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Current Status Bill Number:View additional legislative information at the LPITS web site.4154 Ratification Number:464 Act Number:362 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20010517 Primary Sponsor:Campsen All Sponsors:Campsen Drafted Document Number:l:\council\bills\dka\4493mm01.doc Date Bill Passed both Bodies:20020606 Date of Last Amendment:20020529 Governor's Action:S Date of Governor's Action:20020802 Subject:Estates and Probate Reform Act History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20020819 Act No. A362 ------ 20020802 Signed by Governor ------ 20020606 Ratified R464 House 20020606 Concurred in Senate amendment, enrolled for ratification Senate 20020605 Read third time, returned to House with amendment Senate 20020529 Read second time, notice of general amendments Senate 20020529 Committee amendment amended and adopted Senate 20020515 Committee report: Favorable with 11 SJ amendment Senate 20020409 Introduced, read first time, 11 SJ referred to Committee ------ 20020408 Scrivener's error corrected House 20020405 Read third time, sent to Senate House 20020404 Amended, read second time, unanimous consent for third reading on Friday, 20020405 House 20020402 Committee report: Favorable with 25 HJ amendment House 20010517 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill Revised on April 2, 2002 - Word format Revised on April 4, 2002 - Word format Revised on April 8, 2002 - Word format Revised on May 15, 2002 - Word format Revised on May 29, 2002 - Word format
(A362, R464, H4154)
AN ACT TO ENACT THE "SOUTH CAROLINA ESTATES AND PROBATE REFORM ACT"; TO AMEND SECTION 15-51-42, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO APPROVAL OF SETTLEMENTS OF WRONGFUL DEATH OR SURVIVAL ACTIONS, SO AS TO PROVIDE WHEN THE ADMINISTRATION OF AN ESTATE IS FINAL EXCEPT FOR A PENDING SURVIVAL ACTION, THE COURT MAY ISSUE A SPECIAL ORDER PROVIDING THAT NO ACCOUNTINGS ARE REQUIRED UNTIL THE SURVIVAL ACTION IS SETTLED OR VERDICT RENDERED IN A TRIAL; TO AMEND SECTIONS 20-7-150, AS AMENDED, AND 20-7-180, RELATING TO THE UNIFORM GIFTS TO MINORS ACT, SO AS TO CHANGE THE REQUIRED AGE OF DISTRIBUTION TO TWENTY-ONE YEARS BUT TO PERMIT DISTRIBUTION AT AGE EIGHTEEN; TO AMEND SECTION 20-7-190, RELATING TO THE CUSTODIAN'S EXPENSES, BONDS, AND LIABILITY, SO AS TO PROVIDE THAT A CUSTODIAN MAY RECEIVE REASONABLE COMPENSATION FROM THE CUSTODIAL PROPERTY FOR HIS SERVICES BASED UPON A PROVISION OF LAW APPLICABLE TO GUARDIANS AND CONSERVATORS; TO AMEND SECTION 20-7-210, RELATING TO DESIGNATION OF A SUCCESSOR CUSTODIAN, SO AS TO MAKE TECHNICAL AND CLARIFYING CHANGES; TO AMEND SECTION 27-7-40, RELATING TO THE CREATION AND SEVERANCE OF A JOINT TENANCY, SO AS TO PROVIDE IF ALL THE JOINT TENANTS JOIN IN AN ENCUMBRANCE, THE INTEREST IN THE REAL ESTATE IS ENCUMBERED; TO AMEND SECTION 34-19-120, RELATING TO ACCESS TO A LOCKBOX TO OBTAIN A POWER OF ATTORNEY, SO AS TO FACILITATE ACCESS CONDITIONED ON A VERIFIED DOCUMENT; TO AMEND SECTION 62-5-501, AS AMENDED, RELATING TO THE DURABLE POWER OF ATTORNEY, SO AS TO PROVIDE FOR REASONABLE COMPENSATION FOR AN ATTORNEY-IN-FACT ACTING PURSUANT TO A DURABLE POWER OF ATTORNEY, AND TO PROVIDE FOR PROTECTION OF THIRD PARTIES RELYING ON THE ACTS OF AN INDIVIDUAL ACTING PURSUANT TO A DURABLE POWER OF ATTORNEY; BY ADDING SECTION 62-7-113 SO AS TO PROVIDE AN ANTI-LAPSE PROVISION FOR REVOCABLE INTER VIVOS TRUSTS; AND BY ADDING SECTION 62-7-114 SO AS TO PROVIDE FOR REVOCATION OF A REVOCABLE INTER VIVOS TRUST BY DIVORCE, ANNULMENT, AND ORDER TERMINATING MARITAL PROPERTY RIGHTS.
Be it enacted by the General Assembly of the State of South Carolina:
South Carolina Estates and Probate Reform
SECTION 1. This act may be cited as the "South Carolina Estates and Probate Reform Act".
Approval of wrongful death or survival settlements
SECTION 2. Section 15-51-42 of the 1976 Code, as last amended by Act 55 of 1999, is further amended by adding at the end:
"(G) When the administration of an estate is final except for the administration of survival action proceeds because of the pendency of a survival action brought on behalf of the estate, the probate court may issue, upon petition by the personal representative, a special order providing that no accountings are required until the survival action is settled or verdict rendered in a trial. The attorney for the personal representative must notify the probate court immediately upon completion of the survival action and furnish the court with a copy of the order approving settlement or a copy of the judgment, whichever is appropriate."
Definitions
SECTION 3. Section 20-7-150(1) and (11) of the 1976 Code, as last amended by Act 152 of 1997, is further amended to read:
"(1) 'Adult' is a person who has attained the age of twenty-one years.
(11) 'Minor' is a person who has not attained the age of twenty-one years, excluding a person under the age of twenty-one who is married or emancipated as decreed by the family court."
Distribution of custodial property
SECTION 4. Section 20-7-180(4) of the 1976 Code is amended to read:
"(4) To the extent that the custodial property is not so expended, the custodian must deliver or pay over the custodial property to the minor on his attaining the age of twenty-one years or, if the minor dies before attaining the age of twenty-one years, the custodian must then deliver or pay over the custodial property to the estate of the minor. Notwithstanding the requirements of this section, the custodian, in his discretion, may deliver or pay over the custodial property to the payee when the payee attains the age of eighteen."
Custodian's expenses, bond, liabilities
SECTION 5. Section 20-7-190(3)(c) of the 1976 Code is amended to read:
"(c) The statute of this State applicable to guardians and conservators;"
Designation of successor custodian
SECTION 6. Section 20-7-210(4) of the 1976 Code is amended to read:
"(4) If a person designated as custodian or as a successor custodian by the custodian as provided in subsection (1) is not eligible, dies, or becomes legally incapacitated before the minor attains the age of eighteen years and if the minor has a guardian, the guardian of the minor is successor custodian. If the minor has no guardian and if no successor custodian who is eligible and has not died or became legally incapacitated has been designated as provided in subsection (1), a donor, his representative, the legal representative of the custodian, or an adult member of the minor's family may petition the court for the designation of a successor custodian. The provisions of this subsection do not affect the power of a personal representative or trustee to appoint a custodian pursuant to items (g) and (h) of subsection (1) of Section 20-7-160, or the power of an owner of a life insurance policy or annuity contract to appoint a successor custodian pursuant to subsection (4) of Section 20-7-160."
Creation and severance of joint tenancy
SECTION 7. Section 27-7-40(a)(iv) of the 1976 Code, as added by Act 398 of 2000, is amended to read:
"(iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance, the interest in the real estate is effectively encumbered to a third party or parties."
Access to a lockbox
SECTION 8. Section 34-19-120 of the 1976 Code, as added by Act 499 of 1988, is amended to read:
"Section 34-19-120. (A)(1) The person who has been appointed as attorney-in-fact under a durable power of attorney by a lessee of a safe deposit box may open, or direct the lessor to open, the safe deposit box of the lessee and obtain the original copy of the durable power of attorney, if a statement in the form of item (3), or in a similar form showing the same intent, is:
(a) incorporated in the body of the original durable power of attorney contained in the safe deposit box; or
(b) contained in a separate statement in the form provided in subsection (B), or in a similar form showing the same intent as that attached or annexed to the original durable power of attorney contained in the safe deposit box.
(2) If the statement is contained in a separate writing, the execution of the separate statement is not an amendment, modification, or revision of the original power of attorney.
(3) The statement must be substantially in the following form:
'I,__________________, the Principal, do hereby authorize and direct my appointee or appointees as my Attorney-in-Fact in my durable power of attorney, to have access at any time or times to any safe deposit box rented by me, wherever located, in order to remove my original durable power of attorney; and any institution in which any such safe deposit box may be located is not required to make any inquiry, and shall not incur any liability to me or my estate as a result of permitting my appointee or appointees in my original durable power of attorney to exercise this power. This power is exercisable without: (i) any contact with or notice to me, my spouse, and/or any interested persons to my estate; (ii) any prior court order or authorization; (iii) any knowledge of or any prior determination as to my mental or physical capacity or incapacity; (iv) any knowledge as to my whereabouts regardless whether my whereabouts are known or unknown; or (v) any inquiry.'
(B) The lessee, at any time after the execution of his durable power of attorney, may execute a separate statement authorizing the removal of his original durable power of attorney from his safe deposit box pursuant to subsection (A), if the separate statement is executed by the Principal with the same formalities as the execution and recording of a deed in the State of South Carolina pursuant to Section 30-5-30, and the separate statement is attached or annexed to the original durable power of attorney in the following form, or in a similar form showing the same intent, with the acknowledgement for recorded deeds pursuant to Section 30-5-30(B) or (C).
'STATE OF _____________
COUNTY OF ____________________
I, _______, the Principal, do hereby authorize and direct my appointee or appointees as my Attorney-in-Fact in my durable power of attorney dated the __day of __, in the year __, to have access at any time or times to any safe deposit box rented by me, wherever located, in order to remove my original durable power of attorney; and any institution in which any such safe deposit box may be located is not required to make any inquiry, and shall not incur any liability to me or my estate as a result of permitting my appointee or appointees in my original durable power of attorney to exercise this power. This power is exercisable without: (i) any contact with or notice to me, my spouse, and/or any interested persons to my estate; (ii) any prior court order or authorization; (iii) any knowledge of or any prior determination as to my mental or physical capacity or incapacity; (iv) any knowledge as to my whereabouts regardless whether my whereabouts are known or unknown; or (v) any inquiry.'
IN WITNESS WHEREOF, I have executed this statement on the ______ day of _________, in the year, ___________.
_______________ ______________
(Witness) (Principal)
_______________________(Witness)'
(C) If the original durable power of attorney does not contain a statement in the form provided in subsection (A) or in a similar form showing the same intent, or a separate statement in the form provided in subsection (B) or in a similar form showing the same intent is not attached or annexed to the original durable power of attorney, in order to allow removal of the lessee's durable power of attorney from the lessee's safe deposit box the financial institution must have:
(1) contact with or notice to the lessee, the lessee's spouse, or an interested person in the lessee's estate;
(2) a prior court order or court authorization;
(3) knowledge of or a prior determination as to the mental or physical capacity or incapacity of the lessee;
(4) knowledge as to the lessee's whereabouts, whether the lessee's whereabouts are known or unknown; or
(5) other inquiry.
(D) A witness to a statement provided for in subsection (B), who also is an officer authorized to administer oaths pursuant to the laws of this State may notarize the signature of the other witness of the statement in the manner provided by this section.
(E) A financial institution that authorizes a person who has been given a durable power of attorney by a lessee of a safe deposit box to remove the original durable power of attorney from the safe deposit box of the lessee, pursuant to subsection (A) or (B), or a financial institution that removes the original durable power of attorney from the safe deposit box of the lessee pursuant to the direction of the person who has been given a durable power of attorney by the lessee, is not required to make further inquiry and is not liable to the lessee or the lessee's estate as a result of permitting removal of the original power of attorney. The financial institution may request the person purporting to have been given the durable power of attorney to produce a certified copy of the power or an affidavit declaring that he has been given the power before opening the box. No other contents may be removed from the box pursuant to this section.
(F) The provisions of this section enable the person who has been appointed as attorney-in-fact under a durable power of attorney by a lessee of a safe deposit box to remove or obtain the original durable power of attorney from the safe deposit box of the lessee and enable the financial institution to allow the removal of the durable power of attorney from the safe deposit box without court action or findings of incapacity of the lessee. This section supplements and does not supplant the current procedures for obtaining the power of attorney of the lessee from the safe deposit box and is not the exclusive method."
Durable power of attorney
SECTION 9. Section 62-5-501 of the 1976 Code, as last amended by Act 152 of 1997, is further amended by adding at the end:
"(F)(1) A third person in this State who receives or is presented with a valid power of attorney executed pursuant to this section, and has not received actual written notice of its revocation or termination, must not refuse to honor the power of attorney if it contains the following provision or a substantially similar provision:
'No person who may act in reliance upon the representations of my attorney-in-fact for the scope of authority granted to the attorney-in-fact shall incur any liability as to me or to my estate as a result of permitting the attorney-in-fact to exercise this authority, nor is any such person who deals with my attorney-in-fact responsible to determine or ensure the proper application of funds or property.'
As used in this subsection, 'to honor' a power of attorney means to deal with the attorney-in-fact as if the attorney-in-fact were the principal, personally present and acting on his own behalf within the scope of the powers granted to the attorney-in-fact.
(2) Unless the third person actually has received written notice of the revocation or termination of a valid power of attorney executed in accordance with this section, a third person in this State who receives or is presented with a power of attorney:
(a) does not incur liability to the principal or the principal's estate by reason of acting upon the authority of it or permitting the attorney-in-fact to exercise authority;
(b) is not required to inquire whether the attorney-in-fact has power to act or is properly exercising the power; or
(c) is not responsible to determine or ensure the proper application of assets, funds, or property belonging to the principal.
(3) A 'third person' means an individual, a corporation, an organization, or other legal entity for purposes of this subsection.
(G)(1) An attorney-in-fact is entitled to reimbursement for expenses and compensation for services as provided in the power of attorney. In the absence of a provision in the power of attorney regarding reimbursement or compensation, or both:
(a) an attorney-in-fact is entitled to reimbursement for all reasonable costs and expenses actually incurred and paid by the attorney-in-fact on the principal's behalf;
(b) an attorney-in-fact, upon the approval of the probate court, is entitled to reasonable compensation based upon the responsibilities he assumed and the effort he expended; and
(c) if two or more attorneys-in-fact are serving together, the compensation paid must be divided by them in a manner as they agree or as determined by a court of competent jurisdiction if they fail to agree.
(2) An interested person may petition a court of competent jurisdiction to review the propriety and reasonableness of payment for reimbursement or compensation to the attorney-in-fact, and an attorney-in-fact who has received excessive payment may be ordered to make appropriate refunds to the principal."
Anti-lapse provision in trust
SECTION 10. The 1976 Code is amended by adding:
"Section 62-7-113. (A) If the beneficiary under a revocable inter vivos trust, who is a great-grandparent or a lineal descendant of a great-grandparent of the trust creator, is dead at the time of execution of the trust, fails to survive the trust creator, or is treated as if he predeceased the trust creator, the issue of the deceased beneficiary who survived the trust creator take in place of the deceased beneficiary and if they are all of the same degree of kinship to the beneficiary they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a beneficiary under a class gift if he had survived the trust creator is treated as a beneficiary for purposes of this section whether his death occurred before or after the execution of the trust.
(B) Except as provided in subsection (A), if the disposition of any real or personal property under a revocable inter vivos trust fails for any reason, this property becomes a part of the residue of the trust.
(C) Except as provided in subsection (A), if the residue under a revocable inter vivos trust is distributed to two or more persons and the share of one of the residuary beneficiaries fails for any reason, his share passes to the other residuary beneficiary or to other residuary beneficiaries in proportion to their interests in the residue."
Circumstances for revocation of trust
SECTION 11. The 1976 Code is amended by adding:
"Section 62-7-114. If after executing a revocable inter vivos trust the trust creator is divorced or his marriage annulled or his spouse is a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between the spouses, the divorce or annulment or order revokes any disposition or appointment of property including beneficial interests made by such trust to the spouse, any provision conferring a general or special power of appointment on the spouse, and any nomination of the spouse as trustee, unless the trust expressly provides otherwise. Property prevented from passing to a spouse because of revocation by divorce or annulment or order passes as if the spouse failed to survive the trust creator, and other provisions conferring some power or office on this spouse are interpreted as if the spouse failed to survive the trust creator. If provisions are revoked solely by this section, they are revived by the trust creator's remarriage to the former spouse. For purposes of this section, divorce or annulment or order means any divorce or annulment or order which would exclude the spouse as a surviving spouse within the meaning of subsections (b) and (c) of Section 62-2-802. A decree of separate maintenance which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of marital or parental circumstances other than as described in this section revokes a revocable inter vivos trust."
Severability clause
SECTION 12. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
Time effective
SECTION 13. This act takes effect upon approval by the Governor and applies to instruments executed after the effective date of the act.
Ratified the 6th day of June, 2002.
Approved the 2nd day of August, 2002.
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