Download This Bill in Microsoft Word format
Current Status Bill Number:View additional legislative information at the LPITS web site.1291 Ratification Number:448 Act Number:398 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:20000329 Primary Sponsor:McConnell All Sponsors:McConnell Drafted Document Number:l:\s-jud\bills\mcconnell\jud0106.gfm.doc Date Bill Passed both Bodies:20000622 Date of Last Amendment:20000622 Governor's Action:S Date of Governor's Action:20000817 Subject:Minors, incapacitated persons, claims of; Courts, Trusts and Estates, Decedents, Probate Code, Deeds, Wills, Property History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20000906 Act No. A398 ------ 20000817 Signed by Governor ------ 20000622 Ratified R448 House 20000622 Ordered enrolled for ratification House 20000622 Conference Committee Report adopted 98 HCC Senate 20000622 Conference Committee Report adopted 88 SCC House 20000620 Conference powers granted, 98 HCC Campsen appointed Reps. to Committee of Easterday Conference Delleney Senate 20000620 Conference powers granted, 88 SCC Hayes appointed Senators to Committee Martin of Conference Hutto Senate 20000620 Insists upon amendment House 20000601 Non-concurrence in Senate amendment Senate 20000601 House amendments amended, returned to House with amendment House 20000601 Read third time, returned to Senate with amendment House 20000531 Amended, read second time House 20000525 Committee report: Favorable with 25 HJ amendment House 20000427 Introduced, read first time, 25 HJ referred to Committee ------ 20000426 Scrivener's error corrected Senate 20000426 Read third time, sent to House Senate 20000425 Amended, read second time ------ 20000420 Scrivener's error corrected Senate 20000419 Committee report: Favorable 11 SJ Senate 20000329 Introduced, read first time, 11 SJ referred to Committee Versions of This Bill Revised on April 19, 2000 - Word format Revised on April 20, 2000 - Word format Revised on April 25, 2000 - Word format Revised on April 26, 2000 - Word format Revised on May 25, 2000 - Word format Revised on May 31, 2000 - Word format Revised on June 1, 2000 - Word format Revised on June 22, 2000 - Word format
(A398, R448, S1291)
AN ACT TO AMEND SECTION 62-5-433, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROCEDURES FOR SETTLEMENT OF CLAIMS IN FAVOR OF OR AGAINST MINORS OR INCAPACITATED PERSONS, SO AS TO PROVIDE THAT FOR SETTLEMENT OF CLAIMS IN AN AMOUNT EXCEEDING TWENTY-FIVE THOUSAND DOLLARS, JURISDICTION SHALL BE WITH THE CIRCUIT COURT IN THE COUNTY IN WHICH THE MINOR OR INCAPACITATED PERSON RESIDES OR IN WHICH THE SUIT WAS BROUGHT, AND FOR CLAIMS NOT EXCEEDING TWENTY-FIVE THOUSAND DOLLARS, JURISDICTION SHALL BE WITH EITHER THE CIRCUIT COURT OR PROBATE COURT IN THE COUNTY IN WHICH THE MINOR OR INCAPACITATED PERSON RESIDES OR IN WHICH THE SUIT WAS BROUGHT; TO ADD SECTION 27-7-40 SO AS TO PROVIDE AN ADDITIONAL METHOD TO CREATE A JOINT TENANCY WITH RIGHTS OF SURVIVORSHIP BY USING CERTAIN WORDS IN A DEED OF CONVEYANCE, TO PROVIDE CERTAIN INCIDENTS OF OWNERSHIP, TO PROVIDE FOR ITS SEVERANCE AND PROCEDURES FOR FILING; TO AMEND SECTION 62-2-804, AS AMENDED, RELATING TO THE EFFECT OF A PROVISION FOR SURVIVORSHIP ON SUCCESSION TO JOINT TENANCY, SO AS TO PROVIDE CERTAIN WORDS IN A WILL OR CONVEYANCE CONCLUSIVELY ESTABLISH THE RIGHT OF SURVIVORSHIP; TO AMEND SECTION 62-3-711, RELATING TO THE POWERS OF PERSONAL REPRESENTATIVES, SO AS TO PROVIDE IF A WILL DEVISES REAL PROPERTY TO A PERSONAL REPRESENTATIVE, THE REPRESENTATIVE MAY, UNDER CERTAIN CONDITIONS, EXECUTE A DEED IN FAVOR OF A PURCHASER FOR VALUE; TO AMEND SECTION 62-3-906, RELATING TO DISTRIBUTION IN KIND OF A DECEDENT'S ESTATE, SO AS TO GIVE AN EXAMPLE OF CONTRARY INTENTION INDICATED IN A WILL SUCH AS THE GRANT TO A PERSONAL REPRESENTATIVE OF A POWER OF SALE; TO AMEND SECTION 62-3-907, RELATING TO EXECUTING A DEED OF DISTRIBUTION AS EVIDENCE OF A DISTRIBUTEE'S TITLE TO PROPERTY DISTRIBUTED IN KIND, SO AS TO PROVIDE FOR THE EXECUTION OF THE DEED OF DISTRIBUTION, THE PROTECTIONS THE DEED AFFORDS IN CERTAIN SITUATIONS, AND PROCEDURES TO BE FOLLOWED BEFORE RECORDING THE DEED OF DISTRIBUTION; TO AMEND SECTION 62-3-908, RELATING TO THE RIGHTS OF THE DISTRIBUTEE, SO AS TO PROVIDE THAT AN IMPROPER DISTRIBUTION INCLUDES AN INSTANCE WHERE THE DEED OF DISTRIBUTION IS FOUND TO BE INCONSISTENT WITH THE PROVISIONS OF THE WILL OR STATUTES GOVERNING INTESTACY; TO AMEND SECTION 62-3-910, RELATING TO THE PROTECTION FOR PURCHASERS FROM DISTRIBUTEES, SO AS TO PROVIDE FOR THE INSTANCE WHERE REAL PROPERTY IS DEVISED TO A PERSONAL REPRESENTATIVE; TO AMEND SECTION 62-4-207, RELATING TO ANCILLARY ADMINISTRATION, SO AS TO CLARIFY THE APPROPRIATE PROCEDURE RELATING TO AN ANCILLARY ADMINISTRATION OF REAL PROPERTY LOCATED IN THIS STATE OF A NONRESIDENT DECEDENT; TO AMEND SECTION 62-5-408, RELATING TO THE POWERS OF PROBATE COURT WITH RESPECT TO THE ESTATE AND AFFAIRS OF PROTECTED PERSONS, SO AS TO PROVIDE A NONDISPOSITIVE LIST OF THE POWERS THE COURT HAS OVER THE ESTATE AND AFFAIRS OF A PROTECTED PERSON WHO IS NOT A MINOR, AND TO PROVIDE FOR THE PETITION AND INQUIRY OF THE COURT IN EXERCISING ITS POWERS UNDER THIS SUBSECTION; AND TO REPEAL SECTION 62-3-1202A, RELATING TO PROBATE ESTATES UNDER TEN THOUSAND DOLLARS.
Be it enacted by the General Assembly of the State of South Carolina:
Increased claim; venue where suit is pending
SECTION 1. Section 62-5-433 of the 1976 Code, as last amended by Act 521 of 1990, is further amended to read:
"Section 62-5-433. (A)(1) For purposes of this section and for any claim exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated person, 'court' means the circuit court of the county in which the minor or incapacitated person resides or the circuit court in the county in which the suit is pending. For purposes of this section and for any claim not exceeding twenty-five thousand dollars in favor of or against any minor or incapacitated person, 'court' means either the circuit court or the probate court of the county in which the minor or incapacitated person resides or the circuit court or probate court in the county in which the suit is pending.
(2) 'Claim' means the net or actual amount accruing to or paid by the minor or incapacitated person as a result of the settlement.
(3) 'Petitioner' means either a conservator appointed by the probate court for the minor or incapacitated person or the guardian or guardian ad litem of the minor or incapacitated person if a conservator has not been appointed.
(B) The settlement of any claim over twenty-five thousand dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property must be effected on his behalf in the following manner:
(1) The petitioner must file with the court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed twenty-five thousand dollars, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated person.
(2) If, upon consideration of the petition and after hearing the testimony as it may require concerning the matter, the court concludes that the proposed settlement is proper and in the best interests of the minor or incapacitated person, the court shall issue its order approving the settlement and authorizing the petitioner to consummate it and, if the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, to receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person.
(3) The order authorizing the settlement must require that payment or delivery of the money or personal property be made through the conservator. If a conservator has not been appointed, the petitioner shall, upon receiving the money or personal property, pay and deliver it to the court pending the appointment and qualification of a duly appointed conservator. If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.
(C) The settlement of any claim that does not exceed twenty-five thousand dollars in favor of or against a minor or incapacitated person for the payment of money or the possession of personal property may be effected in any of the following manners:
(1) If a conservator has been appointed, he may settle the claim without court authorization or confirmation, as provided in Section 62-5-424, or he may petition the court for approval, as provided in items (1), (2), and (3) of subsection (B). If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the conservator shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person.
(2) If a conservator has not been appointed, the guardian or guardian ad litem must petition the court for approval of the settlement, as provided in items (1) and (2) of subsection (B), and without the appointment of a conservator. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103. If a party subject to the court order fails or refuses to pay the money or deliver the personal property, as required by the order and in accordance with Section 62-5-103, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement.
(D) The settlement of any claim that does not exceed two thousand five hundred dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property may be effected by the parent or guardian of the minor or incapacitated person without court approval of the settlement and without the appointment of a conservator. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the parent or guardian shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103."
Additional way to create joint tenancy with rights of survivorship; incidents of ownership
SECTION 2. The 1976 Code is amended by adding:
"Section 27-7-40. (a) In addition to any other methods for the creation of a joint tenancy in real estate which may exist by law, whenever any deed of conveyance of real estate contains the names of the grantees followed by the words 'as joint tenants with rights of survivorship, and not as tenants in common' the creation of a joint tenancy with rights of survivorship in the real estate is conclusively deemed to have been created. This joint tenancy includes, and is limited to, the following incidents of ownership:
(i) In the event of the death of a joint tenant, and in the event only one other joint tenant in the joint tenancy survives, the entire interest of the deceased joint tenant in the real estate vests in the surviving joint tenant, who is vested with the entire interest in the real estate owned by the joint tenants.
(ii) In the event of the death of a joint tenant survived by more than one joint tenant in the real estate, the entire interest of the deceased joint tenant vests equally in the surviving joint tenants who continue to own the entire interest owned by them as joint tenants with right of survivorship.
(iii) The fee interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of the other joint tenant or tenants in the encumbrance.
(iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance or deed of conveyance, the interest in the real estate shall be effectively encumbered or conveyed to a third party or parties.
(v) If real estate is owned by only two joint tenants, a conveyance by one joint tenant to the other joint tenant terminates the joint tenancy and conveys the fee in the real estate to the other joint tenant.
(vi) If real estate is owned by more than two joint tenants, a conveyance by one joint tenant to all the other joint tenants therein conveys his interest therein equally to the other joint tenants who continue to own the real estate as joint tenants with right of survivorship.
(vii) Any joint tenancy in real estate held by a husband and wife with no other joint tenants is severed upon the filing of an order or decree dissolving their marriage and vests the interest in both the parties as tenants in common, unless an order or decree of a court of competent jurisdiction otherwise provides.
(viii) The interest of any joint tenant in a joint tenancy in real estate sold or conveyed by a court of competent jurisdiction where otherwise permitted by law severs the joint tenancy, unless the order or decree of such court otherwise provides and vests title in the parties as tenants in common.
(ix) If real estate is owned by two or more joint tenants, a conveyance by all the joint tenants to themselves as tenants in common severs the joint tenancy and conveys the fee in the real estate to these individuals as tenants in common.
(b) The surviving joint tenant or tenants following the death of a joint tenant, may file with the Register of Deeds of the county in which the real estate is located a certified copy of the certificate of death of the deceased joint tenant. The fee to be paid to the Register of Deeds for this filing is the same as the fee for the deed of conveyance. The Register of Deeds must index the certificate of death under the name of the deceased joint tenant in the grantor deed index of that office. The filing of the certificate of death is conclusive that the joint tenant is deceased and that the interest of the deceased joint tenant has vested by operation of law in the surviving joint tenant or tenants in the joint tenancy in real estate.
(c) Except as expressly provided herein, any joint tenancy severed pursuant to the terms of this section is and becomes a tenancy in common without rights of survivorship. Nothing contained in this section shall be construed to create the estate of tenancy by the entireties. Nothing contained in this section amends any statute relating to joint tenancy with rights of survivorship in personal property but affects only real estate. The provisions of this section must be liberally construed to carry out the intentions of the parties. This section supersedes any conflicting provisions of Section 62-2-804."
Words expressly provide joint tenancy with rights of survivorship
SECTION 3. Section 62-2-804 of the 1976 Code, as last amended by Act 405 of 1996, is further amended to read:
"Section 62-2-804. When any person is seized or possessed of any estate of joint tenancy at the time of his death, the joint tenancy is deemed to have been severed by the death of the joint tenant and the estate is distributable as a tenancy in common unless the instrument which creates the joint tenancy, including any instrument in which one person 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 may be utilized, an express provision for a right of survivorship is conclusively deemed 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'."
Personal representative may execute deed to purchaser for value
SECTION 4. Section 62-3-711 of the 1976 Code is amended to read:
"Section 62-3-711. (a) Until termination of his appointment or unless otherwise provided in Section 62-3-910, a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. Except as otherwise provided in subsection (b), this power may be exercised without notice, hearing, or order of court.
(b) Except where the will of the decedent authorizes to the contrary, a personal representative may not sell real property of the estate except as authorized pursuant to the procedure described in Section 62-3-1301 et seq. and shall refrain from selling tangible or intangible personal property of the estate, other than securities regularly traded on national or regional exchanges and produce, grain, fiber, tobacco, or other merchandise of the estate for which market values are readily ascertainable, having an aggregate value of five thousand dollars or more without prior order of the court.
(c) If the will of a decedent devises real property to a personal representative or authorizes a personal representative to sell real property, the title to which was not devised to the personal representative then subject to Section 62-3-713, the personal representative, acting in trust for the benefit of the creditors and others interested 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)."
Example of contrary intention
SECTION 5. The first paragraph of Section 62-3-906(a) of the 1976 Code is amended to read:
"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:"
Personal representative's execution of deed of distribution constitutes release, transfer
SECTION 6. Section 62-3-907 of the 1976 Code is amended to read:
"Section 62-3-907. (A) If distribution in kind is made, whether real or personal property, the personal representative must execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property.
(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, 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, 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, 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).
(E) Prior to recording the deed of distribution:
(1) the deed of distribution must be examined by the probate judge to determine that the grantee or grantees named in the deed of distribution conform to the terms of the will or, in cases of intestacy, to the heirs at law as shown on Form 300PC. The seal of the probate court must be impressed upon the first page of the deed of distribution indicating that the examination has been completed; or
(2) the deed of distribution must be accompanied by an affidavit from a licensed attorney asserting that the grantee or grantees named in the deed of distribution conform to the terms of the will, or in cases of intestacy, to the heirs at law as shown on Form 300PC."
Example of improper distribution
SECTION 7. Section 62-3-908 of the 1976 Code is amended to read:
"Section 62-3-908. Proof that a distributee has received an instrument or deed of distribution of assets in kind, whether real or personal property, or payment in distribution, from a personal representative is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper. An improper distribution includes, but is not limited to, those instances where the instrument or deed of distribution is found to be inconsistent with the provisions of the will or statutes governing intestacy."
Protection for purchaser of real property
SECTION 8. Section 62-3-910 of the 1976 Code is amended to read:
"Section 62-3-910. (A) If property distributed in kind, whether real or personal property, or a mortgage or other security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested persons, whether or not the distribution was proper or supported by court order or the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this provision, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution. Any recorded instrument described in this section on which the appropriate documentary or revenue stamps are affixed is prima facie evidence that the transfer was made for value.
(B) If a will devises real property to a personal representative or authorizes a personal representative to sell real property, the title to which was not devised to the personal representative, a purchaser for value who receives a deed from the personal representative takes title to the real property free of rights of any heirs or devisees or other interested person in the estate and incurs no personal liability to the estate or to any heir or devisee or other interested person in the estate. The purchaser is protected whether or not the sale was proper and regardless of whether the heirs or devisees to whom title devolved pursuant to Section 62-3-101 executed or consented to the deed, because the personal representative exercises the power of sale in trust, for the benefit of creditors, and others interested in the estate, who have recourse against the personal representative under Section 62-3-712 if the sale constitutes a breach of the personal representative's fiduciary duty. This section protects a purchaser of real property from a personal representative who has title to the real property or who has sold real property to the purchaser pursuant to an authorization in the will. To be protected under this provision, a purchaser need not inquire whether a personal representative acted properly in making the sale, even if the personal representative and the purchaser are the same person, or whether the authority of the personal representative had terminated before the sale. Any recorded instrument described in this section on which the appropriate documentary or revenue stamps are affixed is prima facie evidence that the sale was made for value."
Ancillary administration relating to real property of nonresident decedent
SECTION 9. Section 62-4-207 of the 1976 Code is amended to read:
"Section 62-4-207. In respect to a nonresident decedent, the provisions of Article 3, Sections 62-3-101 et seq., govern (1) proceedings, if any, in a court of this State for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and (2) the status, powers, duties, and liabilities of any local personal representative and the rights of claimants, purchasers, distributees, and others in regard to a local administration. The initiation of a proceeding under Article 3, Sections 62-3-101 et seq., is the appropriate procedure for an ancillary administration relating to the real property of a nonresident decedent located in this State."
Nondispositive list of court's powers, procedures, specific findings
SECTION 10. Section 62-5-408(3) of the 1976 Code is amended to read:
"(3)(a) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and of his estate and fulfillment of his legal obligations of support of dependents, all the powers over his estate and affairs which he could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to:
(i) make gifts as the court, in its discretion, believes would be made by the person if he were competent;
(ii) convey or release the person's contingent and expectant interests in property including material property rights and any right of survivorship incident to joint tenancy;
(iii) exercise or release the person's powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment;
(iv) enter into contracts;
(v) create or amend revocable trusts or create irrevocable trusts of property of the estate which may extend beyond the person's disability or life;
(vi) fund trusts;
(vii) exercise options of the disabled person to purchase securities or other property;
(viii) exercise the person's right to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;
(ix) exercise the person's right to an elective share in the estate of the person's deceased spouse;
(x) renounce any interest by testate or intestate succession or by inter vivos transfer; and
(xi) ratify any such actions taken on the person's behalf.
(b) In order to exercise, or direct the exercise of the court's authority in any powers set forth in item (a), the court must entertain a petition in which the specific relief sought is set forth, the incapacitated person, his known heirs, devisees, donees, and beneficiaries are made parties to the action, and which contains a statement that the person either is incapable of consenting or has consented to the proposed exercise of power.
(c) In exercising the powers set forth in item (b), the court also must inquire into and consider any known lifetime gifts or the estate plan of the person, the terms of any revocable trust of which he is grantor, and any contract, transfer, or joint ownership arrangements with provisions for payment or transfer of benefits or interests at his death to another which he may have originated. In exercising the court's authority set forth in item (b), the court must set forth in the record specific findings upon which it has based its ruling."
Repeal
SECTION 11. Section 62-3-1202A of the 1976 Code is repealed.
Time effective
SECTION 12. This act takes effect upon approval by the Governor.
Ratified the 22nd day of June, 2000.
Approved the 17th day of August, 2000.
This web page was last updated on Wednesday, December 9, 2009 at 9:11 A.M.