and conservatorship actions pending before it, concurrent with that of the family court pursuant to Section 63-3-530.
(d) Notwithstanding the exclusive jurisdiction of the probate court over the foregoing matters, any action or proceeding filed in the probate court and relating to the following subject matters, on motion of a party, or by the court on its own motion, made not later than ten days following the date on which all responsive pleadings must be filed, must be removed to the circuit court and in these cases the circuit court shall proceed upon the matter de novo:
(1) formal proceedings for the probate of wills and for the appointment of general personal representatives;
(2) construction of wills;
(3) actions to try title concerning property in which the estate of a decedent or protected person asserts an interest;
(4) matters involving the internal or external affairs of trusts as provided in Section 62-7-201, excluding matters involving the establishment of a "special needs trust" as described in Article 7;
(5) actions in which a party has a right to trial by jury and which involve an amount in controversy of at least five thousand dollars in value; and
(6) actions concerning gifts made pursuant to the South Carolina Uniform Transfers to Minors Act, Article 6, Chapter 5, Title 63.
(e) The removal to the circuit court of an action or proceeding within the exclusive jurisdiction of the probate court applies only to the particular action or proceeding removed, and the probate court otherwise retains continuing exclusive jurisdiction.
(f) Notwithstanding the exclusive jurisdiction of the probate court over the matters set forth in subsections (a) through (c), if an action described in subsection (d) is removed to the circuit court by motion of a party, or by the probate court on its own motion, the probate court may, in its discretion, remove any other related matter or matters which are before the probate court to the circuit court if the probate court finds that the removal of such related matter or matters would be in the best interest of the estate or in the interest of judicial economy. For any matter removed by the probate court to the circuit court pursuant to this subsection, the circuit court shall proceed upon the matter de novo.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 3; 1988 Act No. 659, §§ 2, 3; 1990 Act No. 521, § 8; 1992 Act No. 475, § 2; 1997 Act No. 152, § 3; 2005 Act No. 132, § 4; 2008 Act No. 257, § 1, eff June 4, 2008; 2013 Act No. 100, § 1, eff January 1, 2014; 2017 Act No. 87 (S.415), § 3, eff January 1, 2019; 2022 Act No. 128 (H.3821), § 3, eff April 4, 2022.
SECTION 62-1-303. Venue; multiple proceedings; transfer.
(a) Subject to the provisions of Section 62-3-201, where a proceeding under this Code could be maintained in more than one place in South Carolina, the court in which the proceeding is first commenced has the exclusive right to proceed.
(b) If proceedings concerning the same estate, protected persons, ward, or trust are commenced in more than one court of South Carolina, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and, if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
(c) If a court finds that, in the interest of justice, a proceeding or a file should be located in another court of probate in South Carolina, the court making the finding may transfer the proceeding or file to the other court.
(d) If a court transfers venue of a proceeding or file to a court in another county, venue for that proceeding or file, and any subsequent matters concerning that proceeding or file, including appeals, shall be retained by the county to which the venue has been transferred.
(e) If a probate court judge is disqualified from matters concerning a proceeding or a file, and venue has not been transferred to another county, a special probate court judge appointed for that proceeding or file has all of the powers and duties appertaining to the probate court judge of the county where the proceeding or file commenced, and venue for any subsequent matters concerning that proceeding or file, including appeals, remains with the county where that proceeding or file commenced.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-304. South Carolina Rules of Civil Procedure govern formal proceedings.
The South Carolina Rules of Civil Procedure (SCRCP) adopted for the circuit court and other rules of procedure in this title govern formal proceedings pursuant to this title. A formal proceeding is a "civil action" as defined in Rule 2, SCRCP, and must be commenced as provided in Rule 3, SCRCP.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 2, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-305. Records and certified copies.
The court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this Code, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the probate court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to letters must show the date of appointment.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-306. Jury trials.
(a) If duly demanded, a party is entitled to trial by jury in any proceeding involving an issue of fact in an action for the recovery of money only or of specific real or personal property, unless waived as provided in the rules of civil procedure for the courts of this State. The right to trial by jury exists in, but is not limited to, formal proceedings in favor of the probate of a will or contesting the probate of a will.
(b) If there is no right to trial by jury under subsection (a) or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.
(c) The method of drawing, summoning, and compensating jurors under this section shall be within the province of the county jury commission and shall be governed by Chapter 7, Title 14 of the 1976 Code relating to juries in circuit courts.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 4; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-307. Probate judge; powers.
The acts and orders which this Code specifies as performable by the court may be performed either by the judge or by a person, including one or more clerks, designated by the judge by a written order filed and recorded in the office of the court.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-308. Appeals.
Except as provided in subsection (1), appeals from the probate court must be to the circuit court and are governed by the following rules:
(a) A person interested in a final order, sentence, or decree of a probate court may appeal to the circuit court in the same county, subject to the provisions of Section 62-1-303. The notice of intention to appeal to the circuit court must be filed in the office of the circuit court and in the office of the probate court and a copy served on all parties not in default within ten days after receipt of written notice of the appealed from order, sentence, or decree of the probate court.
(b) Within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court, the appellant must file with the clerk of the circuit court a Statement of Issues on Appeal (in a format described in Rule 208(b)(1)(B), SCACR) with proof of service and a copy served on all parties.
(c) Where a transcript of the testimony and proceedings in the probate court was prepared, the appellant shall, within ten days after the date of service of the notice of intention to appeal, make satisfactory arrangements with the court or court reporter for furnishing the transcript. If the appellant has not received the transcript within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court, the appellant may make a motion to the circuit court for an extension to serve and file the parties' briefs and Designations of Matter to be Included in the Record on Appeal, as provided in subsections (d) and (e).
(d) Within thirty days after service of the Statement of Issues on Appeal, all parties to the appeal shall serve on all other parties to the appeal a Designation of Matter to be Included in the Record on Appeal (in a format described in Rule 209, SCACR) and file with the clerk of the circuit court one copy of the Designation of Matter to be Included in the Record on Appeal with proof of service.
(e) At the same time the appellant serves his Designation of Matter to be Included in the Record on Appeal, the appellant shall serve one copy of his brief on all parties to the appeal, and file with the clerk of the circuit court one copy of the brief with proof of service. The appellant's brief shall be in a format described in Rule 208(b)(1), SCACR. Within thirty days after service of the appellant's brief, the respondent shall serve one copy of his brief on all parties to the appeal, and file with the clerk of the circuit court one copy of the brief with proof of service. The respondent's brief shall be in a format described in Rule 208(b)(2), SCACR. Appellant may file and serve a brief in reply to the brief of the respondent. If a reply brief is prepared, the appellant shall, within ten days after service of the respondent's brief, serve one copy of the reply brief on all parties to the appeal and file with the clerk of circuit court one copy of the reply brief with proof of service. The appellant's reply brief shall be in a format described in Rule 208(b)(3), SCACR.
(f) Within thirty days after service of the respondent's brief, the appellant shall serve a copy of the Record on Appeal (in a format described in subsections (c), (e), (f) and (g) of Rule 210, SCACR, except that the Record of Appeal need not comply with the requirements of Rule 267, SCACR) on each party who has served a brief and file with the clerk of the circuit court one copy of the Record on Appeal with proof of service.
(g) Except as provided in this section, no party is required to comply with any other requirements of the South Carolina Appellate Court Rules. Upon final disposition of the appeal, all exhibits filed separately (as described in Rule 210(f), SCACR), but not included in the Record on Appeal, must be forwarded to the probate court.
(h) When an appeal according to law is taken from any sentence or decree of the probate court, all proceedings in pursuance of the order, sentence, or decree appealed from shall cease until the judgment of the circuit court, court of appeals or Supreme Court is had. If the appellant, in writing, waives his appeal before the entry of the judgment, proceedings may be had in the probate court as if no appeal had been taken.
(i) The circuit court, court of appeals, or Supreme Court shall hear and determine the appeal according to the rules of law. The hearing must be strictly on appeal and no new evidence may be presented.
(j) The final decision and judgment in cases appealed, as provided in this code, shall be certified to the probate court by the circuit court, court of appeals, or Supreme Court, as the case may be, and the same proceedings shall be had in the probate court as though the decision had been made in the probate court. Within forty-five days after receipt of written notice of the final decision and judgment in cases appealed, the prevailing party shall provide a copy of such decision and judgment to the probate court.
(k) A judge of a probate court must not be admitted to have any voice in judging or determining an appeal from his decision or be permitted to act as attorney or counsel.
(l) If the parties not in default consent either in writing or on the record at a hearing in the probate court, a party to a final order, sentence, or decree of a probate court who considers himself injured by it may appeal directly to the Supreme Court, and the procedure for the appeal must be governed by the South Carolina Appellate Court Rules.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 9; 1997 Act No. 152, § 4; 1999 Act No. 55, § 56; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-309. Election and term of judges.
The judges of the probate court shall be elected by the qualified electors of the respective counties for the term of four years in the manner specified by Section 14-23-1020.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 4
Notice, Parties, and Representation in Estate Litigation and Other Matters
SECTION 62-1-401. Notice; method and time of giving.
(a) If notice of a hearing on a petition is required and, except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of a petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice must be given:
(1) by mailing a copy of the notice at least twenty days before the time set for the hearing by certified, registered, or ordinary first class mail, or by a commercial delivery service that meets the requirements to be considered a designated delivery service in accordance with 26 U.S.C. Section 7502(f)(2) addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known;
(2) by delivering a copy of the notice to the person being notified personally at least twenty days before the time set for the hearing; or
(3) if the address or identity of any person is not known and cannot be ascertained with reasonable diligence by publishing a copy of the notice in the same manner as required by law in the case of the publication of a summons for an absent defendant in the court of common pleas.
(b) The court for good cause shown may provide for a different method or time of giving notice for any hearing.
(c) Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.
(d) Notwithstanding a provision to the contrary, the notice provisions in this section do not, and are not intended to, constitute a summons that is required for a petition.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 3, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014; 2017 Act No. 87 (S.415), § 4, eff January 1, 2019.
SECTION 62-1-402. Notice; waiver.
A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-403. Pleadings; when parties bound by others; notice.
In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons and in judicially supervised settlements the following apply:
(1) Interests to be affected must be described in pleadings that give reasonable information to owners by name or class by reference to the instrument creating the interests or in other appropriate manner.
(2) Persons are bound by orders binding others in the following cases:
(i) Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
(ii) To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a person may represent his minor or unborn issue.
(iii) A minor or unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding.
(3) Service of summons, petition, and notice is required as follows:
(i) Service of summons, petition, and notice must be given to every interested person or to one who can bind an interested person as described in (2)(i) or (2)(ii) above. Service of summons and petition upon, as well as notice, may be given both to a person and to another who may bind him.
(ii) Service upon and notice is given to unborn or unascertained persons who are not represented under (2)(i) or (2)(ii) above by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
(4) At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 5; 2010 Act No. 244, § 4, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 5
Uniform Simultaneous Death Act
SECTION 62-1-500. Short title.
This part may be cited as the "Uniform Simultaneous Death Act".
HISTORY: 1986 Act No. 539, § 1; 1976 Code § 62-1-501; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-501. Definitions.
For purposes of this part:
(1) "Co-owners with right of survivorship" includes joint tenants in a joint tenancy with right of survivorship, joint tenants in a tenancy in common with right of survivorship, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.
(2) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
(3) "Payor" means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-502. Requirement of survival by 120 hours; individuals, two or more beneficiaries, class members.
(a) Except as otherwise provided by this Code, where the title to property, the devolution of property, the right to elect an interest in property, or any other right or benefit depends upon an individual's survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by at least one hundred twenty hours is deemed to have predeceased the other individual.
(b) If the language of the governing instrument disposes of property in such a way that two or more beneficiaries are designated to take alternatively by reason of surviving each other and it is not established by clear and convincing evidence that any such beneficiary has survived any other beneficiary by at least one hundred twenty hours, the property shall be divided into as many equal shares as there are alternative beneficiaries, and these shares shall be distributed respectively to each such beneficiary's estate.
(c) If the language of the governing instrument disposes of property in such a way that it is to be distributed to the member or members of a class who survived an individual, each member of the class will be deemed to have survived that individual by at least one hundred twenty hours unless it is established by clear and convincing evidence that the individual survived the class member or members by at least one hundred twenty hours.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-503. Requirement of survival by 120 hours under governing instruments.
Except as otherwise provided by this Code, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by at least one hundred twenty hours is deemed to have predeceased the event.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-504. Co-owners with right of survivorship; requirement of survival by 120 hours.
Except as otherwise provided by this Code, if:
(a) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by at least one hundred twenty hours, one-half of the property passes as if one had survived by at least one hundred twenty hours and one-half as if the other had survived by at least one hundred twenty hours;
(b) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by at least one hundred twenty hours, the property passes to the estates of each of the co-owners in the proportion that one bears to the whole number of co-owners.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-505. Right or benefit that depends on surviving the death of a decedent's killer.
Notwithstanding any other provisions of the Code, solely for the purpose of determining whether a decedent is entitled to any right or benefit that depends on surviving the death of a decedent's killer under Section 62-2-803, the killer is deemed to have predeceased the decedent, and the decedent is deemed to have survived the killer by at least one hundred twenty hours, or any greater survival period required of the decedent under the killer's will or other governing instrument, unless it is established by clear and convincing evidence that the killer survived the victim by at least one hundred twenty hours.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-506. Exceptions.
Survival by one hundred twenty hours is not required if any of the following apply:
(1) the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
(2) the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a specified period; but survival of the event or the specified period must be established by clear and convincing evidence;
(3) the imposition of a one hundred twenty hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under other provisions of the Code; but survival must be established by clear and convincing evidence;
(4) the application of a one hundred and twenty hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival must be established by clear and convincing evidence;
(5) the application of a one hundred twenty hour requirement of survival would deprive an individual or the estate of an individual of an otherwise available tax exemption, deduction, exclusion, or credit, expressly including the marital deduction, resulting in the imposition of a tax upon a donor or a decedent's estate, other person, or their estate, as the transferor of any property. "Tax" includes any federal or state gift, estate or inheritance tax;
(6) the application of a one hundred twenty hour requirement of survival would result in an escheat.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-507. Evidence of death or status.
In addition to the South Carolina Rules of Evidence, the following rules relating to a determination of death and status apply:
(1) Death occurs when an individual is determined to be dead under the Uniform Determination of Death Act, Section 44-43-460.
(2) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death, and the identity of the decedent.
(3) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
(4) In the absence of prima facie evidence of death under subsection (2) or (3), the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
(5) A person whose death is not established under the preceding paragraphs who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
(6) In the absence of evidence disputing the time of death stated on a document described in subsection (2) or (3), a document described in subsection (2) or (3) that states a time of death one hundred twenty hours or more after the time of death of another person, however the time of death of the other person is determined, establishes by clear and convincing evidence that the person survived the other person by one hundred twenty hours.
HISTORY: 1986 Act No. 539, § 1; Code 1976 § 62-1-107; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-508. Protection of payors, bona fide purchasers, and other third parties; personal liability of recipient.
(1) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a person designated in a governing instrument who, under this part, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the person's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this part. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this part.
(2) Written notice of a claimed lack of entitlement under subsection (1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this part, a payor or other third party may pay any amount owed or transfer or deposit any item of property, other than tangible personal property, held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this part, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(3) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is not obligated under this part to return the payment, item of property, or benefit, and is not liable under this part for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this part is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this part.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-1-509. Construction.
This part [Sections 62-1-501 et seq.] shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact substantially identical laws.
HISTORY: 1986 Act No. 539, § 1; 1976 Code § 62-1-508; 2013 Act No. 100, § 1, eff January 1, 2014. TITLE 62. SOUTH CAROLINA PROBATE CODE
CHAPTER 2. Intestate Succession and Wills
Part 1
Intestate Succession
SECTION 62-2-101. Intestate estate.
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-102. Share of the spouse.
The intestate share of the surviving spouse is:
(1) if there is no surviving issue of the decedent, the entire intestate estate;
(2) if there are surviving issue, one-half of the intestate estate.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-103. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:
(1) to the issue of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;
(2) if there is no surviving issue, to his parent or parents equally;
(3) if there is no surviving issue or parent, to the issue of the parents or either of them by representation;
(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;
(5) if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the surviving paternal great-grandparents in equal shares, or to the surviving paternal great-grandparent if only one survives, or to the issue of the paternal great-grandparents if none of the great-grandparents survive, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving great-grandparent or issue of a great-grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 10; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-104. Requirement that individual survive decedent for one hundred twenty hours.
(1) For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in subsection (2):
(a) an individual who was born before a decedent's death but who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent. If it is not established that an individual who was born before the decedent's death survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period;
(b) an individual who was in gestation at a decedent's death is deemed to be living at the decedent's death if the individual lives one hundred twenty hours after birth. If it is not established that an individual who was in gestation at the decedent's death lived one hundred twenty hours after birth, it is deemed that the individual failed to survive for the required period.
(2) This section does not apply if it would result in a taking of the intestate estate by the state under Section 62-2-105.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 11; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-105. No taker.
If there is no taker under the provisions of this article [Sections 62-2-101 et seq.], the intestate estate passes to the State of South Carolina.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-106. Representation; disclaimer by intestate beneficiary.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 12; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-107. Kindred of half blood.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 13; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-108. Afterborn heirs.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 14; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-109. Meaning of child and related terms.
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
(1) From the date the final decree of adoption is entered, and except as otherwise provided in Section 63-9-1120, an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.
(2) In cases not covered by (1), a person born out of wedlock is a child of the mother. That person is also a child of the father if:
(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(ii) the paternity is established by an adjudication commenced before the death of the father or within the later of eight months after the death of the father or six months after the initial appointment of a personal representative of his estate and, if after his death, by clear and convincing proof, except that the paternity established under this subitem (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.
(3) A person is not the child of a parent whose parental rights have been terminated under Section 63-7-2580 of the 1976 Code, except that the termination of parental rights is ineffective to disqualify the child or its kindred to inherit from or through the parent.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 4; 1990 Act No. 521, § 15; 1997 Act No. 152, § 6; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-110. Advancements.
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing signed by the decedent or acknowledged in a writing signed by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property shall be taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-111. Debts to decedent.
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-112. Alienage.
No person is disqualified to take as an heir because he, or a person through whom he claims, is or has been an alien.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-113. Persons related to decedent through two lines.
A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-114. Limitation on parent's entitlement as intestate heirs to estate proceeds; failure to provide support for decedent during minority.
Notwithstanding any other provision of law, if the parents of the deceased would be the intestate heirs pursuant to Section 62-2-103(2), upon the service of a summons, petition and notice by either parent or any other party of potential interest based upon the decedent having died intestate, the probate court may deny or limit either or both parent's entitlement for a share of the proceeds if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority. If the court makes such a determination as to a parent or parents, the parent shall be a disqualified parent. The proceeds, or portion of the proceeds, that a disqualified parent would have taken shall pass as though the disqualified parent had predeceased the decedent.
HISTORY: 1996 Act No. 370, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 2
Elective Share of Surviving Spouse
SECTION 62-2-201. Right of elective share.
(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of one-third of the decedent's probate estate, as computed under Section 62-2-202, the share to be satisfied as detailed in Sections 62-2-206 and 62-2-207 and, generally, under the limitations and conditions hereinafter stated.
(b) If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death.
(c) "Surviving spouse", as used in this Part, is as defined in Section 62-2-802.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 5; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-202. Probate estate.
(a) For purposes of this Part, probate estate means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy, reduced by funeral and administration expenses and enforceable claims.
(b) Except as provided in Section 62-7-401(c) with respect to a revocable inter vivos trust found to be illusory, the elective share shall apply only to the decedent's probate estate.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 6; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-203. Exercise of right of election by surviving spouse.
The right of election of the surviving spouse may be exercised only during his lifetime by him or by his duly appointed attorney in fact. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-204. Voluntary waiver of surviving spouse's right to elective share, homestead allowance, and exempt property; property settlement in anticipation of divorce.
(A) The rights of a surviving spouse to an elective share, homestead allowance, and exempt property, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver voluntarily signed by the waiving party after fair and reasonable disclosures to the waiving party of the other party's property and financial obligations have been given in writing.
(B) Unless it provides to the contrary, a waiver of all rights in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, and exempt property by each spouse in the property of the other and a disclaimer by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of a will executed before the waiver or property settlement.
HISTORY: 1986 Act No. 539, § 1; 2008 Act No. 173, § 1, eff February 4, 2008, applicable to all waivers executed after that date; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-205. Proceedings for elective share; time limit.
(a) The surviving spouse may elect to take an elective share in the probate estate by filing in the court and serving upon the personal representative, if any, a summons and petition for the elective share within the later of (1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent's will, or (3) thirty days after a surviving spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent's will.
(b) The surviving spouse shall give notice of the time and place set for the hearing on the elective share claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw or reduce his demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the probate estate or by contribution as set out in Sections 62-2-206 and 62-2-207.
(e) The order or judgment of the court for payment or contribution may be enforced as necessary in other courts of this State or other jurisdictions.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 7; 2010 Act No. 244, § 5, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-206. Effect of election on benefits by will or statute.
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).
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 16; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-207. Charging spouse with gifts received; liability of others for balance of elective share.
(a) In the proceeding for an elective share, all property, including any beneficial interest, which passes or has passed to the surviving spouse, or would have passed to the surviving spouse, but was renounced or disclaimed, must be applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the probate estate, so long as the property is passed to the surviving spouse:
(1) under the decedent's will;
(2) by intestacy;
(3) by a homestead allowance;
(4) by Section 62-2-401;
(5) by a beneficiary designation in life insurance policies;
(6) by a beneficiary designation of an Individual Retirement Account, qualified retirement plan, or annuity;
(7) in a trust created by the decedent's will; or
(8) in a revocable inter vivos trust created by the decedent.
(b) A beneficial interest that passes or has passed to a surviving spouse under the decedent's will includes:
(1) an interest as a beneficiary in a trust created by the decedent's will;
(2) an interest as a beneficiary in property passing under the decedent's will to an inter vivos trust created by the decedent; and
(3) an interest as a beneficiary in property contained at the decedent's death in a revocable inter vivos trust found to be illusory, as provided in Section 62-7-401(c).
(c)(1) For purposes of this provision, the value of the electing spouse's beneficial interest in property which qualifies for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, or, if the federal estate tax is not applicable at the decedent's death, would have qualified for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, in effect on December 31, 2009, must be computed at the full value of the qualifying property. Qualifying for these purposes must be determined without regard to whether an election has been made to treat the property as qualified terminable interest property.
(2) The value of this qualifying property shall be the value at the date of death as finally determined in the decedent's estate tax proceedings, or if there is no federal estate tax proceeding, as shown on the inventory and appraisement or as determined by the court. The personal representative must choose assets, in order of abatement pursuant to Section 62-3-902, to satisfy the elective share, using the fair market value at the date of distribution. The elective share is pecuniary in nature.
(3) The electing spouse who is the income beneficiary of a trust, the value of which is treated, or could be treated, as qualifying property, shall have the right to require a conversion of the income trust to a total return unitrust as defined in the South Carolina Uniform Principal and Income Act.
(d) In choosing assets to fund the elective share, remaining property of the probate estate is applied so that liability for the balance of the elective share of the surviving spouse is satisfied from the probate estate, with devises abating in accordance with Section 62-3-902.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 8; 1990 Act No. 521, § 17; 2010 Act No. 181, § 1, eff May 28, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 3
Spouse and Children Unprovided for in Wills
SECTION 62-2-301. Omitted spouse.
(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse, upon compliance with the provisions of subsection (c), shall receive the same share of the estate he would have received if the decedent left no will unless:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 62-3-902.
(c) The spouse may claim a share as provided by this section by filing in the court and serving upon the personal representative, if any, a summons and petition for such share within the later of (1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent's will, or (3) thirty days after the omitted spouse is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of decedent's will. The spouse shall give notice of the time and place set for the hearing on the omitted spouse claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the share.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 9; 1990 Act No. 521, § 18; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-302. Pretermitted children.
(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 devised substantially all his estate to his spouse; or
(3) the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(b) If, at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes that child to be dead, the child, upon compliance with subsection (d), receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 62-3-902.
(d) The child, and his guardian or conservator acting for him, may claim a share as provided by this section by filing in the court and serving upon the personal representative, if any, a summons and petition for such share within the later of (1) eight months after the date of death, (2) six months after the informal or formal probate of the decedent's will, or (3) thirty days after the omitted child is served with a summons and petition to set aside an informal probate or to modify or vacate an order for formal probate of a decedent's will. The child, and his guardian or conservator acting for him, shall give notice of the time and place set for the hearing on the omitted child claim to the personal representative and to distributees and recipients of portions of the probate estate whose interests will be adversely affected by the taking of the share.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 10; 1990 Act No. 521, § 19; 1997 Act No. 152, § 7; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 4
Exempt Property
SECTION 62-2-401. Exempt property.
The surviving spouse of a decedent who was domiciled in this State is entitled from the estate to a value not exceeding twenty-five thousand dollars in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than twenty-five thousand dollars, or if there is not twenty-five thousand dollars worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the twenty-five thousand dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate except claims described in Section 62-3-805(a)(1). These rights are in addition to any right of homestead and personal property exemption otherwise granted by law but are chargeable against and not in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by the elective share. Any surviving spouse or minor or dependent children of the decedent who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of this section.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 20; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-402. Source, determination, and documentation.
(a) If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians or conservators of the minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make these selections if the surviving spouse, the children, or the guardians or conservators of the minor children are unable or fail to do so within a reasonable time or if there are no guardians or conservators of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may make application to the court for appropriate relief.
(b) The surviving spouse or the minor or dependent child, and the minor's guardian or conservator acting for him, as the case may be, may claim a share of exempt property as provided in this part by filing in the court and mailing or delivering to the personal representative, if any, a claim for such share within eight months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 11; 1990 Act No. 521, § 21; 2010 Act No. 244, § 6, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-403. Federal veteran payments shall be exempt from creditors' claims.
All monies paid for insurance, compensation, or pensions by the United States of America to the executors, administrators, or heirs-at-law of any deceased veteran who served during any "period of war" as determined in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542 and the regulations issued thereunder, and whose estate is administered in this State for insurance, compensation, or pensions is hereby declared to be exempt from the claims of any and all creditors of such deceased veteran.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 5
Wills
SECTION 62-2-501. Who may make a will.
An individual who is of sound mind and who is not a minor as defined in Section 62-1-201(27) may make a will.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 8; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-502. Execution.
Except as provided for writings within Section 62-2-512 and wills within Section 62-2-505, every will shall be:
(1) in writing;
(2) signed by the testator or signed in the testator's name by some other individual in the testator's presence and by the testator's direction; and
(3) signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 22; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-503. Attestation and self-proving.
(a) Any will may be simultaneously executed, attested, and made self-proved. The self-proof shall be effective upon the acknowledgment by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in the following form or in a similar form showing the same intent:
I, __________, the testator, sign my name to this instrument this ___ day of __________, 20___, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older (or if under the age of eighteen, am married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.
We, __________ and __________, the witnesses, sign our names to this instrument, and at least one of us, being first duly sworn, does hereby declare, generally and to the undersigned authority, that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.
(b) An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached, or annexed to the will in the following form or in a similar form showing the same intent:
The State of __________ County of __________ We, __________ and __________, the testator and at least one of the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and to the best of his knowledge the testator was at that time eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.
(c) A witness to any will who is also an officer authorized to administer oaths under the laws of this State may notarize the signature of the other witness of the will in the manner provided by this section.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 12; 1988 Act No. 659, § 15; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-504. Subscribing witnesses not incompetent because of interest; effect on gifts to them.
(a) A subscribing witness to any will is not incompetent to attest or prove the same by reason of any devise therein in favor of the witness, the witness's spouse, or the witness's issue. If there are two disinterested witnesses to a will in addition to the interested witness, then the devise is valid and effectual, if otherwise effective. If there are not two disinterested witnesses to a will in addition to an interested witness, then the devise is null and void to the extent of the value of the excess property, estate, or interest so devised over the value of the property, estate or interest to which the witness, the witness's spouse, or the witness' issue would be entitled upon the failure to establish the will. The voided portion of the devise shall pass by intestacy in accordance with Section 62-2-101 et seq., provided the share of the interested witness, the witness's spouse, or the witness' issue shall not increase due to the devise passing by intestacy.
(b) A subscribing witness to any will is not incompetent to attest or prove the will by reason of any appointment within the will of the witness, the witness's spouse, or the witness's issue to any office, trust, or duty. The appointment of a witness, a witness's spouse, or a witness's issue is valid, if otherwise so, and the individual so appointed, in such case, is entitled by law to take or receive any commissions or other compensation on account thereof.
(c) A subscribing witness to any will is not incompetent to attest or prove the will by reason of any charge within the will of debts to any part of the estate in favor of the witness, the witness's spouse, or the witness's issue as creditor.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 23; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-505. Choice of law as to execution.
A written will is valid if:
(a) it is executed in compliance with Section 62-2-502 either at the time of execution or at the date of the testator's death; or
(b) if its execution complies with the law at the time of execution of either (1) the place where the will is executed, or (2) the place where the testator is domiciled at the time of execution or at the time of death.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 13; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-506. Revocation by writing or by act.
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and by the testator's direction.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(1) The testator is presumed to have intended a subsequent will to replace rather than to supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked and only the subsequent will is operative on the testator's death.
(2) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will and each will is fully operative on the testator's death to the extent they are not inconsistent.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-507. Revocation by divorce, annulment, and order terminating marital property rights; no revocation by other changes of circumstances.
(a) In this section:
(1) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
(2) "Divorce or annulment" means any divorce or annulment or declaration of invalidity of a marriage or other event that would exclude the spouse as a surviving spouse in accordance with Section 62-2-802. It also includes a court order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death. A decree of separate maintenance that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(3) "Divorced individual" includes an individual whose marriage has been annulled.
(4) "Governing instrument" means an instrument executed by the divorced individual before the divorce or annulment of the individual's marriage to the individual's former spouse including, but not limited to wills, revocable inter vivos trusts, powers of attorney, life insurance beneficiary designations, annuity beneficiary designations, retirement plan beneficiary designations and transfer on death accounts. "Governing instrument" does not include a beneficiary designation made in connection with a governmental employee benefit plan established or maintained for employees of the government of the State or a political subdivision thereof, or by an agency or instrumentality of any of the foregoing.
(5) "Revocable" with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the divorced individual's former spouse, whether or not the divorced individual was then empowered to designate the divorced individual in place of the divorced individual's former spouse and whether or not the divorced individual then had the capacity to exercise the power.
(b) No change of circumstances other than those described in this section and in Section 62-2-803 effects a revocation.
(c) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, the divorce or annulment of a marriage:
(1) revokes any revocable:
(i) disposition or appointment of property or beneficiary designation made by a divorced individual to the divorced individual's former spouse in a governing instrument;
(ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse; or
(iii) nomination in a governing instrument, nominating a divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, trustee, conservator, agent, attorney in fact or guardian;
(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship so that the share of the decedent passes as the decedent's property and the former spouse has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.
(d) A severance under subsection (c)(2) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving the property, as evidence of ownership.
(e) Provisions of a governing instrument and nomination in a fiduciary or representative capacity that are revoked by this section are given effect as if the former spouse predeceased the decedent.
(f) Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.
(g)(1) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment, or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(2) Written notice of the divorce, annulment, or remarriage under subsection (g)(1) must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(h)(1) A person who purchases property from a former spouse or any other person for value and without notice, or who receives from a former spouse or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
(2) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 24; 2013 Act No. 100, § 1, eff January 1, 2014; 2018 Act No. 250 (H.4673), § 1, eff May 18, 2018.
SECTION 62-2-508. Revival of revoked will.
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 62-2-506(a)(2) the previous will remains revoked unless it is revived. The previous will is revived if it appears by clear and convincing evidence that the testator intended to revive or make effective the previous will.
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 62-2-506(a)(2), a revoked part of the previous will is revived unless it appears by clear and convincing evidence that the testator did not intend the revoked part to take effect as executed.
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-509. Incorporation by reference.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-510. Additions to trusts.
(A) A devise made by a will to the trustee of a trust to a trust is valid so long as:
(1) the trust is identified in the testator's will and its terms are set forth in:
(a) a written instrument (other than a will) executed before, concurrently with, or after the execution of the testator's will but not later than the testator's death; or
(b) in the valid last will of another individual who has predeceased the testator;
(B) The trust is not required to have a trust corpus other than the expectancy of receiving the testator's devise.
(C) The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or after the death of the testator.
(D) Unless the testator's will provides otherwise, the property so devised:
(1) is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given; and
(2) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before or after the death of the testator.
(E) Unless the testator's will provides otherwise, a revocation or termination of the trust before the death of the testator causes the devise to lapse.
(F) Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus or profit-sharing plan, or under a retirement annuity contract, may be paid to the trustee of a trust established by the insured, employee, or annuitant or by some other person if the trust is in existence at the death of the insured, employee, or annuitant, it is identified and its terms are set forth in a written instrument, and such death benefits shall be administered and disposed of in accordance with the provisions of the instrument setting forth the terms of the trust including any amendments made thereto before the death of the insured, employee, or annuitant and, if the instrument so provides, including any amendments to the trust made after the death of the insured, employee, or annuitant. It shall not be necessary to the validity of any such trust instrument, whether revocable or irrevocable, that it have a trust corpus other than the right of the trustee to receive such death benefits.
(G) Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus, or profit-sharing plan, or under a retirement annuity contract, may be paid to a trustee named, or to be named, in a will which is admitted to probate as the last will of the insured or the owner of the policy, or the employee covered by such plan or contract, as the case may be, whether or not such will is in existence at the time of such designation. Upon the admission of such will to probate, and the payment thereof to the trustee, such death benefits shall be administered and disposed of in accordance with the provisions of the testamentary trust created by the will as they exist at the time of the death of the testator. Such payments shall be deemed to pass directly to the trustee of the testamentary trust and shall not be deemed to have passed to or be receivable by the executor of the estate of the insured, employee, or annuitant.
(H) In the event no trustee makes proper claim to the proceeds payable as provided in subsections (F) and (G) of this section from the insurance company or the obligor within a period of one year after the date of the death of the insured, employee, or annuitant, or if satisfactory evidence is furnished to the insurance company or other obligor within such one year period that there is or will be no trustee to receive the proceeds, payment must be made by the executors or administrators of the person making such designations, unless otherwise provided by agreement.
(I) Death benefits payable as provided in subsections (F) and (G) of this section shall not be subject to the debts of the insured, employee, or annuitant nor to transfer or estate taxes to any greater extent than if such proceeds were payable to the beneficiary of such trust and not to the estate of the insured, employee, or annuitant.
(J) Such death benefits payable as provided in subsections (F) and (G) of this section so held in trust may be commingled with any other assets which may properly come into such trust.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-511. Events of independent significance.
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-512. Separate writing identifying bequest of tangible property.
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 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 the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect upon the dispositions made by the will.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 25; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 6
Construction
SECTION 62-2-601. Rules of construction and intention; reformation of will.
(A) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions. The rules of construction expressed in the succeeding sections of this part apply unless a contrary intention is indicated by the will.
(B) Notwithstanding subsection (A), the court may reform the terms of the will, even if unambiguous, to conform the terms to the testator's intention if it is proved by clear and convincing evidence that the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-602. Construction that will passes all property; after-acquired property.
A will is construed to pass all property which the testator owns at the testator's death including property acquired after the execution of the will and all property acquired by the testator's estate after the testator's death.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-603. Anti-lapse; deceased devisee; class gifts.
(A) Unless a contrary intent appears in the will, if a devisee, who is a great-grandparent or a lineal descendant of a great-grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree than those of more remote degree take by representation.
(B) One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.
(C) Words of survivorship in a devise to an individual, such as, "if he survives me," or to "my surviving children," are, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of subsections (A) and (B).
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-604. Failure of testamentary provision.
(A) Except as provided in Section 62-2-603, if a devise other than a residuary devise fails for any reason it becomes a part of the residue.
(B) Except as provided in Section 62-2-603 if the residue is devised to two or more persons, the share of the residuary devisees that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-605. Change in securities; accessions; nonademption.
(A) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
(1) as much of the devised securities as is a part of the testator's estate at the time of the testator's death;
(2) any additional or other securities of the same organization owned by the testator by reason of action initiated by the organization or any successor, related or acquiring organization excluding any acquired by exercise of purchase options;
(3) securities of another organization owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the organization or any successor, related or acquiring organization;
(4) any additional securities of the organization owned by the testator as a result of a plan of reinvestment in the organization.
(B) Distributions in cash declared prior to death with respect to a specifically devised security not provided for in subsection (A) are not part of the specific devise.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 26; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-606. Nonademption of specific devises in certain cases; unpaid proceeds of sale, condemnation, or insurance; sale by conservator.
(a) A specific devisee has the right to the specifically devised property in the testator's estate at the testator's death and to:
(1) any balance of the purchase price (together with any mortgage or other security interest) owed by a purchaser to the testator at the testator's death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of the property unpaid at the testator's death;
(3) any proceeds unpaid at the testator's death on fire or casualty insurance or on other recovery for injury to the property;
(4) any property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
(b) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or a condemnation award or insurance proceeds or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
(c) The right of the specific devisee under subsection (b) is reduced by the value of any right he has under subsection (a).
(d) For purposes of references in subsection (b) to a conservator, subsection (b) does not apply if after the sale, mortgage, condemnation, casualty or recovery, it was adjudicated that the testator's disability ceased and the testator survived the adjudication for at least one year.
(e) For purposes of references in subsection (b) to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) "incapacitated principal" means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-607. Nonexoneration.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 27; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-608. Exercise of power of appointment.
A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-609. Construction of generic terms to accord with relationships as defined for intestate succession.
Half bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-610. Ademption by satisfaction.
(a) Property which a testator gave in the testator's lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if:
(i) the will provides for deduction of the lifetime gift;
(ii) the testator declared in a contemporaneous writing that the gift is to be deducted from the devise; or
(iii) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.
(b) For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator's death, whichever occurs first.
(c) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying Sections 62-2-603 and 62-2-604, unless the testator's contemporaneous writing provides otherwise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-611. Construction that devise passes fee simple.
A devise of land is construed to pass an estate in fee simple, regardless of the absence of words of limitation in the devise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-612. Proceeding to determine decedent's intent regarding application of certain federal tax formulas.
The personal representative, trustee, or any affected beneficiary under a will, trust, or other instrument of a decedent who dies or did die after December 31, 2009, and before January 1, 2011, may bring a proceeding to determine the decedent's intent when the will, trust, or other instrument contains a formula that is based on the federal estate tax or generation-skipping tax.
HISTORY: 2010 Act No. 251, § 1, eff June 11, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 7
Contractual Arrangements Relating to Death
SECTION 62-2-701. Contracts concerning succession.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 28; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 8
General Provisions
SECTION 62-2-801. Disclaimer.
(a) This section applies to disclaimers of any interest in or power over property, whenever created, and, in addition to other methods, is the means by which a disclaimer may be made under the laws of this State.
(b) For purpose of this section:
(1) "Disclaimer" means any writing which disclaims, renounces, declines, or refuses an interest in or power over property.
(2) "Disclaimant" means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.
(3) "Disclaimed interest" means the interest that would have passed to the disclaimant had the disclaimer not been made.
(4) "Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, guardian, conservator, or other person authorized to act as a fiduciary with respect to the property of another person.
(c)(1) A person may disclaim, in whole or in part, any interest in or power over property, including a power of appointment.
(2) Unless barred, a disclaimer must be made within a reasonable time after the disclaimant acquires actual knowledge of the interest. A disclaimer is conclusively presumed to have been made within a reasonable time if made within nine months after the date of effectiveness of the transfer as determined under subsection (d)(3).
(3) To be effective, a disclaimer must be:
(i) in writing;
(ii) declare the writing as a disclaimer;
(iii) describe the interest or power disclaimed; and
(iv) be delivered to the transferor of the interest, the transferor's fiduciary, the holder of the legal title to or the person in possession of the property to which the interest relates, or a court that would have jurisdiction over such interest or subject matter. A disclaimer of a power must be delivered as if the power disclaimed were an interest in property. Delivery of a disclaimer may be made by personal delivery, first-class mail, or any other method that results in its receipt. A disclaimer sent by first-class mail shall be deemed to have been delivered on the date it is postmarked.
(4) A disclaimer is not a transfer, assignment, or release if made within a reasonable time after the disclaimant acquires actual knowledge of the interest and if not otherwise barred.
(5) A barred disclaimer is ineffective as a disclaimer under this section. A disclaimer is barred by any of the following conditions occurring before the disclaimer becomes effective:
(i) the disclaimant waived in writing the right to disclaim;
(ii) the disclaimant accepted the interest sought to be disclaimed;
(iii) the disclaimant voluntarily assigned, conveyed, encumbered, pledged, transferred, or directed the interest sought to be disclaimed or has contracted to do so; or
(iv) a judicial sale of the interest sought to be disclaimed has occurred.
(6) A disclaimer is not barred by a spendthrift provision or similar restriction on transfer or the right to disclaim imposed by the creator of the interest in or power over the property.
(7) A disclaimer is not barred by a disclaimant's financial condition, whether or not insolvent, and a disclaimer that complies with this section is not a fraudulent transfer under the laws of this State.
(8) A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.
(9) A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred unless the power is exercisable in favor of a disclaimant.
(10) Unless a disclaimer is barred, a disclaimer treated as a qualified disclaimer pursuant to Internal Revenue Code Section 2518 is effective as a disclaimer under this section.
(d)(1) If a disclaimant makes a disclaimer with respect to any transferor's transfer (including transfers by any means whatsoever, lifetime and testamentary, voluntary and by operation of law, initial and successive, by grant, gift, trust, contract, intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property, devise, bequest, beneficiary designation, survivorship provision, exercise and nonexercise of a power, and otherwise) to the disclaimant of any interest in, including any power with respect to, property, or any undivided portion thereof, the interest, or such portion, is considered never to have been transferred to the disclaimant.
(2) Unless the transferor has provided otherwise in the event of a disclaimer, the disclaimed interest shall be transferred (or fail to be transferred), as if the disclaimant had predeceased the date of effectiveness of the transfer of the interest. The disclaimer shall relate back to that date of effectiveness for all purposes, and any future interest which is provided to take effect in possession or enjoyment after the termination of the disclaimed interest shall take effect as if the disclaimant had predeceased the date on which he or she as the taker of the disclaimed interest became finally ascertained and the disclaimed interest became indefeasibly vested. Provided, that an interest disclaimed by a disclaimant who is the spouse of a decedent, the transferor of the interest, may pass by any further process of transfer to such spouse, notwithstanding the treatment of the transfer of the disclaimed interest as if the disclaimant had predeceased.
(3) The date of effectiveness of the transfer of the disclaimed interest is (i) as to transfers by intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, and devise and bequest, the date of death of the decedent transferor, or that of the donee of a testamentary power of appointment (whether exercised or not exercised) with respect to, the interest, as the case may be, and (ii) as to all other transfers, the date of effectiveness of the instrument, contract, or act of transfer.
(e)(1) If and to the extent an instrument creates a fiduciary relationship and expressly grants the fiduciary the right to disclaim, the fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment. If there is no instrument expressly granting the fiduciary the right to disclaim, the fiduciary's right to disclaim shall be determined by the laws of this State applicable to that fiduciary relationship.
(2) If a trustee disclaims an interest in property that otherwise would have become trust property, the disclaimed interest does not become trust property.
(3) A fiduciary may disclaim a power held in a fiduciary capacity. If the power has not been previously exercised, the disclaimer takes effect as of the time the instrument creating the power became irrevocable. If the power has been previously exercised, the disclaimer takes effect immediately after the last exercise of the power. The disclaimer of a fiduciary power may be made binding on any successor fiduciary if the disclaimer so provides.
(4) If no conservator or guardian has been appointed, a parent may disclaim on behalf of that parent's minor child and unborn issue, in whole or in part, any interest in or power over property which the minor child or unborn issue is to receive as a result of another disclaimer, but only if the disclaimed interest or power does not pass outright to that parent as a result of the disclaimer.
(f) A fiduciary or other person having custody of the disclaimed interest is not liable for any otherwise proper distribution or other disposition made without actual notice of the disclaimer or, if the disclaimer is barred pursuant to subsection (c)(5), for any otherwise proper distribution or other disposition made in reliance on the disclaimer, if the distribution or disposition is made without actual knowledge of the facts constituting the bar of the right to disclaim.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 70 § 7; 1990 Act No. 521, § 29; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-802. Effect of divorce, annulment, decree of separate maintenance, or order terminating marital property rights.
(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separate maintenance that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of Parts 1, 2, 3, and 4 of Article 2 [Sections 62-2-101 et seq., 62-2-201 et seq., 62-2-301 et seq., and 62-2-401 et seq.] and of Section 62-3-203, a surviving spouse does not include:
(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this State, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or live together as husband and wife at the time of the decedent's death;
(2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person;
(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses unless they are living together as husband and wife at the time of the decedent's death; or
(4) an individual claiming to be a common law spouse who has not been established to be a common law spouse by an adjudication commenced before the death of the decedent or within the later of eight months after the death of the decedent or six months after the initial appointment of a personal representative; if the action is commenced after the death of the decedent, proof must be by clear and convincing evidence.
(c) A divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 9; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-803. Effect of homicide on intestate succession, wills, joint assets, life insurance, and beneficiary designations.
(a) An individual who feloniously and intentionally kills the decedent is not entitled to any benefits under the decedent's will, trust of which the decedent is a grantor or under this article with respect to the decedent's estate, including, but not limited to, an intestate share, an elective share, an omitted spouse's share or child's share, a homestead allowance, and exempt property, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
(b) Any joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as the decedent's property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.
(c) A named beneficiary of a bond, life insurance policy, retirement plan, annuity, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the individual upon whose life the policy is issued is not entitled to any benefit under the bond, policy, retirement plan, annuity, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section. A beneficiary whose interest is increased as a result of feloniously and intentionally killing shall be treated in accordance with the principles of this section.
(e) The felonious and intentional killing of the decedent revokes the nomination of the killer in a will or other document nominating or appointing the killer to serve in any fiduciary capacity or representative capacity, including, but not limited to, as personal representative, trustee, agent or guardian.
(f) A final judgment by conviction, or guilty plea establishing criminal accountability of felonious and intentional killing the decedent conclusively establishes that the convicted individual feloniously and intentionally killed the decedent for purposes of this section. In the absence of such final judgment the court, upon the petition of an interested person, must determine whether, upon the preponderance of the evidence standard, the individual would be found responsible for the felonious and intentional killing of the decedent. If the court determines that, under that standard, the individual would be responsible for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section.
(g) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer, for value and without notice, property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.
(h) If an individual feloniously and intentionally kills the decedent, and if the killer dies within one hundred twenty hours of the decedent's death, then the decedent shall be deemed to have survived the killer for purposes of distributing the killer's estate, including, but not limited to, property passing by intestacy, the killer's will, any trust of which the killer is a grantor, joint tenancy with right of survivorship and benefits payable under a life insurance policy, retirement plan, annuity or other contractual arrangement.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 10; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-804. Effect of provision for survivorship on succession to joint tenancy.
When any individual is seized or possessed of any real property held in joint tenancy at the time of the individual's death, the joint tenancy is deemed to have been severed by the death of the joint tenant and the real property is distributable as a tenancy in common unless the instrument which creates the joint tenancy in real property, including any instrument in which one individual conveys to himself and one or more other persons, or two or more persons convey to themselves, or to themselves and another or others, expressly provides for a right of survivorship, in which case the severance does not occur. While other methods for the creation of a joint tenancy in real property may be utilized, an express provision for a right of survivorship is conclusively considered to have occurred if the will or instrument of conveyance contains the names of the devisees or grantees followed by the words "as joint tenants with right of survivorship and not as tenants in common".
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 14; 1996 Act No. 405, § 1; 2000 Act No. 398, § 3; 2010 Act No. 266, § 1, eff June 24, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-805. Presumption of ownership of tangible personal property; exceptions.
(A) For purposes of this article, tangible personal property in the joint possession or control of the decedent and the surviving spouse at the time of the decedent's death is presumed to be owned by the decedent and the decedent's spouse in joint tenancy with right of survivorship if ownership is not evidenced otherwise by a certificate of title, bill of sale, or other writing. This presumption does not apply to property:
(1) acquired by either spouse before marriage;
(2) acquired by either spouse by gift or inheritance during the marriage;
(3) used by the decedent spouse in a trade or business in which the surviving spouse has no interest;
(4) held for another; or
(5) specifically devised in a will or devised in a written statement or list disposing of tangible personal property pursuant to Section 62-2-512.
(B) The presumption created in this section may be overcome by a preponderance of the evidence demonstrating that ownership was held other than in joint tenancy with right of survivorship.
HISTORY: 2010 Act No. 266, § 2, eff June 24, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-2-806. Modification to achieve testator's tax objectives.
To achieve the testator's tax objectives, the personal representative or any interested person may file a summons and petition requesting the court, after notice and a hearing, to issue an order modifying the terms of a testator's will in a manner not contrary to the testator's probable intent. The court may provide that the modification has retroactive effect.
HISTORY: 2013 Act No. 100, § 1, eff January 1, 2014.
Part 9
Delivery and Suppression of Wills
SECTION 62-2-901. Delivery of will to judge of probate; filing.
(a) After the death of a testator, a person having custody of a will of the testator shall deliver such will, within thirty days of actual notice or knowledge of the testator's death to the judge of the probate court having jurisdiction to admit the same or to a person named as personal representative in the will who shall deliver the will to the judge of the probate court. Upon receipt of the will, the judge of probate shall file the same in probate court and if proceedings for the probate are not begun within thirty days the judge shall publish a notice of such delivery and filing in one of the newspapers in the county of the probate court for once a week for three consecutive weeks.
(b) Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver the will to the judge of the probate court having jurisdiction to admit it to probate is liable to any person aggrieved for any damages that may be sustained by such action or inaction.
(c) Any person who intentionally or fraudulently destroys, suppresses, conceals, or fails to deliver the will to the judge of the probate court having jurisdiction to admit it to probate, after being ordered by the court in a proceeding brought for the purpose of compelling delivery, is subject to a penalty for contempt of court.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 15; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 10
Uniform Fiduciary Access to Digital Assets
SECTION 62-2-1010. Definitions.
As used in this part:
(1) "Account" means an arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user.
(2) "Agent" means an attorney-in-fact granted authority under a durable or nondurable power of attorney.
(3) "Carries" means engages in the transmission of an electronic communication.
(4) "Catalogue of electronic communications" means information that identifies each person with whom a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.
(5) "Conservator" means a person appointed by a court to manage the estate of a living individual. The term includes a limited conservator.
(6) "Content of an electronic communication" means information concerning the substance or meaning of the communication that:
(a) has been sent or received by a user;
(b) is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote-computing service to the public; and
(c) is not readily accessible to the public.
(7) "Court" has the meaning specified in Section 62-1-201(5).
(8) "Custodian" means a person that carries, maintains, processes, receives, or stores a digital asset of a user.
(9) "Designated recipient" means a person chosen by a user using an online tool to administer digital assets of the user.
(10) "Digital asset" means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
(11) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(12) "Electronic communication" has the meaning as specified in 18 U.S.C. Section 2510(12), as amended.
(13) "Electronic-communication service" means a custodian that provides to a user the ability to send or receive an electronic communication.
(14) "Fiduciary" means an original, additional, or successor personal representative, conservator, agent, or trustee.
(15) "Information" means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like.
(16) "Online tool" means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
(17) "Person" means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity.
(18) "Personal representative" has the meaning specified in Section 62-1-201(33).
(19) "Power of attorney" means a record that grants an agent authority to act in the place of a principal.
(20) "Principal" means an individual who grants authority to an agent in a power of attorney.
(21) "Protected person" has the meaning specified in Section 62-5-101(3). The term includes an individual for whom an application for the appointment of a conservator is pending.
(22) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(23) "Remote-computing service" means a custodian that provides to a user computer-processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 U.S.C. Section 2510(14), as amended.
(24) "Terms-of-service agreement" means an agreement that controls the relationship between a user and a custodian.
(25) "Trustee" has the meaning specified in Section 62-7-103(19). The term includes a successor trustee.
(26) "User" means a person who has an account with a custodian.
(27) "Will" has the meaning specified in Section 62-1-201(52).
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1015. Application of part.
(A) This part applies to a:
(1) fiduciary acting under a will or power of attorney executed before, on, or after the effective date of this act;
(2) personal representative acting for a decedent who died before, on, or after the effective date of this act;
(3) conservatorship proceeding, commenced before, on, or after the effective date of this act; and
(4) trustee acting under a trust created before, on, or after the effective date of this act.
(B) This part applies to a custodian if the user resides in this State or resided in this State at the time of the user's death.
(C) This part does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1020. User direction for disclosure of digital assets.
(A) A user may use an online tool to direct the custodian to disclose or not to disclose to a designated recipient some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
(B) If a user has not used an online tool to give direction under subsection (A) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
(C) A user's direction under subsection (A) or (B) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1025. Terms-of-service agreement.
(A) This part does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
(B) This part does not give a fiduciary or a designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
(C) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Section 62-2-1020.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1030. Procedure for disclosing digital assets.
(A) When disclosing digital assets of a user under this part, the custodian may at its sole discretion:
(1) grant a fiduciary or designated recipient full access to the user's account;
(2) grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(3) provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(B) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this part.
(C) A custodian need not disclose under this part a digital asset deleted by a user.
(D) If a user directs or a fiduciary requests a custodian to disclose under this part some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
(1) a subset limited by date of the user's digital assets;
(2) all of the user's digital assets to the fiduciary or designated recipient;
(3) none of the user's digital assets; or
(4) all of the user's digital assets to the court for review in camera.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1035. Disclosure of content of electronic communications of deceased user.
If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the death certificate of the user;
(3) a certified copy of the letter of appointment of the representative or a small estate affidavit or court order;
(4) unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney, or other record evidencing the user's consent to disclosure of the content of electronic communications; and
(5) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(b) evidence linking the account to the user; or
(c) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information specified in subitem (a);
(ii) disclosure of the content of electronic communications of the user would not violate 18 U.S.C. Section 2701, et seq., as amended, 47 U.S.C. Section 222, as amended, or other applicable law;
(iii) unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
(iv) disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1040. Disclosure of other digital assets of deceased user.
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the death certificate of the user;
(3) a certified copy of the letter of appointment of the representative or a small estate affidavit or court order; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(b) evidence linking the account to the user;
(c) an affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
(d) a finding by the court that:
(i) the user had a specific account with the custodian, identifiable by the information specified in subitem (a); or
(ii) disclosure of the user's digital assets is reasonably necessary for administration of the estate.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1045. Disclosure of content of electronic communications of principal.
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(b) evidence linking the account to the principal.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1050. Disclosure of other digital assets of principal.
Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) an original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(b) evidence linking the account to the principal.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1055. Disclosure of digital assets held in trust when trustee is original user.
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1060. Disclosure of contents of electronic communications held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the trust instrument or a certification of the trust under Section 62-7-1013 which includes consent to disclosure of the content of electronic communications to the trustee;
(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(b) evidence linking the account to the trust.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1065. Disclosure of other digital assets held in trust when trustee not original user.
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the trust instrument or a certification of the trust under Section 62-7-1013;
(3) a certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(4) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(b) evidence linking the account to the trust.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1070. Disclosure of digital assets to conservator of protected person.
(A) After an opportunity for a hearing under Article 5 of this title, the court may grant a conservator access to the digital assets of a protected person.
(B) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:
(1) a written request for disclosure in physical or electronic form;
(2) a certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and
(3) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
(b) evidence linking the account to the protected person.
(C) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person's property.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1075. Fiduciary duty and authority.
(A) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including the:
(1) duty of care;
(2) duty of loyalty; and
(3) duty of confidentiality.
(B) A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
(1) except as otherwise provided in Section 62-2-1020, is subject to the applicable terms of service;
(2) in the case of a fiduciary, is subject to other applicable law, including copyright law;
(3) is limited by the scope of the fiduciary's duties; and
(4) may not be used to impersonate the user.
(C) A fiduciary with authority over the property of a decedent, protected person, principal, or settlor has the right to access any digital asset in which the decedent, protected person, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(D) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including this state's law on unauthorized computer access.
(E) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal, or settlor:
(1) has the right to access the property and any digital asset stored in it; and
(2) is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including this state's law regarding unauthorized computer access.
(F) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(G) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
(1) if the user is deceased, a certified copy of the death certificate of the user;
(2) a certified copy of the letter of appointment of the representative or a small estate affidavit or court order, power of attorney, or trust giving the fiduciary authority over the account; and
(3) if requested by the custodian:
(a) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(b) evidence linking the account to the user; or
(c) a finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subitem (a).
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1080. Custodian compliance and immunity.
(A) Not later than sixty days after receipt of the information required under Sections 62-2-1035 through 62-2-1075, a custodian shall comply with a request under this part from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
(B) An order under subsection (A) directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. Section 2702, as amended.
(C) A custodian may notify the user that a request for disclosure or to terminate an account was made under this part.
(D) A custodian may deny a request under this part from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
(E) This part does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this part to obtain a court order which:
(1) specifies that an account belongs to the protected person or principal;
(2) specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
(3) contains a finding required by law other than this part.
(F) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this part.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1085. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.
SECTION 62-2-1090. Electronic Signatures in Global and National Commerce Act.
This uniform act modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
HISTORY: 2016 Act No. 260 (S.908), § 2, eff June 3, 2016.TITLE 62. SOUTH CAROLINA PROBATE CODE
CHAPTER 3. Probate of Wills and Administration
Part 1
General Provisions
SECTION 62-3-101. Devolution of estate at death; restrictions.
The power of a person to leave property by will and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this Code to facilitate the prompt settlement of estates, including the exercise of the powers of the personal representative. Upon the death of a person, his real property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting the devolution of intestate estates, subject to the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purposes of administration, particularly the exercise of the powers of the personal representative under Sections 62-3-709, 62-3-710, and 62-3-711, and his personal property devolves, first, to his personal representative, for the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purposes of administration, particularly the exercise of the powers of the personal representative under Sections 62-3-709, 62-3-710, and 62-3-711, and, at the expiration of three years after the decedent's death, if not yet distributed by the personal representative, his personal property devolves to those persons to whom it is devised by will or who are his heirs in intestacy, or their substitutes, as the case may be, just as with respect to real property.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 16; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-102. Necessity of order of probate for will.
Except as provided in Section 62-3-1201 and except as to a will that has been admitted to probate in another jurisdiction which is filed as provided in Article 4, to be effective to prove the transfer of any property or to nominate a personal representative, a will must be declared to be valid by an order of informal probate by the court or an adjudication of probate by the court.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-103. Necessity of appointment for administration.
Except as otherwise provided in this article [Sections 62-3-101 et seq.] and in Article 4 [Sections 62-4-101 et seq.], to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court, qualify, and be issued letters. Administration of an estate is commenced by the issuance of letters.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-104. Claims against decedent; necessity of administration.
No claim may be filed against the estate of a decedent and no proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative, except as provided in Section 62-3-804(1)(b). After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this article [Sections 62-3-101 et seq.]. After distribution, a creditor whose claim has not been barred may recover from the distributees as provided in Section 62-3-1004 or from a former personal representative individually liable as provided in Section 62-3-1005. This section has no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency judgment which might be sought therein.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-105. Proceedings affecting devolution and administration; jurisdiction of subject matter.
Persons interested in decedents' estates may apply to the court for determination in the informal proceedings provided in this article [Sections 62-3-101 et seq.], and may petition the court for orders in formal proceedings within the court's jurisdiction including but not limited to those described in this article.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-106. Proceedings within the jurisdiction of court; service; jurisdiction over persons.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 30; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-107. Scope of proceedings; proceedings independent; exception.
Unless administration under Part 5 [Sections 62-3-501 et seq.] is involved, (1) each proceeding before the court is independent of any other proceeding involving the same estate; (2) petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay, but, except as required for proceedings which are particularly described by other sections of this article [Sections 62-3-101 et seq.], no petition is defective because it fails to embrace all matters which might then be the subject of a final order; (3) proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (4) a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-108. Probate, testacy, and appointment proceedings; ultimate time limit.
(A)(1) No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than ten years after the decedent's death.
(2) Notwithstanding any other provision of this section:
(a) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding and if that previous proceeding was commenced within the time limits of this section;
(b) appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and
(c) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful may be commenced within eight months from informal probate or one year from the decedent's death, whichever is later.
(B) If no informal probate and no formal testacy proceedings are commenced within ten years after the decedent's death, and no proceedings under subsection (A)(2)(b) are commenced within the applicable period of three years, it is incontestable that the decedent left no will and that the decedent's estate passes by intestate succession. These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In proceedings commenced under subsection (A)(2)(a) or (A)(2)(b), the date on which a testacy or appointment proceeding is properly commenced is deemed to be the date of the decedent's death for purposes of other limitations provisions of this Code which relate to the date of death.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 17; 1990 Act No. 521, § 31; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-109. Statute of limitations on decedent's cause of action.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 32; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 2
Venue for Probate and Administration; Priority to Administer; Demand for Notice
SECTION 62-3-201. Venue for first and subsequent estate proceedings; location of property.
(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:
(1) in the county where the decedent had his domicile at the time of his death; or
(2) if the decedent was not domiciled in this State, in any county where property of the decedent was located at the time of his death.
(b) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in Section 62-1-303 or (c) of this section.
(c) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.
(d) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-202. Appointment or testacy proceedings; conflicting claim of domicile in another state.
If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this State, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this State must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this State.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-203. Priority among persons seeking appointment as personal representative.
(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent 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 complying with the requirements of Section 62-3-804(1)(b);
(7) four months after the death of the decedent, upon application by the South Carolina Department of Revenue, a person suitable to the court.
(8) Unless a contrary intent is expressed in the decedent's will, a person with priority under subsection (a) may nominate another, who shall have the same priority as the person making the nomination, except that a person nominated by the testator to serve as personal representative or successor personal representative shall have a higher priority than a person nominated pursuant to this item.
(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) apply except that:
(1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
(2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value or, in default of this accord, any suitable person.
(c) Conservators of the estates of protected persons or, if there is no conservator, any guardian for the protected person or the custodial parent of a minor, except a court-appointed guardian ad litem of a minor or incapacitated person may exercise the same right to be appointed as personal representative, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
(d) If the administration is necessary, appointment of one who has equal or lower priority may be made as follows within the discretion of the court:
(1) informally if all those of equal or higher priority have filed a writing with the court renouncing the right to serve and nominating the same person in his place; or
(2) in the absence of agreement, informally in accordance with the requirements of Section 62-3-310; or
(3) in formal proceedings.
(e) No person is qualified to serve as a personal representative who is:
(1) under the age of eighteen;
(2) a person whom the court finds unsuitable in formal proceedings;
(3) with respect to the estate of any person domiciled in this State at the time of his death, a corporation created by another state of the United States or by any foreign state, kingdom or government, or a corporation created under the laws of the United States and not having a business in this State, or an officer, employee, or agent of such foreign corporation, whether the officer, employee, or agent is a resident or a nonresident of this State, if such officer, employee, or agent is acting as personal representative on behalf of such corporation;
(4) a probate judge for an estate of any person within his jurisdiction; however, a probate judge may serve as a personal representative of the estate of a family member if the service does not interfere with the proper performance of the probate judge's official duties and the estate must be transferred to another county for administration. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, aunt, uncle, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.
(f) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representatives in this State and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
(g) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 18; 1990 Act No. 521, §§ 33, 34; 1993 Act No. 181, § 1606; 1995 Act No. 15, § 3; 1997 Act No. 152, §§ 11, 12; 2010 Act No. 244, § 7, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-204. Demand for notice of order or filing concerning decedent's estate.
Any interested person desiring notice of any order or filing pertaining to a decedent's estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant's address or that of his attorney. The demand for notice shall expire one year from the date of filing with the court. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, the personal representative must give a copy of the demanded filing to the demandant or his attorney. If the demand is a demand for a hearing, then the personal representative must comply with Section 62-1-401. The validity of an order which is issued or filing which is accepted without compliance with this requirement is not affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and ceases upon the termination of his interest in the estate.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 19; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 3
Informal Probate and Appointment Proceedings
SECTION 62-3-301. Applications for informal probate or appointment; contents.
(a) Applications for informal probate or informal appointment shall be directed to the court, and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the following information:
(1) Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:
(i) a statement of the interest of the applicant;
(ii) the name, and date of death of the decedent, his age, and the county and state of his domicile at the time of death, and the names and addresses of the spouse, children, heirs (regardless of whether the decedent died intestate and determined as if the decedent died intestate) and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;
(iii) if the decedent was not domiciled in the State at the time of his death, a statement showing venue;
(iv) a statement identifying and indicating the address of any personal representative of the decedent appointed in this State or elsewhere whose appointment has not been terminated;
(v) a statement indicating whether the applicant has received a demand for notice, or is aware of a demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this State or elsewhere; and
(vi) that the time limit for informal probate or appointment as provided in this article has not expired either because ten years or less has passed since the decedent's death, or, if more than ten years from death have passed, circumstances as described by Section 62-3-108 authorizing tardy probate or appointment have occurred.
(2) An application for informal probate of a will shall state the following in addition to the statements required by (1):
(i) that the original of the decedent's last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application;
(ii) that the applicant, to the best of his knowledge, believes the will to have been validly executed;
(iii) that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will.
(3) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought.
(4) An application for informal appointment of an administrator in intestacy must state the name and address of the person whose appointment is sought and must state in addition to the statements required by item (1):
(i) that after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this State under Section 62-1-301 or a statement why any such instrument of which he may be aware is not being probated;
(ii) the priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under Section 62-3-203.
(5) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.
(6) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in Section 62-3-610, or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.
(7) The court may probate a will without appointing a personal representative.
(b) By verifying an application for informal probate, or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against him.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 20; 1990 Act No. 521, § 35; 1993 Act No. 181, § 1607; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-302. Informal probate; duty of court; effect of informal probate.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 36; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-303. Informal probate; proof and findings required.
(a) In an informal proceeding for original probate of a will, the court shall determine whether:
(1) the application is complete;
(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in Section 62-1-201;
(4) on the basis of the statements in the application, venue is proper;
(5) an original, duly executed and apparently unrevoked will is in the court's possession;
(6) any notice required by Section 62-3-204 has been given and that the application is not within Section 62-3-304;
(7) it appears from the application that the time limit for original probate has not expired.
(b) The application shall be denied if it indicates that a personal representative has been appointed in another county of this State or except as provided in subsection (d) below, if it appears that this or another will of the decedent has been the subject of a previous probate order.
(c) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 62-2-502 or 62-2-505 have been met shall be probated without further proof. In other cases, the court may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
(d) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.
(e) A will of a nonresident decedent which has not been probated and is not eligible for probate under subsection (a)(5) may nevertheless be probated in this State upon receipt by the court of a copy of the will authenticated as true by its legal custodian together with the legal custodian's certificate that the will is not ineligible for probate under the law of the other place.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-304. Informal probate unavailable in certain cases.
Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than a will and its codicils), the latest of which does not expressly revoke the earlier, shall be declined.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-305. Informal probate; court not satisfied.
If the court is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 62-3-303 and 62-3-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-306. Notice requirements.
(a) The moving party must give notice as described by Section 62-1-401 of his application for informal probate to any person demanding it pursuant to Section 62-3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.
(b) If an informal probate is granted, within thirty days thereafter the applicant shall give written information of the probate to the heirs (determined as if the decedent died intestate) and devisees. The information must include the name and address of the applicant, the date of execution of the will, and any codicil thereto, the name and location of the court granting the informal probate, and the date of the probate. The information must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by Section 62-3-705. An applicant's failure to give information as required by this section is a breach of his duty to the heirs and devisees but does not affect the validity of the probate.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 37; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-307. Informal appointment proceedings; delay in order; duty of court; effect of appointment.
(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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 38; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-308. Informal appointment proceedings; proof and findings required.
(a) In informal appointment proceedings, the court must determine whether:
(1) the application for informal appointment of a personal representative is complete;
(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in Section 62-1-201;
(4) on the basis of the statements in the application, venue is proper;
(5) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;
(6) any notice required by Section 62-3-204 has been given;
(7) from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.
(b) Unless Section 62-3-612 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Section 62-3-610 has been appointed in this or another county of this State, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this State and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-309. Informal appointment proceedings; court not satisfied.
If the court is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 62-3-307 and 62-3-308 or, for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-310. Informal appointment proceedings; notice requirements.
The applicant must give notice of his intention to seek an appointment informally to any person having equal right to appointment not waived in writing and filed with the court. The notice shall state that, if no objection or nomination of another or no competing application or petition for appointment is filed with the court within thirty days from mailing of the application and notice, the applicant may be appointed informally as the personal representative. If an objection, nomination, application, or petition is filed within the thirty day period, the court shall decline the initial application pursuant to Section 62-3-309. The court may require a formal proceeding to appoint someone of equal or lesser priority.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-311. Informal appointment unavailable in certain cases.
If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this State, and which is not filed for probate in this court, the court shall decline the application.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 4
Formal Testacy and Appointment Proceedings
SECTION 62-3-401. Formal testacy proceedings; nature; when commenced.
A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding must be commenced by an interested person filing and serving a summons and a petition as described in Section 62-3-402(a) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with Section 62-3-402(b) for an order that the decedent died intestate.
A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
During the pendency of a formal testacy proceeding, the court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 8, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-402. Formal testacy or appointment proceedings; petition; contents.
(a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:
(1) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(2) contains the statements required for informal applications as stated in the six subitems under Section 62-3-301(a)(1), and the statements required by subitems (ii) and (iii) of Section 62-3-301(a)(2);
(3) states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.
(b) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by (1) and (4) of Section 62-3-301(a) and indicate whether administration under Part 5 [Sections 62-3-501 et seq.] is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by subitem (ii) of Section 62-3-301(a)(4) above may be omitted.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-403. Notice of hearing on petition.
(a) Upon commencement of a formal testacy proceeding or at any time after that, the court shall fix a time and place of hearing. Notice must be given in the manner prescribed by Section 62-1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 62-3-204. The following persons must be properly served with summons and petition: the surviving spouse, children, and other heirs of the decedent (regardless of whether the decedent died intestate and determined as if the decedent died intestate), the devisees, and personal representatives named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated.
(b) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the summons, petition, and notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:
(1) by inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
(2) by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;
(3) by engaging the services of an investigator.
The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 39; 2010 Act No. 244, § 9, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-404. Written objections to probate.
Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-405. Uncontested cases; hearings and proof.
If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 62-3-409 have been met or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit (including an affidavit of self-proof executed in compliance with Section 62-2-503) or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 21; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-406. Testimony of attesting witnesses.
In a contested case in which the proper execution of a will is at issue:
(1) if the will is self-proved pursuant to Section 62-2-503, the will satisfies the requirements for execution, subject to rebuttal, without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it;
(2) if the will is notarized pursuant to Section 62-2-503(c), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will;
(3) if the will is witnessed pursuant to Section 62-2-502, but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this State, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 22; 1988 Act No. 659, § 16; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-407. Burdens in contested cases.
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing undue influence, fraud, duress, mistake, revocation, or lack of testamentary intent or capacity. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it must be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it must be determined first whether the will is entitled to probate.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 23; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-408. Effect of final order in another jurisdiction.
A final order of a court of another state determining testacy, or the validity or construction of a will made in a proceeding involving notice to and an opportunity for contest by all interested persons, must be accepted as determinative by the courts of this State if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-409. Order; foreign will.
Upon proof of service of the summons and petition, and after any hearing and notice that may be necessary, if the court finds that the testator is dead, venue is proper, and that the proceeding was commenced within the limitation prescribed by Section 62-3-108, it shall determine the decedent's domicile at death, his heirs (regardless of whether the decedent died intestate and determined as if the decedent died intestate), and his state of testacy. Any will found to be valid and unrevoked must be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by Section 62-3-612. The petition must be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this State by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will is not ineligible for probate under the law of the other place.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 40; 2010 Act No. 244, § 10, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-410. Probate of more than one instrument.
(A) If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument.
(B) After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of Section 62-3-412.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-411. Partial intestacy.
If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-412. Effect of order; vacation.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 41; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-413. Vacation of order for other cause.
For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-414. Formal proceedings concerning appointment of personal representative.
(a) A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as a personal representative, or of one who previously has been appointed a personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by Section 62-3-402, as well as by this section. In other cases, the petition shall contain or adopt the statements required by Section 62-3-301(a)(1) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.
(b) After service of the summons and petition to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as a personal representative, the court shall determine who is entitled to appointment under Section 62-3-203, make a proper appointment, and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 62-3-611.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 11, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 5
Administration Under Part 5
SECTION 62-3-501. Nature of proceeding.
Administration under Part 5 [Sections 62-3-501 et seq.] is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A personal representative under Part 5 [Sections 62-3-501 et seq.] is responsible to the court, as well as to the interested persons, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this part, or as otherwise ordered by the court, a personal representative under Part 5 [Sections 62-3-501 et seq.] has the same duties and powers as a personal representative who is not subject to administration under Part 5 [Sections 62-3-501 et seq.].
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-502. Petition; order.
A petition for administration under Part 5 [Sections 62-3-501 et seq.] may be filed by any interested person or by a personal representative at any time, a prayer for administration under Part 5 [Sections 62-3-501 et seq.] may be joined with a petition in a testacy or appointment proceeding, or the court may order administration under Part 5 [Sections 62-3-501 et seq.] on its own motion. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for administration under Part 5 [Sections 62-3-501 et seq.] shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for administration under Part 5 [Sections 62-3-501 et seq.], even though the request for administration under Part 5 [Sections 62-3-501 et seq.] may be denied. After service of the summons and petition and upon notice to interested persons, the court shall order administration under Part 5 [Sections 62-3-501 et seq.] of a decedent's estate: (1) if the decedent's will directs administration under Part 5 [Sections 62-3-501 et seq.], it shall be ordered unless the court finds that circumstances bearing on the need for administration under Part 5 [Sections 62-3-501 et seq.] have changed since the execution of the will and that there is no necessity for administration under Part 5 [Sections 62-3-501 et seq.]; (2) if the decedent's will directs no administration under Part 5 [Sections 62-3-501 et seq.], then administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that administration under Part 5 [Sections 62-3-501 et seq.] is necessary under the circumstances.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 12, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-503. Effect on other proceedings.
(a) The pendency of a proceeding for administration under Part 5 [Sections 62-3-501 et seq.] of a decedent's estate stays action on any informal application then pending or thereafter filed.
(b) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for administration under Part 5 [Sections 62-3-501 et seq.] is as provided for formal testacy proceedings by Section 62-3-401.
(c) After service of the summons and petition upon the personal representative and notice of the filing of a petition for administration under Part 5 [Sections 62-3-501 et seq.], a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 13, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-504. Powers of personal representative.
Unless restricted by the court, a personal representative under Part 5 [Sections 62-3-501 et seq.] has, without interim orders approving exercise of a power, all powers of personal representatives under this Code, but he shall not exercise his power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on his letters of appointment and any court certification thereof, and unless so endorsed is ineffective as to persons dealing in good faith with the personal representative.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-505. Interim orders; distribution and closing orders.
Unless otherwise ordered by the court, administration under Part 5 [Sections 62-3-501 et seq.] is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under Section 62-3-1001. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of an administration under Part 5 [Sections 62-3-501 et seq.] on the application of the personal representative or any interested person.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 6
Personal Representative; Appointment, Control, and Termination of Authority
SECTION 62-3-601. Qualification.
Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-602. Acceptance of appointment; consent to jurisdiction.
By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed to him by ordinary first class mail at his address as listed in the application or petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-603. Bond not required without court order; exceptions; waiver of bond requirement.
(A) Except as may be required pursuant to Section 62-3-605 or upon the appointment of a special administrator, a personal representative is not required to file a bond if:
(1) all heirs and devisees agree to waive the bond requirement;
(2) the personal representative is the sole heir or devisee;
(3) the personal representative is a state agency, bank, or trust company, unless the will expressly requires a bond; or
(4) the personal representative is named in the will, unless the will expressly requires a bond.
If, pursuant to Section 62-3-203(a), the court appoints as personal representative a nominee of a personal representative named in a will, the court may in its discretion decide not to require bond.
(B) Where a bond is required of the personal representative or administrator of an estate by law or by the will, it may be waived under the following conditions:
(1) the personal representative or administrator by affidavit at the time of applying for appointment as such certifies to the court that the gross value of the estate will be less than twenty thousand dollars, that the assets of the probate estate are sufficient to pay all claims against the estate, and that the personal representative or administrator agrees to be personally liable to any beneficiary or other person having an interest in the estate for any negligence or intentional misconduct in the performance of his duties as personal representative or administrator; and
(2) all known beneficiaries and other persons having an interest in the estate execute a written statement on a form prescribed by the court that they agree to the bond being waived. This form must be filed with the court simultaneously with the affidavit required by item (1) above. A creditor for purposes of this item (2) is not considered a person having an interest in the estate.
The provisions of this subsection (B) are supplemental and in addition to any other provisions of law permitting the waiving or reducing of a bond. Any bond required by Section 62-3-605 may not be waived under the provisions of this section.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 24; 1988 Act No. 659, § 17; 1989 Act No. 53, § 1; 1990 Act No. 521, § 42; 1994 Act No. 470, § 1; 1997 Act No. 152, § 13; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-604. Bond amount; security; procedure; reduction.
If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in Section 62-6-101) in a manner that prevents their unauthorized disposition. Upon application by the personal representative or another interested person or upon the court's own motion, the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, permit the substitution of another bond with the same or different sureties or dispense with the bond.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 14, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-605. Demand for bond by interested person.
Any person apparently having an interest in the estate worth in excess of five thousand dollars, or any creditor having a claim in excess of five thousand dollars, may make a written demand that a personal representative give bond. The demand must be filed with the court and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required in an amount determined by the court as sufficient to protect the interest of the person or creditor demanding bond, but the requirement ceases if the person or creditor demanding bond ceases to have an interest in the estate worth in excess of five thousand dollars or a claim in excess of five thousand dollars. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate or to pay the person or creditor demanding bond. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty days after receipt of notice is cause for his removal and appointment of a successor personal representative unless good cause is shown for the delay.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 25; 1990 Act No. 521, § 43; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-606. Terms and conditions of bonds.
(a) The following requirements and provisions apply to any bond required by this part:
(1) Bonds shall name the judge of the court as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law.
(2) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.
(3) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner.
(4) On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.
(5) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-607. Order restraining personal representative.
(a) Upon application of any interested person, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.
(b) The matter shall be set for hearing within ten days or at such other times as the parties may agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the application.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 15, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-608. Termination of appointment.
Termination of appointment of a personal representative occurs as indicated in Sections 62-3-609 to 62-3-612, inclusive. Termination ends the right and power pertaining to the office of personal representative as conferred by this Code or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-609. Death or disability terminates appointment.
The death of a personal representative or the appointment of a conservator or guardian for the person of a personal representative terminates his appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-610. Order closing estate terminates appointment.
(a) Unless otherwise provided, an order closing an estate as provided in Section 62-3-1001 terminates an appointment of a personal representative and relieves the personal representative's attorney of record of any further duties to the court.
(b) A personal representative may resign his position by filing a written statement of resignation with the court and providing twenty days' written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him. When the resignation is effective, the personal representative's attorney of record shall be relieved of any further duties to the court.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 44; 1997 Act No. 152, § 14; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-611. Petition for removal; cause; procedure.
(a) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in Section 62-3-607, after service of the summons and petition upon the personal representative and receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration, or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
(b) Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this State to administer local assets.
(c) The termination of appointment under this section shall relieve the personal representative's attorney of record of any further duties to the court.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 16, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-612. Change of testacy status.
Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in Section 62-3-401. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-613. Successor personal representative.
Parts 3 and 4 of this article [Sections 62-3-301 et seq. and Sections 62-3-401 et seq.] govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process, or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-614. Special administrator; appointment.
A special administrator may be appointed:
(1) informally by the court on the application of an interested person when necessary:
(a) to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in Section 62-3-609;
(b) for a creditor of the decedent's estate to institute any proceeding under Section 62-3-803; or
(c) to take appropriate actions involving estate assets;
(2) in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 15; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-615. Special administrator; who may be appointed.
(a) If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available and qualified.
(b) In other cases, any proper person may be appointed special administrator.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-616. Special administrator; appointed informally; powers and duties.
A special administrator appointed by the court in informal proceedings pursuant to Section 62-3-614(1) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor, and to deliver them to the general personal representative upon his qualification. The special administrator has the power of a personal representative under this Code necessary to perform his duties.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-617. Special administrator; formal proceedings; powers and duties.
A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-618. Termination of appointment; special administrator.
The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in Sections 62-3-608 through 62-3-611.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-619. "Executor de son tort" defined.
Any person who obtains, receives, or possesses property of whatever kind, belonging to the decedent, by means of fraud or without paying valuable consideration equivalent to the value of the property, shall be charged and chargeable as executor of his own wrong (executor de son tort) with respect to the goods and debts. The value of the property is charged to the executor de son tort. Likewise, the value of the property shall be deducted from any distribution or payment of any claim or commission to which the executor de son tort is entitled from the estate.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-620. Order for executor de son tort to account for deceased's property; decree for damages.
Acting sua sponte or upon the petition of any interested person, the probate judge of the county in which a deceased person was domiciled at the time of his death may order the executor de son tort to account for the property in his possession. Upon a finding that the property has been converted, wasted or otherwise damaged through improper interference, the court may assess damages including attorney's fees and costs in the amount determined by the court not to exceed the value of the property charged to the executor de son tort.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-621. Rights under Section 62-3-620 survive death of executor de son tort.
The rights of the probate court and interested parties set forth in Section 62-3-620 shall survive the death of the executor de son tort.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 7
Duties and Powers of Personal Representatives
SECTION 62-3-701. Time of accrual of duties and powers.
The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may protect property of the decedent's estate and carry out written instructions of the decedent relating to his body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-702. Priority among different letters.
A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-703. General duties; relation and liability to persons interested in estate; standing to sue.
(a) A personal representative is a fiduciary who shall observe the standards of care described by Section 62-7-804. A personal representative has a duty to settle and distribute the estate of the decedent in accordance with the terms of a probated and effective will and this code, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this code, the terms of the will, and any order in proceedings to which he is party for the best interests of successors to the estate.
(b) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. Upon expiration of the relevant claim period, an order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative has not received actual notice of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his appointment or fitness to continue, or a proceeding for administration under Part 5. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent as described elsewhere in this Code.
(c) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.
HISTORY: 1986 Act No. 539, § 1; 2005 Act No. 66, § 5; 2010 Act No. 244, § 44, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-704. Personal representative to proceed with court sanction.
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate under the supervision of the court, as follows:
(a) Immediately after his appointment he shall publish the notice to creditors required by Section 62-3-801.
(b) Within ninety days after his appointment he shall file with the court the inventory and appraisement required by Section 62-3-706.
(c) Upon the expiration of the relevant period, as set forth in Section 62-3-807, the personal representative shall proceed to allow or disallow claims and pay the claims allowed against the estate, as provided in Section 62-3-807.
(d) Upon the expiration of the relevant period, as set forth in Section 62-3-1001, the personal representative shall file the accounting, proposal for distribution, petition for settlement of the estate, proofs required by Section 62-3-1001, and proof of publication of notice to creditors.
(e) Within the time set forth in Section 62-3-806(a), serve upon all claimants a notice stating that their claim has been allowed or disallowed pursuant to that section.
(f) The time periods stated herein for completing the above requirements are not intended to supplant any other time periods stated elsewhere in this Code. The court may on its own motion, or on the motion of the personal representative or of any interested person, extend the time for completing any of the requirements of administration contained in Article 3 [Section 62-3-1001, et seq.] including any of the above requirements, and especially including the requirement to account, under Section 62-3-1001, in cases of estates which remain significantly unadministered as of the expiration of the relevant time period, either as to the marshalling of assets or as to the allowance of claims.
(g) If a personal representative or trustee neglects or refuses to comply with any provision of Section 62-3-706 he is subject to the contempt power of the court. The probate court, after a hearing and any notice the court may require, may issue its order imposing the sentence, fine, or penalty as it sees fit and remove the personal representative and appoint another personal representative.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 26; 1990 Act No. 521, § 45; 1993 Act No. 181, § 1608; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-705. Duty of personal representative; information to heirs and devisees.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 46; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-706. Duty of personal representative; inventory and appraisement.
(A) Within ninety days after his appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall:
(1) prepare an inventory and appraisement of probate property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item;
(2) file the original of the inventory and appraisement with the court; and
(3) mail a copy of the filed inventory and appraisement to interested persons who have filed a demand for notice of the filing of the inventory pursuant to Section 62-3-204.
(B) Within ninety days of a demand by an interested person for an inventory of nonprobate property, the personal representative shall:
(1) prepare a list of the property owned by the decedent at the time of his death that is not probate property, so far as is known to the personal representative which may, at the discretion of the personal representative, include the value and nature of the decedent's interest in the property on the date of the decedent's death;
(2) mail a copy of the list to each interested person who has requested the list; and
(3) file proof of the mailing with the probate court.
(C) The court, upon application of the personal representative, may extend the time for filing or making either the inventory and appraisement or list of nonprobate property provided for in this section.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 27; 1990 Act No. 521, § 47; 1993 Act No. 181, § 1609; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-707. Employment of appraisers.
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. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser must be indicated on the inventory and appraisement or by supplemental inventory and appraisement with the item or items he appraised. On application of any interested person, the court may require that one or more qualified appraisers be appointed to ascertain the fair market value of all or any part of the estate or may approve one or more qualified appraisers.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 48; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-708. Duty of personal representative; supplementary inventory.
If any property not included in the original inventory and appraisement comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall submit a supplementary, amended or corrected inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, the appraisers or other data relied upon, if any, and restating the unchanged information from the original inventory and appraisement and furnish copies to persons who receive the original inventory, and to interested persons who have requested or demanded the new information.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-709. Duty of personal representative; possession of estate.
Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-710. Power to avoid transfers.
The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-711. Powers of personal representatives; in general.
(a) Until termination of his appointment or unless otherwise provided in Section 62-3-910, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. Except as otherwise provided in subsection (b), this power may be exercised without notice, hearing, or order of court.
(b) Except where the will of the decedent authorizes to the contrary, a personal representative may not sell real property of the estate except as authorized pursuant to the procedures described in Sections 62-3-911 or Sections 62-3-1301 et seq. and shall refrain from selling tangible or intangible personal property of the estate (other than securities regularly traded on national or regional exchanges and produce, grain, fiber, tobacco, or other merchandise of the estate for which market values are readily ascertainable) having an aggregate value of ten thousand dollars or more without prior order of the court which may be issued upon application of the personal representative and after notice or consent as the court deems appropriate.
(c) If the will of a decedent devises real property to a personal representative or authorizes a personal representative to sell real property (the title to which was not devised to the personal representative), then subject to Section 62-3-713, the personal representative, acting in trust for the benefit of the creditors and other interested persons in the estate, may execute a deed in favor of a purchaser for value, who takes title to the real property in accordance with the provisions of Section 62-3-910(B).
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 28; 2000 Act No. 398, § 4; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-712. Improper exercise of power; breach of fiduciary duty.
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in Sections 62-3-713 and 62-3-714.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-713. Sale, encumbrance, or transaction involving conflict of interest; voidable; exceptions.
Any sale or encumbrance to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure unless:
(1) the will or a contract entered into by the decedent expressly authorized the transaction; or
(2) the transaction is approved by the court after notice to interested persons.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-714. Persons dealing with personal representative; protection.
A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of personal representatives under Part 5 [Sections 62-3-501 et seq.] which are endorsed on letters as provided in Section 62-3-504, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-715. Transactions authorized for personal representatives; exceptions.
Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the restrictions imposed in Section 62-3-711(b) and to the priorities stated in Section 62-3-902, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(1) retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;
(2) receive assets from fiduciaries or other sources;
(3) perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as he may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:
(i) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or
(ii) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement.
Execution and delivery of a deed pursuant to this subsection affects title to the subject real property to the same extent as execution and delivery of a deed by the personal representative in other cases authorized by this Code;
(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;
(5) if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including monies received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally;
(6) subject to the restrictions imposed in Section 62-3-711(b), acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing, or erect new party walls or buildings;
(8) satisfy and settle claims and distribute the estate as provided in this Code;
(9) enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, but not for a term extending beyond the period of administration and, with respect to a lease with option to purchase, subject to the restrictions imposed in Section 62-3-711(b);
(10) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(11) vote stocks or other securities in person or by general or limited proxy;
(12) pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;
(13) hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;
(14) insure the assets of the estate against damage, loss, and liability and himself against liability as to third persons;
(15) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, lien, or other security interest upon property of another persons, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;
(16) pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
(17) sell, or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(18) allocate items of income or expense to either estate income or principal, as permitted or provided by law;
(19) employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;
(20) prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties;
(21) subject to the restrictions imposed in Section 62-3-711(b), sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;
(22) continue any unincorporated business or venture in which the decedent was engaged at the time of his death (i) in the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will; (ii) in the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or (iii) throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;
(23) make payment in cash or in kind, or partly in cash and partly in kind, upon any division or distribution of the estate (including the satisfaction of any pecuniary distribution) without regard to the income tax basis of any specific property allocated to any beneficiary and value and appraise any asset and distribute such asset in kind at its appraised value;
(24) with the approval of the probate court or the circuit court, compromise and settle claims and actions for wrongful death, pain and suffering or both, and all claims and actions based on causes of actions surviving, to personal representatives, arising, asserted, or brought under or by virtue of any statute or act of this State, any state of the United States, the United States, or any foreign country;
(25) donate a qualified conservation easement or fee simple gift of land for conservation on any real property of the decedent in order to obtain the benefit of the estate tax exclusion allowed under Internal Revenue Code Section 2031(c) as defined in Section 12-6-40(A), and the state income tax credit allowed under Section 12-6-3515, if the personal representative has the written consent of all of the heirs, beneficiaries, and devisees whose interests are affected by the donation. Upon petition of the personal representative, the probate court may consent on behalf of any unborn, unascertained, or incapacitated heirs, beneficiaries, or devisees whose interests are affected by the donation after determining that the donation of the qualified real property interest shall not adversely affect them or would most likely be agreed to by them if they were before the court and capable of consenting. A guardian ad litem must be appointed to represent the interest of any unborn, unascertained, or incapacitated persons. Similarly, and for the same purposes and under the same conditions, mutatis mutandis, a trustee may make such a donation for the settlor;
(26) the personal representative has the power to access the decedent's files and accounts in electronic format, including the power to obtain the decedent's user names and passwords.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, §§ 29, 30; 1990 Act No; 521, § 49; 2000 Act No. 283, § 1(E); 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-716. Powers and duties of successor personal representative.
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-717. Corepresentatives; when joint action required.
If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate. When a corepresentative has been delegated to act for the others, written notice of the delegation signed by the others and setting forth the duties delegated must be filed with the court. Persons dealing with a corepresentative if actually unaware that another has been appointed to serve with him or if advised by the personal representative with whom they deal that he has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the persons with whom they dealt had been the sole personal representative.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-718. Powers of surviving personal representative.
Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one or more remaining after the appointment of one or more is terminated and, if one of two or more nominated as coexecutors is not appointed, those appointed may exercise all the powers incident to the office.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-719. Compensation of personal representative.
(a) Unless otherwise approved by the court for extraordinary services, a personal representative shall receive for his care in the execution of his duties a sum from the probate estate funds not to exceed five percent of the appraised value of the personal property of the probate estate plus the sales proceeds of real property of the probate estate received on sales directed or authorized by will or by proper court order, except upon sales to the personal representative as purchaser. The minimum commission payable is fifty dollars, regardless of the value of the personal property of the estate.
(b) Additionally, a personal representative may receive not more than five percent of the income earned by the probate estate in which he acts as fiduciary. No such additional commission is payable by an estate if the probate judge determines that a personal representative has acted unreasonably in the accomplishment of the assigned duties, or that unreasonable delay has been encountered.
(c) The provisions of this section do not apply in a case where there is a contract providing for the compensation to be paid for such services, or where the will otherwise directs, or where the personal representative qualified to act before June 28, 1984.
(d) A personal representative also may renounce his right to all or any part of the compensation. A written renunciation of fee may be filed with the court.
(e) If more than one personal representative is serving an estate, the court in its discretion shall apportion the compensation among the personal representatives, but the total compensation for all personal representatives of an estate must not exceed the maximum compensation allowable under subsections (a) and (b) for an estate with a sole personal representative.
(f) For purposes of this section, "probate estate" means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy. This subsection is intended to be declaratory of the law and governs the compensation of personal representatives currently serving and personal representatives serving at a later time.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 50; 1997 Act No. 152, § 16; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-720. Expenses in estate litigation.
If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-721. Proceedings for review of employment of agents and compensation of personal representatives and employees of estate.
(a) After notice to all interested persons, on petition of an interested person or on appropriate motion if administration is under Part 5 [Sections 62-3-501 et seq.], the propriety of employment of any person by a personal representative including any attorney, auditor, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for his own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
(b) Upon the settlement of their accounts by personal representatives the court shall allow each appraiser appointed by the court a reasonable daily fee for each day spent on appraising the property of the estate and also mileage at the same rate that members of state boards, commissions, and committees receive for each mile actually traveled in going to and from the place where the property ordered to be appraised is situated. In determining the reasonableness of the fee to each appraiser the court shall consider the value of the estate, the actual time consumed by the appraisers in the performance of their duties, and other such circumstances and conditions surrounding the appraisal as the court deems appropriate.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 8
Creditors' Claims
SECTION 62-3-801. Notice to creditors.
(a) Unless notice has already been given under this section, a personal representative upon his appointment must publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county announcing his appointment and address and notifying creditors of the estate to present their claims within eight months after the date of the first publication of the notice or be forever barred.
(b) A personal representative may give written notice by mail or other delivery to any creditor, notifying the creditor to present his claim within one year of the decedent's death, or within sixty days from the mailing or other delivery of such notice, whichever is earlier, or be forever barred. Written notice is the notice described in (a) above or a similar notice.
(c) The personal representative is not liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section.
(d) Notwithstanding subsections (a) and (b), notice to creditors under this section is not required if a personal representative is not appointed to administer the decedent's estate during the one year period following the death of the decedent.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 31; 1990 Act No. 521, § 51; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-802. Statutes of limitations.
(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.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 32; 1990 Act No. 521, § 52; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-803. Limitations on presentation of claims.
(a) All claims against a decedent's estate which arose before the death of the decedent, including claims of the State and any political subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by another statute of limitations or nonclaim statute; are barred against the estate, the personal representative, the decedent's heirs and devisees, and nonprobate transferees of the decedent; unless presented within the earlier of the following:
(1) one year after the decedent's death; or
(2) 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.
(b) A claim described in subsection (a) which is barred by the nonclaim statute of the decedent's domicile before the giving of notice to creditors in this State is barred in this State.
(c) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) a claim based on a contract with the personal representative within eight months after performance by the personal representative is due; or
(2) any other claim, within the later of eight months after it arises, or the time specified in subsection (a)(1).
(d) Nothing in this section shall be construed as placing a limitation on the time for:
(1) commencing a proceeding to enforce a mortgage, pledge, lien, or other security interest upon property of the estate;
(2) to the limits of the insurance protection only, commencing a proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance; or
(3) collecting compensation for services rendered to the estate or reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 33; 1990 Act No. 521, § 53; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-804. Manner of presentation of claims.
Claims against a decedent's estate must be presented as follows:
(1)(a) The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and must file a written statement of the claim, in the form prescribed by rule, with the probate court in which the decedent's estate is under administration. The claim is considered presented upon the filing of the statement of claim with the court. If a claim is not yet due, the date when it will become due must be stated. If the claim is contingent or unliquidated, the nature of the uncertainty must be stated. If the claim is secured, the security must be described. Failure to describe fully the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.
(b) In addition to the requirements in subsection (1)(a), a creditor seeking appointment as personal representative pursuant to Section 62-3-203(a)(6) must attach the written statement of the claim to the application or petition for appointment. For purposes of Section 62-3-803, the claim is considered to be presented when the application or petition for appointment is filed with the written statement of the claim attached.
(2) Subject to subsection (5), once a claim is presented in accordance with subsection (1), a claimant may at any time thereafter commence a legal proceeding against the personal representative by the filing of a summons and petition for allowance of claim or complaint in any court where the personal representative may be subjected to jurisdiction, seeking payment of the claim by the decedent's estate, and serving the same upon the personal representative. If the legal proceeding is not commenced in the probate court, the claimant must provide written notice to the probate court in which the decedent's estate is under administration that a legal proceeding has commenced for allowance of the claim, setting forth the court in which the legal proceeding is pending. Thereafter, the probate court shall not authorize the closing of the decedent's estate until the legal proceeding has ended.
(3) In lieu of the procedure provided in subsections (1) and (2), and subject to subsection (6), a claimant may commence a legal proceeding against the personal representative, by the filing of a summons and petition for allowance of claim or complaint in any court where the personal representative may be subjected to jurisdiction, seeking payment of his claim by the estate, and serving the same upon the personal representative. The commencement of the legal proceeding under this subsection must occur within the time limit for presenting the claim as set forth in Section 62-3-803. If the legal proceeding is not commenced in the probate court, the claimant must file a written statement of the claim with the probate court in which the decedent's estate is under administration providing substantially the same information as the statement in subsection (1), along with a statement that a legal proceeding to enforce the claim has commenced, and identifying the court where the proceeding is pending. Thereafter, the probate court shall not permit the closing of the decedent's estate until the legal proceeding has ended.
(4) Notwithstanding any other provision of this section, no presentation of a claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of the decedent's death.
(5) Notwithstanding any other provision of this section, no proceeding for enforcement or allowance of a claim or collection of a debt may be commenced more than thirty days after the personal representative has mailed a notice of disallowance or partial disallowance of the claim in accordance with the provisions of Section 62-3-806. However, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the thirty day period, or to avoid injustice the court, on petition presented to the court prior to the expiration of the thirty-day period, may order an extension of the thirty-day period, but in no event shall the extension run beyond the applicable statute of limitations.
(6) Notwithstanding any other provision of this section, no claim against a decedent's estate may be presented or legal action commenced against a decedent's estate prior to the appointment of a personal representative to administer the decedent's estate.
(7)(a) A legal proceeding pending on the date of a decedent's death in which the decedent was a necessary party shall be suspended until a personal representative is appointed to administer the decedent's estate, unless a court otherwise orders.
(b) Pursuant to Section 62-3-104, this subsection does not apply to a proceeding by a secured creditor of a decedent to enforce the secured creditor's right to its security. It does apply to a proceeding for a deficiency judgment against a decedent or the estate of a decedent.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, §§ 34, 35; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-805. Classification of claims.
(a) If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:
(1) costs and expenses of administration, including attorney's fees, and reasonable funeral expenses;
(2) debts and taxes with preference under federal law;
(3) reasonable and necessary medical expenses, hospital expenses, and personal care expenses of the last illness of the decedent, including compensation of persons attending the decedent prior to death;
(4) debts and taxes with preference under other laws of this State, in the order of their priority, including medical assistance paid under Title XIX State Plan for Medical Assistance as provided for in Section 43-7-460;
(5) all other claims.
(b) Except as is provided under subsection (a)(4), no preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
(c) Any person advancing or lending money to a decedent's estate for the payment of a specific claim shall, to the extent of the loan, have the same priority for payment as the claimant paid with the proceeds of the loan.
HISTORY: 1986 Act No. 539, § 1; 1994 Act No. 481, § 8; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-806. Allowance of claims.
(a) As to claims presented in the manner described in Section 62-3-804(1) within the time limit prescribed in Section 62-3-803, within sixty days after the presentment of the claim, or within fourteen months after the death of the decedent, whichever is later, the personal representative must serve upon the claimant a notice stating the claim has been allowed or disallowed in whole or in part. Service of such notice shall be by United States mail, personal service, or otherwise as permitted by rule and a copy of the notice shall be filed with the probate court along with proof of delivery setting forth the date of mailing or other service on the claimant. A notice of disallowance or partial disallowance of a claim must contain a warning that the claim will be barred to the extent disallowed unless the claimant commences a proceeding for allowance of the claim in accordance with Section 62-3-804(2) within thirty days of the mailing or other service of the notice of disallowance or partial disallowance. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant commences a proceeding for allowance of the claim in accordance with Section 62-3-804(2) not later than thirty days after the mailing or other service of the notice of disallowance or partial disallowance by the personal representative. For good cause shown, the court may reasonably extend the time for filing the notice of allowance or disallowance of a properly filed claim.
(b) The personal representative of a decedent's estate may commence a proceeding to obtain probate court approval of the allowance, in whole or part, of any claim or claims presented in the manner described in Section 62-3-804(1), within the time limit prescribed in Section 62-3-803, and not barred by subsection (a). The proceeding may be commenced by the filing of a summons and petition with the probate court, and service of the same upon the claimant or claimants whose claims are in issue; and such other interested parties as the probate court may direct by order entered at the time the proceeding is commenced. Notice of hearing on the petition shall be given to interested parties in accordance with Section 62-1-401.
(c) A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim. Upon obtaining such a judgment a claimant must file a certified copy of its judgment with the probate court in which the decedent's estate is being administered.
(d) Unless otherwise provided in any judgment in another court entered against the personal representative and except for claims under 62-3-803, allowed claims bear interest at the legal rate (as determined according to Section 34-31-20(A)) for the period commencing upon the later of fourteen months after the date of the decedent's death or the last date upon which the claim could have been properly presented under Section 62-3-803, unless based on a contract making a provision for interest, in which case the claim bears interest in accordance with the terms of the contract.
(e) Allowance of a claim is evidence the personal representative accepts the claim as a valid debt of the decedent's estate. Allowance of a claim may not be construed to imply the estate will have sufficient assets with which to pay the claim.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, §§ 36, 37; 1988 Act No. 659, § 19; 2010 Act No. 244, § 17, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-807. Payment of claims.
(a) Prior to the closing of the estate and no later than fourteen months after the decedent's death, the personal representative must proceed to pay the claims allowed against the estate in the order of priority prescribed, and after making provision for the homestead, for exempt property under Section 62-2-401, for claims already presented which have not been allowed or whose disallowance is the subject of a legal proceeding, or the time to file such a proceeding has not expired, and for unbarred claims which may yet be presented, including costs and expenses of administration. Upon application of the personal representative and for good cause shown, the probate court may extend the time for payment of creditor claims.
(b) Upon the expiration of the applicable time limitation provided in Section 62-3-803 for the presentation of claims, any claimant whose claim has been allowed, or partially allowed, under Section 62-3-806 may petition the probate court, or file an appropriate motion if the administration is under Part 5, for an order directing the personal representative to pay the claim, to the extent allowed, and to the extent assets of the estate are available for payment without impairing the ability of the personal representative to fulfill the other obligations of the decedent's estate.
(c) The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
(1) the payment was made before the expiration of the time limit set forth in Section 62-3-803 for the presentation of a claim, and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
(2) the payment was made, due to the negligence or wilful fault of the personal representative, in such manner as to deprive the injured claimant of his priority.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 38; 1990 Act No. 521, § 54; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-808. Individual liability of personal representative.
(a) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity or identify the estate in the contract.
(b) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(c) Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.
(d) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-809. Secured claims.
Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; otherwise, payment is upon the basis of one of the following:
(1) if the creditor exhausts his security before receiving payment, upon the amount of the claim allowed less the fair market value of the security as agreed by the parties, or as determined by the court; or
(2) if the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-810. Claims not due; contingent or unliquidated claims.
(a) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
(b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
(1) if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
(2) arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage or other security interest, obtaining a bond or security from a distributee, or otherwise.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-811. Counterclaims.
In allowing a claim, the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate, a court shall reduce the amount allowed by the amount of any counterclaims allowed and, if such counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-812. Execution and levies prohibited.
No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, liens, or other security interests upon real or personal property in an appropriate proceeding.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-813. Compromise of claims.
When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-814. Encumbered assets.
If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew, or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-815. Administration in more than one state; duty of personal representative.
(a) All assets of estates being administered in this State are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed.
(b) If the estate either in this State or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this State or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this State, the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit.
(c) In case the family exemptions and allowances, prior charges, and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this State is not the state of the decedent's last domicile, the claims allowed in this State shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this State the amount to which they are entitled, local assets shall be marshaled so that each claim allowed in this State is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this State from assets in other jurisdictions.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-816. Final distribution to domiciliary representative.
The estate of a nonresident decedent being administered by a personal representative appointed in this State shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless: (1) by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this State without reference to the local law of the decedent's domicile; (2) the personal representative of this State, after reasonable inquiry is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under Section 62-3-1001 or incident to the closing of an administration under Part 5 [Sections 62-3-501 et seq.]. In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of this article [Sections 62-3-101 et seq.].
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 9
Special Provisions Relating to Distribution
SECTION 62-3-901. Successors' rights if no administration.
In the absence of administration, the devisees are entitled to the estate in accordance with the terms of a probated will and the heirs in accordance with the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by exemption or intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and subject to the rights of others resulting from abatement, retainer, advancement, ademption, and elective share.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 39; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-902. Distribution; order in which assets appropriated; abatement.
(a) Except as provided in subsection (b), and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), as, for instance, in case the will was executed before the effective date of this Code, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-903. Right of retainer.
The amount of a liquidated indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-905. Penalty clause for contest.
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-906. Distribution in kind; valuation; method.
(a) Unless a contrary intention is indicated by the will, such as the grant to the personal representative of a power of sale, the distributable assets of a decedent's estate must be distributed in kind to the extent possible through application of the following provisions:
(1) A specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in Section 62-2-401 shall receive the items selected.
(2) Any devise payable in money may be satisfied by value in kind provided:
(i) the person entitled to the payment has not demanded payment in cash;
(ii) the property distributed in kind is valued at fair market value as of the date of its distribution; and
(iii) no residuary devisee has requested that the asset in question remain a part of the residue of the estate.
(3) For the purpose of valuation under item (2), securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.
(4) The personal property of the residuary estate must be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. Subject to the provisions of Section 62-3-711(b), in other cases, personal property of the residuary estate may be converted into cash for distribution.
(b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution, notifying such persons of the pending termination of the right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.
(c) When a personal representative or a trustee is empowered under the will or trust of a decedent to satisfy a pecuniary devise or transfer in trust, in kind with assets at their value for federal estate tax purposes, the fiduciary, in order to implement the devise or transfer in trust, shall, unless the governing instrument provides otherwise, distribute assets, including cash, fairly representative of appreciation or depreciation in the value of all property thus available for distribution in satisfaction of the pecuniary devise or transfer.
(d) Personal representatives and trustees are authorized to enter into agreements with beneficiaries and with governmental authorities, agreeing to make distribution in accordance with the terms of Section 62-3-906 for any purpose which they consider to be in the best interests of the estate, including the purpose of protecting and preserving the federal estate tax marital deduction as applicable to the estate, and the guardian or conservator of a surviving beneficiary or the personal representative of a deceased beneficiary is empowered to enter into such agreements for and on behalf of the beneficiary or the deceased beneficiary.
(e) The provisions of Section 62-3-906 are not intended to change the present laws applicable to fiduciaries, but are statements of the fiduciary principles applicable to these fiduciaries and are declaratory of these laws.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 41; 2000 Act No. 398, § 5; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-907. Distribution in kind; evidence.
(A) If distribution in kind is made, the personal representative must execute a deed of distribution with respect to real property and such other necessary or appropriate instrument of conveyance with respect to personal property, assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property.
(B) If the decedent dies intestate or devises real property to a distributee, the personal representative's execution of a deed of distribution of real property constitutes a release of the personal representative's power over the title to the real property, which power is equivalent to that of an absolute owner, in trust, however, for the benefit of the creditors and others interested in the estate, provided by Section 62-3-711(a). The deed of distribution affords the distributee and his purchasers or encumbrancers the protection provided in Sections 62-3-908 and 62-3-910.
(C) If the decedent devises real property to a personal representative, either in a specific or residuary devise, the personal representative's execution of a deed of distribution of the real property constitutes a transfer of the title to the real property from the personal representative to the distributee, as well as a release of the personal representative's power over the title to the real property, which power is equivalent to that of an absolute owner, in trust, however, for the benefit of the creditors and others interested in the estate, provided by Section 62-3-711(a). The deed of distribution affords the distributee, and his purchasers or encumbrancers, the protection provided in Sections 62-3-908 and 62-3-910.
(D) The personal representative's execution of an instrument or deed of distribution of personal property constitutes a transfer of the title to the personal property from the personal representative to the distributee, as well as a release of the personal representative's power over the title to the personal property, which power is equivalent to that of an absolute owner, in trust, however, for the benefit of the creditors and others interested in the estate, provided by Section 62-3-711(a).
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 42; 2000 Act No. 398, § 6; 2002 Act No. 174, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-908. Distribution; right or title of distributee.
Proof that a distributee has received an instrument or deed of distribution of assets in kind whether real or personal property, or payment in distribution, from a personal representative is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper. An improper distribution includes, but is not limited to, those instances where the instrument or deed of distribution is found to be inconsistent with the provisions of the will or statutes governing intestacy.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 43; 2000 Act No. 398, § 7; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-909. Improper distribution; liability of distributee.
Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-910. Purchasers from distributees or personal representatives protected.
(A) If property distributed in kind (whether real or personal property) or a mortgage or other security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested persons, whether or not the distribution was proper or supported by court order or the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution. Any instrument described in this section on which the deed recording fee prescribed by Chapter 24, Title 12, has been paid, and which has been recorded is prima facie evidence that the sale was made for value.
(B) If a will devises real property to a personal representative or authorizes a personal representative to sell real property (the title to which was not devised to the personal representative), a purchaser for value who receives a deed from the personal representative takes title to the real property free of rights of any heirs or devisees or other interested person in the estate and incurs no personal liability to the estate or to any heir or devisee or other interested person in the estate. The purchaser is protected whether or not the sale was proper and regardless of whether the heirs or devisees to whom title devolved pursuant to Section 62-3-101 executed or consented to the deed; however, creditors, and others interested in the estate have a right of recourse against the personal representative under Section 62-3-712 if the sale constitutes a breach of the personal representative's fiduciary duty. This section protects a purchaser of real property from a personal representative who has title to the real property or who has sold real property to the purchaser pursuant to an authorization in the will. To be protected under this provision, a purchaser need not inquire whether a personal representative acted properly in making the sale, even if the personal representative and the purchaser are the same person, or whether the authority of the personal representative had terminated before the sale. Any instrument described in this section on which the deed recording fee prescribed by Chapter 24, Title 12 has been paid, and which has been recorded is prima facie evidence that the sale was made for value.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 44; 2000 Act No. 398, § 8; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-911. Partition for purpose of distribution.
For purposes of this section, "interested heirs or devisees" means those heirs or devisees who are entitled to an interest in the real or personal property that is subject to partition pursuant to this section. When two or more heirs or devisees are entitled to distribution of undivided interests in any personal or real property of the estate, the personal representative or one or more of the interested heirs or devisees may petition the court prior to the closing of the estate, to make partition. After service of summons and petition and after notice to the interested heirs or devisees, the court shall partition the property in the manner provided in this section.
(1) The court shall partition the property in kind if it can be fairly and equitably partitioned in kind.
(2) If the property cannot be fairly and equitably partitioned in kind, the court shall direct the personal representative to sell the property and distribute the proceeds subject to the following provisions of this item.
(a) The court shall provide for the nonpetitioning interested heirs or devisees who wish to purchase the property to notify the court of that interest no later than ten days prior to the date set for a hearing on the partition. The nonpetitioning interested heirs or devisees shall be allowed to purchase the interests in the property as provided in this section whether default has been entered against them or not.
(b) In the circumstances described in subitem (a) of this section, and in the event the interested heirs or devisees cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent appraisers, as the court shall approve, appointed for that purpose by the court. The appraisers appointed pursuant to this section shall make their report in writing to the court within thirty days after their appointment. The costs of the appraisers appointed pursuant to this section shall be taxed as a part of the cost of court to those seeking to purchase the interests of the heirs or devisees in the property described in the petition for partition.
(c) In the event that the interested heirs or devisees object to the value of the property interests as determined by the appointed appraisers, those heirs or devisees shall have ten days from the date of filing of the report to file written notice of objection to the report and request a hearing before the court on the value of the interest or interests. An evidentiary hearing limited to the proposed valuation of the property interests of the interested heirs or devisees shall be conducted, and an order as to the valuation of the interests of the interested heirs and devisees shall be issued.
(d) After the valuation of the interests in the property is completed as provided in subitems (b) or (c) of this item, the interested heirs or devisees seeking to purchase the interests of the other interested heirs or devisees shall have forty-five days to pay the price set as the value of those interests to be purchased, in such shares and proportions, and in such manner, as the court shall determine. Upon the payment, the court shall direct the personal representative to execute and deliver the proper instruments transferring title to the purchasers.
(e) In the event that the interested heirs or devisees seeking to purchase the partitioned property fail to pay the purchase price as provided in subitem (d) of this item, the court shall proceed according to the traditional practices of circuit courts in partition sales.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 56; 2010 Act No. 244, § 18, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-912. Private agreements among successors to decedent binding on personal representative.
Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-913. Distributions to trustee.
(a) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries as provided in Section 62-7-813.
(b) If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he may withhold distribution until the court has acted.
(c) No inference of negligence on the part of the personal representative shall be drawn from his failure to exercise the authority conferred by subsections (a) and (b).
HISTORY: 1986 Act No. 539, § 1; 2005 Act No. 66, § 6; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-914. Disposition of unclaimed assets.
(a) If after the expiration of eight months from the appointment of the personal representative of a decedent it appears to the satisfaction of the court by whom the appointment was granted that the personal representative of the estate is unable to ascertain the whereabouts of a person entitled to be heir or devisee of the estate or whether a person who, if living, would be entitled as heir or devisee of this estate is dead or alive, the court may issue a notice addressed to all persons interested in the estate as heirs or devisees calling on the person whose whereabouts or the fact of whose death is unknown, his personal representatives, or heirs or devisees, to appear before the court on a certain day and hour as specified in this notice and to show cause why the personal representative should not be ordered to distribute the estate as if the person whose whereabouts or the fact of whose death is unknown had died before the decedent, and notifying all persons entitled to the estate as heir or devisee, or otherwise, to appear on a designated day and time before the court to intervene for their interest in the estate. The day fixed in the notice, on which cause must be shown, must not be less than one month after the date of the first publication of the notice.
(b) The notice must be published once a week for three successive weeks in a newspaper published in the county in which the court is held. The court has the right, in its discretion, to order the notice to be published once a week for three successive weeks in one other newspaper published in another place most likely to give notice to interested persons.
(c) The publication of the notice as prescribed in subsection (b) must be proved by filing with the court copies of the newspapers containing the publication of the notice or the affidavit of the publishers or printers of the respective newspapers.
(d) At the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if no person appears as required, the court must decree distribution of the estate to be made as if the person whose whereabouts or the fact of whose death is unknown had died before the decedent. Distribution by the personal representative is a full and complete discharge to the personal representative.
(e) At the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if the person whose whereabouts or the fact of whose death was unknown appears, all further proceedings must be discharged.
(f) If the identity of the person appearing is disputed by the personal representative, an heir or devisee of the decedent or the legal representatives of an heir or devisee, the court must proceed to hear and determine the controversy. If the controversy is determined against the person appearing, distribution of the estate must be made as prescribed in subsection (d); but if the controversy is determined in favor of the party appearing, he is considered to be the person whose whereabouts or the fact of whose death was unknown. The determination in either case is subject to appeal as provided in Section 62-1-308.
(g) At the expiration of the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if a person appears claiming to be heir, devisee, or personal representative of the person whose whereabouts or the fact of whose death is unknown or to be otherwise entitled to his estate and claiming a distributive share in the decedent's estate, the court shall proceed to hear and determine whether the person whose whereabouts or the fact of whose death is unknown died before or after the decedent, and if the determination is that the person whose whereabouts or the fact of whose death is unknown died before the decedent, distribution of the decedent's estate must be made accordingly; but if the court determines that the person whose whereabouts or the fact of whose death is unknown died after the death of the decedent, the distributive share of the person must be paid and delivered by the personal representative to the person legally entitled to receive it, the determination in either case, is subject to appeal as provided in Section 62-1-308.
(h) Instead of the procedure required in this section, an unclaimed devise or intestate share of five thousand dollars or less may be paid or transferred by the personal representative to the South Carolina State Treasurer.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 45; 1990 Act No. 521, §§ 57, 58, 103; 1997 Act No. 152, § 17; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-915. Distribution to person under disability.
A personal representative may discharge his obligation to distribute to any person under legal disability by distributing to his conservator or any other person authorized by this Code or otherwise to give a valid receipt and discharge for the distribution.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-916. Apportionment of estate taxes.
(a) For purposes of this section:
(1) "Estate" means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this State.
(2) "Person" means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency.
(3) "Persons interested in the estate" means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent's estate. It includes a personal representative, conservator, and trustee.
(4) "State" means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(5) "Tax" means the federal estate tax and the basic and any additional estate tax imposed by the State of South Carolina and interest and penalties imposed in addition to the tax.
(6) "Fiduciary" means personal representative or trustee.
(b)(1) To the extent that a provision of a decedent's will expressly and unambiguously directs the apportionment of an estate tax, the tax must be apportioned accordingly.
(2) Any portion of an estate tax not apportioned pursuant to item (1) must be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor which expressly and unambiguously directs the apportionment of an estate tax. If conflicting apportionment provisions appear in two or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this item:
(A) a trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and
(B) the date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.
(3) Any tax not apportioned in items (1) or (2) shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If pursuant to items (1) and (2) the decedent's will or revocable trust directs a method of apportionment of tax different from the method described in this Code, the method described in the will or revocable trust controls.
(c)(1) The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose, may determine the apportionment of the tax.
(2) If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection (b), because of special circumstances, it may direct apportionment thereof in the manner it finds equitable.
(3) If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge him with the amount of the assessed penalties and interest.
(4) In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this Code, the determination of the court in respect thereto shall be prima facie correct.
(5) The expenses reasonably incurred by the fiduciary and by any other person interested in the estate in connection with the determination of the amount and apportionment of the tax shall be apportioned as provided in subsection (b) and charged and collected as a part of the tax apportioned. If the court finds it is inequitable to apportion the expenses as provided in subsection (b), it may direct apportionment thereof equitably.
(d)(1) The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to him, the amount of tax attributable to his interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this section.
(2) If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative.
(e)(1) In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate, and for any deductions and credits allowed by the law imposing the tax.
(2) Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift; but if an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal.
(3) Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or his estate inures to the proportionate benefit of all persons liable to apportionment.
(4) Any credit for inheritance, succession, or estate taxes or taxes in the nature thereof applicable to property or interest includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax.
(5) To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar purpose is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection (b) hereof, and to that extent no apportionment is made against the property. The sentence immediately preceding does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under Section 2053(d) of the Internal Revenue Code of 1954, as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.
(f) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.
(g) Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three months' period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment.
(h) A personal representative acting in another state or a person required to pay the tax domiciled in another state may institute an action in the courts of this State and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this State or who owns property in this State subject to attachment or execution. For the purposes of the action, the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, §§ 59, 60; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 10
Closing Estates
SECTION 62-3-1001. Required filings with court; petition for order compelling personal representative to perform duties; court orders.
(a) Within the later of: (i) the expiration of the applicable time limitation for any creditor to commence a proceeding contesting a disallowance of a claim pursuant to Section 62-3-806 (a); (ii) the time when all legal proceedings commenced for allowance of a claim have ended in accordance with Sections 62-3-804 and 62-3-806; and (iii) if a state or federal estate tax return was filed, within ninety days after the receipt or a state or federal estate tax closing letter, whichever is later, a personal representative shall file with the court:
(1) a full accounting in writing of his administration, unless the accounting is waived pursuant to subsection (e);
(2) a proposal for distribution of assets not yet distributed, unless the proposal for distribution of assets is waived pursuant to subsection (e);
(3) an application for settlement of the estate to consider the final accounting or approve an accounting and distribution and adjudicate the final settlement and distribution of the estate; and
(4) proof that a notice of right to demand hearing and copies of the accounting, the proposal for distribution, and the application for settlement of the estate have been sent to all interested persons including all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred, unless the notice of right to demand hearing is waived pursuant to subsection (e).
(b) If the personal representative does not timely perform his duties pursuant to subsection (a), and all interested persons have not waived the requirement pursuant to subsection (e), an interested person may petition for an order compelling the personal representative to perform his duties pursuant to subsection (a). After notice and hearing in accordance with Section 62-1-401, the court may issue an order requiring the personal representative to perform his duties pursuant to subsection (a).
(c) After thirty days from the filing by the personal representative of proof that a notice of right to demand hearing has been sent to all persons entitled to the notice pursuant to subsection (a), or at any time after the filing of the application of settlement if notice of right to demand hearing has been waived pursuant to subsection (e), the court may enter an order or orders approving settlement and directing or approving distribution of the estate, terminating the appointment of the personal representative, and discharging the personal representative from further claim or demand of any interested person. However, if an interested person files with the court a written demand for hearing within thirty days after the personal representative files proof that a notice of right to demand hearing has been sent to all persons entitled to the notice pursuant to subsection (a), the court may enter its order or orders only after notice to all interested persons in accordance with Section 62-1-401 and hearing.
(d) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate pursuant to this section, and after notice of hearing to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding constitutes prima facie proof of due execution of a will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.
(e) Notwithstanding the provisions of this section, a personal representative shall not be required to file an accounting in writing of his administration, a proposal for distribution of assets not yet distributed, or a notice of right to demand hearing if and to the extent these filings are waived by all interested persons.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 46; 1990 Act No. 521, § 61; 1991 Act No. 143, § 1; 1997 Act No. 152, § 18; 2010 Act No. 244, § 19, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1002. Payment of taxes; certificate from Department of Revenue.
No final accounting of a fiduciary shall be allowed by the probate court unless such account shows, and the judge of such court finds, that all taxes imposed by the provisions of Chapter 6, Title 12 upon such fiduciary, which have become payable, have been paid, and that all taxes which may become due are secured by bond, deposit, or otherwise. The certificate of the South Carolina Department of Revenue and the receipt for the amount of the tax therein certified shall be conclusive as to the payment of the tax to the extent of such certificate.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 47; 1990 Act No. 521, § 62; 1993 Act No. 181, § 1610; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1003. Payment of taxes; filing federal estate tax return.
No final accounting of a personal representative in any probate proceeding who is required to file a federal estate tax return may be allowed and approved by the court before whom the proceeding is pending unless the court finds that any tax imposed on the property by Chapter 16, Title 12, including applicable interest, has been paid in full or that no such tax is due.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 48; 1990 Act No. 521, § 63; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1004. Liability of distributees to claimants.
After assets of an estate have been distributed and subject to Section 62-3-1006, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property or for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1005. Rights of successors and creditors.
Unless previously barred by adjudication and except as provided in any accounting, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the application for settlement of the estate, 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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 64; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1006. Limitations on actions and proceedings against distributees.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 65; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1007. Certificate discharging liens securing fiduciary performance.
After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the court that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1008. Subsequent administration.
If other property of the estate is discovered after an estate has been settled and the personal representative discharged or for other good cause, the court upon application of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently opened estate. If a new appointment is made, unless the court orders otherwise, the provisions of this Code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 49; 2010 Act No. 244, § 20, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 11
Compromise of Controversies
SECTION 62-3-1101. Effect of approval of agreements involving trusts, inalienable interests, or interests of third persons.
A compromise of a controversy as to admission to probate of an instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of a probated will, the rights or interests in the estate of the decedent, of a successor, or the administration of the estate, if approved by the court after hearing, is binding on all the parties including those unborn, unascertained, or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it. A compromise approved pursuant to this section is not a settlement of a claim subject to the provisions of Section 62-5-433.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 19; 2010 Act No. 244, § 21, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1102. Procedure for securing court approval of compromise.
The procedure for securing court approval of a compromise is as follows:
(1) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.
(2) Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.
(3) Upon application to the court and after notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries subject to its jurisdiction to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 22, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 12
Collection of Personal Property by Affidavit and Summary Administration Procedure for Small Estates
SECTION 62-3-1201. Collection of personal property by affidavit.
(a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or the instrument evidencing the debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor. Before this affidavit may be presented to collect the decedent's personal property, it must:
(1) state that the value of the entire 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 twenty-five thousand dollars;
(2) state that thirty days have elapsed since the death of the decedent;
(3) state that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
(4) state that the claiming successor, which for the purposes of this section includes a person who remitted payment for reasonable funeral expenses, is entitled to payment or delivery of the property;
(5) be approved and countersigned by the probate judge of the county of the decedent's domicile at the time of his death, or if the decedent was not domiciled in this State, in the county in which the property of the decedent is located, and only upon the judge's satisfaction that the successor is entitled to payment or delivery of the property; and
(6) be filed in the probate court for the county of the decedent's domicile at the time of his death, or, if the decedent was not domiciled in this State, in the county in which property of the decedent is located.
(b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 50; 1990 Act No. 521, §§ 66, 67; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1202. Effect of affidavit.
The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. Any person who receives or is presented with a valid affidavit executed pursuant to Section 62-3-1201 and who has not received actual written notice of its revocation or termination must not fail to deliver the property identified in the affidavit, provided it contains the following provision: "No person who may act in reliance on this affidavit shall incur any liability to the estate of the decedent." Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1203. Small estates; summary administrative procedure.
(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 twenty-five thousand dollars and exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, after publishing notice to creditors pursuant to Section 62-3-801, but without giving additional notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.
(b) If it appears from an appointment proceeding that (1) the appointed personal representative, individually or in the capacity of a fiduciary, is either the sole devisee under the probated will of a testate decedent or the sole heir of an intestate decedent, or (2) the appointed personal representatives, individually or in their capacity as a fiduciary, are the sole devisees under the probated will of a testate decedent or the sole heirs of an intestate decedent, the personal representative, after publishing notice to creditors as under Section 62-3-801, but without giving additional notice to creditors may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 69; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1204. Small estates; closing by sworn statement of personal representative.
(a) Unless prohibited by order of the court and except for estates being administered under Part 5 (Sections 62-3-501 et seq.), after filing an inventory with the court, and paying any court fees due, the personal representative may close an estate administered under the summary procedures of Section 62-3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:
(1) either
(i) to the best knowledge of the personal representative, the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), less liens and encumbrances, did not exceed twenty-five thousand dollars and exempt property, costs, and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent; or
(ii) the estate qualifies for summary administration according to the provisions of subsection (b) of Section 62-3-1203;
(2) the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto;
(3) the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware and whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected.
(b) If no unresolved claims, actions or proceedings involving the personal representative are pending in any court one year after the date of the decedent's death, the appointment of the personal representative terminates.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 70; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 13
Sale of Real Estate by Probate Court
SECTION 62-3-1301. Only procedure for sale of lands by court.
The provisions of this Part are hereby declared to be the only procedure for the sale of lands by the court, except where the will of the decedent authorizes to the contrary.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 51; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1302. Sale of real estate.
The court may, as herein provided, authorize the sale of the real property of a decedent.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 52; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1303. Issuance of summons upon petition for sale.
At any time after the qualification of the personal representative, on petition to the court by an interested person requesting the sale of real property of the decedent, a summons shall be issued to the personal representative (if not the petitioner), the heirs at law of the decedent (if the decedent died intestate or the time to challenge a will admitted to probate has not expired), the devisees under the decedent's will (if any), any person who has properly presented a claim against the estate which remains unresolved, any interested person effected by the proceeding, and any other person as required by the court in its discretion.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 53; 1990 Act No. 521, § 71; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1304. Form of summons.
The form of such summons must be in like form as summonses for civil actions in the circuit courts.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 54; 1990 Act No. 521, § 72; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1305. Service of summons and petition.
To such summons a copy of the petition must be attached and copies of the summons and petition served on the personal representative (if not the petitioner), the heirs at law of the decedent (if the decedent died intestate or the time to challenge a will admitted to probate has not expired), the devisees under the decedent's will (if any), any person who has properly presented a claim against the estate which remains unresolved, any interested person effected by the proceeding, and any other interested person as required by the court in its discretion, in like manner as summonses and complaints are served in civil actions in the circuit courts. If there are minors the court shall appoint guardians ad litem who must be served with copies of the summons and petition and the appointment, and who must acknowledge acceptance of their appointment as guardians ad litem to the probate court prior to being served with the summons and petition. Nothing herein precludes the parties interested in the proceeding from accepting service of the summons and petition and consenting to the sale as prayed for in the petition.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 55; 1990 Act No. 521, § 73; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1306. Execution of process by sheriff; fees.
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.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 56; 1990 Act No. 521, § 74; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1307. Publication as to nonresidents and parties with unknown residences.
If there is any party who resides beyond the limits of this State or whose residence is unknown and who does not consent in writing to the sale, the court 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.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 57; 1990 Act No. 521, § 75; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1308. Filing notice of pendency of action.
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.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 58; 1990 Act No. 521, § 76; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1309. Time for answer.
The time to answer a summons and petition for sale of real property of a decedent is the same as the time to answer in any civil litigation case. Interested persons who wish to file an answer or return to the petition must do so in writing in the same manner as an answer to a complaint in other civil litigation cases. In addition the court may hear motions and accept such subsequent pleadings as would be heard or accepted in other civil litigation cases. After the filing and service of the summons and petition and the time for filing responsive pleadings has elapsed, the court will convene a hearing on the merits of the petition. If based on the evidence presented at the hearing the court finds the real property should be sold it shall then, in its discretion, either (a) order the personal representative to sell the same at private sale upon such terms and conditions as the court may impose; or (b) proceed to sell the same upon the next or some subsequent convenient sales day after publishing a notice of such sale three weeks prior thereto in some paper published in the county. Upon the sale being made, after the payment of the costs and expenses thereof, the proceeds of the sale will be paid over to the personal representative. The personal representative shall administer such proceeds in like manner as proceeds of personal property coming into his hands. Nothing in this part may be construed to abridge homestead exemptions. Notice of hearings in regard to the petition will be provided to interested persons in accordance with Section 62-1-401.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 59; 1990 Act No. 521, § 77; 2010 Act No. 244, § 23, eff June 7, 2010; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1310. Bond for handling of proceeds by personal representative.
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 may require the giving of a bond by such personal representative as provided in Sections 62-3-603, 62-3-604, and 62-3-605.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 60; 1990 Act No. 521, § 78; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1311. Filing of papers; requirement of returns.
The court shall file and keep the original petition with due proof of service thereon and all original papers connected with the sale and shall require from such personal representative his final account showing the distribution of the funds received by him.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 61; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-3-1312. Entry of releases of liens on property sold.
In case any lands of the deceased subject to the lien of any judgment, mortgage, or other lien is sold under the provisions of this Part the court may enter a release of the lands so sold upon the records in the office of the clerk of court or register of deeds of the county from the lien of such judgment, mortgage, or other lien and in case such mortgage, judgment, or other lien debt has been paid in full out of the proceeds of the sale of such lands the court may have cancellation of the same entered on the record thereof. The foregoing does not relieve any judgment, mortgage, or other lien creditor of the duty, as provided otherwise by law, of releasing or canceling such liens. Each release satisfaction or cancellation provided for herein must refer by proper notation to the file number of such estate in the court. The provisions of this section do not apply when the order of sale directs the sale of any lands which must be sold subject to any existing mortgage, judgment, or other lien, but only when such lands are sold freed and discharged from all such liens.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 62; 1990 Act No. 521, § 79; 1997 Act No. 34, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.TITLE 62. SOUTH CAROLINA PROBATE CODE
CHAPTER 4. Local and Foreign Personal Representatives; Ancillary Administration
Part 1
Definitions
SECTION 62-4-101. Definitions.
In this article [Sections 62-4-101 et seq.]:
(1) "Local administration" means administration by a personal representative appointed in this State pursuant to appointment proceedings described in Article 3 [Sections 62-3-101 et seq.].
(2) "Local personal representative" includes any personal representative appointed in this State pursuant to appointment proceedings described in Article 3 [Sections 62-3-101 et seq.] and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to Section 62-4-205.
(3) "Resident creditor" means a person domiciled in, or doing business in, this State who is, or could be, a claimant against an estate of a nonresident decedent.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 2
Powers of Foreign Personal Representatives
SECTION 62-4-201. Payment of debt and delivery of property to domiciliary foreign personal representative without local administration.
At any time after the expiration of sixty days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock, or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock, or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:
(1) the date of the death of the nonresident decedent;
(2) that no local administration, or application or petition therefor, is pending in this State;
(3) that the domiciliary foreign personal representative is entitled to payment or delivery.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-202. Payment or delivery discharges.
Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property or of the instrument evidencing a debt, obligation, stock, or chose in action to the same extent as if payment or delivery had been made to a local personal representative.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 63; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-203. Resident creditor notice.
Payment or delivery under Section 62-4-201 may not be made if a resident creditor of the nonresident decedent has given written notice to the debtor of the nonresident decedent or the person having possession of the personal property or of the instrument evidencing a debt, obligation, stock, or chose in action belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 64; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-204. Proof of authority; bond.
If no local administration or application or petition therefor is pending in this State, a domiciliary foreign personal representative may file with a court in this State in a county in which property belonging to the decedent is located, authenticated copies of his appointment and of the will, if any. The filing of a bond shall not be required unless the court in its discretion orders it.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-205. Powers.
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.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 80; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-206. Power of representatives in transition.
The power of a domiciliary foreign personal representative under Section 62-4-201 or 62-4-205 shall be exercised only if there is no administration or application therefor pending in this State. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 62-4-205, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this State.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-207. Ancillary and other local administrations; governing provision.
In respect to a nonresident decedent, the provisions of Article 3 [Sections 62-3-101 et seq.] govern (1) proceedings, if any, in a court of this State for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties, and liabilities of any local personal representative and the rights of claimants, purchasers, distributees, and others in regard to a local administration. The initiation of a proceeding under Article 3 (Sections 62-3-101 et seq.) is the appropriate procedure for an ancillary administration relating to the real property of a nonresident decedent located in this State and is an alternative to the procedures available to a foreign personal representative under Sections 62-4-201 through 62-4-206.
HISTORY: 1986 Act No. 539, § 1; 2000 Act No. 398, § 9; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 3
Jurisdiction Over Foreign Personal Representatives
SECTION 62-4-301. Jurisdiction by act of foreign personal representative.
A foreign personal representative submits personally to the jurisdiction of the courts of this State in any proceeding relating to the estate by (1) filing authenticated copies of his appointment as provided in Section 62-4-204, (2) receiving payment of money or taking delivery of personal property under Section 62-4-201, or (3) doing any act as a personal representative in this State which would have given the State jurisdiction over him as an individual. Jurisdiction under (2) is limited to the money or value of personal property collected.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-302. Jurisdiction by act of decedent.
In addition to jurisdiction conferred by Section 62-4-301, a foreign personal representative is subject to the jurisdiction of the courts of this State to the same extent that his decedent was subject to jurisdiction immediately prior to death.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
SECTION 62-4-303. Service on foreign personal representative.
(a) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this State on either the foreign personal representative or his decedent immediately prior to death.
(b) If service is made upon a foreign personal representative as provided in subsection (a), he shall be allowed thirty days within which to appear or respond.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.
Part 4
Judgments and Personal Representatives
SECTION 62-4-401. Effect of adjudication for or against personal representative.
An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication; provided, however, that notice and the opportunity to defend must be given to the local representative in order that the judgment be collectible.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 1, eff January 1, 2014.TITLE 62. SOUTH CAROLINA PROBATE CODE
CHAPTER 5. Protection of Persons Under Disability and Their Property
Part 1
General Provisions
SECTION 62-5-101. Definitions and use of terms.
Unless otherwise apparent from the context, in this article:
(1) "Adult" means an individual who has attained the age of eighteen or who, if under eighteen, is married or has been emancipated by a court of competent jurisdiction.
(2) "Alleged incapacitated individual" means:
(a) an adult for whom a protective order is sought;
(b) an adult for whom the appointment of a guardian is sought; or
(c) an adult for whom a determination of incapacity is sought.
(3) "Conservator" means a person appointed by the court to manage the estate of a protected person.
(4) "Counsel for alleged incapacitated individual" means a person authorized to practice law in the State of South Carolina who represents the alleged incapacitated individual in a guardianship proceeding or a protective proceeding. Counsel shall represent the expressed wishes of the alleged incapacitated individual to the extent consistent with the rules regulating the practice of law in the State of South Carolina.
(5) "Court" means the probate court.
(6) "Disabled" means the medically determinable physical or mental impairment of a minor or an adult as defined by 42 U.S.C. Section 1382c, as amended.
(7) "Emergency" means circumstances that are likely to result in substantial harm to the alleged incapacitated individual's health, safety, or welfare or in substantial economic loss to the alleged incapacitated individual.
(8) "Foreign conservator" means a conservator or a person with the powers of a conservator of another jurisdiction.
(9) "Guardian" means a person appointed by the court as guardian, but excludes one who is a guardian ad litem. A guardian shall make decisions regarding the ward's health, education, maintenance, and support.
(10) "Guardian ad litem" means a person licensed in the State of South Carolina in law, social work, nursing, medicine, or psychology, or who has completed training to the satisfaction of the court, and who has been appointed by the court to advocate for the best interests of the alleged incapacitated individual.
(11) "Guardianship proceeding" means a formal proceeding to determine if an adult or a minor within one hundred eighty days of turning eighteen is an incapacitated individual or in which an order for the appointment of a guardian for an adult or a minor within one hundred eighty days of turning eighteen is sought or has been issued.
(12) "Incapacitated individual" means an individual who, for reasons other than minority, has been adjudicated as incapacitated.
(13) "Incapacity" means the inability to effectively receive, evaluate, and respond to information or make or communicate decisions such that a person, even with appropriate, reasonably available support and assistance cannot:
(a) meet the essential requirements for his physical health, safety, or self-care, necessitating the need for a guardian; or
(b) manage his property or financial affairs or provide for his support or for the support of his legal dependents, necessitating the need for a protective order.
(14) "Less restrictive alternative" means the provision of support and assistance as defined in this section which maximizes the alleged incapacitated individual's capacity for self-determination and autonomy in lieu of a guardianship or conservatorship.
(15) "Net aggregate amount" means the total sum of payments due to a minor or incapacitated individual after subtracting all outstanding reimbursements and relevant deductions.
(16) "Party" means the alleged incapacitated individual, ward, protected person, petitioner, guardian, conservator, or any other person allowed by the court to be a party in a guardianship proceeding or protective proceeding, including those listed in Section 62-5-303, Section 62-5-402, and Section 62-5-403.
(17) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(18) "Protected person" means an individual for whom a conservator has been appointed or other protective order has been issued.
(19) "Protective order" means an order appointing a conservator or relating to the management of the property of:
(a) an incapacitated individual;
(b) a minor;
(c) a person who is confined, detained by a foreign power, or who has disappeared; or
(d) a person who is disabled and in need of a court order to create and establish a special needs trust for such person's benefit.
(20) "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
(21) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(22) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(23) "Supports and assistance" includes:
(a) systems in place for the alleged incapacitated individual to make decisions in advance or to have another person to act on his behalf, including, but not limited to, having an agent under a durable power of attorney, a health care power of attorney, a trustee under a trust, a representative payee to manage social security funds, a Declaration of Desire for Natural Death (living will), a designated health care decision maker under Section 44-66-30, or an educational representative designated under Section 59-33-310 to Section 59-33-370; and
(b) reasonable accommodations that enable the alleged incapacitated individual to act as the principal decision-maker, including, but not limited to, using technology and devices; receiving assistance with communication; having additional time and focused discussion to process information; providing tailored information oriented to the comprehension level of the alleged incapacitated individual; and accessing services from community organizations and governmental agencies.
(24) "Ward" means an adult for whom a guardian has been appointed.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 81; 2008 Act No. 303, § 1, eff June 11, 2008; 2010 Act No. 244, § 24, eff June 7, 2010. Formerly Code 1976 §§ 62-5-101 and 62-5-106, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019; 2023 Act No. 10 (S.341), § 1, eff May 8, 2023.
SECTION 62-5-102. Consolidation of proceedings.
When both guardianship proceedings and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 5; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-103. Facility of payment or delivery.
(A) A person under a duty to pay or deliver money or personal property to a minor or incapacitated individual may perform this duty in amounts not exceeding a net aggregate amount of fifteen thousand dollars each year by paying or delivering the money or property to the conservator for the minor or incapacitated person, if the person under a duty to pay or deliver money or personal property has actual knowledge that a conservator has been appointed or an appointment is pending. If the person under a duty to pay or deliver money or personal property to a minor or incapacitated person does not have actual knowledge that a conservator has been appointed or that appointment of a conservator is pending, the person may pay or deliver the money or property in amounts not exceeding a net aggregate of fifteen thousand dollars each year to:
(1) a person having the care and custody of the minor or incapacitated individual with whom the minor or incapacitated individual resides;
(2) a guardian of the minor or an incapacitated individual; or
(3) 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 Transfers to Minors Act and giving notice of the deposit to the minor.
(B) The persons, other than a financial institution under subsection (A)(3) above, receiving money or property for a minor or incapacitated individual, serve as fiduciaries subject to fiduciary duties, and are obligated to apply the money for the benefit of the minor or incapacitated individual with due regard to:
(1) the size of the estate, the probable duration of the minority or incapacity, and the likelihood that the minor or incapacitated individual, at some future time, may be able to manage his affairs and his estate;
(2) the accustomed standard of living of the minor or incapacitated individual and members of his household; and
(3) other funds or resources used or available for the support or any obligation to provide support for the minor or incapacitated individual.
(C) The persons may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated individual's support. Money or other property received on behalf of a minor or incapacitated individual may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated individual. Excess sums must be preserved for future benefit of the minor or incapacitated individual, and any balance not used and property received for the minor or incapacitated individual must be turned over to the minor when he attains majority or is emancipated by court order; or, to the incapacitated individual when he has been readjudicated as no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application of the money or personal property. If the net aggregate amount exceeds fifteen thousand dollars, a conservatorship shall be required.
(D) An employer may fulfill his duties to a minor or incapacitated individual by delivering a check to or depositing payment into an account in the name of the minor or incapacitated employee.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 20; 1990 Act No. 521, § 82; 1997 Act No. 152, § 20; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019; 2022 Act No. 128 (H.3821), § 4, eff April 4, 2022.
SECTION 62-5-104. Director of Department of Mental Health or his designee may act as conservator.
If a patient of a state mental health facility has no legally appointed conservator, the Director of the Department of Mental Health or his designee, may receive and accept, for the use and benefit of the patient, assets which may be due the patient by inheritance, gift, pension, or otherwise with a net aggregate amount not exceeding fifteen thousand dollars in one calendar year. The director or his designee may act as conservator for the patient and his endorsement or receipt discharges the obligor for any assets received. Upon receipt, the director or his designee shall apply the assets for the proper maintenance, use, and benefit of the patient. In the event the patient dies leaving an unexpended balance of assets in the hands of the director or his designee, the director or his designee shall apply the balance first to the funeral expenses of the patient, and any balance remaining must be held by the director or his designee for a period of six months; if within that period, the director or his designee is not contacted by the personal representative of the deceased patient, the balance of the assets may be applied to the maintenance and medical care account of the deceased patient. The director or his designee must, within thirty days following the death of the patient, notify the court in the county in which the patient resided at the time of admission to the department's facility of the death of the patient and provide a list of any property belonging to the patient and held by the department. Upon appointment of a conservator for a patient of a state mental health facility, the director shall deliver any assets of the protected person to the conservator and provide an accounting of the management of those assets.
HISTORY: 1986 Act No. 539, § 1; 1993 Act No. 83, § 1; 1993 Act No. 181, § 1611. Formerly Code 1976 § 62-5-105, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-105. Costs and expenses; attorney's fees.
(A) In a formal proceeding, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the assets of a ward or protected person who is the subject of a formal proceeding.
(B) If not otherwise compensated for services rendered, the court-appointed guardian ad litem, counsel for the alleged incapacitated individual, counsel for the minor, and designated examiner are entitled to reasonable compensation, as determined by the court.
(C) Unless the court issues an order stating otherwise, petitioners are responsible for their own attorney's fees and costs, as well as the other costs and expenses of the action.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-106. Responsibilities and duties of guardian ad litem; reports.
(A) Once a guardian ad litem is appointed by the court, pursuant to Section 62-5-303B or Section 62-5-403B, the responsibilities and duties of the guardian ad litem include, but are not limited to:
(1) acting in the best interest of the alleged incapacitated individual;
(2) conducting an independent investigation to determine relevant facts and filing a written report with recommendations at least forty-eight hours prior to the hearing, unless excused or required earlier by the court. The investigation must include items listed in subitems (a) through (i) and also may include items listed in subitems (j) through (m), as appropriate or as ordered by the court:
(a) obtaining and reviewing relevant documents;
(b) meeting with the alleged incapacitated individual, at least once within thirty days following appointment, or within such time as the court may direct;
(c) investigating the residence or proposed residence of the alleged incapacitated individual;
(d) interviewing all parties;
(e) discerning the wishes of the alleged incapacitated individual;
(f) identifying less restrictive alternatives to guardianship and conservatorship;
(g) reviewing a criminal background check on the proposed guardian or conservator;
(h) reviewing a credit report on the proposed conservator;
(i) interviewing the person whose appointment is sought to ascertain the:
(i) proposed fiduciary's knowledge of the fiduciary's duties, requirements, and limitations; and
(ii) steps the proposed fiduciary intends to take or has taken to identify and meet the needs of the alleged incapacitated individual;
(j) consulting with persons who have a significant interest in the welfare of the alleged incapacitated individual or knowledge relevant to the case;
(k) contacting the Department of Social Services to investigate any action concerning the alleged incapacitated individual or the proposed fiduciary;
(l) determining the financial capabilities and integrity of the proposed conservator including, but not limited to:
(i) previous experience in managing assets similar to the type and value of the alleged incapacitated individual's assets;
(ii) plans to manage the alleged incapacitated individual's assets; and
(iii) whether the proposed conservator has previously borrowed funds or received financial assistance or benefits from the alleged incapacitated individual;
(m) interviewing any persons known to the guardian ad litem having knowledge of the alleged incapacitated individual's financial circumstances or the integrity and financial capabilities of the conservator, or both, and reviewing pertinent documents;
(3) advocating for the best interests of the alleged incapacitated individual by making specific recommendations regarding resources as may be appropriate and available to benefit the alleged incapacitated individual, the appropriateness of the appointment of a guardian or conservator, and any limitations to be imposed;
(4) avoiding conflicts of interest, impropriety, or self-dealing. A guardian ad litem shall not accept or maintain appointment if the performance of his duties may be materially limited by responsibilities to another person or by his own interests;
(5) participating in all court proceedings including discovery unless all parties waive the requirement to appear or the court otherwise excuses participation;
(6) filing with the court and delivering to each party a copy of the guardian ad litem's report; and
(7) moving for any necessary temporary relief to protect the alleged incapacitated individual from abuse, neglect, abandonment, or exploitation, or to address other emergency needs of the alleged incapacitated individual.
(B) Notes of a guardian ad litem are discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
(C) The report of the guardian ad litem shall include all relevant information obtained in his investigation. The report shall contain facts including:
(1) the date and place of the meeting with the alleged incapacitated individual;
(2) a description of the alleged incapacitated individual;
(3) known medical diagnoses of the alleged incapacitated individual including the nature, cause, and degree of the incapacity and the basis for the findings;
(4) description of the condition of the alleged incapacitated individual's current place of residence including address and factors affecting safety;
(5) identification of persons with significant interest in the welfare of the alleged incapacitated individual;
(6) any prior action by the Department of Social Services or law enforcement concerning the alleged incapacitated individual or the proposed fiduciary of which the guardian ad litem is aware;
(7) a statement as to any prior relationship between the guardian ad litem and the petitioner, alleged incapacitated individual, or other party to the action;
(8) a description of the current care and treatment needs of the alleged incapacitated individual; and
(9) any other information relevant to the matter.
(D) The report shall contain recommendations including:
(1) whether a guardian or conservator is needed;
(2) the propriety and suitability of the proposed fiduciary after consideration of his geographic location, his familial or other relationship, his ability to carry out the duties of the proposed fiduciary, his commitment to promoting the welfare of the alleged incapacitated individual, his financial capabilities and integrity, his potential conflicts of interests, the wishes of the alleged incapacitated individual, and the recommendations of the relatives of the alleged incapacitated individual;
(3) approval or disapproval by the alleged incapacitated individual of the proposed fiduciary;
(4) an evaluation of the future care and treatment needs of the alleged incapacitated individual;
(5) if there is a proposed residential plan for the alleged incapacitated individual, whether that plan is in the best interest of the alleged incapacitated individual;
(6) a recommendation regarding any rights in Section 62-5-304A, which should be retained by the alleged incapacitated individual;
(7) whether the matter should be heard in a formal hearing even if all parties are in agreement; and
(8) any other recommendations relevant to the matter.
(E) The court in its discretion may extend or limit the responsibilities or authority of the guardian ad litem.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-107. Finding of incapacity.
Unless an order of the court specifies otherwise, a finding of incapacity is not a determination that the protected person or ward lacks testamentary capacity or the capacity to create, amend, or revoke a revocable trust.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-108. Temporary orders and hearings.
(A) The process for emergency orders without notice, emergency hearings, duration, and security is as follows:
(1) Emergency orders without notice must not be issued unless the moving party files a summons, motion for emergency order with supporting affidavit(s), verified pleading, notice of emergency hearing, and any other document required by the court. The verified pleading, motions, and affidavits shall set forth specific facts supporting the allegation that an immediate and irreparable injury, loss, or damage will result before notice can be served on adverse parties and a hearing held pursuant to subsection (B).
(a) If emergency relief is required to protect the welfare of an alleged incapacitated individual, the moving party must present an affidavit from a physician who has performed an examination within thirty days prior to the filing of the action, a motion for the appointment of counsel if counsel has not been retained, and a motion for the appointment of a proposed qualified individual to serve as guardian ad litem.
(b) If the emergency relief requested is an order for:
(i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or
(ii) the removal of an existing guardian, conservator, or other fiduciary, and the appointment of a substitute, then the moving party must submit evidence of the suitability and creditworthiness of the proposed fiduciary.
(2) If the motion for an emergency order is not granted, the moving party may seek temporary relief after notice pursuant to subsection (B) or proceed to a final hearing.
(3) If the motion for an emergency order is granted, the date and hour of its issuance must be endorsed on the order. The date and time for the emergency hearing must be entered on the notice of hearing and it must be no later than ten days from the date of the order or as the court determines is reasonable for good cause shown.
(4) The moving party shall serve all pleadings on the alleged incapacitated individual, ward or protected person and other adverse parties immediately after issuance of the emergency order.
(5) If the moving party does not appear at the emergency hearing, the court may dissolve the emergency order without notice.
(6) Evidence admitted at the hearing may be limited to pleadings and supporting affidavits. Upon good cause shown or at the court's direction, additional evidence may be admitted.
(7) On two days' notice to the party who obtained the emergency order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move for the emergency order's dissolution or modification, and in that event, the court shall proceed to hear and determine the motion as expeditiously as possible and may consolidate motions.
(8) No emergency order for conservatorship must be issued except upon the court receiving adequate assurances the assets will be protected, which may include providing of security by the moving party in a sum the court deems proper for costs and damages incurred by any party who without just cause is aggrieved as a result of the emergency order. A surety upon a bond or undertaking submits to the jurisdiction of the court.
(9) The court may take whatever actions it deems necessary to protect assets, including, but not limited to, issuing an order to freeze accounts.
(B) The process for temporary orders and temporary hearings with notice is as follows:
(1) A temporary order must not be issued without notice to the adverse party.
(2) An order for a temporary hearing must not be issued unless the moving party files a summons, motion for temporary hearing with supporting affidavits, and a petition or other appropriate pleading setting forth specific facts supporting the allegation that immediate relief is needed during the pendency of the action, and an affidavit of service of the notice of the temporary hearing to adverse parties.
(a) If temporary relief is required to protect the welfare of an alleged incapacitated individual, in addition to the requirements set forth above in subsection (B)(2), the moving party shall present an affidavit from a physician who has performed an examination within forty-five days prior to the filing of the action, a motion for the appointment of counsel if counsel has not been retained, and a motion for appointment of a proposed qualified individual to serve as guardian ad litem.
(b) If the temporary relief requested is an order for:
(i) appointment of a temporary guardian, conservator, guardian ad litem, or other fiduciary; or
(ii) removal of an existing guardian, conservator or other fiduciary, and the appointment of a substitute, in addition to the requirements set forth in subsection (B)(2) and (a), as applicable, the moving party shall submit evidence of the suitability and creditworthiness of the proposed fiduciary.
(3) If the motion for temporary relief is not granted, the action will remain on the court docket for a final hearing.
(4) If the motion for temporary relief is granted, the court shall enter a date and time for the temporary hearing on the notice of hearing.
(5) The moving party shall serve pleadings on the alleged incapacitated individual, ward or protected person, and other adverse parties. Service must be made no later than ten days prior to the temporary hearing or as the court determines is reasonable for good cause shown.
(6) Temporary orders resulting from the hearing shall expire six months from the date of issuance unless otherwise specified in the order.
(C) In an emergency, the court may exercise the power of a guardian with or without notice if the court makes emergency findings as required by the Adult Health Care Consent Act, Section 44-66-30.
(D) After preliminary hearing upon such notice as the court deems reasonable, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the alleged incapacitated individual as may be required for his benefit or the benefit of his dependents. Notice of the court's actions shall be given to interested parties as soon thereafter as possible.
(E) A hearing concerning the need for appointment of a permanent guardian must be a hearing de novo as to all issues before the court.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 483, § 3; 1997 Act No. 152, § 22; 2000 Act No. 398, § 10; 2010 Act No. 244, § 29, eff June 7, 2010. Formerly Code 1976 §§ 62-5-310 and 62-5-408, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
Part 2
Jurisdiction
SECTION 62-5-201. Jurisdiction.
Exclusive jurisdiction of the court is set forth in Sections 62-1-302 and 62-5-701 as to appointment of a guardian or issuance of a protective order. Pursuant to the court's authority to appoint a guardian, and Section 62-5-309, the guardian has the authority to maintain custody of the person of the ward and to establish the ward's place of abode, unless otherwise specified in the court's order. Other than the proceeding set forth in Section 62-5-303(C), the court does not have jurisdiction over the care, custody, and control of the person of a minor, but does have jurisdiction over the property of a minor if the court determines that the minor owns property that requires management or protection.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 66; 1988 Act No. 659, § 5. Formerly Code 1976 §§ 62-5-102 and 62-5-201, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019; 2023 Act No. 10 (S.341), § 2, eff May 8, 2023.
Part 3
Guardians of Incapacitated Individuals
SECTION 62-5-301. Testamentary nomination of guardian for incapacitated individual.
(A) The parent of an alleged incapacitated individual may by will nominate a guardian for an alleged incapacitated individual. A testamentary nomination by a parent gives the nominee priority pursuant to Section 62-5-308 in any proceeding to determine incapacity and appoint a guardian. A testamentary nomination by a parent gives priority to the nominee to make health care decisions for the alleged incapacitated individual pursuant to Section 44-66-30. Such nomination creates priority under Sections 62-5-308 and 44-66-30 when the will is informally or formally probated, if prior to the will being probated, both parents are deceased or the surviving parent is adjudged incapacitated. If both parents are deceased, the nomination by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.
(B) The spouse of an alleged incapacitated individual may by will nominate a guardian for an alleged incapacitated individual. A testamentary nomination by a spouse gives the nominee priority pursuant to Section 62-5-308 in any proceeding to determine incapacity and appoint a guardian. A testamentary nomination by a spouse gives priority to the nominee to make health care decisions for the alleged incapacitated individual pursuant to Section 44-66-30. Such nomination creates priority under Sections 62-5-308 and 44-66-30 when the will is informally or formally probated. An effective nomination by a spouse has priority over a nomination by a parent unless the nomination is terminated by the denial of probate in formal proceedings.
(C) This State shall recognize a testamentary nomination under a will probated at the testator's domicile in another state.
HISTORY: 1986 Act No. 539, § 1; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-302. Venue.
Venue for guardianship proceedings is in the place where the alleged incapacitated individual or ward resides or is present. If the alleged incapacitated individual or ward is committed to an institution pursuant to an order of a court of competent jurisdiction, venue also is in the county in which that court sits.
HISTORY: 1986 Act No. 539, § 1; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-303. Procedure for court appointment of a guardian; summons and petition.
(A) A person seeking a finding of incapacity, appointment of a guardian, or both, must file a summons and petition. When more than one petition is pending in the same court, the proceedings may be consolidated.
(B) The petition shall set forth, to the extent known or reasonably ascertainable, the following information:
(1) interest of the petitioner;
(2) name, age, current address, and contact information of the alleged incapacitated individual, who must be designated as a respondent;
(3) physical location of the alleged incapacitated individual during the six-month period immediately preceding the filing of the summons and petition; and, if the alleged incapacitated individual was not physically present in South Carolina for that period, sufficient information upon which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;
(4) to the extent known and reasonably ascertainable, the names and addresses of the following persons, who must be designated as corespondents:
(a) the alleged incapacitated individual's spouse and adult children; or, if none, his parents; or, if none, at least one of his adult relatives within the nearest degree of kinship;
(b) a person known to have been appointed as agent for the alleged incapacitated individual under a general durable power of attorney or health care power of attorney;
(c) a person who has equal or greater priority for appointment pursuant to Section 62-5-308 as the person whose appointment is sought in the petition; and
(d) a person, other than an unrelated employee or health care worker, who is known or reasonably ascertainable by the petitioner to have materially participated in caring for the alleged incapacitated individual within the six-month period preceding the filing of the petition;
(5) name and address of the proposed guardian and the basis of his priority for appointment;
(6) reasons why a guardianship is necessary, including why less restrictive alternatives are not available or appropriate, and a brief description of the nature and extent of the alleged incapacity;
(7) a statement of any rights that a petitioner is requesting be removed from the alleged incapacitated individual, any restrictions to be placed on the alleged incapacitated individual, and any restrictions sought to be imposed on the guardian's powers and duties; and
(8) to the extent known and reasonably ascertainable, a general statement of the alleged incapacitated individual's assets, with an estimate of value, and the source and amount of any income of the alleged incapacitated individual.
(C) A person may initiate guardianship proceedings by filing a summons and petition for guardianship of a minor child up to one hundred eighty days prior to the date the child reaches the age of eighteen if the petitioner anticipates the minor child will require a guardian upon attaining the age of eighteen. The court has jurisdiction over the proceedings in this subsection beginning one hundred eighty days prior to the date the child reaches the age of eighteen. The minor shall be provided all due process rights conferred upon an alleged incapacitated individual pursuant to this chapter including, but not limited to, the appointment of an attorney and a guardian ad litem. An order appointing a guardian pursuant to this subsection shall be issued upon the minor's eighteenth birthday or as soon thereafter as possible.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 25, eff June 7, 2010; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019; 2023 Act No. 10 (S.341), § 3, eff May 8, 2023.
SECTION 62-5-303A. Procedure for court appointment of a guardian; service.
(A) As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve:
(1) a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual;
(2) a copy of the summons and petition upon all corespondents and the petitioner in any pending guardianship proceeding; and
(3) any affidavits or physician's reports filed with the petition.
(B) If service is not accomplished within one hundred twenty days after the filing of the action, the court may dismiss the action without prejudice.
(C) The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of proof of service, the court will appoint counsel. In appointing counsel, the court shall consider the expressed preferences of the alleged incapacitated individual.
(D) The date for the alleged incapacitated individual to file a responsive pleading shall run from the later of the date the court appoints counsel for the alleged incapacitated individual or from the date the court receives notice of appearance by counsel selected by the alleged incapacitated individual.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 483, § 2; 2010 Act No. 244, §§ 25, 28, eff June 7, 2010. Formerly Code §§ 62-5-303 and 62-5-309, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-303B. Procedure for court appointment of a guardian; appointments of counsel, guardians ad litem, and an examiner.
(A) Upon receipt by the court of proof of service of the summons, petition, and notice of right to counsel upon the alleged incapacitated individual, the court shall:
(1) upon the expiration of fifteen days from filing the proof of service on the alleged incapacitated individual, if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual, appoint counsel;
(2) no later than thirty days from the filing of the proof of service on the alleged incapacitated individual, appoint:
(a) a guardian ad litem for the alleged incapacitated individual who shall have the duties and responsibilities set forth in Section 62-5-106; and
(b) one examiner, who must be a physician, to examine the alleged incapacitated individual and file a notarized report setting forth his evaluation of the condition of the alleged incapacitated individual in accordance with the provisions set forth in Section 62-5-303D. Unless the guardian ad litem or the alleged incapacitated individual objects, if a physician's notarized report is filed with the petition and served upon the alleged incapacitated individual and all interested parties with the petition, then the court may appoint such physician as the examiner. Upon the court's own motion or upon request of the initial examiner, the alleged incapacitated individual, or his guardian ad litem, the court may appoint a second examiner, who must be a physician, nurse, social worker, or psychologist.
(B) At any time during the proceeding, if requested by a guardian ad litem who is not an attorney, the court may appoint counsel for the guardian ad litem.
(C) At the attorney's discretion, the attorney for the alleged incapacitated individual may file a motion requesting that the court relieve him as the attorney if the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment of a guardian. The attorney must file an affidavit in support of the motion. If the court is satisfied that the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment of a guardian, then the court may relieve the attorney from his duties as attorney for the alleged incapacitated individual. If the former attorney requests to be appointed as the guardian ad litem, the court may appoint him to serve as the guardian ad litem. An attorney cannot serve as both an attorney and as a guardian ad litem in a guardianship action.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 25, eff June 7, 2010. Formerly Code 1976 § 62-5-303, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-303C. Procedure for court appointment of a guardian; hearing.
(A) As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties, the court shall hold a hearing on the merits of the petition. The alleged incapacitated individual, all parties, and any person who has filed a demand for notice, shall be given notice of the hearing. The alleged incapacitated individual is entitled to be present at the hearing, to conduct discovery, and to review all evidence bearing upon his condition. The hearing may be closed at the request of the alleged incapacitated individual or his guardian ad litem. The alleged incapacitated individual may waive notice of a hearing and his presence at the hearing. If there is an agreement among all the parties and the guardian ad litem's report indicates that a hearing would not further the interests of justice, the alleged incapacitated individual may waive his right to a hearing. If the alleged incapacitated individual waives his right to a hearing, the court may:
(1) require a formal hearing;
(2) require an informal proceeding as the court shall direct; or
(3) proceed without a hearing.
(B) If no formal hearing is held, the court shall issue a temporary consent order, which shall expire in thirty days. A ward, under a temporary order, may request a formal hearing at any time during the thirty-day period. At the end of the thirty-day period, if the ward has not requested a formal hearing, the court shall issue an order upon such terms agreed to by the parties and the guardian ad litem.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 483, § 2; 2010 Act No. 244, §§ 25, 28, eff June 7, 2010. Formerly Code §§ 62-5-303 and 62-5-309, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-303D. Procedure for court appointment of a guardian; report evaluating condition of alleged incapacitated individual.
(A) Each examiner shall complete a notarized report setting forth an evaluation of the condition of the alleged incapacitated individual. The original report must be filed with the court by the court's deadline, but not less than forty-eight hours prior to any hearing in which the report is introduced as evidence. For good cause, the court may admit an examiner's report filed less than forty-eight hours prior to the hearing. All parties are entitled to review the reports after filing, which must be admissible as evidence. The evaluation shall contain, to the best of the examiner's knowledge and belief:
(1) a description of the nature and extent of the incapacity, including specific functional impairments;
(2) a diagnosis and assessment of the alleged incapacitated individual's mental and physical condition, including whether he is taking any medications that may affect his actions;
(3) an evaluation of the alleged incapacitated individual's ability to exercise the rights set forth in Section 62-5-304A;
(4) when consistent with the scope of the examiner's license, an evaluation of the alleged incapacitated individual's ability to learn self-care skills, adaptive behavior, and social skills, and a prognosis for improvement;
(5) the date of all examinations and assessments upon which the report is based;
(6) the identity of the persons with whom the examiner met or consulted regarding the alleged incapacitated individual's mental or physical condition; and
(7) the signature and designation of the professional license held by the examiner.
(B) Unless otherwise directed by the court, the examiner may rely upon an examination conducted within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith, an examiner appointed by the court pursuant to Section 62-5-303B, is immune from civil liability for breach of patient confidentiality made in furtherance of his duties.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 25, eff June 7, 2010. Formerly Code 1976 § 62-5-303, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-304. Order of appointment; alternatives; limitations on guardian's powers.
(A) The court shall exercise its authority to encourage maximum self-reliance and independence of the incapacitated individual and issue orders only to the extent necessitated by the incapacity of the individual.
(B) The court may appoint a guardian if clear and convincing evidence shows that the individual is incapacitated and the appointment of a guardian is necessary to provide continuing care and supervision of the incapacitated individual. The court may:
(1) enter an appropriate order;
(2) treat the petition as one for a protective order and proceed accordingly; or
(3) dismiss the proceeding.
(C) The court may appoint co-guardians if the appointment is in the best interest of the incapacitated individual. The compensation of co-guardians in the aggregate shall not exceed the compensation that would have been allowed to a sole guardian. Unless the order of appointment provides otherwise:
(1) each co-guardian has authority to act independently; and
(2) if a co-guardian dies, the other co-guardian has continuing authority to act alone.
(D) The court, on its own motion or on the petition or motion of the incapacitated individual or other interested person, may limit the powers of a guardian and create a limited guardianship. A limitation on the statutory power of a guardian of an incapacitated individual shall be endorsed on the guardian's letters. A limitation may be removed, modified, or restored pursuant to Sections 62-5-307 and 62-5-307A.
(E) Unless the court order specifies otherwise:
(1) appointment of a guardian terminates an agent's powers under a health care power of attorney or durable power of attorney for matters within the scope of the guardianship; and
(2) the guardian shall act consistently with the most recent advance directive executed by the ward prior to an adjudication of incapacity.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 483, § 1; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-304A. Rights and powers of ward and guardian.
(A) The court shall set forth the rights and powers removed from the ward. To the extent rights are not removed, they are retained by the ward. Such rights and powers include the rights and powers to:
(1) marry or divorce;
(2) reside in a place of the ward's choosing, and consent or withhold consent to any residential or custodial placement;
(3) travel without the consent of the guardian;
(4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;
(5) make end-of-life decisions including, but not limited to, a 'do not resuscitate' order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration;
(6) consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment;
(7) authorize disclosures of confidential information;
(8) operate a vehicle;
(9) vote;
(10) be employed without the consent of a guardian;
(11) consent to or refuse educational services;
(12) participate in social, religious or political activities;
(13) buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under Section 62-5-422;
(14) make, modify, or terminate contracts;
(15) bring or defend any action at law or equity; and
(16) any other rights and powers that the court finds necessary to address.
(B) The court shall set forth the rights and powers vested in the guardian. These rights and powers include, but are not limited to, the rights and powers to:
(1) determine the place where the ward shall reside and consent or withhold consent to any residential or custodial placement;
(2) consent to travel;
(3) consent or refuse to consent to visitation with family, friends and others;
(4) give, withhold, or withdraw consent and make other informed decisions relative to medical, mental, and physical examinations, care, treatment and therapies;
(5) make end-of-life decisions, including, but not limited, to a "do not resuscitate" order or the application of any medical procedures intended solely to sustain life, and consent or withhold consent to artificial nutrition and hydration;
(6) consent or refuse to consent to hospitalization and discharge or transfer to a residential setting, group home, or other facility for additional care and treatment;
(7) authorize disclosures of confidential information;
(8) consent to or refuse educational services;
(9) consent to employment;
(10) make, modify, or terminate contracts related to the duties of the guardian;
(11) bring or defend any action at law or equity; and
(12) exercise any other rights and powers that the court finds necessary to address.
(C) Nothing in this section must be construed as removing any rights guaranteed by the Bill of Rights for Residents of Long-Term Care Facilities under Chapter 81, Title 44.
(D) The attorney-client privilege between the ward and the ward's counsel must not be removed by the appointment of a guardian.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-305. Acceptance of appointment; consent to jurisdiction.
By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding must be given or waived pursuant to Sections 62-1-401 and 62-1-402.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 26, eff June 7, 2010; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-306. Termination of guardianship for incapacitated person; accounting of funds.
(A) Upon the death of the ward, the guardian shall notify the court and file a death certificate confirming the ward's death. The court may then issue an order terminating the guardianship and the appointment of the guardian.
(B) If there is no conservatorship for the ward, the guardian may file an application for specific authority to use the ward's funds for the final disposition of the ward's remains. If the application is granted by the court, the guardian shall file an accounting of those funds within ten days from the date of approval, along with a proof of delivery showing he has delivered a copy of the accounting to the last known address of the person named as Personal Representative in the ward's will. If the guardian cannot locate the will after reasonable effort, he shall send a copy of the accounting to the last known address for at least one of the ward's closest adult relatives. Upon approval of the accounting, the court will issue an order terminating the guardianship and the appointment.
(C) Termination of the appointment does not affect the guardian's liability for prior acts nor his obligation to account for any funds or assets of the ward.
HISTORY: 1986 Act No. 539, § 1; 2008 Act No. 303, § 1, eff June 11, 2008. Formerly Code 1976 §§ 62-5-106 and 62-5-306, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-307. Informal request for relief.
(A) The ward or another person interested in his welfare, may make an informal request for relief by submitting a written request to the court. The court may take such action as considered reasonable and appropriate to protect the ward.
(B) A person making an informal request submits personally to the jurisdiction of the court.
HISTORY: 1986 Act No. 539, § 1; 2008 Act No. 303, § 1, eff June 11, 2008; 2010 Act No. 244, § 27, eff June 7, 2010. Formerly Code 1976 §§ 62-5-106 and 62-5-307, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-307A. Removal of guardian; termination of incapacity.
(A) Upon filing of a summons and petition with the appointing court, the ward or any person interested in his welfare may, for good cause, request an order to:
(1) prove by a preponderance of the evidence that the ward is no longer incapacitated. The petition may request a court order limiting the scope of the guardianship and the authority of the guardian or a termination of the guardianship and the appointment of the guardian. The court may specify a minimum period, not exceeding one year, during which no application or petition for readjudication may be filed without leave of court;
(2) appoint a successor guardian due to death, incapacity, resignation, or dereliction of duty of the guardian. The appointment of a successor guardian does not affect the guardian's liability for prior acts nor his obligation to account for any funds or assets of the ward. The petition shall name a willing and qualified person to serve as successor guardian in the petition or set forth why no such successor is available; or
(3) modify the provisions of an existing court order.
(B) After filing and service of the summons and petition, the court may appoint a guardian ad litem and may appoint counsel for the ward, unless the ward has private counsel, and such examiners as are needed to evaluate and confirm the allegations of the petition.
(C) On its own motion, the court may initiate appropriate proceedings under this section as considered necessary to promote the best interests of the ward.
(D) An attorney who has been asked by the ward to represent him in an action under this section may file a motion with the court for permission to represent the ward.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 27, eff June 7, 2010. Formerly Code 1976 § 62-5-307, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-308. Guardian; qualifications; priorities.
(A) In appointing a guardian, the court shall consider persons who are otherwise qualified in the following order of priority:
(1) a person previously appointed guardian, other than a temporary or emergency guardian, currently acting for the ward in this State or elsewhere;
(2) a person nominated to serve as guardian by the alleged incapacitated individual if he has sufficient mental capacity to make a reasoned choice;
(3) an agent designated in a power of attorney by the alleged incapacitated individual, whose authority includes powers relating to the care of the alleged incapacitated individual;
(4) the spouse of the alleged incapacitated individual or a person nominated as testamentary guardian in the will of the alleged incapacitated individual's deceased spouse;
(5) an adult child of the alleged incapacitated individual;
(6) a parent of the alleged incapacitated individual or a person nominated as testamentary guardian in the will of the alleged incapacitated individual's deceased parent;
(7) the person nearest in kinship to the alleged incapacitated individual who is willing to accept the appointment;
(8) a person with whom the alleged incapacitated individual resides outside of a health care facility, group home, homeless shelter, or prison;
(9) a person nominated by a health care facility caring for the alleged incapacitated individual; and
(10) any other person considered suitable by the court.
(B) A person whose priority is based upon his status under subsections (A)(1), (3), (4), (5), (6), or (7) may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the alleged incapacitated individual, may decline to appoint a person having higher priority and appoint a person having lesser priority or no priority.
(C) Other than as provided in Section 62-5-108, a probate judge or an employee of the court shall not serve as a guardian of a ward; except, a probate judge or an employee of the court may serve as a guardian of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 483, § 4. Formerly Code 1976 § 62-5-311, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-309. Delegation of guardian's powers.
(A) Subject to the rights and powers retained by the ward and except as modified by order of the court, the guardian has the following duties, rights, and powers:
(1) to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, maintaining custody of the ward and the ability to establish the ward's place of abode within or without this State;
(2) if entitled to custody of his ward, providing for the care, comfort, and maintenance of the ward; the guardian is entitled to receive reasonable compensation for his services and for room and board furnished to the ward as approved by the court;
(3) arranging for appropriate habilitation and rehabilitation services and educational, social, and vocational services to assist the ward in the development of maximum self-reliance and independence;
(4) taking reasonable care of his ward's clothing, furniture, vehicles, and other personal effects, and commencing protective proceedings if other property of his ward is in need of protection;
(5) providing any consents, denials, or approvals necessary to enable the ward to receive or refuse to receive medical or other professional care, counsel, treatment, or service, including institutional care. If there is no conservator and placement or care of the ward requires the execution of an admission agreement or other documents for the ward's placement in a facility, the guardian may execute such documents on behalf of the ward, without incurring personal liability;
(6) if no conservator for the estate of the ward is appointed or if the guardian is also conservator:
(a) instituting proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;
(b) receiving money and tangible property deliverable to the ward and applying the money and property for support, care, and education of the ward; however, he may not use funds from his ward's estate for room and board or services that he, his spouse, parent, or child have furnished the ward unless a charge for the services or room and board is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs; and
(c) exercising the ward's rights as trust beneficiary to the extent provided in Article 7, Title 62;
(7) reporting the condition of his ward and of the estate that has been subject to his possession or control to the court, as required by the court or court rule, but at least on an annual basis;
(8) if a conservator has been appointed:
(a) paying over to the conservator all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward and accounting to the conservator for funds expended; and
(b) requesting the conservator to expend the ward's estate by payment to the guardian or to third persons or institutions for the ward's care and maintenance;
(9) if co-guardians have been appointed, keeping the other co-guardian informed of all relevant information regarding the care and custody of the ward, including, but not limited to, the identity of the ward's care providers, medical providers, or similar professionals and informing the other co-guardian when scheduling medical appointments for the ward; and
(10) exercising any other power, right, or duty ordered by the court.
(B) A guardian, within thirty days of his appointment, shall file a plan of care. The plan must be based on the actual needs of the ward, taking into consideration the best interest of the ward. The guardian shall revise the plan as the needs and circumstances of the ward require. The guardian shall include in the plan a statement of the extent to which the ward may be able to develop or recover ability for independent decision making and any proposed steps to develop or restore the ward's ability for independent decision making. The court shall approve, disapprove, or modify the plan in informal or formal proceedings, as the court deems appropriate. Nothing herein shall require the court to oversee the plan of care.
(C) A guardian, by a properly executed special power of attorney, may delegate to another person, for a period not to exceed sixty days, any of his powers regarding the care and custody of the ward. The original power of attorney must be filed with the court having jurisdiction over the guardianship.
(D) A guardian is not legally obligated to provide for the ward from the guardian's funds solely by reason of his appointment as guardian.
(E) A guardian is not liable to a third person for acts of the ward solely by reason of the guardianship relationship and is not liable for injury to the ward resulting from the wrongful conduct of a third person providing medical or other care, treatment or service for the ward except to the extent that the guardian failed to exercise reasonable care in choosing the provider.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 65; 1997 Act No. 152, § 21. Formerly Code 1976 §§ 62-5-104 and 62-5-312, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-310. Proceedings subsequent to appointment; venue.
(A) The court that appointed the guardian shall maintain jurisdiction over the guardianship until such time as:
(1) the proceeding is terminated following the death of the ward;
(2) the proceeding is terminated pursuant to a readjudication of incapacity;
(3) the court transfers the proceeding to another county's jurisdiction;
(4) the court transfers the proceedings to another state.
(B) If the court with competent jurisdiction determines that venue would be more appropriate:
(1) in another county of this State, the court shall notify the court in the other county and, after consultation with that court, determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of an order accepting a resignation or removing a guardian must be sent to the court in which acceptance of appointment is filed; or
(2) in another state, the first court shall follow the procedures set forth in Section 62-5-714.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-313, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
Part 4
Protection of Property of Persons Under Disability and Minors
SECTION 62-5-401. Venue.
Subject to the provisions of Section 62-5-701, et seq., venue for proceedings under this part is:
(1) in the county where the alleged incapacitated individual resides; or
(2) if the alleged incapacitated individual does not reside in this State, in any county in the state where the alleged incapacitated individual has property or has the right to take legal action.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-403, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-402. Protective proceedings; minors.
(A) The appointment of a conservator or issuance of a protective order may be made in relation to the estate and affairs of a minor if:
(1) a minor owns real or personal property that requires management or protection;
(2) a minor has or may have business affairs that may be adversely affected by a lack of effective management; or
(3) it is necessary to obtain and administer funds for the health, education, maintenance, and support of the minor.
(B) The appointment of a conservator or issuance of a protective order for a minor may be made in the following manner:
(1) By filing a verified application setting forth the following information:
(a) the interest of the applicant;
(b) the name, age, current address, and contact information for the minor;
(c) physical location of the minor during the six-month period immediately preceding the filing of the application and if the minor was not present in South Carolina for that period, sufficient information upon which the court may determine it has initial jurisdiction;
(d) the name and address of the non-applicant parent of the minor, the person with whom the minor resides, and other persons as the court directs;
(e) any person who has equal or greater priority for appointment as the person whose appointment is sought pursuant to Section 62-5-408;
(f) the name and address of the person whose appointment is sought and the basis of priority for appointment;
(g) the reason why the appointment is necessary; and
(h) an estimate of the value of the minor's assets and the source of the minor's income, if any.
(2) Upon consideration of the application and in the court's discretion, with or without a hearing, if the court concludes it is in the best interests of the minor, the court shall issue its order of appointment or protective order.
(C) The court may at any time require the filing of a summons and petition for the appointment of a conservator or for issuance of a protective order, and the appointment or order must be made in the following manner:
(1) the petition shall set forth the information required in subsection (B);
(2) the summons and petition must be served on the minor, the minor's parents whose identity and whereabouts are known or reasonably ascertainable, the person or persons having custody of the minor, and other persons the court directs; and
(3) after the time has elapsed for the filing of a response to the petition and a hearing, if the court concludes it is in the best interests of the minor, the court shall issue its order of appointment or a protective order.
(D) Except upon a finding of good cause, the court shall require the conservator to furnish bond, or establish a restricted account, or both pursuant to Section 62-5-409.
(E) If a minor is receiving needs-based government benefits the court may limit access to the minor's funds to prohibit payments that would disqualify the minor from receipt of benefits.
(F) At any time and in any proceeding if the court determines the interests of the minor are not or may not be adequately represented, it may appoint a guardian ad litem to represent the minor.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, §§ 30, 33, eff June 7, 2010. Formerly Code 1976 §§ 62-5-401 and 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-403. Protective proceedings; incapacitated and disabled persons.
(A) A person seeking a finding of incapacity, appointment of a conservator, or issuance of a protective order must file a summons and petition if:
(1) the individual is unable to manage his property or affairs effectively for reasons of incapacity, confinement, detention by a foreign power, or disappearance; and
(a) the individual has an agent pursuant to a durable power of attorney and the actions necessary to prevent waste or dissipation of the individual's property are not being adequately performed by or are beyond the authority of the agent; or
(b) the individual has no agent under a durable power of attorney and owns property that will be wasted or dissipated or which is needed for the health, education, maintenance, or support of the individual or those entitled to his support, and protection is necessary to obtain or administer the funds.
(2) a protective order is necessary to create a special needs trust for an individual who is disabled in accordance with Social Security Administration guidelines.
(B) The petition shall set forth, to the extent known or reasonably ascertainable, the following information:
(1) interest of the petitioner;
(2) name, age, current address, and contact information of the alleged incapacitated individual, who must be designated as the respondent;
(3) physical location of the alleged incapacitated individual during the six-month period immediately preceding the filing of the summons and petition; and, if the alleged incapacitated individual was not physically present in South Carolina for that period, sufficient information upon which the court may make a determination that it has initial jurisdiction pursuant to Section 62-5-707;
(4) to the extent known and reasonably ascertainable, the names and addresses of the following persons, who must be designated corespondents:
(a) the alleged incapacitated individual's spouse and any adult children; or if none, his parents; or if none, at least one of his adult relatives with the nearest degree of kinship;
(b) a person known to have been appointed as agent under a general durable power of attorney or health care power of attorney;
(c) a person who has equal or greater priority for appointment pursuant to Section 62-5-408 as the person whose appointment is sought in the petition;
(d) a person other than an unrelated employee or health care worker who is known or reasonably ascertainable by the petitioner to have materially participated in the caring for the alleged incapacitated individual within the six-month period preceding the filing of the petition; and
(e) the person entitled to notice on behalf of the VA, if the alleged incapacitated individual is receiving VA benefits;
(5) name and address of the proposed conservator and the basis of his priority for appointment;
(6) reason why conservatorship is necessary, including why less restrictive alternatives are not available and appropriate, and a brief description of the nature and extent of the alleged incapacity;
(7) a statement of any rights the petitioner is requesting be removed from the alleged incapacitated individual, any restrictions to be placed on the alleged incapacitated individual, and any restrictions sought to be imposed on the conservator's powers and duties;
(8) a general statement of the alleged incapacitated individual's assets, with an estimated value, and the source and amount of any income of the alleged incapacitated individual; and
(9) whether the alleged incapacitated individual has been rated incapable of handling his estate and monies on examination by the VA and, if so, shall state the name and address of the person to be notified on behalf of the VA.
(C) An alleged incapacitated individual seeking the appointment of a conservator or issuance of a protective order may file a summons and petition with the information specified in subsection (B).
(D) When more than one petition is pending in the same court, the proceedings may be consolidated.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 30, eff June 7, 2010; 2016 Act No. 278 (S.777), § 3, eff June 9, 2016. Formerly Code 1976 §§ 62-5-401 and 62-5-404, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-403A. Service of summons and petition.
(A) As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve:
(1) a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual;
(2) a copy of the summons and petition upon all corespondents and the petitioner in any pending conservatorship or protective proceeding; and
(3) any affidavits or physicians' reports filed with the petition.
(B) If service is not accomplished within one hundred twenty days after the filing of the action, the court may dismiss the action without prejudice.
(C) The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received a notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of the proof of service, the court will appoint counsel. In appointing counsel, the court may consider the expressed preferences of the alleged incapacitated individual.
(D) The date for the alleged incapacitated individual to file a responsive pleading shall run from the later of the date the court appoints counsel for the alleged incapacitated individual or from the date the court receives notice of appearance by counsel selected by the alleged incapacitated individual.
HISTORY: 1986 Act No. 539, § 1; 1997 Act No. 152, § 23; 2010 Act No. 244, § 32, eff June 7, 2010; 2016 Act No. 278 (S.777), § 4, eff June 9, 2016. Formerly Code 1976 § 62-5-405, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-403B. Appointment of counsel and guardian ad litem.
(A) Except in cases governed by Section 62-5-431 relating to veterans benefits, upon receipt by the court of proof of service of the summons, petition, and notice of right to counsel upon the alleged incapacitated individual, the court shall:
(1) upon the expiration of fifteen days from the filing of the proof of service on the alleged incapacitated individual, if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual, appoint counsel;
(2) no later than thirty days from the filing of the proof of service on the alleged incapacitated individual, appoint:
(a) a guardian ad litem for the alleged incapacitated individual who has the duties and responsibilities set forth in Section 62-5-106;
(b) except in cases governed by Section 62-5-431 relating to benefits from the VA, one examiner, who must be a physician, to examine the alleged incapacitated individual and file a notarized report setting forth his evaluation of the condition of the alleged incapacitated individual in accordance with the provisions set forth in Section 62-5-403D. Unless the guardian ad litem or the alleged incapacitated individual objects, if a physician's notarized report is filed with the petition and served upon the alleged incapacitated individual and all interested parties with the petition, then the court may appoint that physician as the examiner. Upon the court's own motion or upon request of the initial examiner, the alleged incapacitated individual, or his guardian ad litem, the court may appoint a second examiner, who must be a physician, nurse, social worker, or psychologist. No appointment of examiners is required when the basis for the petition is that the individual is confined, detained, or missing.
(B) At any time during the proceeding, if requested by a guardian ad litem who is not an attorney, the court may appoint counsel for the guardian ad litem.
(C) At the attorney's discretion, the attorney for the alleged incapacitated individual may file a motion requesting that the court relieve him as the attorney if the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment in a protective proceeding. The attorney must file an affidavit in support of the motion. If the court is satisfied that the alleged incapacitated individual is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences regarding the appointment in a protective proceeding, then the court may relieve the attorney from his duties as attorney for the alleged incapacitated individual. If the former attorney requests to be appointed as the guardian ad litem, the court may appoint him to serve as the guardian ad litem. An attorney cannot serve as both an attorney and as a guardian ad litem in a protective proceeding.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 33, eff June 7, 2010; 2016 Act No. 278 (S.777), § 5, eff June 9, 2016. Formerly Code 1976 § 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-403C. Hearing; waiver.
(A) As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties, the court shall hold a hearing on the merits of the petition. The alleged incapacitated individual, all parties, and any person who has filed a request or demand for notice must be given notice of the hearing. The alleged incapacitated individual is entitled to be present at the hearing, to conduct discovery, and to review all evidence bearing upon his condition. The hearing may be closed at the request of the alleged incapacitated individual or his guardian ad litem. The alleged incapacitated individual may waive notice of a hearing and his presence at the hearing. If there is an agreement among all the parties and the guardian ad litem's report indicates that a hearing would not further the interests of justice, the alleged incapacitated individual may waive his right to a hearing. If the alleged incapacitated individual waives his right to a hearing, the court may:
(1) require a formal hearing;
(2) require an informal proceeding as the court shall direct; or
(3) proceed without a hearing.
(B) If no formal hearing is held, the court shall issue a temporary consent order, which shall expire in thirty days. A protected person, under a temporary order, may request a formal hearing at any time during the thirty-day period. At the end of the thirty-day period, if the protected person has not requested a formal hearing, the court shall issue an order upon such terms agreed to by the parties and the guardian ad litem.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 67; 1997 Act No. 152, § 23; 2010 Act No. 244, §§ 32, 33, eff June 7, 2010; 2016 Act No. 278 (S.777), §§ 4, 5, eff June 9, 2016. Formerly Code 1976 §§ 62-5-405, 62-5-406, and 62-5-407, renumbered and amended by 2017 Act No. 87, § 5.A, eff January 1, 2019.
SECTION 62-5-403D. Report of examiner.
(A) Each examiner shall complete a notarized report setting forth an evaluation of the condition of the alleged incapacitated individual. The original report must be filed with the court by the court's deadline, but not less than forty-eight hours prior to any hearing in which the report will be introduced as evidence. For good cause, the court may admit an examiner's report filed less than forty-eight hours prior to the hearing. All parties are entitled to review the reports, which are admissible as evidence. The evaluation shall contain, to the best of the examiner's knowledge and belief:
(1) a description of the nature and extent of the incapacity, including specific functional impairments;
(2) a diagnosis and assessment of the alleged incapacitated individual's mental and physical condition, including whether he is taking any medications that may affect his actions;
(3) an evaluation of the alleged incapacitated individual's ability to exercise the rights set forth in Section 62-5-407;
(4) when consistent with the scope of the examiner's license, an evaluation of the alleged incapacitated individual's ability to learn self-care skills, adaptive behavior, and social skills, and a prognosis for improvement;
(5) the date of all examinations and assessments upon which the report is based;
(6) the identity of the persons with whom the examiner met or consulted regarding the alleged incapacitated individual's mental or physical condition; and
(7) the signature and designation of the professional license held by the examiner.
(B) Unless otherwise directed by the court, the examiner may rely upon an examination conducted within the ninety-day period immediately preceding the filing of the petition. In the absence of bad faith, an examiner appointed by the court pursuant to Section 62-5-403B is immune from civil liability for any breach of patient confidentiality made in furtherance of his duties.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 33, eff June 7, 2010; 2016 Act No. 278 (S.777), § 5, eff June 9, 2016. Formerly Code 1976 § 62-5-407, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-404. Protective proceedings; limited conservatorship.
(A) Upon a finding by clear and convincing evidence that a basis for an appointment or protective order exists with respect to a minor, the court has all those powers over the estate and affairs of the minor that are necessary for the best interests of the minor and members of his household.
(B) Upon finding by clear and convincing evidence that a basis for an appointment or protective order exists for reasons other than minority, the court has the powers over the incapacitated individual's real and personal property and financial affairs which the incapacitated individual could exercise if not under disability, except the power to make a will or amend a revocable trust.
(C) The court, on its own motion or on the petition or motion of the incapacitated individual or any other person, may limit the powers of a conservator. A limitation on the statutory power of a conservator must be endorsed upon the conservator's letters. A limitation may be removed, modified, or restored pursuant to Section 62-5-428. Notwithstanding the foregoing, the failure to endorse any limitation upon the conservator's letters shall not relieve the conservator of the limitation imposed by order of the court.
HISTORY: 1986 Act No. 539, § 1; 2000 Act No. 398, § 10. Formerly Code 1976 §§ 62-5-408 and 62-5-426, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-405. Protective arrangements.
(A) When it is established in a formal proceeding that a basis exists for affecting a protective arrangement that concerns the property and affairs of a minor or an incapacitated individual, the court may:
(1) without appointing a conservator, authorize, direct, or ratify any provision within a protective arrangement that is in the best interest of the minor or incapacitated individual. A protective arrangement includes, but is not limited to, the payment, delivery, deposit, or retention of funds or property; the sale, mortgage, lease, or other transfer of property; the entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education; or the addition to or establishment of a suitable trust.
(2) authorize a conservator or a special conservator to exercise the power to perform the following acts:
(a) make gifts as the court, in its discretion, believes would be made by the protected person;
(b) convey or release the protected person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;
(c) create or amend revocable trusts or create irrevocable trusts of property of the protected person's estate that may extend beyond the protected person's disability or life, including the creation or funding of a special needs trust or a pooled fund trust for disabled individuals;
(d) fund trusts;
(e) exercise the protected person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender policies for their cash value;
(f) exercise the protected person's right to an elective share in the estate of a deceased spouse;
(g) renounce any interest by testate or intestate succession or by inter vivos transfer;
(h) ratify any such actions taken on behalf of the protected person.
(B) When acting as conservator or when approving a conservator's or special conservator's action, the court may consider the:
(1) wishes of the protected person;
(2) financial needs and legal obligations of the protected person and those who are dependent upon him for support;
(3) tax consequences;
(4) protected person's eligibility or potential eligibility for governmental assistance;
(5) protected person's previous pattern of giving or level of support;
(6) protected person's gifting and estate plan; and
(7) protected person's life expectancy and the probable duration of incapacity.
(C) Prior to issuing a protective order, the court shall consider whether appointment of a conservator is necessary. The court shall set forth specific findings upon which the court bases its order authorizing a protective arrangement. For purposes of issuing a consent order, counsel may consent on behalf of the protected person.
(D) The petitioner shall serve all heirs and devisees of the incapacitated individual whose identity and whereabouts are reasonably ascertainable with the petition seeking a protective order to perform one or more actions set forth in subsection (A)(2).
HISTORY: 1986 Act No. 539, § 1; 2000 Act No. 398, § 10. Formerly Code 1976 §§ 62-5-408 and 62-5-409, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-406. Reserved.
HISTORY: Former Section, titled Protective proceedings; request for notice; interested person, had the following history: 1986 Act No. 539, § 1; 1987 Act No. 171, § 67. Reserved by 2017 Act No. 87, § 5.A, eff January 1, 2019. See now, Code 1976 § 62-5-403C.
SECTION 62-5-407. Order of appointment; rights and powers of protected person.
(A) The court shall exercise its authority to encourage maximum self-reliance and independence of the protected person and issue orders only to the extent necessitated by the protected person's mental and adaptive limitations.
(B) The court shall set forth the rights and powers removed from the protected person. To the extent rights are not removed, they are retained by the protected person. Such rights and powers include the rights and powers to:
(1) buy, sell, or transfer real or personal property or transact business of any type including, but not limited to, those powers conferred upon the conservator under Section 62-5-422;
(2) make, modify, or terminate contracts; or
(3) bring or defend any action at law or equity.
(C) Nothing in this section shall prevent the protected person from notifying the court that he is being unjustly denied a right or privilege or requesting removal of the conservator or termination of the conservatorship pursuant to Section 62-5-428.
(D) Unless a court order specifies otherwise, the appointment of a conservator terminates the parts of the power of attorney that relate to matters within the scope of the conservatorship. The authority of an agent to make health care decisions or authority granted by advance directives regarding health care is not altered or changed by the appointment of a conservator.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-408. Conservator; qualifications; priorities.
(A) In appointing a conservator, the court shall consider persons who are otherwise qualified in the following order of priority:
(1) a person previously appointed conservator, other than a temporary or emergency conservator, a guardian of property, or other like fiduciary for the protected person by another court of competent jurisdiction;
(2) a person nominated to serve as conservator by the alleged incapacitated individual if made prior to his incapacity, or if he is fourteen or more years of age and has sufficient mental capacity to make a reasoned choice;
(3) an agent designated in a power of attorney relating to the management of the alleged incapacitated individual's real or personal property, financial affairs, or assets;
(4) the spouse of the alleged incapacitated individual;
(5) an adult child of the alleged incapacitated individual;
(6) a parent of the alleged incapacitated individual;
(7) the person nearest in kinship to the alleged incapacitated individual who is willing to accept the appointment;
(8) a person with whom the alleged incapacitated individual resides outside of a health care facility, group home, homeless shelter, or prison;
(9) a person nominated by a health care facility caring for the alleged incapacitated individual; and
(10) any other person deemed suitable by the court.
(B) A person whose priority is based upon his status under subsections (A)(1), (3), (4), (5), (6), or (7) may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as conservator. The court, acting in the best interest of the alleged incapacitated individual, may decline to appoint a person having higher priority and appoint a person having lesser priority or no priority.
(C) Except when authorizing, directing, or ratifying the implementations of provisions of protective arrangements, pursuant to Section 62-5-405, a probate judge or an employee of the court shall not serve as a conservator of an estate of a protected person; except, a probate judge or an employee of the court may serve as a conservator of the estate of a family member if such service does not interfere with the proper performance of the probate judge's or the employee's official duties. For purposes of this subsection, "family member" means a spouse, parent, child, brother, sister, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild.
HISTORY: 1986 Act No. 539, § 1; 1995 Act No. 15, § 4. Formerly Code 1976 § 62-5-410, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-409. Bond.
Except upon a finding of good cause, the court shall require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the conservator according to law and the court must approve all sureties. When bond is required, the conservator shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the protected person and of the income expected from the personal estate during the next calendar year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution, as defined in Section 62-6-101, in a manner that prevents their unauthorized disposition. The court may authorize an unrestricted account to be used by the conservator for expenses on behalf of the protected person, and all activity in such an account must be reported by the conservator as required by the court. Upon application of the conservator or another interested person, or upon the court's own motion, the court may:
(1) order the creation, modification, or termination of an account;
(2) increase or reduce the amount of the bond;
(3) release sureties;
(4) dispense with security or securities; or
(5) permit the substitution of another bond with the same or different sureties.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 7; 2010 Act No. 244, § 34, eff June 7, 2010. Formerly Code 1976 § 62-5-411, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-410. Terms and requirements of bonds.
(A) The following requirements and provisions apply to any bond required under Section 62-5-409:
(1) Sureties must be jointly and severally liable with the conservator and with each other.
(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding must be delivered to the surety or mailed to him by registered or certified mail at his address that is listed with the court where the bond is filed or to his address as then known to the petitioner.
(3) After service of a summons and petition by a successor conservator, or upon the court's own motion, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator.
(4) Subject to applicable statutes of limitation, the bond of the conservator is not void after the first recovery, but may be proceeded against from time to time until the whole penalty is exhausted.
(B) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 35, eff June 7, 2010. Formerly Code 1976 § 62-5-412, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-411. Acceptance of appointment; consent to jurisdiction.
By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the conservatorship estate. Notice of any proceeding must be given or waived pursuant to Sections 62-1-401 and 62-1-402.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-413, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-412. Compensation and expenses.
Any conservator or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the protected person's estate, as determined by the court.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-414, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-413. Informal request for relief.
(A) The protected person or another person interested in his welfare, may make an informal request for relief by submitting a written request to the court. The court may take such action as considered reasonable and appropriate to protect the protected person.
(B) A person making an informal request submits personally to the jurisdiction of the court.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-414. General duty of conservator; financial plan.
(A) In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees.
(B) The court may require a conservator to file a financial plan for managing, expending, and distributing the assets of the protected person's estate. The plan must be tailored for the protected person and the conservator shall revise the plan as the needs and circumstances of the protected person require. The court shall approve, disapprove, or modify the plan in any proceeding as the court determines is necessary based upon the qualifications of the fiduciary. Nothing herein shall require the court to oversee or approve the conservator's investment choices. The conservator shall provide a copy of the plan to the protected person's guardian, if any, or the protected person.
(C) The conservator shall include in the financial plan:
(1) a statement of the extent to which the protected person may be able to develop or restore his ability to manage his property;
(2) an estimate of whether the assets are sufficient to meet the current and future needs of the protected person;
(3) projections of expenses and resources; and
(4) an estimate of how the financial plan may alter the overall estate plan of the protected person, including assets titled with rights of survivorship.
(D) In investing an estate, selecting assets of the estate for distribution, and using powers of revocation or withdrawal available for the use and benefit of the protected person or his dependents and exercisable by the conservator, a conservator shall take into account any estate plan of the protected person known to the conservator and is entitled to examine the protected person's will or revocable trust and any contract, transfer or joint ownership arrangement with the provisions for payment or transfer of benefits at his death to others which the protected person may have originated.
HISTORY: 1986 Act No. 539, § 1; 2000 Act No. 398 § 10; 2005 Act No. 66, § 7. Formerly Code 1976 §§ 62-5-408 and 62-5-417, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-415. Inventory and records.
Within thirty days of appointment, the conservator shall prepare and file with the court a complete inventory of the estate of the protected person, together with the conservator's oath or affirmation that it is complete and accurate to the best of the conservator's knowledge, information, and belief. The court may grant an extension to file the inventory. The conservator shall provide a copy of the inventory to the protected person's guardian, if any, and any other persons the court may direct.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-418, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-416. Reporting requirements.
(A) A conservator shall report to the court regarding his administration of the estate annually and upon the conservator's resignation or removal, the termination of the protected person's minority or disability, the death of the protected person, and at other times as the court directs.
(B) The report must include:
(1) an accounting of receipts and disbursements for the accounting period;
(2) a list of the assets of the estate under the conservator's control and the location of the assets;
(3) any recommendations for changes in the financial plan; and
(4) the conservator's opinion regarding the continued need for the conservatorship and the scope of the conservatorship.
(C) The conservator shall provide a copy of the report to the protected person if he has attained the age of fourteen years and has sufficient mental capacity to understand the report, and to any parent with whom the protected person resides or guardian of the protected person.
(D) The court may appoint a guardian ad litem to review a report or plan, interview the protected person or conservator, and make any other investigation the court directs.
(E) The court may order a conservator to submit the assets of the estate to an appropriate examination in any manner directed by the court.
(F) The conservator or the protected person may petition in formal proceedings pursuant to Section 62-5-428 for an order:
(1) allowing or requiring an intermediate or final report of a conservator and adjudicating liabilities disclosed in the accountings; or
(2) allowing or requiring a final report and adjudicating unsettled liabilities relating to the conservatorship.
HISTORY: 1986 Act No. 539, § 1; 2010 Act No. 244, § 37, eff June 7, 2010. Formerly Code 1976 § 62-5-419, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-417. Conservators; title by appointment.
The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property previously held by custodians or agents, unless otherwise provided in the court's order. Neither the appointment of a conservator nor the establishment of a trust in accordance with Article 6, Chapter 6, Title 44 is a transfer or alienation by the protected person of his rights or interest, within the meaning of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest.
HISTORY: 1986 Act No. 539, § 1; 1993 Act No. 164, Part II, § 74B. Formerly Code 1976 § 62-5-420, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-418. Fiduciary letters of conservatorship.
(A) Fiduciary letters of conservatorship are evidence of transfer of all title of the assets of a protected person to the conservator unless otherwise provided in the court's order. An order terminating a conservatorship transfers all assets of the estate from the conservator to the protected person or his successors. Fiduciary letters and terminations of appointment must be filed and recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the counties of this State or other jurisdictions where the protected person owns real estate.
(B) Conservators may file fiduciary letters of conservatorship with credit reporting agencies or other entities or persons, as appropriate.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-421, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-419. Sale or encumbrance involving conflict of interest.
Pursuant to the procedures set forth in Section 62-5-428(B), the conservator shall obtain the court's prior approval of any transaction that is affected by a conflict of interest, including, but not limited to, a sale or encumbrance of assets of the protected person to or in favor of a conservator; an immediate family member of a conservator; an agent or attorney of conservator; or any corporation, trust, or other entity in which the conservator has a substantial beneficial interest.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-422, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-420. Persons dealing with conservators; protection.
A person, who in good faith either assists a conservator or deals with him for value in any transaction, other than those requiring a court order as required in this part is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 62-5-404 or Section 62-5-428 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. This protection extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. This protection is not a substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-423, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-421. Interest of protected person not transferable or assignable.
(A) Except as otherwise provided in subsections (B) and (C), the interest of a protected person in property vested in a conservator is not transferable or assignable by the protected person.
(B) A person without knowledge of the conservatorship who in good faith and for security or substantially equivalent value receives delivery from a protected person of tangible personal property of a type normally transferred by delivery of possession is protected.
(C) A third party who deals with the protected person in good faith with respect to property vested in a conservator is entitled to any protection provided by law.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-422. Powers of conservator in administration.
(A) Except as otherwise qualified or limited by court order, a conservator, acting reasonably in the best interest of the protected person and in efforts to accomplish the purpose for which he was appointed, may act without court approval to:
(1) invest and reinvest funds of the estate as would a trustee;
(2) collect, hold, and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and retain assets even though they include an asset in which the conservator personally is interested;
(3) receive additions to the estate;
(4) deposit estate funds in a financial institution including a financial institution operated by the conservator;
(5) make ordinary or extraordinary repairs or alterations to buildings or other structures, demolish, improve, raze or erect existing or new party walls or buildings;
(6) vote a security in person or by general or limited proxy;
(7) pay calls, assessments, and other sums chargeable or accruing against or on account of securities;
(8) sell or exercise stock subscription or conversion rights; consent directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise whose stock or shares are publicly held;
(9) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for an act of the nominee in connection with the stock so held;
(10) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;
(11) borrow money to be repaid from estate assets or otherwise; advance money for the protection of the estate or the protected person and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of estate assets; and the conservator shall have a lien on the estate as against the protected person for advances so made;
(12) pay or contest a claim except as limited by Section 62-5-433; settle a claim by or against the estate of the protected person by compromise, arbitration, or otherwise except as limited by Section 62-5-433; and release, in whole or in part, a claim belonging to the estate to the extent that the claim is uncollectible;
(13) pay taxes, assessments, and other expenses incurred in the collection, care, administration, and protection of the estate;
(14) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;
(15) pay a sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the protected person or the distributee or by paying the sum for the use of the protected person or the distributee either to his guardian or, if none, to a relative or other person with custody of his person;
(16) employ persons including attorneys, auditors, investment advisors, or agents even though they are associated with the conservator to advise or assist the conservator in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform an act of administration, whether or not discretionary;
(17) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties;
(18) execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the conservator;
(19) review the originals and obtain photocopies of the protected person's fully executed estate planning documents, including those documents referenced in Section 62-5-425;
(20) enter into a lease of a residence for the protected person for a term not exceeding one year;
(21) access, monitor, suspend, or terminate the protected person's digital assets and accounts in electronic format, including the power to obtain information as to the protected person's account number, user name and agreement, online tools, addresses, or other unique subscriber or account identifiers, including passwords, and any catalogue of electronic communications considered necessary by the conservator for administration of the conservatorship, consistent with the provisions of Part 10, Article 2, Title 62; and
(22) exercise the protected person's rights as trust beneficiary to the extent provided in Article 7, Title 62.
(B) A conservator acting reasonably and in the best interest of the protected person to accomplish the purpose for which he was appointed, may file an application with the court pursuant to Section 62-5-428(A) requesting authority to:
(1) continue or participate in the operation of any unincorporated business or other enterprise;
(2) acquire an undivided interest in an estate asset in which the conservator, in a fiduciary capacity, holds an undivided interest;
(3) buy and sell an estate asset, including land in this State or in another jurisdiction for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(4) subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;
(5) enter into a lease as lessor or lessee, other than a residential lease described in Section 62-5-422(A);
(6) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(7) grant an option involving disposition of an estate asset or to take an option for the acquisition of any asset;
(8) undertake another act considered necessary or reasonable by the conservator and the court for the preservation and management of the estate;
(9) make charitable gifts pursuant to the protected person's gifting and estate plan if the estate is sufficient to provide for the health, education, support, and maintenance of the protected person and his dependents;
(10) encumber, mortgage, or pledge an asset for a term extending within or beyond the term of the conservatorship;
(11) pay a reasonable fee to the conservator, special conservator, guardian ad litem, attorney, examiner, or physician for services rendered;
(12) adopt an appropriate budget for routine expenditures of the protected person;
(13) reimburse the conservator for monies paid to or on behalf of the protected person;
(14) exercise or release the protected person's powers as personal representative, custodian for minors, conservator, or donee of a power of appointment; and
(15) exercise options to purchase securities or other property.
(C) A conservator may request instructions concerning his fiduciary responsibility and may file an application for ratification of actions taken in good faith or for the expenditure of funds of the protected person; the court may approve or deny an application pursuant to subsection (B) above, or may require the commencement of formal proceedings.
(D) The attorney-client privilege between the protected person and the protected person's counsel must not be removed by the appointment of a conservator.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 8; 1997 Act No. 152, § 24; 2000 Act No. 398, § 10. Formerly Code 1976 §§ 62-5-408 and 62-5-424, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-423. Distributive duties and powers of conservator.
(A) A conservator may expend or distribute sums from the estate without further court authorization for the health, education, maintenance, and support of the protected person and his dependents in accordance with the following principles:
(1) The expenditures must be consistent with a prior court-approved financial plan.
(2) The conservator shall consider recommendations relating to the appropriate standard of health, education, maintenance, and support for the protected person made by a parent or guardian. The conservator may not be surcharged for sums paid to persons or organizations furnishing health, education, maintenance, or support to the protected person pursuant to the recommendations of a parent or guardian unless the conservator has actual knowledge that the parent or guardian is deriving personal financial benefit from these payments, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.
(3) The conservator shall consider:
(a) the size of the estate, the probable duration of the conservatorship, and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate that has been conserved for him;
(b) the accustomed standard of living of the protected person and members of his household; and
(c) other funds or sources used for the support of the protected person.
(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person, as reimbursement for expenditures or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.
(5) If the conservator determines that it is reasonably necessary to supply funds to the protected person, the conservator may provide these funds to the protected person through reasonable financial methods, including, but not limited to, checks, currency, debit card, or allowance. All funds so provided must be reported on the accountings as required by the court.
(B) After paying outstanding expenses of administration and any claims approved by the court, after meeting the requirements of Section 62-5-416, and after complying with any additional requirements established by the court, the conservator shall pay over and distribute all remaining funds and properties as follows:
(1) when a person who is incapacitated solely by reason of minority attains the age of eighteen or is emancipated by a court order, to the now-adult or emancipated protected person as soon as practical, unless a:
(a) protective order has been issued because the protected person is incapacitated; or
(b) protective proceeding or other petition with regard to the protected person is pending; a protected person under the age of eighteen who is married shall remain a minor for purposes of this subsection until attaining the age of eighteen or being emancipated by court order;
(2) upon an adjudication restoring capacity, to the former protected person as soon as practical;
(3) upon a determination by the court that the protected person's estate has a net aggregate amount of less than fifteen thousand dollars to or for the protected person as soon as practical pursuant to Section 62-5-103; or
(4) if a protected person dies, to the protected person's duly appointed personal representative or as ordered by the court.
HISTORY: 1986 Act No. 539, § 1; 1990 Act No. 521, § 83; 1997 Act No. 152, § 25; 2000 Act No. 398, § 10. Formerly Code 1976 §§ 62-5-408 and 62-5-425, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-424. Reserved.
HISTORY: Former Section, titled Powers of conservator in administration, had the following history: 1986 Act No. 539, § 1; 1988 Act No. 659, § 8; 1997 Act No. 152, § 24. Reserved by 2017 Act No. 87, § 5.A, eff January 1, 2019. See now, Code 1976 § 62-5-422.
SECTION 62-5-425. Preservation of estate plan.
In investment and distribution of estate assets or in the use or withdrawal of a power of revocation, and in titling accounts, the conservator and the court must consider any:
(A) known estate plan, including a revocable trust having the protected person as settlor; or
(B) instrument, including, but not limited to, a contract, transfer, or joint ownership arrangement originated by the protected person which provides a benefit at death to another as referenced in Section 62-5-422.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-427, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-426. Claims against protected person.
(A) The probate court has exclusive jurisdiction over claims against the protected person arising from the internal affairs of the conservatorship which may be commenced in the following manner:
(1) A claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed.
(2) A claim is considered presented on the receipt of the written statement of claim by the conservator.
(3) Every claim that is disallowed in whole or part by the conservator is barred so far as not allowed unless the claimant files and properly serves a summons and petition for allowance no later than thirty days after the mailing of the notice of disallowance or partial disallowance if the notice warns the claimant of the impending bar.
(B) Except as limited by Section 62-5-433, the probate court has jurisdiction concurrent with the circuit court in matters involving a request for a judicial determination as to the external affairs of a conservatorship, including actions by or against creditors or debtors of conservatorships and other actions or proceedings involving conservators and third parties. If a creditor has notice of the appointment of a conservator, all pleadings must be served by or on the conservator. Within thirty days after the conservator files, or becomes aware of, any court action in which the protected person is a party, the conservator must notify the court where the conservatorship is being administered if the outcome may constitute a claim against the estate. The conservator may request instructions from the court as necessary.
(C) If it appears that the conservatorship assets are likely to be exhausted before all existing claims are paid, preference must be given to prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration.
HISTORY: 1986 Act No. 539, § 1; 1988 Act No. 659, § 6; 1997 Act No. 152, § 26; 2010 Act No. 244, §§ 31, 38, eff June 7, 2010. Formerly Code 1976 §§ 62-5-402 and 62-5-428, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-427. Individual liability of conservator.
(A) Unless otherwise provided in a contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity during the administration of the estate unless he fails to reveal his representative capacity and fails to identify the estate in the contract.
(B) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed during the administration of the estate only if he is personally at fault.
(C) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed during the administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable.
(D) A question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, indemnification, or other appropriate proceeding.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-429, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-428. Actions for requests subsequent to appointment; procedures.
(A)(1) Upon filing of an application with the appointing court, the protected person, the conservator, or interested person may request an order:
(a) requiring, increasing, or reducing bond or security;
(b) requiring an accounting;
(c) terminating a conservatorship when the estate has a net aggregate amount of less than fifteen thousand dollars;
(d) terminating a conservatorship and approving a final accounting at the death of the protected person;
(e) terminating a conservatorship and approving a final accounting when a protected person who is incapacitated solely by reason of minority attains the age of eighteen or is emancipated by court order;
(f) approving payment of the protected person's funeral expenses;
(g) accepting the resignation of or removing the conservator for good cause and appointing a temporary or successor conservator, if necessary;
(h) adjudicating the restoration of the protected person's capacity.
(2) The court may approve or deny the application without notice, require notice to such persons as the court directs, or may require the commencement of a formal proceeding pursuant to Section 62-5-428(B).
(3) If the court determines that the protected person's estate has a net aggregate amount of less than fifteen thousand dollars, the court may in its discretion, terminate the conservatorship.
(4) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into the conservator's possession, inform the personal representative or a beneficiary named in the will of the delivery, and retain the estate for delivery to a duly appointed personal representative of the deceased protected person or other persons entitled to delivery. If, after thirty days from the death of the protected person, no person has been appointed personal representative and no application or petition for appointment is pending in the court, the conservator may apply for appointment as personal representative. A person must not be disqualified as a personal representative of a deceased protected person solely by reason of his having been appointed or acting as conservator for that protected person.
(B)(1) Upon filing of a summons and petition with the appointing court, the protected person, the conservator, or interested person may request an order:
(a) terminating a conservatorship;
(b) requiring distributions from the protected person's estate after the conservator has denied the request;
(c) upon the death of a conservator, appointing a successor conservator, if necessary;
(d) limiting or expanding the conservatorship;
(e) authorizing a transaction involving a conflict of interest pursuant to Section 62-5-419;
(f) reviewing the denial of an application pursuant to Section 62-5-422(C); or
(g) granting other appropriate relief.
(2) The procedure for obtaining orders subsequent to appointment is as follows:
(a) The summons and petition shall state the relief sought and the reasons the relief is necessary and must be served upon the protected person; the conservator; the guardian, if any; the spouse; adult children; and parents of the protected person whose whereabouts are reasonably ascertainable; and, if there is no spouse, adult child, or parent, any person who has equal or greater priority for appointment; any person with whom the protected person resides outside of a health care facility, group home, homeless shelter, or prison; and the Secretary of the Department of Veterans Affairs if the conservatorship is for the purpose of receiving veterans benefits.
(b) After filing and service of the summons and petition, the court may appoint a guardian ad litem and may appoint counsel for the protected person, unless the protected person has private counsel, and such examiners as are needed to evaluate and confirm the allegations of the petition.
(c) As soon as the interests of justice may allow, but after the time for response to the petition has elapsed as to all parties served, the court shall hold a hearing on the merits of the petition. The protected person and all parties not in default must be given notice of the hearing. If all parties not in default waive a hearing, the court may issue a consent order.
(d) The court may issue interim orders, for a period not to exceed ninety days, until a hearing is held and a final order is issued.
(C) The court may specify a minimum period, not exceeding one year, during which no application or petition for readjudication may be filed without leave of court. Subject to this restriction, the protected person or the conservator may petition the court for a termination of incapacity or of the protective order, which must be proved by a preponderance of the evidence.
(D) An attorney who has been asked by the protected person to represent him in an action under this section may file a motion with the court for permission to represent the protected person.
HISTORY: 1986 Act No. 539, § 1; 2008 Act No. 303, § 1, eff June 11, 2008; 2010 Act No. 244, § 36, 39, eff June 7, 2010. Formerly Code 1976 §§ 62-5-106, 62-5-415, 62-5-416, 62-5-426, and 62-5-430, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-429. Payment of debt and delivery of property to foreign conservator without local proceedings.
(A) A person indebted to a protected person, or having possession of property of or an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating that:
(1) no protective proceeding relating to the protected person is pending in this State; and
(2) the foreign conservator is entitled to payment or to receive delivery.
(B) If the person to whom the affidavit is presented is not aware of a protective proceeding pending in this State, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-431, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-430. Foreign conservator; proof of authority; bond; powers.
(A) If a conservator has not been appointed in this State and a petition for a protective order is not pending in this State, a conservator appointed in another state, after giving notice to the appointing court of an intent to register, may register the protective order in this State by filing as a foreign judgment in the court, in any appropriate county of this State certified copies of the order and letters of office, and any bond. The court shall treat this as the filing of authenticated or certified records and shall charge fees set forth in Section 8-21-770 for the filing of these documents. The court will then issue a certificate of filing as proof of the filing. The conservator shall file the certificate of filing, along with a copy of the letters of office, in the office of the register of deeds of that county.
(B) Upon registration of a protective order from another state, the conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this State, subject to any conditions imposed upon nonresident parties.
(C) A court of this State may grant any relief available under this article and other laws of this State to enforce a registered order.
HISTORY: 1986 Act No. 539, § 1. Formerly Code 1976 § 62-5-432, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-431. Payment of benefits from U.S. Department of Veterans Affairs to a minor or an incapacitated person; definitions.
(A) For purposes of this section:
(1) "Estate" and "income" include only monies received from the VA, all real and personal property acquired in whole or in part with these monies, and all earnings, interest, and profits.
(2) "Benefits" means all monies payable by the United States through the VA.
(3) "Secretary" means the Secretary of the United States Department of Veterans Affairs (VA) or his successor.
(4) "Protected person" means a beneficiary of the VA.
(5) "Conservator" has the same meaning as provided in Section 62-1-201 but only as to benefits from the VA.
(B) Whenever, pursuant to a law of the United States or regulation of the VA, the Secretary requires that a conservator be appointed for a protected person before payment of benefits, the appointment must be made in the manner provided in this part, except to the extent this section requires otherwise. The petition shall show that the person to be protected has been rated incapable of handling his estate and monies on examination by the VA in accordance with the laws and regulations governing the VA.
(C) When a petition is filed for the appointment of a conservator and a certificate of the secretary or his representative is filed setting forth the fact that the appointment of a conservator is a condition precedent to the payment of benefits due the protected person by the VA, the certificate is prima facie evidence of the necessity for the appointment and no examiner's report is required.
(D) Except as provided or as otherwise permitted by the VA, a person may not serve as conservator of a protected person if the proposed conservator at that time is acting simultaneously as conservator for five protected persons. Upon presentation of a petition by an attorney for the VA alleging that a person is serving simultaneously as a conservator for more than five protected persons and requesting that person's termination as a conservator for that reason, upon proof substantiating the petition, the court shall restrain that person from acting as a conservator for the affected protected person and shall require a final accounting from the conservator. After the appointment of a successor conservator if one is warranted under the circumstances, the court shall terminate the appointment of the person as conservator in all requested cases. The limitations of this section do not apply when the conservator is a bank or trust company.
(E) The conservator shall file an inventory, accountings, exhibits or other pleadings with the court and with the VA as provided by law or VA regulation. The conservator is required to furnish the inventory and accountings to the VA.
(F) Every conservator shall invest the surplus funds in his protected person's estate in securities, or otherwise, as allowed by law, and in which the conservator has no interest. These funds may be invested, without prior court authorization, in direct interest-bearing obligations of this State or of the United States and in obligations in which the interest and principal are both unconditionally guaranteed by the United States Government.
(G) Whenever a copy of a public record is required by the VA to be used in determining the eligibility of a person to participate in benefits made available by the VA, the official charged with the custody of the public record shall provide a certified copy of the record, without charge, to an applicant for the benefits, a person acting on his behalf, or a representative of the VA.
(H) With regard to a minor or a mentally incompetent person to whom, or on whose behalf, benefits have been paid or are payable by the VA, the secretary is and must be a necessary party in a:
(1) proceeding brought for the appointment, confirmation, recognition, or removal of a conservator;
(2) suit or other proceeding, whether formal or informal, arising out of the administration of the person's estate; and
(3) proceeding which is for the removal of the disability of minority or of mental incompetency of the person.
(I) In a case or proceeding involving property or funds of a protected person not derived from the VA, the VA is not a necessary party, but may be an interested party in the proceedings.
(J) For services as conservator of funds paid from the VA, a conservator may be paid an amount not to exceed five percent of the income of the protected person during any year. If extraordinary services are rendered by a conservator, the court may, upon application of the conservator and notice to the VA, authorize additional compensation payable from the estate of the protected person. No compensation is allowed on the corpus of an estate derived from payments from the VA. The conservator may be allowed reimbursement from the estate of the protected person for reasonable premiums paid to a corporate surety upon the bond furnished by the conservator.
HISTORY: 2016 Act No. 278 (S.777), § 1, eff June 9, 2016. Formerly Code 1976 § 62-5-436, renumbered and amended by 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-432. Special needs trust.
(A) The court has authority to create and establish a special needs trust for an incapacitated individual in compliance with 42 U.S.C. Section 1396p(d)(4)(A), as amended, and to order the placement of the incapacitated individual's funds into such a trust or into a pooled trust in compliance with 42 U.S.C. Section 1396p(d)(4)(C), as amended, for the benefit of incapacitated individuals under its authority to issue protective orders pursuant to the procedure set forth in Section 62-5-401, et seq.
(B) In the case of a disabled minor, the court has authority to create and establish a special needs trust in compliance with 42 U.S.C. Section 1396p(d)(4)(A), as amended, if the court determines it is in the disabled minor's best interest. The court also has the authority to order the placement of the minor's funds into a special needs trust or into a pooled trust in compliance with 42 U.S.C. Section 1396p(d)(4)(C), as amended, for the benefit of a minor under its authority to implement provisions of protective orders pursuant to the procedure set forth in Section 62-5-401, et seq., even though the terms of the trust extend beyond the age of majority.
HISTORY: 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
SECTION 62-5-433. Definitions; procedures for settlement of claims in favor of or against minors or incapacitated persons.
(A)(1) For purposes of this section and for any claim exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated individual, "court" means the circuit court of the county in which the minor or incapacitated individual resides or the circuit court in the county in which the suit is pending. For purposes of this section and for any claim not exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated individual, "court" means either the circuit court or the probate court of the county in which the minor or incapacitated individual resides or the circuit court or probate court in the county in which the suit is pending.
(2) "Claim" means the net or actual amount accruing to or paid by the minor or incapacitated individual as a result of the settlement.
(3) "Petitioner" means either a conservator appointed by the court for the minor or incapacitated individual or the guardian or guardian ad litem of the minor or incapacitated individual if a conservator has not been appointed.
(B) The settlement of a claim over twenty-five thousand dollars in favor of or against a minor or incapacitated individual for the payment of money or the possession of personal property must be effected on his behalf in the following manner:
(1) The petitioner must file with the court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed twenty-five thousand dollars, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated individual.
(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 individual, 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 individual, 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 individual.
(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, upon receiving the money or personal property, shall pay and deliver it to the court pending the appointment and qualification of a duly appointed conservator. If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.
(C) The settlement of a claim that does not exceed twenty-five thousand dollars in favor of or against a minor or incapacitated individual for the payment of money or the possession of personal property may be effected in any of the following manners:
(1) If a conservator has been appointed, he may settle the claim without court authorization or confirmation, as provided in Section 62-5-424, or he may petition the court for approval, as provided in items (1), (2), and (3) of subsection (B). If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated individual, 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 individual.
(2) If a conservator has not been appointed, the guardian or guardian ad litem must petition the court for approval of the settlement, as provided in items (1) and (2) of subsection (B), and without the appointment of a conservator. The payment or delivery of money or personal property to or for a minor or incapacitated individual must be made in accordance with Section 62-5-103. If a party subject to the court order fails or refuses to pay the money or deliver the personal property, as required by the order and in accordance with Section 62-5-103, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.
(D) The settlement of a claim that does not exceed two thousand five hundred dollars in favor of or against a minor or incapacitated individual for the payment of money or the possession of personal property may be effected by the parent or guardian of the minor or incapacitated individual 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 individual, 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 individual. The payment or delivery of money or personal property to or for a minor or incapacitated individual must be made in accordance with Section 62-5-103.
HISTORY: 1988 Act No. 659, § 9; 1990 Act No. 521, §§ 84-86; 2000 Act No. 398, § 1; 2017 Act No. 87 (S.415), § 5.A, eff January 1, 2019.
Part 5
Health Care Powers of Attorney
SECTION 62-5-500. Short title.
This part may be cited as the "South Carolina Statutory Health Care Power of Attorney Act".
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-501. Definitions.
As used in this part:
(1) "Agent" or "health care agent" means an individual designated in a health care power of attorney to make health care decisions on behalf of a principal.
(2) "Declaration of a desire for a natural death" or "declaration" means a document executed in accordance with the South Carolina Death with Dignity Act or a similar document executed in accordance with the law of another state.
(3) "Health care" means a procedure to diagnose or treat a human disease, ailment, defect, abnormality, or complaint, whether of physical or mental origin. It also includes the provision of intermediate or skilled nursing care; services for the rehabilitation of injured, disabled, or sick persons; and placement in or removal from a facility that provides these forms of care.
(4) "Health care power of attorney" means a durable power of attorney executed in accordance with this part.
(5) "Health care provider" means a person, health care facility, organization, or corporation licensed, certified, or otherwise authorized or permitted by the laws of this State to administer health care.
(6) "Life-sustaining procedure" means a medical procedure or intervention that serves only to prolong the dying process. Life-sustaining procedures do not include the administration of medication or other treatment for comfort care or alleviation of pain. The principal shall indicate in the health care power of attorney whether the provision of nutrition and hydration through medically or surgically implanted tubes is desired.
(7) "Permanent unconsciousness" means a medical diagnosis, consistent with accepted standards of medical practice, that a person is in a persistent vegetative state or some other irreversible condition in which the person has no neocortical functioning, but only involuntary vegetative or primitive reflex functions controlled by the brain stem.
(8) "Nursing care provider" means a nursing care facility or an employee of the facility.
(9) "Principal" means an individual who executes a health care power of attorney. A principal must be eighteen years of age or older and of sound mind.
(10) "Separated" means that the principal and his or her spouse are separated pursuant to one of the following:
(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement;
(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-502. Health care power of attorney is a durable power of attorney; applicability of part.
(a) A health care power of attorney is a durable power of attorney. Statutory provisions that refer to a durable power of attorney or judicial interpretations of the law relating to durable powers of attorney apply to a health care power of attorney to the extent that they are not inconsistent with this part.
(b) This section does not affect the right of a person to execute a durable power of attorney relating to health care pursuant to other provisions of law but which does not conform to the requirements of this section. If a durable power of attorney for health care executed under this part or under the laws of another state does not conform to the requirements of this section, the provisions of this section do not apply to it. However, a court is not precluded from determining that the law applicable to nonconforming durable powers of attorney for health care is the same as the law set forth in this section for health care powers of attorney.
(c) To the extent not inconsistent with this part, the provisions of the Adult Health Care Consent Act apply to the making of decisions by a health care agent and the implementation of those decisions by health care providers.
(d) In determining the effectiveness of a health care power of attorney, mental incompetence is to be determined according to the standards and procedures for inability to consent pursuant to Section 44-66-20(8), except that certification of mental incompetence by the agent may be substituted for certification by a second physician. If the certifying physician states that the principal's mental incompetence precludes the principal from making all health care decisions or all decisions concerning certain categories of health care, and that the principal's mental incompetence is permanent or of extended duration, no further certification is necessary in regard to the stated categories of health care decisions during the stated duration of mental incompetence unless the agent or the attending physician believes the principal may have regained capacity.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-503. Requirements for health care power of attorney.
(a) A health care power of attorney must:
(1) be substantially in the form set forth in Section 62-5-504;
(2) be dated and signed by the principal or in the principal's name by another person in the principal's presence and by his direction;
(3) be signed by at least two persons, each of whom witnessed either the signing of the health care power of attorney or the principal's acknowledgment of his signature on the health care power of attorney. Each witness must state in a declaration as set forth in Section 62-5-504 that, at the time of the execution of the health care power of attorney, to the extent the witness has knowledge, the witness is not related to the principal by blood, marriage, or adoption, either as a spouse, lineal ancestor, descendant of the parents of the principal, or spouse of any of them; not directly financially responsible for the principal's medical care; not entitled to a portion of the principal's estate upon his decease under a will of the principal then existing or as an heir by intestate succession; not a beneficiary of a life insurance policy of the principal; and not appointed as health care agent or successor health care agent in the health care power of attorney; and that no more than one witness is an employee of a health care facility in which the principal is a patient, no witness is the attending physician or an employee of the attending physician, or no witness has a claim against the principal's estate upon his decease;
(4) state the name and address of the agent. A health care agent must be an individual who is eighteen years of age or older and of sound mind. A health care agent may not be a health care provider, or an employee of a provider, with whom the principal has a provider-patient relationship at the time the health care power of attorney is executed, or an employee of a nursing care facility in which the principal resides, or a spouse of the health care provider or employee, unless the health care provider, employee, or spouse is a relative of the principal.
(b) The validity of a health care power of attorney is not affected by the principal's failure to initial any of the choices provided in Section 4, 6, or 7 of the Health Care Power of Attorney form or to name successor agents. If the principal fails to indicate either of the statements in Section 7 concerning provision of artificial nutrition and hydration, the agent does not have authority to direct that nutrition and hydration necessary for comfort care or alleviation of pain be withheld or withdrawn.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-504. Form of health care power of attorney.
A health care power of attorney executed on or after January 1, 2007, must be substantially in the following form:
INFORMATION ABOUT THIS DOCUMENT
THIS IS AN IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
1. THIS DOCUMENT GIVES THE PERSON YOU NAME AS YOUR AGENT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU CANNOT MAKE THE DECISION FOR YOURSELF. THIS POWER INCLUDES THE POWER TO MAKE DECISIONS ABOUT LIFE-SUSTAINING TREATMENT. UNLESS YOU STATE OTHERWISE, YOUR AGENT WILL HAVE THE SAME AUTHORITY TO MAKE DECISIONS ABOUT YOUR HEALTH CARE AS YOU WOULD HAVE.
2. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENTS OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. YOU MAY STATE IN THIS DOCUMENT ANY TREATMENT YOU DO NOT DESIRE OR TREATMENT YOU WANT TO BE SURE YOU RECEIVE. YOUR AGENT WILL BE OBLIGATED TO FOLLOW YOUR INSTRUCTIONS WHEN MAKING DECISIONS ON YOUR BEHALF. YOU MAY ATTACH ADDITIONAL PAGES IF YOU NEED MORE SPACE TO COMPLETE THE STATEMENT.
3. AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE HEALTH CARE DECISIONS FOR YOURSELF IF YOU ARE MENTALLY COMPETENT TO DO SO. AFTER YOU HAVE SIGNED THIS DOCUMENT, NO TREATMENT MAY BE GIVEN TO YOU OR STOPPED OVER YOUR OBJECTION IF YOU ARE MENTALLY COMPETENT TO MAKE THAT DECISION.
4. YOU HAVE THE RIGHT TO REVOKE THIS DOCUMENT, AND TERMINATE YOUR AGENT'S AUTHORITY, BY INFORMING EITHER YOUR AGENT OR YOUR HEALTH CARE PROVIDER ORALLY OR IN WRITING.
5. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A SOCIAL WORKER, LAWYER, OR OTHER PERSON TO EXPLAIN IT TO YOU.
6. THIS POWER OF ATTORNEY WILL NOT BE VALID UNLESS TWO PERSONS SIGN AS WITNESSES. EACH OF THESE PERSONS MUST EITHER WITNESS YOUR SIGNING OF THE POWER OF ATTORNEY OR WITNESS YOUR ACKNOWLEDGMENT THAT THE SIGNATURE ON THE POWER OF ATTORNEY IS YOURS.
THE FOLLOWING PERSONS MAY NOT ACT AS WITNESSES:
A. YOUR SPOUSE, YOUR CHILDREN, GRANDCHILDREN, AND OTHER LINEAL DESCENDANTS; YOUR PARENTS, GRANDPARENTS, AND OTHER LINEAL ANCESTORS; YOUR SIBLINGS AND THEIR LINEAL DESCENDANTS; OR A SPOUSE OF ANY OF THESE PERSONS.
B. A PERSON WHO IS DIRECTLY FINANCIALLY RESPONSIBLE FOR YOUR MEDICAL CARE.
C. A PERSON WHO IS NAMED IN YOUR WILL, OR, IF YOU HAVE NO WILL, WHO WOULD INHERIT YOUR PROPERTY BY INTESTATE SUCCESSION.
D. BENEFICIARY OF A LIFE INSURANCE POLICY ON YOUR LIFE.
E. THE PERSONS NAMED IN THE HEALTH CARE POWER OF ATTORNEY AS YOUR AGENT OR SUCCESSOR AGENT.
F. YOUR PHYSICIAN OR AN EMPLOYEE OF YOUR PHYSICIAN.
G. A PERSON WHO WOULD HAVE A CLAIM AGAINST ANY PORTION OF YOUR ESTATE (PERSONS TO WHOM YOU OWE MONEY).
IF YOU ARE A PATIENT IN A HEALTH FACILITY, NO MORE THAN ONE WITNESS MAY BE AN EMPLOYEE OF THAT FACILITY.
7. YOUR AGENT MUST BE A PERSON WHO IS 18 YEARS OF AGE OR OLDER AND OF SOUND MIND. IT MAY NOT BE YOUR DOCTOR OR ANY OTHER HEALTH CARE PROVIDER THAT IS NOW PROVIDING YOU WITH TREATMENT; OR AN EMPLOYEE OF YOUR DOCTOR OR PROVIDER; OR A SPOUSE OF THE DOCTOR, PROVIDER, OR EMPLOYEE; UNLESS THE PERSON IS A RELATIVE OF YOURS.
8. YOU SHOULD INFORM THE PERSON THAT YOU WANT HIM OR HER TO BE YOUR HEALTH CARE AGENT. YOU SHOULD DISCUSS THIS DOCUMENT WITH YOUR AGENT AND YOUR PHYSICIAN AND GIVE EACH A SIGNED COPY. IF YOU ARE IN A HEALTH CARE FACILITY OR A NURSING CARE FACILITY, A COPY OF THIS DOCUMENT SHOULD BE INCLUDED IN YOUR MEDICAL RECORD.
HEALTH CARE POWER OF ATTORNEY
(S.C. STATUTORY FORM)
1. DESIGNATION OF HEALTH CARE AGENT
I, _______________________________________, hereby appoint:
(Principal)
(Agent's Name) _____________________________
(Agent's Address) ____________________________
Telephone: home: __________ work: __________ mobile: ______ as my agent to make health care decisions for me as authorized in this document.
Successor Agent: If an agent named by me dies, becomes legally disabled, resigns, refuses to act, becomes unavailable, or if an agent who is my spouse is divorced or separated from me, I name the following as successors to my agent, each to act alone and successively, in the order named:
A. First Alternate Agent:
Address: __________________________
Telephone: home: ________ work: ________ mobile: ________
B. Second Alternate Agent:
Address: ____________________________________________
Telephone: home: ________ work: ________ mobile: ________
Unavailability of Agent(s): If at any relevant time the agent or successor agents named here are unable or unwilling to make decisions concerning my health care, and those decisions are to be made by a guardian, by the Probate Court, or by a surrogate pursuant to the Adult Health Care Consent Act, it is my intention that the guardian, Probate Court, or surrogate make those decisions in accordance with my directions as stated in this document.
2. EFFECTIVE DATE AND DURABILITY
By this document I intend to create a durable power of attorney effective upon, and only during, any period of mental incompetence, except as provided in Paragraph 3 below.
3. HIPAA AUTHORIZATION
When considering or making health care decisions for me, all individually identifiable health information and medical records may be released without restriction to my health care agent(s) and/or my alternate health care agent(s) named above including, but not limited to, (i) diagnostic, treatment, other health care, and related insurance and financial records and information associated with any past, present, or future physical or mental health condition including, but not limited to, diagnosis or treatment of HIV/AIDS, sexually transmitted disease(s), mental illness, and/or drug or alcohol abuse and (ii) any written opinion relating to my health that such health care agent(s) and/or alternate health care agent(s) may have requested. Without limiting the generality of the foregoing, this release authority applies to all health information and medical records governed by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d and 45 C.F.R. 160-164; is effective whether or not I am mentally competent; has no expiration date; and shall terminate only in the event that I revoke the authority in writing and deliver it to my health care provider.
4. AGENT'S POWERS
I grant to my agent full authority to make decisions for me regarding my health care. In exercising this authority, my agent shall follow my desires as stated in this document or otherwise expressed by me or known to my agent. In making any decision, my agent shall attempt to discuss the proposed decision with me to determine my desires if I am able to communicate in any way. If my agent cannot determine the choice I would want made, then my agent shall make a choice for me based upon what my agent believes to be in my best interests. My agent's authority to interpret my desires is intended to be as broad as possible, except for any limitations I may state below.
Accordingly, unless specifically limited by the provisions specified below, my agent is authorized as follows:
A. To consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, medication, and the use of mechanical or other procedures that affect any bodily function, including, but not limited to, artificial respiration, nutritional support and hydration, and cardiopulmonary resuscitation.
B. To authorize, or refuse to authorize, any medication or procedure intended to relieve pain, even though that use may lead to physical damage, addiction, or hasten the moment of, but not intentionally cause, my death.
C. To authorize my admission to or discharge, even against medical advice, from a hospital, nursing care facility, or similar facility or service.
D. To take another action necessary to making, documenting, and assuring implementation of decisions concerning my health care, including, but not limited to, granting a waiver or release from liability required by a hospital, physician, nursing care provider, or other health care provider; signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in my name, and at the expense of my estate to force compliance with my wishes as determined by my agent, or to seek actual or punitive damages for the failure to comply.
E. The powers granted above do not include the following powers or are subject to the following rules or limitations: ____________________________________________________
5. ORGAN DONATION (INITIAL ONLY ONE)
My agent may ___; may not ___ consent to the donation of all or any of my tissue or organs for purposes of transplantation.
6. EFFECT ON DECLARATION OF A DESIRE FOR A NATURAL DEATH (LIVING WILL)
I understand that if I have a valid Declaration of a Desire for a Natural Death, the instructions contained in the Declaration will be given effect in any situation to which they are applicable. My agent will have authority to make decisions concerning my health care only in situations to which the Declaration does not apply.
7. STATEMENT OF DESIRES CONCERNING LIFE-SUSTAINING TREATMENT
With respect to any Life-Sustaining Treatment, I direct the following:
(INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS)
A. ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment.
OR
B. ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TREATMENT. I do not want my life to be prolonged and I do not want life-sustaining treatment:
1. if I have a condition that is incurable or irreversible and, without the administration of life-sustaining procedures, expected to result in death within a relatively short period of time; or
2. if I am in a state of permanent unconsciousness.
OR
C. ___ DIRECTIVE FOR MAXIMUM TREATMENT. I want my life to be prolonged to the greatest extent possible, within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedures.
8. STATEMENT OF DESIRES REGARDING TUBE FEEDING
With respect to Nutrition and Hydration provided by means of a nasogastric tube or tube into the stomach, intestines, or veins, I wish to make clear that in situations where life-sustaining treatment is being withheld or withdrawn pursuant to Paragraph 7:
(INITIAL ONLY ONE OF THE FOLLOWING 3 PARAGRAPHS):
A. ___ GRANT OF DISCRETION TO AGENT. I do not want my life to be prolonged by tube feeding if my agent believes the burdens of tube feeding outweigh the expected benefits. I want my agent to consider the relief of suffering, my personal beliefs, the expense involved, and the quality as well as the possible extension of my life in making this decision.
OR
B. ___ DIRECTIVE TO WITHHOLD OR WITHDRAW TUBE FEEDING. I do not want my life prolonged by tube feeding.
OR
C. ___ DIRECTIVE FOR PROVISION OF TUBE FEEDING. I want tube feeding to be provided within the standards of accepted medical practice, without regard to my condition, the chances I have for recovery, or the cost of the procedure, and without regard to whether other forms of life-sustaining treatment are being withheld or withdrawn.
IF YOU DO NOT INITIAL ANY OF THE STATEMENTS IN PARAGRAPH 8, YOUR AGENT WILL NOT HAVE AUTHORITY TO DIRECT THAT NUTRITION AND HYDRATION NECESSARY FOR COMFORT CARE OR ALLEVIATION OF PAIN BE WITHDRAWN.
9. ADMINISTRATIVE PROVISIONS
A. I revoke any prior Health Care Power of Attorney and any provisions relating to health care of any other prior power of attorney.
B. This power of attorney is intended to be valid in any jurisdiction in which it is presented.
BY SIGNING HERE I INDICATE THAT I UNDERSTAND THE CONTENTS OF THIS DOCUMENT AND THE EFFECT OF THIS GRANT OF POWERS TO MY AGENT.
I sign my name to this Health Care Power of Attorney on this
___ day of __________, 20 __. My current home address is:
________________________________________________
Principal's Signature: ______________________________
Print Name of Principal: ____________________________
I declare, on the basis of information and belief, that the person who signed or acknowledged this document (the principal) is personally known to me, that he/she signed or acknowledged this Health Care Power of Attorney in my presence, and that he/she appears to be of sound mind and under no duress, fraud, or undue influence. I am not related to the principal by blood, marriage, or adoption, either as a spouse, a lineal ancestor, descendant of the parents of the principal, or spouse of any of them. I am not directly financially responsible for the principal's medical care. I am not entitled to any portion of the principal's estate upon his decease, whether under any will or as an heir by intestate succession, nor am I the beneficiary of an insurance policy on the principal's life, nor do I have a claim against the principal's estate as of this time. I am not the principal's attending physician, nor an employee of the attending physician. No more than one witness is an employee of a health care facility in which the principal is a patient. I am not appointed as Health Care Agent or Successor Health Care Agent by this document.
Witness No. 1
Signature: _________________________ Date: ______________
Print Name: ____________________ Telephone: ______________
Address: ______________________________________________
Witness No. 2
Signature: _________________________ Date: _______________
Print Name: ____________________ Telephone: _____________
Address: ______________________________________________
(This portion of the document is optional and is not required to create a valid health care power of attorney.)
STATE OF SOUTH CAROLINA
COUNTY OF _____________________
The foregoing instrument was acknowledged before me by Principal on _______________, 20 _________
Notary Public for South Carolina
My Commission Expires: ______________________
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; 2016 Act No. 279 (S.778), § 2, eff January 1, 2017.
SECTION 62-5-505. Health care agent powers.
A health care agent has, in addition to the powers set forth in the health care power of attorney, the following specific powers to:
(1) have access to the principal's medical records and information to the same extent that the principal would have access, including the right to disclose the contents to others;
(2) contract on the principal's behalf for placement in a health care or nursing care facility or for health care related services, without the agent incurring personal financial liability for the contract;
(3) hire and fire medical, social service, and other support personnel responsible for the principal's care;
(4) have the same health care facility or nursing care facility visitation rights and privileges of the principal as are permitted to immediate family members or spouses.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-506. Compensation of agent; liability for costs of care or services.
(a) The agent is not entitled to compensation for services performed under the health care power of attorney, but the agent is entitled to reimbursement for all reasonable expenses incurred as a result of carrying out the health care power of attorney or the authority granted by this section.
(b) The agent's consent to health care or to the provision of services to the principal does not cause the agent to be liable for the costs of the care or services.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-507. Pregnancy of principal.
If a principal has been diagnosed as pregnant, life-sustaining procedures may not be withheld or withdrawn pursuant to the health care power of attorney during the course of the principal's pregnancy. This subsection does not otherwise affect the agent's authority to make decisions concerning the principal's obstetrical and other health care during the course of the pregnancy.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-508. Duty of health care or nursing care provider.
A health care provider or nursing care provider having knowledge of the principal's health care power of attorney has a duty to follow directives of the agent that are consistent with the health care power of attorney to the same extent as if they were given by the principal. If it is uncertain whether a directive is consistent with the health care power of attorney, the health care provider, nursing care provider, agent, or other interested person may apply to the probate court for an order determining the authority of the agent to give the directive.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-509. Duty of agent.
An agent acting pursuant to a health care power of attorney shall make decisions concerning the principal's health care in accordance with the principal's directives in the health care power of attorney and with any other statements of intent by the principal that are known to the agent and are not inconsistent with the directives in the health care power of attorney. If a principal has a valid Declaration of a Desire for a Natural Death pursuant to Chapter 77, Title 44, then the declaration must be given effect in any situation to which it is applicable. The agent named in the health care power of attorney has authority to make decisions only in situations to which the declaration does not apply. However, nothing in this section prevents the principal or a person designated by the principal in the declaration from revoking the declaration pursuant to Section 44-77-80.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-510. Immunity from liability.
(a) A person who relies in good faith upon a person's representation that he is the person named as agent in a health care power of attorney is not subject to civil or criminal liability or disciplinary action for recognizing the agent's authority.
(b) A health care provider or nursing care provider who in good faith relies on a health care decision made by an agent or successor agent is not subject to civil or criminal liability or disciplinary action on account of relying on the decision.
(c) An agent who in good faith makes a health care decision pursuant to a health care power of attorney is not subject to civil or criminal liability on account of the substance of the decision.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-511. Appointment of successor agents.
(a) The principal may appoint one or more successor agents in the health care power of attorney in the event an agent dies, becomes legally disabled, resigns, refuses to act, is unavailable, or, if the agent is the spouse of the principal, becomes divorced or separated from the principal. A successor agent will succeed to all duties and powers given to the agent in the health care power of attorney.
(b) If no agent or successor agent is available, willing, and qualified to make a decision concerning the principal's health care, the decision must be made according to the provisions of and by the person authorized by the Adult Health Care Consent Act.
(c) All directives, statements of personal values, or statements of intent made by the principal in the health care power of attorney must be treated as exercises of the principal's right to direct the course of his health care. Decisions concerning the principal's health care made by a guardian, by the probate court, or by a surrogate pursuant to the Adult Health Care Consent Act, must be made in accordance with the directions stated in the health care power of attorney.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-512. Revocation of health care power of attorney.
(a) A health care power of attorney may be revoked in the following ways:
(1) by a writing, an oral statement, or any other act constituting notification by the principal to the agent or to a health care provider responsible for the principal's care of the principal's specific intent to revoke the health care power of attorney; or
(2) by the principal's execution of a subsequent health care power of attorney or the principal's execution of a subsequent durable power of attorney pursuant to Article 8, Title 62, if the durable power of attorney states an intention that the health care power of attorney be revoked or if the durable power of attorney is inconsistent with the health care power of attorney.
(b) A health care provider who is informed of or provided with a revocation of a health care power of attorney immediately must record the revocation in the principal's medical record and notify the agent, the attending physician, and all other health care providers or nursing care providers who are responsible for the principal's care.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-513. Execution of health care power of attorney; signing requirement; mercy killing not approved; absence of health care power of attorney.
(a) The execution and effectuation of a health care power of attorney does not constitute suicide for any purpose.
(b) A person may not be required to sign a health care power of attorney in accordance with this section as a condition for coverage under an insurance contract or for receiving medical treatment or as a condition of admission to a health care or nursing care facility.
(c) Nothing in this section may be construed to authorize or approve mercy killing or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.
(d) The absence of a health care power of attorney by an adult patient does not give rise to a presumption of his intent to consent to or refuse death prolonging procedures. Nothing in this section impairs other legal rights or legal responsibilities which a person may have to effect the provision or the withholding or withdrawal of life-sustaining procedures in a lawful manner.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-514. Criminal liability.
If a person coerces or fraudulently induces another person to execute a health care power of attorney, falsifies or forges a health care power of attorney, or wilfully conceals, cancels, obliterates, or destroys a revocation of a health care power of attorney, and the principal dies as a result of the withdrawal or withholding of treatment pursuant to the health care power of attorney, that person is subject to prosecution in accordance with the criminal laws of this State.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-515. Informing another person regarding this part not prohibited.
Nothing in this part prohibits a person from informing another person of the existence of this part, delivering to another person a copy of this part or a form for a health care power of attorney, or counseling another person in good faith concerning the execution of a health care power of attorney.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-516. Civil liability.
(a) If a person wilfully conceals, cancels, defaces, obliterates, or damages a health care power of attorney without the principal's consent, or falsifies or forges a revocation of a health care power of attorney, or otherwise prevents the implementation of the principal's wishes as stated in a health care power of attorney, that person breaches a duty owed to the principal and is responsible for payment of any expenses or other damages incurred as a result of the wrongful act.
(b) A physician or health care facility electing for any reason not to follow an agent's instruction that life-sustaining procedures be withheld or withdrawn as authorized in the health care power of attorney shall make a reasonable effort to locate a physician or health care facility that will follow the instruction and has a duty to transfer the patient to that physician or facility. If a nurse or other employee of a health care provider or nursing care provider gives notice that the employee does not wish to participate in the withholding or withdrawal of life-sustaining procedures as directed by an agent, a reasonable effort shall be made by the physician and the health care provider or nursing care provider to effect the withholding or withdrawal of life-sustaining procedures without the participation of the employee.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-517. Document or writing deemed to comply with requirements of this part.
(a) A document or writing containing the following provisions is deemed to comply with the requirements of this part:
(1) the name and address of the person who meets the requirements of Section 62-5-503 and is authorized to make health care related decisions if the principal becomes mentally incompetent;
(2) the types of health care related decisions that the health care agent is authorized to make;
(3) the signature of the principal;
(4) the signature of at least two persons who witnessed the principal's signature and who meet the requirements of Section 62-5-503; and
(5) the attestation of a notary public.
(b) Additionally, a document that meets the above requirements and also provides expressions of the principal's intentions or wishes with respect to the following health care issues authorizes the health care agent to act in accordance with these provisions:
(1) organ donations;
(2) life-sustaining treatment;
(3) tube feeding;
(4) other kinds of medical treatment that the principal wishes to have or not to have;
(5) comfort and treatment issues;
(6) provisions for interment or disposal of the body after death; and
(7) any written statements that the principal may wish to have communicated on his behalf.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
SECTION 62-5-518. Validity of a durable power of attorney.
The validity of a durable power of attorney that authorizes an attorney to make health care decisions regarding the principal which is properly executed pursuant to this part before or after the effective date of this act is not affected by the amendments contained in this act.
HISTORY: 1992 Act No. 306, § 1; 2005 Act No. 172, § 1; 2006 Act No. 365, § 1; 2008 Act No. 303, §§ 2, 3, eff June 11, 2008; 2010 Act No. 244, § 41, eff June 7, 2010; formerly 1976 Code § 62-5-504; 2016 Act No. 279, § 2, eff January 1, 2017.
Part 6
Uniform Veterans' Guardianship Act [Repealed]
Part 7
South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act
SECTION 62-5-700. Short title.
This act may be cited as the "South Carolina Adult Guardianship and Protective Proceedings Jurisdiction Act".
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-701. Exclusive jurisdiction.
Notwithstanding another provision of law, this part provides the exclusive jurisdictional basis for a court of this State to appoint a guardian or issue a protective order for an adult.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-702. Definitions.
In addition to the terms defined in Part 1, Article 5, Title 62, the following terms, as used in the part, apply:
(1) "Court" means a probate court in this State or a court in another state with the same jurisdiction as a probate court in this State.
(2) "Guardianship order" means an order appointing a guardian.
(3) "Home state" means the state in which the alleged incapacitated individual was physically present, including a period of temporary absence, for at least six consecutive months immediately preceding the filing of a petition for the appointment of a guardian or protective order; or if none, the state in which the alleged incapacitated individual was physically present, including a period of temporary absence, for at least six consecutive months ending with the six months prior to the filing of the petition.
(4) "Significant-connection state" means a state, other than the home state, with which an alleged incapacitated individual has a significant connection other than mere physical presence and in which substantial evidence concerning the alleged incapacitated individual is available. In determining, pursuant to Sections 62-5-707 and 62-5-714, whether an alleged incapacitated individual has a significant connection with a particular state, the court shall consider the:
(a) location of the alleged incapacitated individual's family and other persons required to be notified of the guardianship or protective proceeding;
(b) length of time the alleged incapacitated individual at any time was physically present in the state and the duration of any absence;
(c) location of the alleged incapacitated individual's property; and
(d) extent to which the alleged incapacitated individual has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-703. Treatment of foreign countries.
The court may treat a foreign country as if it were a state for the purpose of applying this part.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-704. Court communication with court in another state; record required; exceptions; participation of parties.
(A) The court may communicate with a court in another state concerning a proceeding arising pursuant to this article. The court shall allow the parties to participate in a discussion between courts on the merits of a proceeding. Except as otherwise provided in subsection (B), the court shall make a record of the communication. When a discussion on the merits of a proceeding between courts is held, the record must show that the parties were given an opportunity to participate, must summarize the issues discussed, and must list the participants to the discussion. In all other matters except as provided in subsection (B), the record may be limited to the fact that the communication occurred.
(B) Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record. A court may allow the parties to a proceeding to participate in any communications held pursuant to this subsection.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-705. Requests to court of another state; requests from court of another state.
(A) In a guardianship or protective proceeding in this State, the court may request the appropriate court of another state to do any of the following:
(1) hold an evidentiary hearing;
(2) order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
(3) order that an evaluation or assessment be made of the alleged incapacitated individual;
(4) order an appropriate investigation of a person involved in a proceeding;
(5) forward to the court a certified copy of the transcript or other record of a hearing pursuant to item (1) or another proceeding, evidence otherwise produced pursuant to item (2), and an evaluation or assessment prepared in compliance with an order pursuant to item (3) or (4);
(6) issue an order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the alleged incapacitated individual or the ward or protected person; and
(7) issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 C.F.R. Section 164.504.
(B) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (A), the court has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-706. Testimony of witness located in another state.
(A) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this State for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
(B) In a guardianship or protective proceeding, a court in this State may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. The court shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
(C) Documentary evidence transmitted from another state to a court of this State by technological means that does not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-707. Jurisdiction of court.
The court has jurisdiction to appoint a guardian or issue a protective order for an alleged incapacitated individual if:
(A) this State is the alleged incapacitated individual's home state;
(B) on the date the petition is filed, this State is a significant-connection state; and
(1) the alleged incapacitated individual does not have a home state or a court of the alleged incapacitated individual's home state has declined to exercise jurisdiction because this State is a more appropriate forum; or
(2) the alleged incapacitated individual has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state and, before the court makes the appointment or issues the order:
(a) a petition for an appointment or order is not filed in the alleged incapacitated individual's home state;
(b) an objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and
(c) the court concludes that it is an appropriate forum pursuant to the factors provided in Section 62-5-710(C);
(C) this State does not have jurisdiction pursuant to either subsections (A) or (B), the alleged incapacitated individual's home state and all significant-connection states have declined to exercise jurisdiction because this State is the more appropriate forum, and jurisdiction in this State is consistent with the constitutions of this State and the United States; or
(D) the requirements for special jurisdiction pursuant to Section 62-5-708 are met.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-708. Special jurisdiction.
(A) The court lacking jurisdiction pursuant to Sections 62-5-707 (A) through (C) has special jurisdiction to do any of the following:
(1) appoint a guardian in an emergency pursuant to this article for a term not exceeding ninety days for an alleged incapacitated individual who is physically present in this State;
(2) issue a protective order with respect to real or tangible personal property located in this State; or
(3) appoint a guardian or conservator for an incapacitated individual or protected person for whom a provisional order to transfer the proceeding from another state has been issued pursuant to procedures similar to Section 62-5-714.
(B) If a petition for the appointment of a guardian in an emergency is brought in this State pursuant to this article and this State was not the alleged incapacitated individual's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-709. Exclusive and continuing jurisdiction; exception.
Except as otherwise provided in Section 62-5-708, a court that has appointed a guardian or issued a protective order consistent with this article has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order has expired by its own terms.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-710. Declining jurisdiction; more appropriate forum; dismissal or stay of proceeding.
(A) The court having jurisdiction pursuant to Section 62-5-707 to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
(B) If the court declines to exercise its jurisdiction pursuant to subsection (A), it either shall dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
(C) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
(1) the expressed preference of the alleged incapacitated individual;
(2) whether abuse, neglect, or exploitation of the alleged incapacitated individual has occurred or is likely to occur and which state could best protect the alleged incapacitated individual from the abuse, neglect, or exploitation;
(3) the length of time the alleged incapacitated individual was physically present in or was a legal resident of this or another state;
(4) the distance of the alleged incapacitated individual from the court in each state;
(5) the financial circumstances of the alleged incapacitated individual's estate;
(6) the nature and location of the evidence;
(7) the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
(8) the familiarity of the court of each state with the facts and issues in the proceeding; and
(9) if an appointment is made, the court's ability to monitor the conduct of the guardian or conservator.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-711. Jurisdiction acquired due to unjustifiable conduct; assessment of reasonable expenses against responsible party.
(A) If at any time the court determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:
(1) decline to exercise jurisdiction;
(2) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the alleged incapacitated individual or the protection of the alleged incapacitated individual's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
(3) continue to exercise jurisdiction after considering:
(a) the extent to which the alleged incapacitated individual and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;
(b) whether it is a more appropriate forum than the court of any other state pursuant to the factors provided in Section 62-5-710(C); and
(c) whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of Section 62-5-708.
(B) If the court determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this State or a governmental subdivision, agency, or instrumentality of this State unless authorized by law other than this article.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-712. Notice requirements to alleged incapacitated individual's home state.
If a petition for the appointment of a guardian or issuance of a protective order is brought in this State and this State was not the alleged incapacitated individual's home state on the date the petition was filed, in addition to complying with the notice requirements of this State, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the alleged incapacitated individual's home state. The notice must be given in the same manner as notice is required to be given in this State.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-713. Rules for dealing with conflicting petitions in this and another state.
Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this State pursuant to Section 62-5-708(A)(1) or (2), if a petition for the appointment of a guardian or issuance of a protective order is filed in this State and in another state and neither petition has been dismissed or withdrawn, the following rules apply:
(A) if the court has jurisdiction pursuant to Section 62-5-707, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to Section 62-5-707 before the appointment or issuance of the order; or
(B) if the court does not have jurisdiction pursuant to Section 62-5-707, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this State shall dismiss the petition unless the court in the other state determines that the court in this State is a more appropriate forum.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-714. Petition to transfer guardianship or conservatorship to another state; notice; hearing; provisional and final orders.
(A) A guardian or conservator appointed in this State may petition the court to transfer the guardianship or conservatorship to another state.
(B) Notice of a petition pursuant to subsection (A) must be given to the persons that would be entitled to notice of a petition in this State for the appointment of a guardian or conservator.
(C) On the court's own motion or on request of the guardian or conservator, the ward or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (A), except that a hearing must not be required if a consent order is signed by all parties who have pled, defended, or otherwise participated in the proceeding, as provided by the South Carolina Rules of Civil Procedure.
(D) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:
(1) the ward is physically present in or is reasonably expected to move permanently to the other state;
(2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the ward; and
(3) plans for care and services for the ward in the other state are reasonable and sufficient.
(E) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
(1) the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors provided in Section 62-5-707;
(2) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and
(3) adequate arrangements will be made for management of the protected person's property.
(F) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
(1) a provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to Section 62-5-715; and
(2) the documents required to terminate a guardianship or conservatorship in this State.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-715. Confirmation of transfer from another state; petition to accept guardianship or conservatorship; determination of needed modification.
(A) To confirm transfer of a guardianship or conservatorship to this State under provisions similar to Section 62-5-714, the guardian or conservator must petition the court in this State to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.
(B) Notice of a petition pursuant to subsection (A) must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this State. The notice must be given in the same manner as notice is required to be given in this State.
(C) On the court's own motion or on request of the guardian or conservator, the ward or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (A), except that a hearing must not be required if a consent order is signed by all parties who have pled, defended, or otherwise participated in the proceeding, as provided by the South Carolina Rules of Civil Procedure.
(D) The court shall issue an order provisionally granting a petition filed pursuant to subsection (A) unless:
(1) an objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the ward or protected person; or
(2) the guardian or conservator is ineligible for appointment in this State.
(E) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this State upon its receipt of a final order from the court from which the proceeding is being transferred, when that final order is issued pursuant to provisions similar to Section 62-5-714 transferring the proceeding to this State.
(F) Not later than ninety days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the laws of this State.
(G) In granting a petition pursuant to this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the ward or protected person's incapacity and the appointment of the guardian or conservator.
(H) The denial by the court of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this State pursuant to another provision of this article if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.
SECTION 62-5-716. Registration of orders from another state; powers in this state.
(A) If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this State, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this State by filing as a foreign judgment in the court, in any appropriate county of this State, certified copies of the order and letters of office. The court shall treat this as the filing of authenticated or certified records and shall charge the fees set forth in Section 8-21-770. The court will then issue a certificate of registration. The guardian shall file the certificate, along with a copy of his fiduciary letters of office in county real estate records.
(B) If a conservator has been appointed in another state and a petition for a protective order is not pending in this State, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this State by filing as a foreign judgment in the Probate Court, in any county in which property belonging to the protected person is located, certified copies of the order and letters of office and of any bond. The court shall treat this as the filing of authenticated or certified records and shall charge the fees set forth in Section 8-21-770 for the filing of such documents. The court will then issue a certificate of registration. The conservator shall file the certificate, along with a copy of the fiduciary letters in the county real estate records.
(C)(1) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this State, subject to any conditions imposed upon nonresident parties.
(2) A probate court of this State may grant any relief available pursuant to the provisions of this article and other laws of this State to enforce a registered order.
HISTORY: 2010 Act No. 213, § 1, eff January 1, 2011; 2017 Act No. 87 (S.415), § 5.B, eff January 1, 2019.TITLE 62. SOUTH CAROLINA PROBATE CODE
CHAPTER 6. Nonprobate Transfers
Part 1
Definitions and General Provisions
SECTION 62-6-101. Definitions.
In this subpart:
(1) "Account" means a contract of deposit between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account, and other like arrangements.
(2) "Agent" means a person authorized to make account transactions for a party.
(3) "Beneficiary" means a person named as one to whom sums on deposit in an account are payable on request after the death of all parties or for whom a party is named as the trustee.
(4) "Financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, and includes a bank, trust company, savings bank, building and loan association, savings and loan company or association, and credit union.
(5) "Multiple-Party account" means an account payable on request to one or more of two or more parties, whether or not a right of survivorship is mentioned including, but not limited to, joint accounts or POD accounts.
(6) "Net contribution of a party" means the sum of all deposits to an account made by or for the party, less all payments from the account made to or for the party which have not been paid to or applied to the use of another party and a proportionate share of any charges deducted from the account, plus a proportionate share of any interest or dividends earned, whether or not included in the current balance. The term includes deposit life insurance proceeds added to the account by reason of death of the party whose net contribution is in question.
(7) "Party" means a person who, by the terms of an account, has a present right, subject to request, to payment from the account other than as a beneficiary or agent.
(8) "Payment" of sums on deposit includes withdrawal, payment to a party, or third person pursuant to a check or other request, and a pledge of sums on deposit by a party, or a set-off, reduction, or other disposition of all or part of an account pursuant to a pledge.
(9) "Proof of death" includes a death certificate or record or report which is prima facie proof of death under Section 62-1-507.
(10) "P.O.D. designation" means the designation of: (i) a beneficiary in an account payable on request to one party during the party's lifetime and on the party's death to one or more beneficiaries, or to one or more parties during their lifetimes and on death of all of them to one or more beneficiaries, or (ii) a beneficiary in an account in the name of one or more parties as trustee for one or more beneficiaries if the relationship is established by the terms of the account and there is no subject of the trust other than the sums on deposit in the account, whether or not payment to the beneficiary is mentioned.
(11) "Receive" as it relates to notice to a financial institution, means receipt in the office or branch office of the financial institution in which the account is established, but if the terms of the account require notice at a particular place, in the place required.
(12) "Request" means a request for payment complying with all terms of the account, including special requirements concerning necessary signatures and regulations of the financial institution. However, for purposes of this subpart, if terms of the account condition payment on advance notice, a request for payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for payment.
(13) "Sums on deposit" means the balance payable on an account including interest and dividends earned, whether or not included in the current balance, and any deposit life insurance proceeds added to the account by reason of the death of a party.
(14) "Terms of the account" includes the deposit agreement and other terms and conditions, including the form, of the contract of deposit.
HISTORY: 1986 Act No. 539, § 1; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-102. Applicability of article.
This article does not apply to: (i) an account established for a partnership, joint venture, or other organization for a business purpose, (ii) an account controlled by one or more persons as an agent or trustee for a corporation, unincorporated association, or charitable or civic organization, or (iii) a fiduciary or trust account in which the relationship is established other than by the terms of the account.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-103. Accounts.
(a) An account may be for a single party or multiple parties. A multiple-party account may be with or without a right of survivorship between the parties. Subject to Section 62-6-202(c), either a single-party account or a multiple-party account may have a POD designation, an agency designation, or both.
(b) An account established after January 1, 2014, whether in the form prescribed in Section 62-6-104 or in any other form, is either a single-party account or a multiple-party account, with or without right of survivorship, and with or without a POD designation or an agency designation, within the meaning of this subpart, and is governed by this article.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-104. Short forms for single- and multiple-party accounts.
(a) A contract of deposit that contains provisions in substantially the following form establishes the type of account provided, and the account is governed by the provisions of this subpart applicable to an account of that type:
UNIFORM SINGLE-OR MULTIPLE-PARTY ACCOUNT FORM
PARTIES [Name One or More Parties]:
OWNERSHIP [Select One And Initial]:
__SINGLE-PARTY ACCOUNT
__MULTIPLE-PARTY ACCOUNT
Parties own account in proportion to net contributions unless there is clear and convincing evidence of a different intent.
RIGHTS AT DEATH [Select One And Initial]:
If Single-Party Account is chosen above, choose one of following:
__SINGLE-PARTY ACCOUNT
At death of party, ownership passes as part of party's estate.
__SINGLE-PARTY ACCOUNT WITH POD (PAY ON DEATH) DESIGNATION
[Name One Or More Beneficiaries]:
At death of party, ownership passes to POD beneficiaries and is not part of party's estate.
If Multiple-Party Account is chosen above, choose one of following:
__MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP
At death of party, ownership passes to surviving parties. The last surviving party owns the entire account. (Note: This can be overridden by clear and convincing evidence of a contrary intent.)
__MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND POD (PAY ON DEATH) DESIGNATION
[Name One Or More Beneficiaries]:
At death of last surviving party, ownership passes to POD beneficiaries and is not part of last surviving party's estate.
__MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF SURVIVORSHIP
At death of party, deceased party's ownership passes as part of deceased party's estate.
DESIGNATION OF AGENT FOR ACCOUNT [Optional]
Agents may make account transactions for parties but have no ownership or rights at death unless named as POD beneficiaries.
[To Add Agency Designation To Account, Name One Or More Agents]:
[Select One And Initial]:
______AGENCY DESIGNATION SURVIVES DISABILITY OR INCAPACITY OF PARTIES
______AGENCY DESIGNATION TERMINATES ON DISABILITY OR INCAPACITY OF PARTIES
(b) A contract of deposit that does not contain provisions in substantially the form provided in subsection (a) is governed by the provisions of this article applicable to the type of account that most nearly conforms to the depositor's intent.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 70; 1990 Act No. 521, § 88; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-105. Designation of agent; authority of agent.
By a writing signed by all parties, the parties may designate as agent of all parties on an account a person other than a party. Unless the terms of an agency designation provide that the authority of the agent terminates on disability or incapacity of a party, the agent's authority survives disability and incapacity. The agent may act for a disabled or incapacitated party until the authority of the agent is terminated. Death of the sole party or last surviving party terminates the authority of an agent. The designated agent on an account is authorized to make all transactions on the account that the party can make, including, but not limited to, closing the account. An agent serving under a durable power of attorney can change, modify, or revoke an agent designated on an account.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-106. Applicability of Part 2.
The provisions of Part 2 concerning beneficial ownership as between parties or as between parties and beneficiaries apply only to controversies between those persons and their creditors and other successors, and do not apply to the right of those persons to payment as determined by the terms of the account. Part 3 governs the liability and set-off rights of financial institutions that make payments pursuant to it.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
Part 2
Ownership as Between Parties and Others
SECTION 62-6-201. Ownership during lifetime.
(A) During the lifetime of all parties, an account belongs to the parties in proportion to the net contribution of each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
(B) A beneficiary in an account having a POD designation has no right to sums on deposit during the lifetime of any party.
(C) An agent in an account with an agency designation has no beneficial right to sums on deposit.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 69; 1976 Code § 62-6-103; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-202. Right of survivorship.
(a) Except as otherwise provided in this subpart, on death of a party sums on deposit in a multiple-party account belong to the surviving party or parties. If two or more parties survive and one is the surviving spouse of the decedent, the amount to which the decedent, immediately before death, was beneficially entitled under Section 62-6-201 belongs to the surviving spouse. If two or more parties survive and none is the surviving spouse of the decedent, the amount to which the decedent, immediately before death, was beneficially entitled under Section 62-6-201 belongs to the surviving parties in equal shares, and augments the proportion to which each survivor, immediately before the decedent's death, was beneficially entitled under Section 62-6-201, and the right of survivorship continues between the surviving parties.
(b) In an account with a POD designation:
(1) on death of one of two or more parties, the rights in sums on deposit are governed by subsection (a);
(2) on death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries. If two or more beneficiaries survive, sums on deposit belong to them in equal and undivided shares, and there is no right of survivorship in the event of death of a beneficiary thereafter. If no beneficiary survives, sums on deposit belong to the estate of the last surviving party.
(c) Sums on deposit in a single-party account without a POD designation, or in a multiple-party account that, by the terms of the account, is without right of survivorship, are not affected by death of a party, but the amount to which the decedent, immediately before death, was beneficially entitled under Section 62-6-201 is transferred as part of the decedent's estate. A POD designation in a multiple-party account without right of survivorship is ineffective. For purposes of this section, designation of an account as a tenancy in common establishes that the account is without right of survivorship.
(d) The ownership right of a surviving party or beneficiary, or of the decedent's estate, in sums on deposit is subject to requests for payment made by a party before the party's death, whether paid by the financial institution before or after death, or unpaid. The surviving party or beneficiary, or the decedent's estate, is liable to the payee of an unpaid request for payment. The liability is limited to a proportionate share of the amount transferred under this section, to the extent necessary to discharge the request for payment.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 70; 1990 Act No. 521, § 88; 1976 Code § 62-6-104; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-203. Rights of parties and beneficiaries.
(a) Rights at death of a party under Section 62-6-202 are determined by the terms of the account at the death of the party. A party may alter the terms of the account by a notice signed by the party and given to the financial institution to change the terms of the account or to stop or vary payment under the terms of the account. To be effective the notice must be received by the financial institution during the party's lifetime.
(b) A right of survivorship arising from the express terms of the account under Section 62-6-202 may be altered by clear and convincing evidence, including but not limited to express provisions in a will.
(c) A multiple-party account of husband and wife is presumed to be joint with right of survivorship unless clear and convincing evidence shows survivorship was not the intent of the party.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-204. Transfers not testamentary.
A transfer resulting from the application of Section 62-6-202 is effective by reason of the terms of the account involved and this part and is not testamentary or subject to Articles 1 through 4 (estate administration) unless there is clear and convincing evidence that the deceased party did not intend for the account to be joint with right of survivorship.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-205. Rights of creditors.
Subject to the provisions contained in Section 62-3-916, no multiple-party account is effective against an estate of a deceased party to transfer to a survivor sums needed to pay debts, taxes, and expenses of administration, if other assets of the estate are insufficient. A surviving party or beneficiary who receives payment from a multiple-party account after the death of a deceased party is liable to account to his personal representative for amounts the decedent owned beneficially immediately before his death to the extent necessary to discharge the claims and charges mentioned above remaining unpaid after application of the decedent's estate. No proceeding to assert this liability may be commenced unless the personal representative has received a written demand by a creditor of the decedent, and no proceeding may be commenced later than one year following the death of the decedent. Sums recovered by the personal representative must be administered as part of the decedent's estate. This section does not affect the right of a financial institution to make payment on multiple-party accounts according to the terms of the account or make it liable to the estate of a deceased party unless, before payment, the institution has been served with an order of the probate court.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 71; 1976 Code § 62-6-107; 2013 Act No. 100, § 2, eff January 1, 2014.
Part 3
Protection of Financial Institutions
SECTION 62-6-301. Contract of deposit for a multiple-party account.
A financial institution may enter into a contract of deposit for a multiple-party account to the same extent it may enter into a contract of deposit for a single-party account, and may provide for a POD designation and an agency designation in either a single-party account or a multiple-party account. A financial institution need not inquire as to the source of a deposit to an account or as to the proposed application of a payment from an account.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 72; 1976 Code § 62-6-108; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-302. Multiple-party accounts may be paid on request to one or more parties.
A financial institution, on request, may pay sums on deposit in a multiple-party account:
(1) to one or more of the parties, whether or not another party is disabled, incapacitated, or deceased when payment is requested and whether or not the party making the request survives another party;
(2) to the personal representative of a deceased party, if proof of death is presented to the financial institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary, unless the account is without right of survivorship under Section 62-6-202; or
(3) in accordance with a court order directing the payment of the sums on deposit.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-303. Payment of POD account.
A financial institution, on request, may pay sums on deposit in an account with a POD designation:
(1) to one or more of the parties, whether or not another party is disabled, incapacitated, or deceased when the payment is requested and whether or not a party survives another party;
(2) to the beneficiary or beneficiaries, if proof of death is presented to the financial institution showing that the beneficiary or beneficiaries survived all persons named as parties;
(3) to the personal representative of a deceased party, if proof of death is presented to the financial institution showing that the deceased party was the survivor of all other persons named on the account either as a party or beneficiary; or
(4) in accordance with a court order directing the payment of the sums on deposit.
HISTORY: 1986 Act No. 539, § 1; 1987 Act No. 171, § 74; 1976 Code § 62-6-110; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-304. Payment to agent.
A financial institution, on request of an agent under an agency designation for an account, may pay to the agent sums on deposit in the account, whether or not a party is disabled, incapacitated, or deceased when the request is made or received, and whether or not the authority of the agent terminates on the disability or incapacity of a party.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-305. Payment to minors.
If a financial institution is required or permitted to make payment pursuant to this part to a minor designated as a beneficiary, payment shall be made as ordered by the court or may be made in accordance with Section 62-5-103.
HISTORY: 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-306. Discharge.
(a) Payment made pursuant to this subpart in accordance with the terms of the account discharges the financial institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties, beneficiaries, or their successors. Payment may be made whether or not a party, beneficiary, or agent is disabled, incapacitated, or deceased when payment is requested, received, or made.
(b) Protection under this section does not extend to payments made after a financial institution has received written notice from a party, or from an agent under a durable power of attorney or a conservator for a party, or from the personal representative of a deceased party, or surviving spouse of a deceased party, to the effect that payments in accordance with the terms of the account, including one having an agency designation, should not be permitted, and the financial institution has had a reasonable opportunity to act on it when the payment is made. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in a request for payment if the financial institution is to be protected under this section. Unless a financial institution has been served with process or a court order in an action or proceeding, no other notice or other information shown to have been available to the financial institution affects its right to protection under this section.
(c) A financial institution that receives written notice pursuant to this section or otherwise has reason to believe that a dispute exists as to the rights of the parties may refuse, without liability, to make payments in accordance with the terms of the account.
(d) Protection of a financial institution under this section does not affect the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of sums on deposit in accounts or payments made from accounts.
HISTORY: 1986 Act No. 539, § 1; 1976 Code § 62-6-112; 2013 Act No. 100, § 2, eff January 1, 2014.
SECTION 62-6-307. Set-off.
Without qualifying any other statutory right to set-off or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to set-off against the account in which the party has or had immediately before his death a present right of withdrawal. The amount of the account subject to set-off is that proportion to which the debtor is, or was immediately before his death, beneficially entitled, and in the absence of proof of net contributions, to an equal share with all parties having present rights of withdrawal.
HISTORY: 1986 Act No. 539, § 1; 1976 Code § 62-6-113; 2013 Act No. 100, § 2, eff January 1, 2014. |
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