H 3971 Session 112 (1997-1998)
H 3971 General Bill, By Campsen, Altman, Harrison, Klauber, Woodrum and
W.J. Young
Similar(S 641)
A BILL TO AMEND SECTION 61-1-100, 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.-SHORT TITLE
04/10/97 House Introduced and read first time HJ-89
04/10/97 House Referred to Committee on Judiciary HJ-92
05/14/97 House Committee report: Favorable with amendment
Judiciary HJ-6
05/20/97 House Amended HJ-28
05/20/97 House Read second time HJ-46
05/21/97 House Read third time and sent to Senate HJ-16
05/21/97 Senate Introduced and read first time SJ-11
05/21/97 Senate Referred to Committee on Judiciary SJ-11
Indicates Matter Stricken
Indicates New Matter
AMENDED
May 20, 1997
H. 3971
Introduced by Reps. Campsen, Woodrum, Young, Klauber, Altman
and Harrison
S. Printed 5/20/97--H.
Read the first time April 10, 1997.
A BILL
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
read:
"(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.
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