Current Status Bill Number:
3971Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 19970410Primary Sponsor: CampsenAll Sponsors: Campsen, Woodrum, Young, Klauber, Altman and HarrisonDrafted Document Number: dka\4322mm.97Companion Bill Number: 641Residing Body: SenateCurrent Committee: Judiciary Committee 11 SJDate of Last Amendment: 19970520Subject: Probate Code, Trusts and Estates, Probate Courts, Minors, Uniform Laws, revisions of
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ Senate 19970521 Introduced, read first time, 11 SJ referred to Committee House 19970521 Read third time, sent to Senate House 19970520 Amended, read second time House 19970514 Committee report: Favorable with 25 HJ amendment House 19970410 Introduced, read first time, 25 HJ referred to CommitteeView additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
May 20, 1997
Introduced by Reps. Campsen, Woodrum, Young, Klauber, Altman and Harrison
S. Printed 5/20/97--H.
Read the first time April 10, 1997.
TO AMEND SECTION 62-1-100, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE EFFECTIVE DATE OF THE PROBATE CODE, SO AS TO CLARIFY THAT SUBSTANTIVE RIGHTS IN AN ESTATE ARE DETERMINED BY THE LAW IN EFFECT AT THE DATE OF DEATH; TO AMEND SECTION 62-1-201, RELATING TO THE DEFINITION OF "MINOR", SO AS TO EXCLUDE THOSE PERSONS UNDER THE AGE OF EIGHTEEN WHO ARE EITHER MARRIED OR EMANCIPATED; TO AMEND SECTION 62-1-302, AS AMENDED, RELATING TO SUBJECT MATTER JURISDICTION OF THE PROBATE COURT, SO AS TO PROVIDE THE PROBATE COURT EXCLUSIVE ORIGINAL JURISDICTION OVER ACCOUNTS AND DISPUTES ARISING UNDER THE UNIFORM GIFTS TO MINORS ACT; TO AMEND SECTION 62-1-308, AS AMENDED, RELATING TO APPEALS, SO AS TO PROVIDE FOR ALLOWING PARTIES NOT IN DEFAULT TO APPEAL DIRECTLY TO THE SOUTH CAROLINA SUPREME COURT; TO AMEND SECTION 62-1-403, RELATING TO THE REPRESENTATIVE CAPACITY OF PARENTS, SO AS TO ADD "UNBORN CHILD"; TO AMEND SECTION 62-2-109, AS AMENDED, RELATING TO THE MEANING OF "CHILD", SO AS TO CLARIFY WHEN AND HOW PATERNITY MAY BE ESTABLISHED; TO AMEND SECTION 62-2-302, AS AMENDED, RELATING TO PRETERMITTED CHILDREN, SO AS TO SUBSTITUTE "SPOUSE" FOR "PARENT OF THE OMITTED CHILD"; TO AMEND SECTION 62-2-501, RELATING TO WHO MAY MAKE A WILL, SO AS TO PROHIBIT MINORS, AS DEFINED IN SECTION 62-1-201 FROM MAKING A WILL; TO AMEND SECTION 62-2-802, RELATING TO THE DEFINITION OF "SURVIVING SPOUSE", SO AS TO NOT INCLUDE A COMMON LAW SPOUSE UNLESS HE OR SHE HAS BEEN ESTABLISHED AS SUCH BY AN ADJUDICATION COMMENCED WITHIN A SPECIFIED PERIOD; TO AMEND SECTION 62-2-803, RELATING TO THE EFFECTS OF HOMICIDE ON INTESTATE SUCCESSION, SO AS TO PROVIDE THAT A KILLER WHO DIES WITHIN ONE HUNDRED AND TWENTY HOURS OF THE DECEDENT IS CONSIDERED TO HAVE PREDECEASED THE DECEDENT; TO AMEND SECTION 62-3-203, AS AMENDED, RELATING TO THE PRIORITY AMONG PERSONS SEEKING APPOINTMENT AS A PERSONAL REPRESENTATIVE, SO AS TO REALIGN LANGUAGE CONVEYING THE PRIORITY OF A NOMINATOR TO THE NOMINEE WITH THE QUALIFICATION THAT PERSONS NOMINATED BY THE DECEDENT SHALL HAVE THE HIGHEST PRIORITY; TO AMEND SECTION 62-3-603, AS AMENDED, RELATING TO BOND REQUIRED OF PERSONAL REPRESENTATIVES, SO AS TO CLARIFY WHEN BOND IS REQUIRED; TO AMEND SECTION 62-3-610, RELATING TO THE TERMINATION OF APPOINTMENT OF A PERSONAL REPRESENTATIVE, SO AS TO CLARIFY THE PROCESS FOR RESIGNATION OF A PERSONAL REPRESENTATIVE; TO AMEND SECTION 62-3-614, RELATING TO THE APPOINTMENT OF A SPECIAL ADMINISTRATOR, SO AS TO PROVIDE FOR INFORMAL APPOINTMENT UPON THE APPLICATION OF A CREDITOR OF THE DECEDENT'S ESTATE; TO AMEND SECTION 62-3-719, AS AMENDED, RELATING TO THE COMPENSATION OF A PERSONAL REPRESENTATIVE, SO AS TO CLARIFY THAT COMPENSATION IS BASED UPON THE VALUE OF THE PROBATE ESTATE; TO AMEND SECTION 62-3-914, AS AMENDED, RELATING TO THE DISPOSITION OF UNCLAIMED ASSETS, SO AS TO DELETE THE TIME REQUIREMENT FOR FIRST NOTICE AND TO PROVIDE THAT UNCLAIMED DEVISES OF ONE HUNDRED DOLLARS OR LESS MAY BE TRANSFERRED TO THE SOUTH CAROLINA STATE TREASURER; TO AMEND SECTION 62-3-1001, RELATING TO PETITION FOR SETTLEMENT, SO AS TO CLARIFY THAT THE PROPOSAL FOR DISTRIBUTION PERTAINS ONLY TO ASSETS NOT YET DISTRIBUTED; TO AMEND SECTION 62-3-1101, RELATING TO THE EFFECT OF APPROVAL OF AGREEMENTS INVOLVING TRUSTS, INALIENABLE INTERESTS, OR INTERESTS OF THIRD PERSONS, SO AS TO CLARIFY THAT SETTLEMENTS PURSUANT TO THIS SECTION NEED NOT COMPLY WITH SECTION 62-5-433; TO AMEND SECTION 62-5-103, AS AMENDED, RELATING TO PAYMENT OR DELIVERY TO A MINOR OR INCAPACITATED PERSON, SO AS TO CLARIFY FOR WHAT PURPOSES SUMS RECEIVED ON BEHALF OF THE MINOR OR INCAPACITATED PERSON MAY BE USED; TO AMEND SECTION 62-5-104, RELATING TO THE DELEGATION OF A GUARDIAN'S POWERS, SO AS TO PROVIDE FOR THE POWERS TO BE DELEGATED TO ANOTHER PERSON FOR A PERIOD NOT TO EXCEED THIRTY DAYS; TO AMEND SECTION 62-5-310, AS AMENDED, RELATING TO TEMPORARY GUARDIANS, SO AS TO REQUIRE A HEARING TO REVIEW THE APPOINTMENT OF A TEMPORARY GUARDIAN WITHIN THIRTY DAYS OF THAT APPOINTMENT; TO AMEND SECTION 62-5-405, RELATING TO NOTICE OF APPOINTMENT OF A CONSERVATOR, SO AS TO REQUIRE THAT ONLY THE PERSON TO BE PROTECTED BE SERVED PERSONALLY WITH NOTICE AT LEAST TWENTY DAYS BEFORE THE HEARING; TO AMEND SECTION 62-5-424, RELATING TO THE POWERS OF THE CONSERVATOR, SO AS TO PROVIDE FOR LIMITED POWERS OF THE CONSERVATOR TO THOSE SET FORTH IN THE SECTION AND TO PROVIDE THAT A CONSERVATOR, WITH COURT APPROVAL, MAY ENCUMBER ASSETS FOR PERIODS WITHIN OR BEYOND HIS TERM OF CONSERVATORSHIP; TO AMEND SECTION 62-5-425, RELATING TO DISTRIBUTIVE DUTIES AND POWERS OF THE CONSERVATOR, SO AS TO CLARIFY THAT ONLY MAJORITY OR EMANCIPATION RESULTING FROM A PROCEEDING BEGUN PRIOR TO THE BEGINNING OF THE CONSERVATORSHIP, AND NOT MARRIAGE, END A CONSERVATORSHIP; TO AMEND SECTION 62-5-428, RELATING TO CLAIMS AGAINST PROTECTED PERSONS, SO AS TO PROVIDE THAT ANY CLAIM DENIED BY THE CONSERVATOR REMAINS BARRED UNLESS THE CLAIMANT FILES A PETITION WITH THE COURT WITHIN THIRTY DAYS OF RECEIPT OF THE NOTICE OF THE DISALLOWANCE; TO AMEND SECTION 62-5-501, AS AMENDED, RELATING TO POWERS OF ATTORNEY NOT AFFECTED BY DISABILITY, SO AS TO DELETE THE COURT'S REQUIREMENT OF AN INVENTORY AND A SURETY BOND; TO AMEND SECTION 62-7-705, AS AMENDED, RELATING TO THE RESIGNATION OF A TRUSTEE, SO AS TO PROVIDE FOR RESIGNATION ONLY UPON SPECIFIED CONDITIONS; TO AMEND SECTION 20-1-550, RELATING TO SERVICE UPON A NONRESIDENT OR ABSENT DEFENDANT IN AN ACTION TO ANNUL A MARRIAGE, SO AS TO ELIMINATE THE DUTY OF THE PLAINTIFF TO FORWARD NOTICE TO THE PROBATE COURT; TO AMEND SECTION 20-7-150, RELATING TO DEFINITIONS UNDER THE UNIFORM GIFTS TO MINORS ACT, SO AS TO CLARIFY THE DEFINITIONS OF "COURT" AND "MINOR"; AND TO REPEAL SECTION 14-23-650, RELATING TO THE DESCRIPTION OF DEVISED LANDS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 62-1-100(b)(5) of the 1976 Code is amended to read:
"(5) any a rule of construction or presumption provided in this Code applies to instruments executed and multiple-party accounts opened before the effective date unless there is a clear indication of a contrary intent."
SECTION 2. Section 62-1-201(24) of the 1976 Code is amended to read:
"(24) '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."
SECTION 3. Section 62-1-302 of the 1976 Code, as last amended by Act 475 of 1992, is further amended to read:
"Section 62-1-302. (a) To the full extent permitted by the Constitution, and except as otherwise specifically provided hereinafter, the probate court has exclusive original jurisdiction over all subject matter related to:
(1) estates of decedents, including the contest of wills, construction of wills, and determination of heirs and successors of decedents and estates of protected persons;
(2) protection of minors, (except that jurisdiction over the care, custody, and control of the persons of minors is governed by Section 62-5-201) and incapacitated persons, including the mortgage and sale of personal and real property owned by minors or incapacitated persons as well as gifts made pursuant to the South Carolina Uniform Gifts to Minors Act, Section 20-7-140 et seq., except that jurisdiction for approval of settlement of claims in favor of or against minors or incapacitated persons is governed by Section 62-5-433;
(3) trusts, inter vivos or testamentary, including the appointment of successor trustees;
(4) the issuance of marriage licenses, in form as provided by the Bureau of Vital Statistics of the Department of Health and Environmental Control; to record, index, and dispose of copies of marriage certificates; and the issuance of issue certified copies of such the licenses and certificates;
(5) the performance of the duties of the clerk of the circuit and family courts of the county in which such the probate court is held when there is a vacancy in the office of clerk of court for any reason and in proceedings in eminent domain for the acquisition of rights-of-way by railway companies, canal companies, governmental entities, or public utilities when such the clerk is disqualified by reason of ownership of or interest in any lands over which it is sought to obtain such the rights-of-way;
(6) the involuntary commitment of persons suffering from mental illness, mental retardation, alcoholism, drug addiction, and active pulmonary tuberculosis.
(b) The court's jurisdiction over matters involving wrongful death or actions under the survival statute is concurrent with that of the circuit court and shall extend 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) Notwithstanding the exclusive jurisdiction of the probate court over the foregoing matters, any action or proceeding filed in the probate court and relating to the following subject matters, on motion of any 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 such 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 personal representatives;
(2) construction of wills;
(3) actions to try title;
(4) trusts; and
(5) actions in which a party has a right to trial by jury and which involve an amount in controversy of at least five thousand dollars in value. The removal to the circuit court of an action or proceeding within the exclusive jurisdiction of the probate court applies only to the particular action or proceeding removed, and the probate court otherwise retains continuing exclusive jurisdiction.; and
(6) actions concerning gifts made pursuant to the South Carolina Uniform Gifts to Minors Act, Section 20-7-140 et seq.
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."
SECTION 4. Section 62-1-308 of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"Section 62-1-308. Except as provided in subsection (g), Appeals appeals from the probate court shall must be to the circuit court and shall be are governed by the following rules:
(a) Any A person interested in any a final order, sentence, or decree of any a probate court and considering himself injured thereby by it may appeal therefrom to the circuit court in the same county. The notice of intention to appeal to the circuit court must be filed in the office of the circuit court and in the office of the probate court and a copy thereof served on all parties within ten days after receipt of written notice of the decision appealed from order, sentence, or decree of the probate court. The grounds of appeal must be filed in the office of the probate court and a copy thereof served on all parties within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court.
(b) Within thirty days after the grounds of appeal shall have has been filed in the office of the probate court, as provided in subsection (a), the probate court shall make a return to the appellate court of the testimony, proceedings, and judgment and file it in the appellate court. Upon the appeal being finally disposed of final disposition of the appeal, all such papers included in the return shall must be returned forwarded to the probate court.
(c) When an appeal according to law is taken from any a 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 or Supreme Court is had.; but, If the appellant waives his appeal in writing waives his appeal before the entry of such the judgment, proceedings may be had in the probate court as if no appeal had been taken.
(d) When the return shall have has been filed in the circuit court as provided in subsection (b), the court shall proceed to the hearing and determination of hear and determine the appeal according to the rules of law. The hearing shall must be strictly on appeal and no new evidence shall may be presented.
(e) The final decision and judgment in cases appealed, as provided in this code, shall must be certified to the probate court by the circuit court or Supreme Court, as the case may be, and the same proceedings shall must be had in the probate court as though such the decision had been made in such probate court.
(f) No A judge of any a probate court shall must not be admitted to have any voice in judging or determining any an appeal from his decision or be permitted to act as attorney or counsel thereon.
(g) 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."
SECTION 5. Section 62-1-403(2)(ii) and (iii) of the 1976 Code are amended to read:
"(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 parent may represent his minor or unborn child.
(iii) An 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."
SECTION 6. Section 62-2-109(2)(ii) of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"(ii) the paternity is established by an adjudication commenced before the death of the father or within the later of eight months after the death of the father or six months after the probate of his estate 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 subparagraph 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."
SECTION 7. Section 62-2-302(a)(2) of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"(2) when the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child his spouse; or"
SECTION 8. Section 62-2-501 of the 1976 Code is amended to read:
"Section 62-2-501. Any A person married or eighteen or more years of age who is of sound mind and who is not a minor as defined in Section 62-1-201(24) may make a will."
SECTION 9. Section 62-2-802(b) of the 1976 Code is amended by adding:
"(4) a person 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."
SECTION 10. Section 62-2-803 of the 1976 Code is amended by adding:
"(g) For purposes of this section, the killer is considered to have predeceased the decedent if the killer dies within one hundred twenty hours after feloniously and intentionally killing the decedent."
SECTION 11. Section 62-3-203(a)(7) of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:
"(7) four months after the death of the decedent, upon application by the South Carolina Department of Revenue and Taxation, any a person suitable to the court. Any person with priority may nominate another, who shall have the same priority as the person making the nomination."
SECTION 12. Section 62-3-203(a) of the 1976 Code, as last amended by Act 521 of 1990, is further amended by adding:
"(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."
SECTION 13. Section 62-3-603(A) of the 1976 Code, as last amended by Act 470 of 1994, is further amended to read:
"(A) Except as otherwise provided in this section, no bond is required of a personal representative or successor personal representative who is named in a will or when there is only a single beneficiary named in a will who is also appointed as the personal representative. Bond is required in the following cases:
(1) upon the appointment of a special administrator;
(2) upon the appointment of a personal representative of an intestate estate unless the court has determined at the time of appointment that there is only a single qualified surviving heir pursuant to the provisions of this Probate Code governing intestacy and that the heir is appointed as the personal representative;
(3) upon appointment of a nonresident personal representative unless bond is expressly excused in the will;
(4) when a personal representative is appointed to administer an estate under a will containing an express requirement of bond; or
(5) when bond is required under Section 62-3-605;
(6) upon appointment of a personal representative not named in a will, unless otherwise provided in the will or in this section or unless the personal representative is the sole beneficiary named in the will.
No bond is required of a banking corporation or trust company qualified under Section 34-15-10 when it is appointed to act as a personal representative except under item (4). 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, or if bond is required under item (6) of this section, the court may in its discretion decide not to require bond."
SECTION 14. Section 62-3-610 of the 1976 Code is amended to read:
"Section 62-3-610. (a) Unless otherwise provided, an order closing an estate as provided in Section 62-3-1001 terminates an appointment of a personal representative.
(b) A personal representative may resign his position by filing a written statement of resignation with the court after he has given at least fifteen days 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."
SECTION 15. Section 62-3-614(1) of the 1976 Code is amended to read:
"(1) informally by the court on the application of any an interested person when necessary:
(a) to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in Section 62-3-609; or
(b) for a creditor of the decedent's estate to institute any proceeding under Section 62-3-803(c);"
SECTION 16. Section 62-3-719 of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"Section 62-3-719. (a) A Unless otherwise approved by the court for extraordinary services, a personal representative shall receive for his care in the execution of his duties receive 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 and no less, regardless of the value of the personal property of the estate.
(b) Additionally, a personal representative is entitled to may receive a sum not to exceed 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 any 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 any 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 prior to 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."
SECTION 17. Section 62-3-914 of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"Section 62-3-914. (a) If after the expiration of eight months from the appointment of the personal representative of any 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 any a person supposed to be entitled to be as heir or devisee of the estate or whether any a person who, if living, would be entitled as heir or devisee of this estate be is dead or not 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 to be 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 first publication of the notice must be made within ten days after the date of the notice and the newspaper must be designated by the court. The court has the right, in its discretion, to order the notice to be published once a week for three successive weeks in one other newspaper published in another place most likely to give notice to interested persons.
(c) The publication of the notice as prescribed in subsection (b) must be proved by filing with the court copies of the newspapers containing the publication of the notice and the affidavit of the publishers or printers of the respective newspapers.
(d) At the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if no person appears as therein required, the court must decree distribution of the estate to be made as if the person whose whereabouts or the fact of whose death is unknown had died before the decedent. Distribution so made by the personal representative is a full and complete discharge to the personal representative.
(e) At the time fixed in the notice for cause to be shown, due proof of publication having been made and filed as required by subsection (c), if the person whose whereabouts or the fact of whose death was unknown appears, all further proceedings must be discharged.
(f) If the identity of the person so appearing is disputed by the personal representative, any an heir or devisee of the decedent or the legal representatives of any an heir or devisee, the court must proceed to hear and determine the controversy. If the controversy is determined against the person so appearing, distribution of the estate must be made as prescribed in subsection (d); but if the controversy be is determined in favor of the party so appearing he is considered to be the person whose whereabouts or the fact of whose death was unknown. The determination in either case, however, is subject to appeal as provided in Section 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 any 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, however, to be is subject to appeal as provided in Section 62-1-308.
(h) Instead of the procedure required in this section, an unclaimed devise of one hundred dollars or less may be paid or transferred by the personal representative to the South Carolina State Treasurer."
SECTION 18. SECTION 62-3-1001(a)(2) of the 1976 Code, as last amended by Act 143 of 1991, is further amended to read:
"(2) a proposal for distribution of assets not yet distributed;"
SECTION 19. Section 62-3-1101 of the 1976 Code is amended to read:
"Section 62-3-1101. A compromise of any a controversy as to admission to probate of any an instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any a probated will, the rights or interests in the estate of the decedent, of any a successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto 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."
SECTION 20. Section 62-5-103 of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"Section 62-5-103. Any A person under a duty to pay or deliver money or personal property to a minor or incapacitated person may perform this duty in amounts not exceeding ten thousand dollars per annum each year, by paying or delivering the money or property to:
(1) the minor if he is married;
(2) any a person having the care and custody of the minor or incapacitated person with whom the minor or incapacitated person resides;
(3)(2) a guardian of the minor or incapacitated person; or
(4)(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 Gifts to Minors Act and giving notice of the deposit to the minor.
This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor or incapacitated person are pending. The persons, other than the minor or incapacitated person or any a financial institution under (4) (3) above, receiving money or property for a minor or incapacitated person, are obligated to apply the money to the support and education for the benefit of the minor or incapacitated person with due regard to (i) the size of the estate, the probable duration of the minority or incapacity, and the likelihood that the minor or incapacitated person, at some future time, may be able fully to manage his affairs and his estate; (ii) the accustomed standard of living of the minor or incapacitated person and members of his household; and (iii) other funds or sources used for the support of the minor or incapacitated person, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated person's support. Money or other property received on behalf of a minor or incapacitated person may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated person. Any Excess sums must be preserved for future support benefit of the minor or incapacitated person, and any a balance not so used and any property received for the minor or incapacitated person must be turned over to the minor when he attains majority or to the incapacitated person when he is no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof of it."
SECTION 21. Section 62-5-104 of the 1976 Code, as last amended by Act 65 of 1987, is further amended to read:
"Section 62-5-104. A guardian of an incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months more than thirty days, any of his powers regarding care and custody of the incapacitated person."
SECTION 22. Section 62-5-310(D) of the 1976 Code, as last amended by Act 483 of 1990, is further amended to read:
"(D) If a temporary guardian is appointed without notice under this section, notice and a hearing to review the appointment must be held after notice and within fourteen thirty days after the appointment of the temporary guardian."
SECTION 23. Section 62-5-405(a) of the 1976 Code is amended to read:
"(a) On a petition for appointment of a conservator or other protective order, the person to be protected and his spouse and his adult children or, if none, his parents or nearest adult relatives if there be no parents, must be served personally with notice of the proceeding at least twenty days before the date of hearing. The spouse and the adult children of the person to be protected, or if none, his parents or nearest adult relatives if there are no parents, must be given notice of the proceeding at least twenty days before the hearing if they can be found within the State, or, if they cannot be found within the State, they must be given notice in accordance with Section 62-1-401. Waiver by the person to be protected is not effective unless he attends the hearing or waiver of notice is given by his attorney."
SECTION 24. Section 62-5-424 of the 1976 Code, as last amended by Act 659 of 1988, is further amended to read:
"Section 62-5-424. (a) A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in this State.
(b)(A) A conservator has power without court authorization or confirmation to invest and reinvest funds of the estate as would a trustee.
(c)(B) A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation, to:
(1) collect, hold, and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he is personally is interested;
(2) receive additions to the estate;
(3) invest and reinvest estate assets in accordance with subsection (b) (A);
(4) deposit estate funds in a bank including a bank operated by the conservator;
(5) make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvement, to raze existing or erect new party-walls or buildings;
(6) vote a security, in person or by general or limited proxy;
(7) pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;
(8) sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise 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 any 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; to 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 any estate assets and the conservator has a lien on the estate as against the protected person for advances so made;
(12) pay or contest any a claim except as limited by Section 62-5-433; to 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 to release, in whole or in part, any 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 any a sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or if none, to a relative or other person with custody of his person;
(16) employ persons, including attorneys, auditors, investment advisors, or agents even though they are associated with the conservator to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform any an act of administration, whether or not discretionary;
(17) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties; and
(18) execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.
(d)(C) A conservator acting reasonably in efforts to accomplish the purpose for which he was appointed may act with court approval to:
(1) continue or participate in the operation of any unincorporated business or other enterprise;
(2) acquire an undivided interest in an estate asset in which the conservator, in any a fiduciary capacity, holds an undivided interest;
(3) acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(4) subdivide, develop, or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;
(5) enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;
(6) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(7) grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset;
(8) undertake any other another act deemed considered necessary or reasonable by the conservator and the court for the preservation and management of the estate;
(9) make gifts to charitable organizations and for other religious, charitable, eleemosynary, or educational purposes which are tax deductible as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent of the income from the estate, if and only if the estate is ample to provide for the purposes implicit in the distributions authorized by Section 62-5-425.;
(10) encumber, mortgage, or pledge an asset for a term extending within or beyond the term of the conservatorship."
SECTION 25. Section 62-5-425(b) of the 1976 Code is amended to
"(b) When a minor who has not been adjudged disabled under Section 62-5-401(2) attains his majority or is emancipated, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible. An individual under the age of eighteen who is also married shall remain a minor for purposes of this subsection until attaining majority or emancipation."
SECTION 26. Section 62-5-428(a) of the 1976 Code is amended to read:
"(a) A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods:
(1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed;
(2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of court and deliver or mail a copy of the statement to the conservator.
A claim is deemed considered presented on the first to occur of receipt of the written statement of claim by the conservator or the filing of the claim with the court. Failure of the conservator to mail notice to a claimant of action on his claim for sixty days after the time for original presentation of the claim has expired has the effect of a notice of disallowance. Every claim which is disallowed in whole or part by the conservator is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the conservator not later than thirty days after the mailing of the notice of disallowance or partial disallowance if the notice warns the claimant of the impending bar. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance."
SECTION 27. Section 62-5-501 of the 1976 Code, as last amended by Act 306 of 1992, is further amended to read:
"Section 62-5-501. (A) Whenever a principal designates another his attorney in fact by a power of attorney in writing and the writing contains (1) the words `This power of attorney is not affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate', (2) the words `This power of attorney becomes effective upon the physical disability or mental incompetence of the principal', or (3) similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his physical disability or mental incompetence or either physical disability or mental incompetence, the authority of the attorney in fact is exercisable by him as provided in the power on behalf of the principal notwithstanding later physical disability or mental incompetence of the principal or later uncertainty as to whether the principal is dead or alive. The power may define 'physical disability' or 'mental incompetence' and may set forth the procedures for determining whether the principal is physically disabled or mentally incompetent. If no definition of mental incompetence or procedures for determining mental incompetence are set forth, and the authority of the attorney in fact relates solely to health care, mental incompetence is to be determined according to the standards and procedures for inability to consent under Section 44-66-20(6) of the Adult Health Care Consent Act. The authority of the attorney in fact to act on behalf of the principal must be set forth in the power and may relate to any act, power, duty, right, or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property, including the power to consent or withhold consent on behalf of the principal to health care. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary. All acts done by the attorney in fact pursuant to the power during a period of physical disability or mental incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees, and personal representative as if the principal were alive, mentally competent, and not disabled physically.
(B) An instrument to which this section is applicable also may provide for successor attorneys in fact and provide conditions for their succession, which may include an authorization for the court to appoint a successor, and the succession may occur whether or not the principal then is physically disabled or mentally incompetent. The appointment of an attorney in fact under this section does not prevent a person or his representative from applying to the court and having a guardian or conservator appointed. Unless the power of attorney provides otherwise, appointment of a guardian terminates all or part of the power of attorney that relates to matters within the scope of the guardianship, and appointment of a conservator terminates all or part of the power of attorney that relates to matters within the scope of the conservatorship.
(C) A power of attorney executed under the provisions of this section must be executed and attested with the same formality and with the same requirements as to witnesses as a will. In addition, the instrument must be recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded. After the instrument has been recorded, whether recorded before or after the onset of the principal's physical disability or mental incompetence, it is effective notwithstanding the mental incompetence or physical disability. If the authority of the attorney in fact relates solely to the person of the principal, the instrument is effective without being recorded.
(D) The court, in its discretion, and at any time after the onset of physical disability or mental incompetence, on motion of an interested party or on its own motion, may require that an inventory of all deposits, choses in action, and personal property must be filed with the court, and a surety bond must be posted by the attorney in fact in the manner and amount applicable to a protected person's estate.
(E) A power of attorney as provided for under this section is valid if:
(1) executed in compliance with this section; or
(2) its execution complies with the law at the time of execution of the jurisdiction where the instrument was executed and it is recorded as required by subsection (C). Notwithstanding the provisions of Section 30-5-30, a valid power of attorney as provided for under this section which is executed in another jurisdiction may be recorded as though it complies with the provisions of subsection (C) of this section.
(F)(E) A properly executed durable power of attorney that authorizes an attorney in fact to make health care decisions or other decisions regarding the principal is valid whether or not it was executed after May 14, 1990."
SECTION 28. Section 62-7-705 of the 1976 Code, as added by Act 521 of 1990, is amended to read:
"Section 62-7-705. Unless otherwise provided in the trust instrument, while continuing to act as a trustee, the trustee may not transfer his office to another or delegate the entire administration of the trust to a co-trustee or another. The trustee may resign upon approval of the court if:
(1) the document so provides;
(2) all beneficiaries consent; or
(3) the court approves the resignation.
A beneficiary may consent if the beneficiary is not a minor or incapacitated person or the resignation is consented to by the representative of the minor or incapacitated person as described in Section 61-1-403(1) and (2)."
SECTION 29. Section 20-1-550 of the 1976 Code is amended to read:
"Section 20-1-550. When any a marriage has been contracted or solemnized in this State and any an action is brought under Sections 20-1-80, 20-1-510, and 20-1-530 seeking to annul such marriage it, the plaintiff may shall serve his complaint on the probate judge or other officer before whom the application for marriage license was made when the defendant is a nonresident of this State or has left the State and it is made to appear by the affidavit of one of the parties to the action that such defendant is a nonresident or cannot be found in this State. The probate judge or such other officer shall forward to the last address of the nonresident or absent defendant, as it appears from the application filed before him or from the affidavit of one of the parties, and such service shall be legal and complete from the time the complaint is so served upon the probate judge or other officer mentioned. If there is no last-known address, either from an examination of the application for the marriage license or from any other source, the defendant shall be served defendant by publication as provided in Sections 15-9-710 and 15-9-740. When such service is sought upon the probate judge or other officer before whom the application for a marriage license was made, a fee of one dollar shall be paid to the probate judge for service and the probate judge shall provide a book in which to keep a record of such service, the acceptance of which will be made upon the back of the original summons. The original summons shall must be filed in the office of the clerk of court of the county in which the action is pending, the probate judge keeping one of the copies of the summons and complaint in his office and forwarding the other to the nonresident or absent party.
Service by publication as provided in Sections 15-9-710 and 15-9-740 shall also be is available to a plaintiff in any such an action for annulment whose marriage was contracted or solemnized outside of this State when such the plaintiff was a resident of this State at the time of the marriage or has been a resident of this State for at least one year prior to the commencement of the action."
SECTION 30. Section 20-7-150(4) and (11) of the 1976 Code are amended to read:
"(4) 'Court' means the circuit court or branch having jurisdiction.
(11) 'Minor' is a person who has not attained the age of eighteen years, excluding a person under the age of eighteen who is married or emancipated as decreed by the family court."
SECTION 31. Section 14-23-650 of the 1976 Code is repealed.
SECTION 32. This act takes effect upon approval by the Governor.