Current Status Bill Number:View additional legislative information at the LPITS web site.2792 Ratification Number:565 Act Number:539 Introducing Body:House Subject:Probate Code
(A539, R565, H2792)
AN ACT TO PROVIDE FOR THE SOUTH CAROLINA PROBATE CODE WHICH CONSOLIDATES AND REVISES ASPECTS OF LAW IN THIS STATE RELATING TO THE GENERAL PROBATE DEFINITIONS, PROVISIONS, AND JURISDICTION, INTESTATE SUCCESSION AND WILLS, ELECTIVE SHARE PROVISIONS, PROBATE OF WILLS AND ADMINISTRATION OF DECEDENT'S ESTATES, LOCAL AND FOREIGN PERSONAL REPRESENTATIVES, PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY, NONPROBATE TRANSFERS, AND TRUSTS AND TRUST ADMINISTRATION; TO AMEND SECTION 1, ARTICLE V, OF ACT 690 OF 1976, RELATING TO CERTAIN JUDICIAL PROVISIONS, SO AS TO PROVIDE THAT THE PROBATE COURT OF EACH COUNTY IS PART OF THE UNIFIED JUDICIAL SYSTEM OF THIS STATE; TO DESIGNATE SECTION 15, ARTICLE V, OF ACT 690 OF 1976 AS SECTION 14-23-1150 OF THE 1976 CODE; TO AMEND SECTIONS 14-23-1150, 12-15-270, 15-9-450, 15-51-30, 20-7-1770, 20-7-1820, AND 44-23-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, IN ORDER TO REVISE THEM AND CONFORM THEM TO THE PROVISIONS OF THE SOUTH CAROLINA PROBATE CODE; TO REPEAL TITLE 21, EXCEPT THE FOLLOWING SECTIONS, WHICH SHALL BE REDESIGNATED AS SHOWN IN PARENTHESES, 21-1-20 (27-19-120), 21-1-30 (27-5-120), 21-11-120 (12-7-2600), 21-11-130 (12-7-2610), 21-15-40 (12-15-1620), 21-15-410 (12-15-1360), 21-15-420 (12-15-1370), 21-15-1760 (12-15-1630), 21-15-1770 (12-15-1640), 21-15-1780 (12-15-1650), AND 21-21-10 (20-7-100); AND TO REPEAL THE FOLLOWING SECTIONS OF THE 1976 CODE: 14-23-350, 15-3-70, 15-71-10, 15-71-20, 15-71-30, 15-71-110, 15-71-120, 15-71-130, 15-71-140, 15-71-150, 15-71-160, 15-71-170, 15-71-180, 15-71-190, 15-71-310, 15-71-320, 15-71-330, 18-5-10, 18-5-20, 18-5-30, 18-5-40, 18-5-50, 18-5-60, 18-5-70, 18-5-80, 27-23-100, 32-13-10, 34-11-10, 34-25-80, 44-23-710, 44-23-720, 44-23-730, 44-23-740, 44-23-750, 44-23-760, 44-23-770, 44-23-780, 0 44-23-790, 44-23-800, 44-23-810, AND 44-23-820.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. There is enacted the South Carolina Probate Code as follows:
SOUTH CAROLINA PROBATE CODE
SUMMARY TABLE OF CONTENTS
ARTICLE I:
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT
Detailed Table of Contents of Article I 3453 Text of Code and Comments on its Sections 3455 Part 1: Short Title, Construction, General Provisions 3455 Part 2: Definitions 3459 Part 3: Scope, Jurisdiction, and Courts 3465 Part 4: Notice, Parties, and Representation in Estate Litigation and Other Matters 3473 Part 5: Uniform Simultaneous Death Act 3478 ARTICLE II INTESTATE SUCCESSION AND WILLS Detailed Table of Contents of Article II 3480 Text of Code and Comments on its Sections 3483 Part 1: Intestate Succession 3483 Part 2: Elective Share Provision 3497 Part 3: Spouse and Children Unprovided for in Wills 3502 Part 4: Exempt Property 3505 Part 5: Wills 3510 Part 6: Construction 3528 Part 7: Contractual Arrangements Relating to Death 3540 Part 8: General Provisions 3546 Part 9: Delivery and Suppression of Wills 3556 ARTICLE III: PROBATE OF WILLS AND ADMINISTRATION Detailed Table of Contents of Article III 3557 Text of Code and Comments on its Sections 3565 Part 1: General Provisions 3565 Part 2: Venue for Probate and Administration; Priority to Administer; Demand for Notice 3575 Part 3: Informal Probate and Appointment Proceedings 3581 Part 4: Formal Testacy and Appointment Proceedings 3594 Part 5: Administration Under Part 5 3612 Part 6: Personal Representative; Appointment, Control, and Termination of Authority 3617 Part 7: Duties and Powers of Personal Representatives 3634 Part 8: Creditor's Claims 3656 Part 9: Special Provisions Relating to Distribution 3672 Part 10: Closing Estates 3680 Part 11: Compromise of Controversies 3697 Part 12: Collection of Personal Property by Affidavit and Summary Administration Procedure for Small Estates 3701 Part 13: Sale of Real Estate by Probate Court to Pay Debts 3706 ARTICLE IV: FOREIGN PERSONAL REPRESENTATIVES Detailed Table of Contents of Article IV 3714 Text of Code and Comments on its Sections 3716 Part 1: Definitions 3716 Part 2: Powers of Foreign Personal Representatives 3716 Part 3: Jurisdiction over Foreign Personal Representatives 3723 Part 4: Judgments and Personal Representatives 3726 ARTICLE V: PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY Detailed Table of Contents of Article V 3726 Text of Code and Comments on its Sections 3730 Part 1: General Provisions 3730 Part 2: Reserved 3735 Part 3: Guardians of Incapacitated Persons 3735 Part 4: Protection of Property of Persons Under Disability and Minors 3743 Part 5: Powers of Attorney 3771 Part 6: Uniform Veterans' Guardianship Act 3774 ARTICLE VI: NONPROBATE TRANSFERS Detailed Table of Contents of Article VI 3783 Text of Code and Comments on its Sections 3785 Part 1: Multiple-Party Accounts 3785 Part 2: Provisions Relating to Effect of Death 3801 ARTICLE VII: TRUST ADMINISTRATION Detailed Table of Contents of Article VII 3802 Text of Code and Comments on its Sections 3806 Part 1: Trust Estates 3806 Part 2: Jurisdiction of Courts Concerning Trusts 3810 Part 3: Duties and Liabilities of Trustees 3819 Part 4: Revised Uniform Principal and Income Act 3830 Part 5: Charitable Trusts 3844 Part 6: Powers of Fiduciaries 3845 TABLES A - D FOR EACH OF ARTICLES I - VII: Table A: Cross-References to Provisions of the South Carolina Probate Code Table B: Cross-References to Retained Provisions of the 1976 Code Table C: Derivation From and Cross References to Repealed Provisions of the 1976 Code Table D: Derivation From Provisions of the Uniform Probate Code Article I 3849 Article II 3855 Article III 3865 Article IV 3887 Article V 3891 Article VI 3902 Article VII 3905 RECONCILIATION TABLE: RECONCILIATION OF PROVISIONS OF THE 1976 CODE AND THE SOUTH CAROLINA PROBATE CODE 3916
ARTICLE I
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE
JURISDICTION OF COURT
TABLE OF CONTENTS
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
Section
1-101. [Short Title.]
1-102. [Purposes; Rule of Construction.]
1-103. [Supplementary General Principles of Law applicable.]
1-104. [Severability.]
1-105. [Construction Against Implied Repeal.]
1-106. [Effect of Fraud and Evasion.]
1-107. [Evidence as to Death or Status.]
1-108. [Acts by Holder of General Power.]
PART 2
DEFINITIONS
1-201. [General Definitions.]
PART 3
SCOPE, JURISDICTION, AND COURTS
1-301. [Territorial Application.]
1-302. [Subject Matter Jurisdiction.]
1-303. [Venue; Multiple Proceedings; Transfer.]
1-304. [Practice in Court.]
1-305. [Records and Certified Copies.]
1-306. [Jury Trials.]
1-307. [Probate Judge; Powers.]
1-308. [Appeals.]
1-309. [Election and Term of Judges.]
PART 4
NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION
AND OTHER MATTERS
1-401. [Notice; Method and Time of Giving.]
1-402. [Notice; Waiver.]
1-403. [Pleadings; When Parties Bound by Others; Notice.]
PART 5
UNIFORM SIMULTANEOUS DEATH ACT
1-501. [Short Title.]
1-502. [Disposition of Property When Persons Die Simultaneously.]
1-503. [Successive Beneficiaries of Disposition of Property.]
1-504. [Joint Tenants or Tenants by the Entirety.]
1-505. [Insured and Beneficiary.]
1-506. [Part Shall not be Retroactive.]
1-507. [Part Shall not be Applicable if Instrument Provides Otherwise.]
1-508. [Construction.]
ARTICLE I
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
Section 1-101. Short Title. This act shall be known and may be cited as the South Carolina Probate Code. References in this act to the term "Code", unless the context clearly indicates otherwise, shall mean the South Carolina Probate Code.
Section 1-102. Purposes; Rule of Construction.
(a) This Code shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this Code are:
(1) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;
(2) to discover and make effective the intent of a decedent in the distribution of his property;
(3) to promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to his successors;
(4) to facilitate use and enforcement of certain trusts;
(5) to make uniform the law among the various jurisdictions.
Section 1-103. Supplementary General Principles of Law Applicable. Unless displaced by the particular provisions of this Code, the principles of law and equity supplement its provisions.
Section 1-104. Severability. If any provision of this Code or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Code which can be given effect without the invalid provision or application and to this end the provisions of this Code are declared to be severable.
Section 1-105. Construction Against Implied Repeal. This Code is a general act intended as a unified coverage of its subJect matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
Section 1-106. Effect of Fraud and Evasion. Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Code or if fraud is used to avoid or circumvent the provisions or purposes of this Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not, but only to the extent of any benefit received. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.
REPORTER'S COMMENTS
Section 1-106: By virtue of this section, the six-year period of limitation provided by Section 15-3-530(7) of the 1976 Code for actions for relief on the ground of fraud is reduced, with respect to fraud perpetrated in connection with proceedings and statements filed under this Code, or to circumvent its provisions or purposes. Under this section, actions for relief on the ground of fraud must be brought within two years after discovery of the fraud. In no event, however, may an action be brought against one not the perpetrator of the fraud (such as an innocent party benefiting from the fraud) later than five years after the commission of the fraud.
The last sentence of this section, however, excepts from this section actions "relating to fraud practiced on a decedent during his lifetime which affect the succession of his estate" such as fraud inducing the execution or revocation of a will. There is some general authority for the proposition that one who is damaged by fraud which interferes with the making of a will may maintain an action for damages against the person who commits the fraud, 79 Am. Jur. 2d, Wills Section 414. In such a case, the six-year limitation provided by Section 15-3-530(7) of the 1976 Code should continue to apply. In cases involving direct contest of wills which are allegedly the result of fraud, however, the provisions of Section 3-108 would be applicable and a formal probate proceeding would have to be commenced within the later of twelve months from the informal probate or three years from the decedent's death, at which time the allegations of fraud would be considered.
Section 1-107. Evidence as to Death or Status.
In proceedings under this Code the rules of evidence in courts of general jurisdiction, including any relating to simultaneous deaths, are applicable unless specifically displaced by the Code. In addition, the following rules relating to determination of death and status are applicable:
(1) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death, and the identity of the decedent.
(2) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
(3) A person who is absent for a continuous period of five years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
REPORTER'S COMMENTS
Section 1-107: See Sections 1-501 to 1-508 for the Uniform Simultaneous Death Act.
Section 1-108. Acts by Holder of General Power. For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subJect to the power.
REPORTER'S COMMENTS
Section 1-108: This section allows one who is the holder of a presently exercisable "general power of appointment" (which, in this context, means one having the power to take absolute ownership of property to himself, either by appointment, by amendment, or by revocation) to agree to actions taken by a personal representative or by a trustee, to consent to the modification or termination of a trust or a deviation from its terms, and, thereby, to bind the beneficiaries whose interests are subject to the power.
PART 2
DEFINITIONS
Section 1-201. General Definitions. Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or parts, and unless the context otherwise requires, in this Code:
(1) "Application" means a written request to the probate court for an order of informal probate or appointment under Part-3 of Article III.
(2) "Beneficiary", as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and, as it relates to a charitable trust, includes any person entitled to enforce the trust.
(3) "Child" includes any individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
(4) "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate. "Expense of administration" includes commissions of personal representatives, fees and disbursements of attorneys, fees of appraisers, and such other expenses that are reasonably incurred in the administration of the estate.
(5) "Court" means the court or branch having jurisdiction in matters relating to the affairs of decedents. This court in this State is known as the probate court.
(6) "Conservator" means a person who is appointed by a court to manage the estate of a protected person.
(7) "Devise", when used as a noun, means at testamentary disposition of real or personal property, including both devise and bequest as formerly used, and when used as a verb, means to dispose of real or personal property by will.
(8) "Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
(9) "Disability" means cause for a protective order as described by Section 5-401.
(10) "Distributee" means any person who has received property of a decedent from his personal representative other than as creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(11) "Estate" includes the property of the decedent, trust, or other person whose affairs are subject to this Code as originally constituted and as it exists from time to time during administration.
(12) "Exempt property" means that property of a decedent's estate which is described in Section 2-401.
(13) "Fiduciary" includes personal representative, guardian, conservator, and trustee.
(14) "Foreign personal representative" means a personal representative of another jurisdiction.
(15) "Formal proceedings" means those conducted before a judge with notice to interested persons.
(16) "Guardian" means a person who has qualified as a guardian of an incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem or a statutory guardian.
(17) "Heirs" means those persons, including the surviving spouse, who are entitled under the statue of intestate succession to the property of a decedent.
(18) "Incapacitated person" is as defined in Section 5-101.
(19) "Informal proceedings" means those conducted without notice to interested persons by the court for probate of a will or appointment of a personal representative.
(20) "Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(21) "Issue" of a person means all his lineal descendants whether natural or adoptive of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this Code.
(22) "Lease" includes an oil, gas, or other mineral lease.
(23) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(24) "Minor" means a person who is under eighteen years of age.
(25) "Mortgage" means any conveyance, agreement, or arrangement in which real property is used as security.
(26) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
(27) "Organization" includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal entity.
(28) "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
(29) "Person" means an individual, a corporation, an organization, or other legal entity.
(30) "Personal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
(31) "Petition" means a written request to the court for an order after notice.
(32) "Proceeding" includes action at law and suit in equity.
(33) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(34) "Protected person" is as defined in Section 5-101.
(35) "Protective proceeding" is as defined in Section 5-101.
(36) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing. "Security Interest" means any conveyance, agreement, or arrangement in which personal property is used as security.
(37) "Settlement" in reference to a decedent's estate includes the full process of administration, distribution, and closing.
(38) "Special administrator" means a personal representative as described by Sections 3-614 through 3-618.
(39) "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(40) "Stepchild" with reference to any person means one who is the child, natural or adopted, of such person's spouse but who is not the child, natural or adopted, of such person.
(41) "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
(42) "Successors" means those persons, other than creditors, who are entitled to property of a decedent under his will or this Code.
(43) "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
(44) "Trust" includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article VI, custodial arrangements pursuant to the South Carolina Uniform Gifts to Minors Act, Section 35-3-10, et seq., of the 1976 Code, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
(45) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
(46) "Ward" is as defined in Section 5-101.
(47) "Will" includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.
REPORTER'S COMMENTS
Section 1-201: The definitions set out in this section are applicable throughout this Code. Of interest is the definition of "claims" in item (4) which includes claims arising out of tort.
Also see Sections 4-101, 5-101, and 6-10; for additional definitions for Articles IV, V, and VI.
PART 3
SCOPE, JURISDICTION, AND COURTS
Section 1-301. Territorial Application
Except as otherwise provided in this Code, this Code applies to (1) the affairs and estates of decedents, missing persons, and persons to be protected domiciled in this State, (2) the property of nonresidents located in this State or property coming into the control of a fiduciary who is subject to the laws of this State, (3) incapacitated persons and minors in this State, (4) survivorship and related accounts in this State, and (5) trusts subject to administration in this State.
REPORTER'S COMMENTS
Section 1-301: This section merely states that this Code applies to matters having a connection to this State by reason of a person's domicile or the situs of property.
Section 1-302. Subject Matter Jurisdiction.
(a) To the full extent permitted by the Constitution, and except as otherwise specifically provided hereinafter, the 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 and incapacitated persons, including the mortgage and sale of personal and real property owned by minors or incapacitated persons;
(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 certified copies of such licenses and certificates;
(5) the performance of the duties of the clerk of the circuit and family courts of the county in which such 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 clerk is disqualified by reason of ownership of or interest in any lands over which it is sought to obtain such 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 shall extend only to the approval of settlements as provided by law.
(c) Notwithstanding the exclusive jurisdiction of the court over the foregoing matters, any action or proceeding filed in the court and relating to the following subject matters shall be removed, not later than ten days following issues being joined, to the circuit court either by the court or on motion of any party, and in such 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 named in wills;
(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.
REPORTER'S COMMENTS
Section 1-302: This section clearly states the subject matter jurisdiction of the probate court. It should be noted that the probate court has "exclusive original jurisdiction" over the matters enumerated in this section. This means, when read with other Code provisions (such as subsection (c) of this section and Section 3-105), that matters within the original jurisdiction of the probate court must be brought in that court, subject to certain provisions made for removal to the circuit court by the probate court or on motion of any party. The language of this section is similar to Section 14-23-1150 of the 1976 Code, which, in item (a), provides that probate judges are to have jurisdiction "in all matters testamentary and of administration, including jurisdiction in such matters to declare rights, status, and other legal relations...."
Section 1-303. Venue; Multiple Proceedings; Transfer. (a) Subject to the provisions of Section 3-201, where a proceeding under this Code could be maintained in more than one place in South Carolina, the court in which the proceeding is first commenced has the exclusive right to proceed.
(b) If proceedings concerning the same estate, protected persons, ward, or trust are commenced in more than one court of South Carolina, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and, if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
(c) If a court finds that, in the interest of justice, a proceeding or a file should be located in another court of probate in South Carolina, the court making the finding may transfer the proceeding or file to the other court.
REPORTER'S COMMENTS
Section 1-303: This section provides that, where a proceeding could be held in more than one county under Section 3-201, the probate court in which the proceeding is first commenced has the exclusive right to proceed. If proceedings are commenced in more than one probate court, the court in which the proceeding was first commenced must continue to hear the matter unless it decides that venue is properly in another county, in which event it is to transfer the matter to that other county. Section 3-201 relates to testacy or appointment proceedings after death and grants venue to the county of the decedent's domicile or, if the decedent was not domiciled in this State, to any county in which his property was located.
This section also provides that venue with respect to a nonresident's estate could be in any county where he owned property.
Section 1-304. Practice in Court. Unless specifically provided to the contrary in this Code or unless inconsistent with its provisions, the rules of civil procedure adopted for the probate court, and, in their absence, those adopted for the circuit court, govern formal proceedings under this Code.
REPORTER'S COMMENTS
Section 1-304: This section is essentially the same as Probate Court Rule 15, which states that "in all cases not provided for by any of the foregoing Rules the Rules of the Circuit Court, so far as they can be made applicable, shall govern."
Section 1-305. Records and Certified Copies. The court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this Code, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the probate court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information. Upon payment of the fees required by law, the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded. Certificates relating to letters must show the date of appointment.
REPORTER'S COMMENTS
Section 1-305: This section requires that the probate court keep a record of all matters filed with the court and that records be so indexed and filed as to make them useful to those examining them. Further, the court is required to issue certified copies of documents on file.
This section does not go into the detail of Sections 14-23-1100 and 14-23-1130 of the 1976 Code which list in some detail the records which must be kept by the probate court. These sections are not incompatible with Section 1-305. Probate Court Rule 1, pertaining to a calendar and to books denoting titles of all cases and transactions therein, is not disturbed by this section.
Section 1-306. Jury Trials. (a) If duly demanded, a party is entitled to trial by jury in any proceeding involving an issue of fact in an action for the recovery of money only or of specific real or personal property, unless waived as provided in Section 15-27-90 of the 1976 Code.
(b) If there is no right to trial by Jury under subsection (a) or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.
(c) The method of drawing, summoning, and compensating jurors under this section shall be within the province of the county jury commission and shall be governed by Chapter 7 of Title 14 of the 1976 Code relating to juries in circuit courts.
REPORTER'S COMMENTS
Section 1-306: This section confers a right to trial by jury in the probate court in the same kinds of proceedings in which the right to Jury trial exists in the circuit court, namely, proceedings involving an issue of fact in an action for the recovery of money only or of specific real or personal property, Section 15-23-60 of the 1976 Code. If no right to trial by jury exists, the court may impanel a jury to decide any issue or fact on an advisory basis.
Chapter 7 of Title 14 of the 1976 Code, relating to juries in the circuit court, governs the method of drawing, summoning, and compensating jurors.
Section 1-307. Probate Judge; Powers. The acts and orders which this Code specifies as performable by the court may be performed either by the judge or by a person, including one or more clerks, designated by the judge by a written order filed and recorded in the office of the court.
REPORTER'S COMMENTS
Section 1-307: This section provides that the acts performable by the court may be performed by the probate judge or by a person, including a clerk, appointed by the judge. This section does not conflict with Section 14-23-1030 (appointment of an associate judge), 14-23-1070 (appointment of a deputy), or 14-23-1090 (appointment of a clerk) of the 1976 Code, and these sections will still be applicable.
Section 1-308. Appeals. Appeals from the probate court shall be to the circuit court and shall be governed by the following rules:
(a) Any person interested in any final order, sentence, or decree of any probate court and considering himself injured thereby may appeal therefrom to the circuit court in the same county at the stated session next after such appeal. The grounds of appeal shall be filed in the office of the probate court and a copy thereof served on the adverse party within fifteen days after such person shall have received notice of the decision appealed from.
(b) Within thirty days after the grounds of appeal shall have 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, all such papers included in the return shall be returned to the probate court.
(c) When an appeal according to law is taken from any sentence or decree of the probate court, all proceedings in pursuance of the order, sentence, or decree appealed from shall cease until the Judgment of the circuit or Supreme Court is had; but, if the appellant in writing waives his appeal before the entry of such judgment, proceedings may be had in the probate court as if no appeal had been taken.
(d) When the return shall have been filed in the circuit court as provided in subsection (b), the court shall proceed to the hearing and determination of the appeal according to the rules of law. The hearing shall be strictly on appeal and no new evidence shall be presented.
(e) The final decision and judgment in cases appealed, as provided in this code, shall be certified to the probate court by the circuit court or Supreme Court, as the case may be, and the same proceedings shall be had in the probate court as though such decision had been made in such probate court.
(f) No Judge of any probate court shall be admitted to have any voice in judging or determining any appeal from his decision or be permitted to act as attorney or counsel thereon.
REPORTER'S COMMENTS
Section 1-308: This section provides that appeals from the probate court are to the circuit court. Under Section 1-308(d), any appeal from the probate court is strictly on the record.
Section 1-309. Election and Term of Judges. The judges of the probate court shall be elected by the qualified electors of the respective counties for the term of four years in the manner specified by Section 2 of Article V of Act 690 of 1976.
REPORTER'S COMMENTS
Section 1-309: This section does not disturb Section 14-23-1040 of the 1976 Code which requires that a probate judge or an associate judge must be a qualified elector of the county in which he is to be a judge.
PART 4
NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS
Section 1-401. Notice; Method and Time of Giving. (a) If notice of a hearing on any petition is required and, except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice shall be given:
(1) by mailing a copy thereof at least twenty days before the time set for the hearing by certified, registered, or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known;
(2) by delivering a copy thereof to the person being notified personally at least twenty days before the time set for the hearing; or
(3) if the address or identity of any person is not known and cannot be ascertained with reasonable diligence by publishing a copy thereof in the same manner as required by law in the case of the publication of a summons for an absent defendant in the court of common pleas. (b) The court for good cause shown may provide for a different method or time of giving notice for any hearing.
(c) Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.
REPORTER'S COMMENTS
Section 1-401: This section provides that, where notice of hearing on a petition is required, the petitioner shall give notice to any interested person or his attorney (1) by mailing at least twenty days in advance of the hearing, or (2) by personal delivery at least twenty days in advance of the hearing, or (3) if the person's address or identity is not known and cannot be ascertained, by publication as in the court of common pleas.
Under this Code, when a petition is filed with the court, the court is to fix a time and place of hearing and it is then the responsibility of the petitioner to give notice as provided in Section 1-401. See, for example, Sections 3-402 and 3-403. The procedure set forth in Section 14-23-280 of the 1976 Code and Probate Court Rule 5, whereunder the court issues a summons to the defendants named in the petition advising them that unless they plead thereto within twenty days relief will be granted on the petition, is changed to place the responsibility for giving notice on the petitioner.
Section 1-402. Notice; Waiver. A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.
Section 1-403. Pleadings; When Parties Bound by Others; Notice. In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons and, in judicially supervised settlements, the following apply:
(1) Interests to be affected shall be described in pleadings which give reasonable information to owners by name or class by reference to the instrument creating the interests or in other appropriate manner.
(2) Persons are bound by orders binding others in the following cases:
(i) Orders binding the sole holder or all co-holders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
(ii) To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent his minor child.
(iii) An unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding.
(3) Notice is required as follows:
(i) Notice as prescribed by Section 1-401 shall be given to every interested person or to one who can bind an interested person as described in (2)(i) or (2)(ii) above. Notice may be given both to a person and to another who may bind him.
(ii) Notice is given to unborn or unascertained persons who are not represented under (2)(i) or (2)(ii) above by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
(4) At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.
REPORTER'S COMMENTS
Section 1-403: This section applies to formal proceedings and judicially supervised settlements. It provides that in certain specified instances a person will be bound by orders which are binding on others. Subitem (i) of item (2) provides that an order which is binding upon the person or persons holding a power of revocation or a general power of appointment will bind others, such as objects or takers in default, to the extent that their interests are subject to the power. This would mean that an order which is binding on one who has discretion will bind those in whose favor he might act.
Absent a conflict of interest, subitem (ii) of item (2) provides that orders binding a conservator or guardian are binding on the protected person. In certain limited instances, orders binding on a trustee or a personal representative are binding on beneficiaries and interested persons. Further, under subitem (iii) of item (2) an unborn or unascertained person is bound by orders affecting persons having a substantially identical interest. These provisions facilitate proceedings by limiting multiplicity of parties.
Item (4) permits the court at any point in a proceeding to appoint a guardian ad litem to represent a minor, an incapacitated person, an unborn or unascertained person, or one whose identity or address is unknown if the court determines that representation of that interest would otherwise be inadequate. Accordingly, in a proceeding where there are adult parties having the same interest as the minor or incapacitated person, the court may not deem it necessary to appoint a guardian ad litem if it appears that the common interest will be adequately represented. However, in protective proceedings under Article V involving appointment of a guardian for an incapacitated person (Section 5-301, et seq.), or a conservator of the estate of an incapacitated person (Section 5-401, et seq.), this Code mandates appointment of an attorney for the alleged incompetent person should he not have counsel of his own choosing, such appointed attorney to have the powers and duties of a guardian ad litem. See Sections 5-303(b) and 5-407(b). In the case of minors, the appointment of a guardian ad litem (or an attorney having the powers and duties of a guardian ad litem) is discretionary with the court. However, this Code does require that notice of the proceeding be given to adults presumably having an interest in the minor's welfare, such as the person having care and custody of the minor, parent(s), or nearest adult relatives.
PART 5
UNIFORM SIMULTANEOUS DEATH ACT
Section 1-501. Short Title. This part may be cited as the "Uniform Simultaneous Death Act".
Section 1-502. Disposition of Property When Persons Die Simultaneously. When the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously the property of each person shall be disposed of as if he had survived, except as provided otherwise in this part.
Section 1-503. Successive Beneficiaries of Disposition of Property. When two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
Section 1-504. Joint Tenants or Tenants by the Entirety. When there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one half as if one had survived and one half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property shall be so distributed in the proportion that one bears to the whole number of joint tenants.
Section 1-505. Insured and Beneficiary. When the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
Section 1-506. Part Shall not be Retroactive. This part shall not apply to the distribution of the property of a person who died prior to April 3, 1948.
Section 1-507. Part Shall not be Applicable if Instrument Provides Otherwise. This part shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the distribution that would otherwise be made under the provisions of this part.
Section 1-508. Construction. This part shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact substantially identical laws.
ARTICLE II
INTESTATE SUCCESSION AND WILLS
TABLE OF CONTENTS
PART 1
INTESTATE SUCCESSION
Section
2-101. [Intestate Estate.]
2-102. [Share of the Spouse.]
2-103. [Share of Heirs Other Than Surviving Spouse.]
2-104. [Requirement That Heir Survive Decedent For One Hundred Twenty Hours.]
2-105. [No Taker.]
2-106. [Representation.]
2-107. [Kindred of Half Blood.]
2-108. [Afterborn Heirs.]
2-109. [Meaning of Child and Related Terms.]
2-110. [Advancements.]
2-111. [Debts to Decedent.]
2-112. [Alienage.]
2-113. [Persons Related to Decedent Through Two Lines.]
PART 2
ELECTIVE SHARE OF SURVIVING SPOUSE
2-201. [Right of Elective Share.]
2-202. [Estate.]
2-203. [Exercise of Right of Election by Surviving Spouse.]
2-204. [Waiver of Right to Elect and of Other Rights.]
2-205. [Proceedings for Elective Share; Time Limit.]
2-206. [Effect of Election on Benefits by Will or Statute.]
2-207. [Charging Spouse With Gifts Received; Liability of Others for Balance of Elective Share.]
PART 3
SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
Section
2-301. [Omitted Spouse.]
2-302. [Pretermitted Children.]
PART 4
EXEMPT PROPERTY
Section
2-401. [Exempt Property.]
2-402. [Source, Determination, and Documentation.]
2-403. [Federal Veteran Payments Shall be Exempt from Creditors' Claims.]
PART 5 WILLS
Section
2-501. [Who May Make a Will.]
2-502. [Execution.]
2-503. [Attestation and Self-Proving.]
2-504. [Subscribing Witnesses Shall Not Be Incompetent Because of Interest, Effect on Gifts to Them.]
2-505. [Choice of Law as to Execution.]
2-506. [Revocation by Writing or by Act.]
2-507. [Revocation by Divorce, Annulment, and Order Terminating Marital Property Rights; No Revocation by Other Changes of Circumstances.]
2-508. [Revival of Revoked Will.]
2-509. [Incorporation by Reference.]
2-510. [Additions to Trusts.]
2-511. [Events of Independent Significance.]
2-512. [Separate Writing Identifying Bequest of Tangible Property.]
PART 6 CONSTRUCTION
Section
2-601. [Rules of Construction and Intention.]
2-602. [Construction That Will Passes All Property; After-Acquired Property.]
2-603. [Anti-lapse; Deceased Devisee; Class Gifts.]
2-604. [Failure of Testamentary Provision.]
2-605. [Change in Securities; Accessions; Nonademption.]
2-606. [Nonademption of Specific Devises in Certain Cases; Unpaid Proceeds of Sale, Condemnation, or Insurance; Sale by Conservator.]
2-607. [Nonexoneration.]
2-608. [Exercise of Power of Appointment.]
2-609. [Construction of Generic Terms to Accord with Relationships as Defined for Intestate Succession.]
2-610. [Ademption by Satisfaction.]
2-611. [Construction that Devise Passes Fee Simple.]
PART 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
Section
2-701. [Contracts Concerning Succession.]
PART 8
GENERAL PROVISIONS
Section
2-801. [Disclaimer.]
2-802. [Effect of Divorce; Annulment; Decree of Separate Maintenance; Order Terminating Marital Property Rights.]
2-803. [Effect of Homicide on Intestate Succession, Wills, Joint Assets, Life Insurance, and Beneficiary Designations.]
2-804. [Effect of Provision for Survivorship on Succession to Joint Tenancy in Real Property.]
PART 9
DELIVERY AND SUPPRESSION OF WILLS
2-901. [Delivery of Will to Judge of Probate; Filing.]
PART 1
INTESTATE SUCCESSION
Section 2-101. Intestate Estate. Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections of this Code.
REPORTER'S COMMENTS
Section 2-101: Section 2-101 establishes intestate succession as the method of disposition of any part of a decedent's estate not effectively disposed of by his will, as under Sections 2-501 and 2-602. It applies both in cases of total intestacy and in cases of partial intestacy. See Sections 1-201(11) and 1-201(33) for this Code's definition of the estate governed by Section 2-101 as to intestate succession.
Section 2-102. Share of the Spouse. The intestate share of the surviving spouse is:
(1) if there is no surviving issue of the decedent, the entire intestate estate;
(2) if there are surviving issue, one-half of the intestate estate.
REPORTER'S COMMENTS
Section 2-102: Section 2-102 defines the intestate share of the decedent's surviving spouse (which term is in turn defined by Section 2-802) by limiting the persons with whom the surviving spouse must share any part of the intestate estate to the decedent's surviving issue, i.e., if no issue survive, the spouse takes all, and, in case issue do survive, the spouse takes one-half of the intestate estate. Section 2-102 draws no distinction between cases of single child survival and multiple child survival.
A husband or wife who desires to leave his or her surviving spouse more or less than the share provided by this section and to leave to other persons more or less than would otherwise be available to them may do so by executing a will.
Section 2-103. Share of Heirs Other Than Surviving Spouse. The part of the intestate estate not passing to the surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes as follows:;
(1) to the issue of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;
(2) if there is no surviving issue, to his parent or parents equally;
(3) if there is no surviving issue or parent, to the issue of the parents by representation, including the issue of either parent (but not of the other) except that, if there is a surviving child or children of both parents, the estate passes to such child or children and to the issue of any deceased child or children of both parents by representation;
(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;
(5) if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by one or more great-grandparents or issue of great-grandparents, half of the estate passes to the surviving paternal great-grandparents in equal shares, or to the surviving paternal great-grandparent if only one survives, or to the issue of the paternal great-grandparents if hone of the great-grandparents survive, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving great-grandparent or issue of a great-grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;
(6) if there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, great-grandparent or issue of a great-grandparent, but the decedent is survived by one or more stepchildren or issue of stepchildren, the estate passes to the surviving stepchildren and to the issue of any deceased stepchildren; if they are all of the same degree of step-kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation.
REPORTER'S COMMENTS
Section 2-103: Section 2-103 defines the intestate shares of persons, other than the surviving spouse, in that part of the intestate estate not passing to the surviving spouse under Section 2-102.
Subsection (1) of Section 2-103 gives preference to the decedent's issue as against all others, except the surviving spouse (see Section 2-102).
Where the surviving issue who are heirs are all of the same degree of kinship to the decedent, they take per capita, i.e., in equal shares. Where the surviving issue who are heirs are of unequal degrees, they take per capita with per capita representation, i.e., those in the nearest degree take per capita, equal shares, as before, while those in the more remote degrees take, by representation, the equal share which their deceased ancestor in the nearest degree would have taken had he survived the decedent. Such issue in more remote degrees take their deceased ancestor's equal share, in turn, per capita with per capita representation. This section, read together with Section 2-106, minimizes the occurrence of unequal distributions among members of the same generation. For an example of issue taking per capita with per capita representation, suppose death is indicated by parentheses and:
1. (X) dies intestate:
2. predeceased by two children, (A) and (B):
3. survived by two grandchildren, A's child C, and B's child D, and predeceased by one grandchild, B's child (E):
4. predeceased by two great-grandchildren, E's children (F) and (G):
5. and survived by three great-great grandchildren F's child H, and G's children I and J, graphically represented, as follows:
Under Section 2-103(1), the number of issue, in the nearest degree of kinship having surviving members, counting both those who survive and those who predecease leaving issue surviving, determines the basic shares. In this example, "thirds" go to each of the living grandchildren C and D and, collectively, to the issue of the predeceased grandchild E. In turn, E's "third" is divided among his issue in the same manner; and the number of his issue, in the nearest degree having surviving members, determines the further shares, which are, in this example, "thirds" of E's "third", or "ninths" which go to H, I, and J. Under Section 2-103(1), the pre-existence of A, B, F, and C is ignored because no member of their respective degrees of kinship survived the decedent.
Subsection (2) of Section 2-103 allocates the entire intestate estate to the parents of the decedent if there is neither a surviving spouse nor any surviving issue.
Subsection (3) of Section 2-103 apportions the entire intestate estate, by representation, among the issue of the parents of the decedent only if the decedent leaves neither spouse nor issue nor parents. All issue of parents of the decedent, however remotely related to the decedent they may be, share by representation. For example, a grandnephew of decedent, related through a brother and nephew of decedent, themselves both predeceased, takes by representation and is not excluded by the survival of another brother or of another nephew of decedent.
Sections 2-103(3) and 2-107 favor surviving brothers and sisters of the whole blood by excluding surviving brothers and sisters of the half blood and their issue. However, failing survival of any whole blood brother or sister, all issue of the decedent's parents take under Section 2-103(3) by representation so that issue of half blood brothers and sisters are treated the same as issue of whole blood brothers and sisters.
Subsections (4) and (5) of Section 2-103 apply in cases in which the decedent is survived by neither spouse, nor issue, nor parents, nor issue of parents, but is survived by grandparents or their issue (then the entire intestate estate is distributed to them under subsection (4)), or the decedent is survived neither by grandparents nor their issue but by great-grandparents or their issue (then the entire intestate estate is distributed to them under subsection (5)). Persons, even more remotely related to decedent, the so-called "laughing heirs", do not share at all.
Subsection (6) of Section 2-103 provides for inheritance by stepchildren in cases of predecease of all relations of decedent as closely related as great-grandparents and their issue. This section benefits the issue of stepchildren as well as the stepchildren themselves. A "stepchild" is defined in Section 1-201(40) as the child of a person's "spouse" and not of such person. Of course, the "spouse" referred to in the definition of "stepchild" must be either a predeceased or a divorced former spouse of the decedent in order for the definition of "stepchild" to come into play through the application of subsection (6) of Section 2-103. The rule applies only in cases in which decedents are not survived by a spouse. In such cases all of the children of all of such former spouses would come within the definition of "stepchild."
Section 2-104. Requirement That Heir Survive Decedent for One Hundred Twenty Hours. Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of exempt property and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty hours, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the State under Section 2-105.
REPORTER'S COMMENTS
Section 2-104: Section 2-104 provides that a person must survive a decedent by at least one hundred twenty hours in order to qualify for the set aside of exempt property under Section 2-401 and as an heir of that decedent in intestacy, inapplicable, however, in cases in which escheat would be the result under Section 2-105; and Section 2-104 deems the person to have failed to meet the survival requirement where it cannot be shown that he did survive for one hundred twenty hours. See Sections 3-302 and 3-307 for provisions preventing informal probate and informal appointment of personal representatives for one hundred twenty hours. The one hundred twenty-hour rule harmonizes this section's presumption of failure of survival with the policy of the Uniform Simultaneous Death Act, Sections 1-501, et seq., as expressed by that act's presumption that a putative heir fails to survive his intestate decedent.
Section 2-105. No Taker. If there is no taker under the provisions of this article, the intestate estate passes to the State of South Carolina.
REPORTER'S COMMENTS
Section 2-105: Section 2-105 provides for escheat of an intestate estate to the State of South Carolina whenever there are no heirs as prescribed in Sections 2-102 and 2-103, as affected by other sections of this Article II, i.e., whenever neither spouse nor great-grandparents of decedent, nor issue thereof, survive decedent. The procedures regulating escheat to the State are embodied in Sections 27-19-10, et seq., of the 1976 Code.
Section 2-106. Representation. If representation is called for by this Code, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner.
REPORTER'S COMMENTS
Section 2-106: Section 2-106 defines the division of an intestate estate, among the heirs' respective shares, by "representation", i.e., as an equal division among the nearest surviving kin, with the issue of any equally near but predeceased kin taking their ancestor's share in the same manner, by representation. For an example of the application of Section 2-106, see the Comment to Section 2-103(1).
Section 2-107. Kindred of Half Blood. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood, except that a half brother or half sister or issue of a half brother or half sister of the decedent shall not inherit if there is one or more whole brother or whole sister surviving.
REPORTER'S COMMENTS
Section 2-107: These rules of this section are carried over into the construction of wills' dispositions by Section 2-609.
Section 2-108. Afterborn Heirs. Issue of the decedent (but no other persons) conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.
REPORTER'S COMMENTS
Section 2-108: Section 2-108 codifies South Carolina case law establishing the right of an afterborn child of an intestate decedent to inherit. Pearson v. Carlton, 18 S.C. 47 (1882). This section expands the principle to benefit other issue of the intestate decedent, more remotely related than as his children, e.g., grandchildren. The section further expressly excepts collateral relatives of the decedent from the principle's operation.
Section 2-109. Meaning of Child and Related Terms. If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.
(2) In cases not covered by (1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
(i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(ii) the paternity is established by an adjudication commenced before or within six months after the death of the father and, if after his death, by clear and convincing proof, except that the paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.
(3) A person is not the child of a parent whose parental rights have been terminated under Section 20-7-1574 of the 1976 Code, except that the termination of parental rights is ineffective to disqualify the child or its kindred to inherit from or through the parent.
REPORTER'S COMMENTS
Section 2-109: Section 2-109 concerns intestate succession as affected by adoptions of persons, by births out of wedlock, and by the termination of parental rights. However, this section's definition of the parent-child relationship is imported by references in Sections 1-201(3) defining "child", 1-201(21) defining "issue", and 1-201(28) defining "parent", and in Section 2-609 construing class gift and family relationship terminology into the meanings of such terms and terminology as used throughout this Code and also in testators' wills. See Sections 2-102, 2-103, 2-106, 2-302, 2-401, 2-402, 2-603, and 2-609.
The rule of general applicability of Section 2-109(1) is that upon adoption the adopted person's intestacy relationships with all his natural relatives are severed, but are supplanted by newly established intestacy relationships with all of his adopted relatives.
However, the general rule does not apply to cases of adoption of adults. Rather, the intestacy relationships of the parties are left undisturbed by the adoption decree, unless a court finds it to be in the best interests of the persons involved to apply the general rule.
To cover the case of the marriage of a child's natural parent to a person who adopts the child, Section 2-109(1) provides that adoption does not sever the adopted child's intestacy relationship with "that" natural parent. Adoption does, however, sever the adopted child's intestacy relationship with the "other" natural parent, i.e., the natural parent not married to the person adopting the child.
Subsection (2) of Section 2-109 relates to the taking in intestacy by, through, or from persons born out of wedlock. It does not purport to declare such illegitimate children to be legitimate. No part of the prior South Carolina law, establishing the legitimacy of a child, is meant to be affected by Section 2-109(2). The bases for a finding of legitimacy, i.e., either birth to validly married parents, whether validly ceremonially married or married as at common law, or birth to parents covered by one of the legitimation statutes, Sections 20-1-30, 20-1-40, 20-1-50, 20-1-60, 20-1-80, and 20-1-90 of the 1976 Code, remains as under prior law; and, of course, such legitimate children bear intestacy relationships with their relatives.
Section 2-109(2) merely establishes intestacy relationships between illegitimate children and their maternal and paternal relatives.
The rule set forth in Section 2-109(2)(i) relates to the establishment of the illegitimate child's intestacy relationship with his father, whenever the father and mother have been ceremonially married, albeit invalidly so.
Section 2-109(2)(ii) allows an illegitimate child to inherit from and through his father if paternity is established by an adjudication commenced either before the father's death or within six months thereafter. A standard higher than usual, clear, and convincing proof is required to be met in an adjudication commenced after, but not in an adjudication before, the father's death.
The imposition of a required adjudication and a higher standard of proof upon illegitimate children seeking to inherit from their fathers, as compared with legitimate children not similarly burdened, should pass constitutional muster under the decision of Lalli v. Lalli, 439 U.S. 259 (1978). Section 2-109(2)(ii) precludes the father and his kindred from inheriting from or through the child unless the father has openly treated the child as his and has not refused to support the child.
Subsection (3) of Section 2-109, on intestacy relationships following the termination of parental rights, is meant to conform with Section 20-7-1576 of the 1976 Code, cutting the parent off from the child's intestate estate, but not cutting the child off from the parent's intestate estate.
Section 2-110. Advancements. If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing signed by the decedent or acknowledged in a writing signed by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property shall be taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.
REPORTER'S COMMENTS
Section 2-110: Section 2-110 concerns the effect on intestate succession of lifetime gifts made by the intestate to donees who are his prospective heirs. The section charges such lifetime gifts, as advancements, against the intestate share of the donee-heir, but only if, first, the intestate dies wholly intestate, i.e., without a will disposing of any part of his estate. See Section 2-610 on satisfaction for a rule analogous to the rule of advancements but operative in the event of succession under a will.
Such gifts are treated as advancements under Section 2-110 only if, second, they are contemporaneously declared by the intestate or acknowledged by the donee, in writing, to be advancements.
If the donee predeceases the intestate, but issue of the donee survive as heirs of the intestate, Section 2-110 charges the ancestor's lifetime gifts as advancements against the intestate share of the issue-heirs, again, only if there is a total intestacy and the above-mentioned writing exists but not if the writing provides that the lifetime gifts to the ancestor are not to be treated as advancements to such issue.
Section 2-110 applies to lifetime gifts made to any of the heirs of the intestate, a class of donees broader than the former law's language "child or issue of the intestate." See Section 1-201(17) defining "heirs".
Section 2-110 values the advancement at the earlier of the donee's actual receipt of the gift or the intestate's death, resulting in most cases in a valuation at the date of the gift rather than at the date of death.
Section 2-111. Debts to Decedent. A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.
REPORTER'S COMMENTS
Section 2-111: Section 2-111 qualifies the personal representative's right and obligation of retainer, i.e., to offset or charge the amounts of debts owed to the decedent against the shares of successors to his estate, as provided for in Section 3-903. Section 2-111 limits such charge's effects so that they affect only the debtor's share and not also the intestate shares of the debtor's issue. This codifies South Carolina case law. See Stokes v. Stokes, 62 S.C. 346, 40 S.E. 662 (1902), where the debt of a predeceased brother of the intestate was not charged against the brother's children's intestate shares.
Section 2-112. Alienage. No person is disqualified to take as an heir because he, or a person through whom he claims, is or has been an alien.
REPORTER'S COMMENTS
Section 2-112: Section 2-112 allows an individual to inherit property even though he, or a person through whom he claims, is or has been an alien. This was the prior South Carolina law notwithstanding the mandate of Article III, Section 35 of the South Carolina Constitution (1895) and the provisions of Sections 27-13-30 and 27-13-40 of the 1976 Code, limiting alien ownership of South Carolina land to five hundred thousand acres, the last obviously unrealistic as an effective limit at approximately twenty-eight miles square.
Section 2-113. Persons Related to Decedent Through Two Lines. A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship which would entitle him to the larger share.
REPORTER'S COMMENTS
Section 2-113: Section 2-113 precludes possibility of a person related to the decedent through two lines of relationship, adopted and natural or either, from inheriting other than through the single line which will entitle him to the larger share.
PART 2
ELECTIVE SHARE OF SURVIVING SPOUSE
Section 2-201. Right of Elective Share.
(a) If a married person domiciled in this State dies, the surviving spouse has a right of election to take an elective share of one-third of the decedent's estate, as computed under Section 2-202, the share to be satisfied as detailed in Sections 2-206 and 2-207 and, generally, under the limitations and conditions hereinafter stated.
(b) If a married person not domiciled in this State dies, the right, if any, of the surviving spouse to take an elective share in property in this State is governed by the law of the decedent's domicile at death.
(c) "Surviving spouse", as used in this Part, is as defined in Section 2-802.
REPORTER'S COMMENTS
Section 2-201: See Section 2-802 for the definition of "spouse" which controls in this part.
Under the common law, a widow was entitled to dower which was a life estate in a fraction of lands of which her husband was seized of an estate of inheritance at any time during the marriage. The South Carolina Supreme Court in Boan v. Watson, 281 S.C. 516, 316 S.E.2d 401 (1984) declared that dower was unconstitutional as a violation of the equal protection clauses of the South Carolina and United States Constitutions. South Carolina, like other states, substitutes an elective share in the whole estate for dower and the widower's common law right of curtesy.
Section 2-202. Estate. Estate means the estate reduced by funeral and administration expenses and enforceable claims.
REPORTER'S COMMENTS
Section 2-202: This section rejects the "augmented estate" concept promulgated by the drafters of the Uniform Probate Code as unnecessarily complex. The spouse's protection relates to all real and personal assets owned by the decedent at death but does not take into account the use of various will substitutes which permit an owner to transfer ownership at his death without use of a will. Judicial doctrines identifying certain transfers to be "illusory" or to be in "fraud" of the spouse's share have evolved in some jurisdictions to offset the problems caused by will substitutes.
See Sections 1-201(11) and 1-201(33).
Section 2-203. Exercise of Right of Election by Surviving Spouse. The right of election of the surviving spouse may be exercised only during his lifetime by him or by his duly appointed attorney in fact. In the case of a protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending.
REPORTER'S COMMENTS
Section 2-203: See Section 5-101 for definitions of protected person and protective proceedings.
Section 2-204. Waiver of Right to Elect and of Other Rights. The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance and exempt property, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of all rights in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, and exempt property by each spouse in the property of the other and a disclaimer by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
REPORTER'S COMMENTS
Section 2-204: The right to homestead allowance is conferred by Section 15-41-10 of the 1976 Code, and exempt property by Section 2-401. The right to disclaim interests passing by testate or intestate succession is recognized by Section 2-801. The provisions of this section, permitting a spouse or prospective spouse to waive all statutory rights in the other spouse's property, seem desirable in view of the common and commendable desire of parties to second and later marriages to ensure that property derived from prior spouses passes at death to the issue of the prior spouses instead of to the newly acquired spouse. The operation of a property settlement as a waiver and disclaimer takes care of the situation which arises when a spouse dies while a divorce suit is pending.
Section 2-205. Proceedings for Elective Share; Time Limit. (a) The surviving spouse may elect to take his elective share in the estate by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires. The elective share petition must be accompanied by a sworn statement setting forth such financial information as may be required to determine the validity and accuracy of petitioner's claim.
(b) The surviving spouse shall give notice of the time and place set for hearing to the personal representative and to distributees and recipients of portions of the estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw or reduce his demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its payment from the assets of the estate or by contribution as set out in Sections 2-206 and 2-207.
(e) The order or judgment of the court for payment or contribution may be enforced as necessary in other courts of this State or other jurisdictions.
Section 2-206. Effect of Election on Benefits by Will or Statute. A surviving spouse is entitled to benefits provided under or outside of decedent's will, homestead allowance, and exempt property, whether or not he elects to take an elective share, but such amounts as pass under the will or by intestacy are to be charged against the elective share pursuant to Section 2-207(a). REPORTER'S COMMENTS
Section 2-206: This election does not result in a loss of benefits under, outside, or against the will (in the absence of renunciation) but (to the extent that such gifts are part of the estate) they are charged against the elective share under Sections 2-201, 2-202, and 2-207(a).
Section 2-207. Charging Spouse With Gifts Received; Liability of Others for Balance of Elective Share. (a) In the proceeding for an elective share, all property of the estate which passes or has passed to the surviving spouse, or which would have passed to the spouse but was renounced, is applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the estate. For purposes of this subsection, the value of the electing spouse's beneficial interest in any property which would qualify for the South Carolina Estate Tax Marital Deduction, pursuant to Section 12-15-60 of the 1976 Code, as effective on January 1, 1986, shall be computed at the full value of any such qualifying property (qualifying for these purposes to be determined without regard to whether an election has been made to treat the property as qualified terminable interest property, pursuant to Section 2056(b)(7)(B)(v) of the Internal Revenue Code of 1954, as amended, through December 31, 1982).
(b) Remaining property of the estate is so applied that liability for the balance of the elective share of the surviving spouse shall be satisfied from the estate with devises abating in accordance with Section 3-902.
REPORTER'S COMMENTS
Section 2-207: Sections 2-401 and 2-402 have the effect of giving a spouse certain exempt property in addition to the amount of elective share.
This section and Section 2-206 protect a decedent's plan as far as it provides values for the surviving spouse. The spouse is not compelled to accept the benefits devised by the decedent, but, if these benefits are rejected, the values involved are charged to the electing spouse as if the devises were accepted. The second sentence of subsection (a) values certain life estates and interests in trusts at full value for purposes of determining the elective share.
PART 3
SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
Section 2-301. Omitted Spouse. (a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless:
(1) it appears from the will that the omission was intentional; or
(2) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 3-902.
(c) The spouse may claim a share as provided by this section by filing in the court and mailing or delivering to the personal representative, if any, a claim for such share within nine months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires.
REPORTER'S COMMENTS
Section 2-301: Section 2-301 sets aside an intestate share for any surviving spouse who is married to a testator after the execution of a will which omits provision for the spouse, unless the omission was intentional or the spouse was otherwise provided for outside of and intentionally in lieu of a will's provisions. Compare the set aside for omitted afterborn children under Section 2-302. The testator's intentions may be shown on the face of the will or by his statements concerning or from the amount of or from other evidence concerning the nontestamentary transfer.
Section 2-301 does not totally revoke the will; rather, Section 2-301 merely abates the will's devises to the extent necessary to satisfy the spouse's intestate share. Compare Section 2-507, effecting a partial revocation of a will's provisions to the extent that they benefit a spouse divorced from testator after execution of the will, and otherwise providing that no change of circumstances, e.g., marriage, revokes a will by operation of law.
The spouse's protection accorded by Section 2-301 presumably may be waived. See Section 2-801.
Section 2-302. Pretermitted Children. (a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
(1) it appears from the will that the omission was intentional; or
(2) when the will was executed the testator had one or more children and devised fifty percent of all his estate to the other parent of the omitted child; or
(3) the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(b) If, at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes that child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 3-902.
(d) The child, and his guardian or conservator acting for him, may claim a share as provided by this section by filing in the court and mailing or delivering to the personal representative, if any, a claim for such share within nine months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires.
REPORTER'S COMMENTS
Section 2-302: Section 2-302 sets aside an intestate share for any surviving child who either was unprovided for because he was thought to be dead at the execution of a will or is born to or adopted by a testator after the execution of a will which omits provision for the child; but, in the case of the afterborn child, he does not take a set aside if the omission was intentional, if the child was otherwise provided for outside of and intentionally in lieu of a will's provisions, or if provision for other children then living was omitted in favor of the other parent of the omitted child. Compare the set aside for omitted spouses under Section 2-301. The testator's intentions may be shown on the face of the will or by his statements concerning or from the amount of or from other evidence concerning the nontestamentary transfer.
PART 4
EXEMPT PROPERTY
Section 2-401. Exempt Property. The surviving spouse of a decedent who was domiciled in this State is entitled from the estate to a value not exceeding five thousand dollars in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than five thousand dollars, or if there is not five thousand dollars worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the five thousand dollar value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate except claims described in Section 3-805(a)(1). These rights are in addition to any right of homestead and personal property exemption otherwise granted by law but are chargeable against and not in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, or by intestate succession.
REPORTER'S COMMENTS
Section 2-401: Section 2-401 sets aside an unencumbered five thousand dollars worth of exempt personal property to a domiciliary decedent's surviving spouse or minor or dependent children. Pursuant to Section 2-104, claimants must survive the decedent by one hundred twenty hours in order to qualify under Section 2-401.
Section 2-401 sets aside the indicated amount free of the claims of both the unsecured creditors of the decedent's estate (a creditors' claim exemption) and the decedent's will's named beneficiaries, i.e., notwithstanding any provisions in the will to the contrary (a mandatory set aside).
While the mandatory set aside is chargeable against and not in addition to any provisions in the will or in intestacy in favor of the spouse or children, unless otherwise provided in the will, Section 2-401 provides that the mandatory set aside and creditors' claim exemption is to be in addition to and not chargeable against any right of homestead allowance, i.e., real property exemption, and personal property exemption, available to the decedent's survivors pursuant to Sections 15-41-10, 15-41-200, 15-41-310 of the 1976 Code, and otherwise.
Following the 1981 amendment of Article 3, Section 28, of the South Carolina Constitution, allowing the General Assembly to enact real and personal property exemption laws without restriction as to amounts or types of property eligible for exemption, the 1981 South Carolina Exemption Reform Act added Section 15-41-200 to the 1976 Code, with the proviso, in Section 4 of the Exemption Reform Act, that the provisions of Section 15-41-200 must prevail over any conflicting provisions of the existing law, i.e., over Sections 15-41-10, 15-41-100, 15-41-310, et al of the 1976 Code.
The purpose of adding Section 15-41-200 was merely "to prescribe the property of persons domiciled in the state which is exempt from court process". See the Preamble to the Exemption Reform Act. The focus of the reform of the law was on the nature of and the amount of the property exempt to the debtor during his own life. The provisions of Section 15-41-200 do not speak directly to the two matters central to Section 2-401: the debtor's survivors' right to an exemption from the claims of his creditors with respect to property of the debtor which passes to them at his death and their right to have any such property set aside to them even against provisions to the contrary in his will. Section 15-41-200 of the 1976 Code embodies no mandatory set aside rule favoring the decedent's surviving spouse and children. Section 2-401 alone has significance on that matter.
The enactment of Section 15-41-200 of the 1976 Code saw a substantial increase in the amount of property exempt from the claims of creditors from one thousand dollars of realty and either five hundred or three hundred dollars of personalty under Sections 15-41-10 and 15-41-310 of the 1976 Code to five thousand dollars of residential property or one thousand dollars in cash, Sections 15-41-200(1) and (5) of the 1976 Code, four thousand nine hundred fifty dollars of tangible personal property, items (2), (3), (4), and (6) of Section 15-41-200 of the 1976 Code, four thousand dollar loan value of certain life insurance contracts, Section 15-41-200(8) of the 1976 Code, plus unspecified dollar amounts of other life insurance contracts, health aids, social security benefits and their like, and bodily injury and death benefits and their like, items (7), (9), (10), and (11) of Section 15-41-200 of the 1976 Code.
There is some question whether any of the creditors' claims exemptions in Section 15-41-200 of the 1976 Code are available to survivors of the decedent-debtor. Nothing in' Section 15-41-200 of the 1976 Code suggests that the exemptions are available after the death of the debtor, except, perhaps, the references in items (1), (3), (4), (6), and (9) of Section 15-41-200 of the 1976 Code to items of property used by "dependent(s) of the debtor". However, without more, it seems strained to read the statute as continuing the exemptions beyond the debtor's death in favor of his dependents. Perhaps, however, Section 15-41-100 continues to be viable and should now be read in conjunction with Section 15-41-200, i.e., to extend the latter's exemptions to the decedent's surviving widow and children. If that is the case, then Section 2-401 would work in conjunction with Sections 15-41-10, 15-41-200, and 15-41-310 to exempt from creditors' claims an amount of property of a decedent significantly in excess of the five thousand dollar amount stated in Section 2-401.
Section 2-402. Source, Determination, and Documentation. (a) If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as exempt property. The personal representative may make these selections if the surviving spouse, the children, or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as exempt property. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief.
(b) The surviving spouse or the minor or dependent child, and the minor's guardian or conservator acting for him, as the case may be, may claim a share of exempt property as provided in this part by filing in the court and mailing or delivering to the personal representative, if any, a claim for such share within nine months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires.
REPORTER'S COMMENTS
Section 2-402: Section 2-402 governs the administration of the exempt property provisions of Section 2-401. See also comments to Sections 3-902, 3-906, and 3-907.
Section 2-403. Federal Veteran Payments shall be Exempt from Creditors' Claims. All moneys paid by the United States of America to the executors, administrators, or heirs-at-law of any deceased veteran of the Spanish-American War, World War I, or World War II whose estate is administered in this State for insurance, compensation, or pensions is hereby declared to be exempt from the claims of any and all creditors of such deceased veteran.
PART 5
WILLS
Section 2-501. Who May Make a Will. Any person married or eighteen or more years of age who is of sound mind may make a will.
REPORTER'S COMMENTS
Section 2-501: Section 2-501, read with Section 2-101, allows any person of sound mind who is married or at least eighteen years old to make a will of his or her "estate". The "estate" which may be so devised is defined in item 11 of Section 1-201 as "property", in turn defined in item 33 of Section 1-201 as both real and personal and "anything that may be the subject of ownership". No distinction on the question of capacity to make a will is drawn by Section 2-501 between men and women or between citizens and aliens.
Undoubtedly, Section 2-501, even when read with the very broad definitions contained in Sections 2-101, item 11 of 1-201, and item 33 of 1-201, supra, is not meant to reverse the South Carolina law with respect to tenants in fee simple conditional, Jones v. Postell, 16 S.C.L. 92 (Harp. L.) (1824), and tenants in joint tenancies with express provisions for right of survivorship, Davis v. Davis, 223 S.C. 182, 75 S.E.2d 46 (1953), in both cases the law disabling such tenants from passing their estates by will. The spirit, if not the letter, of this Code's provisions is opposed to the grant of any such novel right to devise.
Tenants in joint tenancies lacking express survivorship provisions long have been able to devise their estates, and in the absence of a will such estates would have passed in intestacy. See Section 2-804.
The elaborate body of case law developed in the application of former Sections 21-7-10, et seq., will continue to supply guidance in the application of Section 2-501. That case law concerns the matters of sufficient testamentary intent, Madden v. Madden, 237 S.C. 629, 118 S.E.2d 443 (1961), C.& S. Nat. Bank of S. C. v Roach, 239 S.C. 291, 122 S.E.2d 644 (1961); including conditional wills, C. Karesh, Wills 42, 46-48 (1977); and sufficient mental capacity, Lee's Heirs v. Lee's Executor, 15 S.C.L. 183 (4 McC. L.) (1827), Hellams v. Ross 268 S.C. 284, 233 S.E.2d 98 (1977), C. Karesh Wills 22-24 (1977), C. Karesh, Course Notes: Wills 17-20-a; as well as the effect of undue influence, Farr v. Thompson, 25 S.C.L. 37 (Cheves L.) (1839); Thompson v. Farr, 28 S.C.L. 93 (1 Sp. L.) (1842); O'Neall v. Farr, 30 S.C.L. 80 (1 Rich. L.) (1844), Mock v. Dowling, 266 S.C. 274, 222 S.E.2d 773 (1976), Calhoun v. Calhoun, 277 S.C. 527, 290 S.E.2d 415 (1982), C. Karesh, Wills 24-25 (1977); and the burdens of proof applicable and the presumptions of fact available with respect to mental capacity and undue influence, Havird v. Schissell, 252 S.C. 404, 166 S.E.2d 801 (1969), C. Karesh, Wills 23-25 (1977). The developed South Carolina case law also covers the matters of mistake in the execution of wills, Ex Parte King, 132 S.C. 63, 128 S.E. 850 (1925), C. Karesh, Wills 26-28 (1977); and fraud as it affects the making of wills, C. Karesh, Wills 28-29 (1977).
Section 2-502. Execution. Except as provided for writings within Section 2-512 and wills within Section 2-505, every will executed after June 27, 1984, shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.
REPORTER'S COMMENTS
Section 2-502: Section 2-502 specifies the usual requirements for the valid formal execution of every will: a writing signed by the testator, or for him by another, and also signed by two witnesses, witnessing either the testator's signing or his acknowledgment of either his signature or the will. All of these formalities were required by prior South Carolina law, formerly Sections 21-7-20 and 21-7-50 of the 1976 code, which, however, further required that three witnesses sign and that they do so in the presence of the testator and of each other. The required number of witnesses is reduced from three to two with respect to all wills executed after June 27, 1984, the effective date of South Carolina's first statute recognizing the device of the self-proving will affidavit, formerly Section 21-7-615 of the 1976 code, embodied in Section 2-503 of this Code. That statute might have been read by some testators to allow for the valid execution and attestation of a will by only two witnesses. As the policy of this Code is to require just two witnesses at testation, it appears advisable to bring within the Code's protection any testators whose wills were attested by but two witnesses between June 28, 1984, and the effective date of this Code. Section 2-502 requires neither subscription of the testator's signature, i.e., that it appear at the end of the will, nor publication of the will, i.e., the testator's announcement to the witnesses that the document is his will, nor a specific request by the testator that the witnesses attest and sign. Each of these practices is, however, customary and unobjectionable.
This Code does not recognize the holographic method of execution of a will, i.e., dispensing with the witnesses but requiring that the whole will be cast in the testator's handwriting and that it be signed by him. Such a will is not valid in South Carolina, unless specifically by valid out-state execution or out-state probate, which special rules are to be found at Sections 2-505, 3-303(c) and (d), and 3-408 of this Code. Further, this Code recognizes neither soldiers' and mariners' wills of personalty nor nuncupative wills of personalty, i.e., oral wills . The effect of Section 2-502 is that every will must be in an integrated writing, signed and witnessed as described, except only as provided in Sections 2-505 (written wills duly executed elsewhere) and 2-512 (writings disposing of tangible personal property).
Section 2-503. Attestation and Self-Proving.
(a) Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:
'I,____________ , the testator, sign my name to this instrument this ______ day of _________, 19____ , and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
________________
Testator
We,____________ and ______________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.
__________________
Witness
__________________
Witness
The State of _________________
County of ____________________
Subscribed, sworn to, and acknowledged before me by ________ , the testator, and subscribed and sworn to before me by ________, and ________, witnesses, this ________day of __________.
(Seal)
(Signed)
____________________
____________________
(Official capacity of officer)'
(b) An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached, or annexed to the will in substantially the following form:
'The State of _____________
County of _________________
We, ____________ and _____________ the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and to the best of his knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence.
___________________
Testator
___________________
Witness
___________________
Witness
Subscribed, sworn to, and acknowledged before me by _____________, the testator, and subscribed and sworn to before me by ___________, and ___________ , witnesses, this ____day of ____________.
(Seal)
(Signed)
_____________________
_____________________
(Official capacity of officer)'
REPORTER'S COMMENTS
Section 2-503: Section 2-503 provides for an expediting feature for the proof of wills. The self-proved will is a will into which an affidavit has been incorporated, signed by the testator, the witnesses and a notary, declaring the due execution of the will, the testamentary capacity of the testator and the absence of undue influence worked upon the testator. Probate of a self-proved will is freed of the requirement of producing the available testimony of such witnesses to the due execution of the will, as otherwise required by Sections 3-405 and 3-406 of this Code as to formal testacy proceedings.
The testator's affidavit may be drafted into the testimonium clause of the will so that his one signature suffices for both the execution of the will and the execution of his affidavit. Similarly, the witnesses' affidavit may be drafted into their attestation clause, requiring each of them to sign only once. Section 2-503 (a). Alternatively, under Section 2-503(b), a will may be drafted with traditional testimonium and attestation clauses, requiring the signatures of the testator and the witnesses, respectively, with the affidavits of the testator and of the witnesses drafted as one, but separated from the testimonium and attestation clauses, and thus requiring each of such persons to sign a second time. The Section 2-503(b) form may be attached to a will executed simultaneously with the affidavit or, more to the point, a will executed at any time prior to the execution of the affidavit even one executed prior to the enactment of this statute. Section 2-503 makes a will self-proved if affidavits in "substantially" the form of those set forth in the section are executed. Therefore, neither merely formal variations, nor the subscription of the will and of the affidavit by more than two witnesses, nor the failure of one or more of the witnesses to sign the affidavit should frustrate the self-proof of the will by way of the affidavit, that is, at least not insofar as the proof of the will depends upon the testimony of the witnesses who do sign the affidavit.
Section 2-504. Subscribing Witnesses shall not be Incompetent Because of Interest; Effect on Gifts to Them. No subscribing witness to any will, testament, or codicil shall be held incompetent to attest or prove the same by reason of any devise, legacy, or bequest therein in favor of such witness or the husband or wife of such witness, by reason of any appointment therein of such witness or the husband or wife of such witness to any office, trust, or duty, or by reason of any charge therein of debts to any part of the estate in favor of such witness as creditor. Any such devise, legacy, or bequest shall be valid and effectual, if otherwise so, except so far as the property, estate, or interest so devised or bequeathed shall exceed in value any property, estate, or interest to which such witness or the husband or wife of such witness would be entitled upon the failure to establish such will, testament, or codicil but to the extent of such excess such devise, legacy, or bequest shall be null and void. Any such appointment shall be valid, if otherwise so, and the person so appointed shall, in such case, be entitled by law to take or receive any commissions or other compensation on account thereof.
REPORTER'S COMMENTS
Section 2-504: Under Section 2-504, read together with Section 3-406, concerning the competency of certain persons to act as witnesses to wills, and hence ultimately of the provable validity of the wills so witnessed, the rule is that no person is incompetent to testify in formal testacy proceedings under Section 3-406 of this Code because of his or his spouse's personal interest in the estate of the testator as it passes under the will. Also, on the effect that an interested person's witnessing of the will has on his or his spouse's personal interest under the will, the rule is that any such interest in excess of that amount to which the witness or his spouse would have been entitled without the will is void.
Section 2-504 allows the payment of compensation to a person appointed to any office, trust, or duty under a will witnessed by that person or by his spouse.
Section 2-505. Choice of Law as to Execution.
A written will is valid if executed in compliance with Section 2-502 or if its execution complies with the law at the time of execution of (1) the place where the will is executed, or (2) the place where the testator is domiciled at the time of execution or at the time of death.
REPORTER'S COMMENTS
Section 2-505: Section 2-505 specifies the extraordinary requirements, alternative to the usual requirements of Section 2-502 of this Code, for the valid formal execution of a will: a writing executed in compliance with the law applicable at the time of the will's execution (not that at the time of the testator's date of death), of the place (whether South Carolina or elsewhere):
(1) where the will is executed;
(2) where the testator is domiciled at the time of the will's execution;
(3) where the testator is domiciled at the time of his death.
The policy of Section 2-505, the effectuation of the testator's intention to duly execute his will in accordance with the law as he may understand it at the date of the will's execution, is furthered by the definition of the applicable law for purposes of Section 2-505 as that at the time of execution and as that of any of several different mentioned places.
The wills of all decedents, domiciliary or otherwise, are covered by this section and may benefit thereby.
One further alternative to this Code's provisions for valid in-state execution under Section 2-502 and valid out-state execution under Section 2-505 exists in its provisions for probate in South Carolina of a will already validly probated out-state; see Sections 3-303(c) and (d) and 3-408.
Section 2-506. Revocation by Writing or by Act. A will or any part thereof is revoked:
(1) by a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
REPORTER'S COMMENTS
Section 2-506: Section 2-506 specifies the broad requirements for the valid intentional revocation of a will and of any part of a will: either (1) a subsequent will, defined in Section
1-201(48) of this Code, acting expressly or by implication on the will being revoked, or (2) a physical act affecting the will being revoked. The elaborate body of case law developed in the application of former Section 21-7-210 will continue to supply guidance in the application of Section 2-506. See C. Karesh, Wills 50-54 (1977). That case law stressed the necessity to meet the statute's requirements in order to effect a revocation, Madden v. Madden, 237 S.C. 629, 118 S.E.2d 443 (1961); distinguished intended revocations from the accidental inclusion of express language of revocation in subsequent wills, Owens v. Fahnestock, 110 S.C. 130, 96 S.E. 557 (1918), and the accidental destruction of wills, such accidents involving no revocation in the eyes of the law unless, perhaps, the accident was later confirmed as an intended revocation, Davis v. Davis, 214 S.C. 247, 52 S.E.2d 192 (1949). It distinguished unmistaken, unconditional revocations from cases of dependent relative revocation, i.e., mistaken revocations, not effective as revocations at law, Pringle v. McPherson's Executors, 4 S.C.L. 279 (2 Brev.) (1809), Johnson v. Brailsford, supra, Charleston Library Society v. C. & S. Nat. Bank, 200 S.C. 96, 20 S.E.2d 623 (1942), Stevens v. Royalls, 223 S.C. 510, 77 S.E.2d 198 (1953). It allowed partial revocations by either one of the two broad methods of revocation, Brown v. Brown, 91 S.C. 101, 74 S.E. 135 (1912). It gave effect to revocations by implication from the inconsistency between the provisions of the will being revoked and the subsequent will and also determined whether any such inconsistency existed, Starratt v. Morse, 332 F. Supp. 1038 (D.S.C. 1971) and Werber v. Moses, 117 S.C. 157, 108 S.E. 396 (1921). It governed revocations by physical act, including those accomplished "by another person in his (the testator's) presence and by his direction," Means v. Moore, 16 S.C.L. 314 (Harp. L.) (1824), and those rebuttably presumed to have occurred in cases of mutilated wills, Johnson v. Brailsford, supra, and in cases of missing wills, Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293 (1945).
Section 2-507. Revocation by Divorce, Annulment, and Order Terminating Marital Property Rights; No Revocation by Other Changes of Circumstances. If after executing a will the testator 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 spouses, the divorce or annulment or order revokes any disposition or appointment of property made by the will to the spouse, any provision conferring a general or special power of appointment on the spouse, and any nomination of the spouse as executor, trustee, conservator, or guardian, unless the will 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 decedent, and other provisions conferring some power or office on the spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator'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 2-802. A decree of separate maintenance which does not terminate the status of husband and wife is not c a divorce for purposes of this section. No change of marital or parental circumstances other than as described in this section revokes a will.
REPORTER'S COMMENTS
Section 2-507: Section 2-507 specifies the only circumstances effecting the revocation of a will, or parts thereof, by operation of law after the enactment of this Code: divorce, annulment, and an order terminating marital property rights or confirming equitable distribution between spouses, as defined in Section 2-802(b) and (c) of this Code, excluding decrees of separate maintenance which do not terminate the status of husband and wife. These circumstances work the revocation of only those portions of a will benefiting, empowering, or appointing the former spouse, thus treating the former spouse as having predeceased the testator, and they work thus only if the will fails to expressly provide otherwise and only as long as the testator and the former spouse remain unmarried to each other.
Section 2-508. Revival of Revoked Will.
(a) The revocation by acts under Section 2-506(2) of a will made subsequent to a former will, where the subsequent will would have revoked the former will if the subsequent will had remained effective at the death of the testator, shall not revive or make effective any former will unless it appears by clear, cogent, and convincing evidence that the testator intended to revive or make effective the former will.
(b) The revocation by a third will under Section 2-506(1) of a will made subsequent to a former will, where the subsequent will would have revoked the former will if the subsequent will had remained effective at the death of the testator, shall not revive or make effective any former will except to the extent it appears from the terms of the third will that the testator intended the former will to take effect.
REPORTER'S COMMENTS
Section 2-508: Section 2-508 addresses the question whether the revival of a former and revoked will is intended and will be effected by the revocation of a subsequent and revoking will, either by physical act or by way of the execution of yet a third will revoking the subsequent will; the presumption is one against revival under Section 2-508. The presumption against revival is intended to be stiffened against rebuttal by the requirement of "clear, cogent, and convincing evidence" to rebut it.
Section 2-509. Incorporation by Reference.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
REPORTER'S COMMENTS
Section 2-509: Section 2-509 permits incorporation by reference in a will of a separate writing, in existence at the date of the execution of the will, if both the intent to incorporate and the identification of the writing appear in the language of the will. However, Section 2-509 does not require that the will describe the writing as existent and requires only that the writing be described "sufficiently to permit its identification".
See Section 2-510 for more specific applications of the concept of the incorporation by reference in a will of written matter found outside the will. Compare Section 2-512 which allows a writing not sufficiently incorporated by reference into a will, as under Section 2-509, to affect the will's dispositions.
Section 2-510. Additions to Trusts. (a) A devise or bequest, the validity of which is determinable by the law of this State, may be made by a will to the trustee of a trust established or to be established by the testator or by the testator and some other person or by some other person (including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts) if the trust is identified in the testator's will and its terms are set forth in a written instrument (other than a will) executed before or concurrently with the execution of the testator's will or in the valid last will of a person who has predeceased the testator (regardless of the existence, size, or character of the corpus of the trust). The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or after the death of the testator. Unless the testator's will provides otherwise, the property so devised (1) is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given and (2) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before the death of the testator (regardless of whether made before or after the execution of the testator's will), and, if the testator's will so provides, including any amendments to the trust made after the death of the testator. A revocation or termination of the trust before the death of the testator causes the devise to lapse.
(b) Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus or profit-sharing plan, or under a retirement annuity contract, may be paid to the trustee of a trust established by the insured, employee, or annuitant or by some other person if the trust is in existence at the death of the insured, employee, or annuitant, it is identified and its terms are set forth in a written instrument, and such death benefits shall be administered and disposed of in accordance with the provisions of the instrument setting forth the terms of the trust including any amendments made thereto before the death of the insured, employee, or annuitant and, if the instrument so provides, including any amendments to the trust made after the death of the insured, employee, or annuitant. It shall not be necessary to the validity of any such trust instrument, whether revocable or irrevocable, that it have a trust corpus other than the right of the trustee to receive such death benefits.
(c) Death benefits of any kind, including but not limited to proceeds of life insurance policies and payments under an employees' trust, or contract of insurance purchased by such a trust, forming part of a pension, stock-bonus, or profit-sharing plan, or under a~ retirement annuity contract, may be paid to a trustee named, or to be named, in a will which is admitted to probate as the last will of the insured or the owner of the policy, or the employee covered by such plan or contract, as the case may be, whether or not such will is in existence at the time of such designation. Upon the admission of such will to probate, and the payment thereof to the trustee, such death benefits shall be administered and disposed of in accordance with the provisions of the testamentary trust created by the will as they exist at the time of the death of the testator. Such payments shall be deemed to pass directly to the trustee of the testamentary trust and shall not be deemed to have passed to or be receivable by the executor of the estate of the insured, employee, or annuitant.
(d) In the event no trustee makes proper claim to the proceeds payable, as provided in subsections (b) and (c) of this section, from the insurance company or other obligor within a period of one year after the date of the death of the insured, employee, or annuitant, or if satisfactory evidence is furnished to the insurance company or other obligor within such one-year period that there is or will be no trustee to receive the proceeds, payment must be made by the insurance company or other obligor to the executors or administrators of the person making such designations, unless otherwise provided by agreement.
(e) Death benefits payable as provided in subsections (b) and (c) of this section shall not be subject to the debts of the insured, employee, or annuitant nor to transfer or estate taxes to any greater extent than if such proceeds were payable to the beneficiary of such trust and not to the estate of the insured, employee, or annuitant.
(f) Such death benefits payable as provided in subsections (b) and (c) of this section so held in trust may be commingled with any other assets which may properly come into such trust.
REPORTER'S COMMENTS
Section 2-510: Section 2-510 (a) makes use of parentheses in its first sentence, in order to clarify the intended effect of the statute, i.e., the allowance of pourovers to trusts established either (1) by a written instrument, so long as it is executed no later than the execution of the testator's will, or (2) by the will of someone other than the testator, so long as that person has predeceased the testator's death, and in either case regardless of the existence, size, or character of the corpus of the trust. See Section 2-509 for the more general application of the concept of incorporation by reference.
Section 2-511. Events of Independent Significance. A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.
REPORTER'S COMMENTS
Section 2-511: Under Section 2-511, acts and events extraneous to a will are allowed to affect the will's dispositions if they have some significance apart from their effect upon the will's dispositions. The acts or events, including the execution or revocation of another person's will, might occur either before or after the dates of either the execution of the will or the testator's death and yet be given such effect.
Compare Section 2-512 which allows an act extraneous to a will to affect the will's dispositions albeit the act has no independent significance.
Section 2-512. Separate Writing Identifying Bequest of Tangible Property. A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities, and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will.
REPORTER'S COMMENTS
Section 2-512: Section 2-512 relaxes the normal application of the rules of incorporation by reference, Section 2-509, and of facts of independent significance, Section 2-511, all in favor of the special case of extraneous writings, either in the testator's handwriting or signed by the testator, referred to in the testator's will, and which dispose of certain items of tangible personal property. They are given effect, albeit they are neither required to be in existence at the date when the will is executed nor to have independent significance. They may be altered by the testator at any time.
PART 6
CONSTRUCTION
Section 2-601. Rules of Construction and Intention. The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this part apply unless a contrary intention is indicated by the will.
REPORTER'S COMMENTS
Section 2-601: Section 2-601 states the first principle of the construction of wills, that the testator's intention as expressed in the will controls, a codification of South Carolina case law. See King v. S.C. Tax Comm., 253 S.C. 246, 173 S.E.2d 92 (1970). Only in the absence of expression in the will of the testator's intention do the rules o£ construction of this Part (6) control.
Section 2-602. Construction That Will Passes all Property; After-Acquired Property. A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will .
REPORTER'S COMMENTS
Section 2-602: Section 2-602 establishes the general rule that an ambiguous will is construed to pass all property owned at the testator's date of death, if at all possible to do so. Thus is stated the South Carolina law's presumption against intestacy. See MacDonald v. Fagan, 118 S.C. 510, 111 S.E. 793 (1922). Property specifically described in the will presents no problem; it is property not specifically described which raises the question answered by this section's rule. Provisions referring generally to classes of property of the decedent, without specification of the items of such property, are construed to refer to all items within the scope of their general reference, whether the items were acquired before or after the execution of the will.
However, items of property not within the scope of reference of any general provision contained in the will do not pass under that will; they pass in intestacy, regardless of when they were acquired by the testator. Cornelson v. Vance, 220 S.C. 47, 66 S.E.2d 421, 426 (1951). This section also expresses the particular rule that after-acquired property is to be treated the same as property owned at the execution of the will.
Section 2-603. Anti-lapse; Deceased Devisee; Class Gifts. If a devisee, who is a great-grandparent or a lineal descendant of a great-grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.
REPORTER'S COMMENTS
Section 2-603: The anti-lapse rule of Section 2-603 applies unless the decedent's will provides otherwise, Section 2-601, and unless lifetime gifts to a devisee satisfy his devise under Section 2-610. The rule preserves some devises which otherwise would be void or would lapse because of the failure of the devisees to survive to take the devise. The rule saves only devises to persons who are related to the testator as or through the testator's great-grandparents, whether they are individually named in the devise, or merely described by class terminology, and whether they predecease the will's execution or the testator's date of death or they are merely treated as predeceasing his death, as under the Uniform Simultaneous Death Act, Sections 1-501 et seq., or as under Section 2-801(c) respecting devisees who renounce their succession rights, or as under Section 2-803 respecting devisees who feloniously and intentionally kill their testators. Those of the devisee's issue, defined by Sections 1-201(21), (3), and (28) and 2-109, who survive the testator take the devise in place of the devisee; they take among themselves per capita with per capita representation, as in intestate succession under Section 2-106 (see Reporter's Comments to Sections 2-106 and 2-103(1)). Section 2-603 unifies in one anti-lapse rule the simplified and expanded protection of those related to the testator as or through his great-grandparents and it also clarifies and expands the coverage of the anti-lapse rule, applying it to class gifts as well as to void devises.
Section 2-604. Failure of Testamentary Provision. (a) Except as provided in Section 2-603, if a devise other than a residuary devise fails for any reason it becomes a part of the residue.
(b) Except as provided in Section 2-603 if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
REPORTER'S COMMENTS
Section 2-604: The pro-residuary anti-failure rule of Section 2-604 applies to a failed devise unless the decedent's will provides otherwise, Section 2-601, as by substituting other takers for the failed devise, and unless the anti-lapse rule of Section 2-603 applies to preserve the otherwise failed devise.
The rule preserves from intestacy devises failing for any reason, e.g., because of the indefiniteness of the devise, illegality, a violation of the Rule Against Perpetuities, incapacity of the devisee, or the failure of the devisee to survive to take the devise, including treatment of such devisee as being predeceased, as under the Uniform Simultaneous Death Act, Sections 1-501 et seq., and under Sections 2-801(c) and 2-803. The rule passes the failed devise to such of the residuary devisees whose devises do not fail, if any, who take proportionately in place of the devisee with respect to whom the devise failed. The rule of Section 2-604 applies whether the failed devise is pre-residuary, subsection (a), or residuary, subsection (b).
Section 2-605. Change in Securities; Accessions; Nonademption. (a) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
(1) as much of the devised securities as is a part of the estate at time of the testator's death;
(2) any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options;
(3) securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity;
(4) any additional securities of the entity owned by the testator as a result of a plan of reinvestment if it is a regulated investment company.
(b) Distributions prior to death with respect to a specifically devised security not provided for in subsection (a) are not part of the specific devise.
REPORTER'S COMMENTS
Section 2-605: Section 2-605 establishes the rule that a specific devise, i.e., not merely a devise of equivalent value, of securities, defined at Section 1-201(36), is construed to pass only certain related securities, owned by the testator at his death, and listed in Section 2-605(a), and not to pass any other related securities or distributions of record before the death of the testator not so listed, Section 2-605(b), unless the decedent's will provides otherwise, Section 2-601. For the generally applicable nonademption rule see Section 2-606. See the Revised Uniform Principal and Income Act, Section 7-408(1) concerning distributions of record after the death of testator.
The specific devise carries out with it as much of the securities specifically referred to as remain owned by the testator at his death, Section 2-605(a)(1), codifying South Carolina case law. See Cist v. Craig, 142 S.C. 407, 141 S.E. 26 (1927) and Watson v. Watson, 231 S.C. 247, 95 S.E.2d 266 (1956) (identified specifically devised proceeds not adeemed).
Also carried out with the specific devise are additional securities of both entities other than the entity issuing the specifically devised securities, owned by the testator as a result of merger or the like, Section 2-605(a)(3), and of the entity itself, Section 2-605(a)(2), in either case owned by the testator by reason of actions initiated by the entity, Sections 2-605(a)(2) and (a)(3), and not initiated by testator himself. Additional securities received by the testator in mergers, name changes, stock splits and stock dividends, and the like, more representing change in the form of ownership of the specifically devised securities than change in the substance of that which is owned, and none at the initiative of the testator, are here bulked with and carried out with the specifically devised securities themselves, as is likely to be intended by the normal testator.
Not carried out with the specific devise are additional securities of the entity itself owned by the testator by reason of his exercise of purchase options, i.e., at the initiative of the testator, Section 2-605(a)(2), and thus not to be bulked with the specifically devised securities, the testator himself having failed to do so by the route, open to but not taken by him, of amending his will. This is consistent with South Carolina case law, Rogers v. Rogers, supra, notwithstanding the case of Rasor v. Rasor, 173 S.C. 365, 175 S.E. 545 (1934), a case not of a specific devise but rather of a devise of equivalent value of certain securities.
However, there are carried out with the specifically devised securities of a regulated investment company, i.e., a mutual fund, any additional securities of that entity owned by the testator by reason of his engaging in a plan of reinvestment, Section 2-605(a)(4). These are owned also at the initiative of the testator, but are bulked with the specifically devised securities because the testator himself has practically done so by his assent to the plan of reinvestment.
The rule of Section 2-605(b) that distributions not provided for in Section 2-605(a) are not carried out with the specifically devised securities is, as the residual rule in this Code's scheme, consistent with the general rule of South Carolina case law, Bailey v. Wagner, 21 S.C. Eq. 1, 8, 10 (2 Strob. Eq.) (1848) (proceeds of sale of adeemed specific bequest not carried out); Rogers v. Rogers, 67 S.C. 168, 45 S.E. 176 (1903), Pinson v. Pinson, 150 S.C. 368, 148 S.E. 211 (1928), and Rikard v. Miller, 231 S.C. 98, 107, 97 S.E.2d 257 (1957) (identified proceeds of collection or sale of adeemed specific bequests not carried out); and Stanton v. David, 193 S.C. 108, 7 S.E.2d 852 (1940), and Taylor v. Goddard, 265 S.C. 327, 218 S.E.2d 246 (1975) (nor unidentified proceeds).
Section 2-606. Nonademption of Specific Devises in Certain Cases; Unpaid Proceeds of Sale, Condemnation or Insurance; Sale by Conservator. (a) Where a portion of property specifically devised is no longer owned by the testator at the time of death, a specific devisee has the right to the remaining specifically devised property and:
(1) any balance of the purchase price (together with any mortgage or other security interest) owing from a purchaser to the testator at death by reason of sale of the property;
(2) any amount of a condemnation award for the taking of the property unpaid at death;
(3) any proceeds unpaid at death on fire or casualty insurance on the property;
(4) property owned by testator at his death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
(b) If specifically devised property is sold by a conservator, or if a condemnation award or insurance proceeds are paid to a conservator as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one year. The right of the specific devisee under this subsection is reduced by any right he has under subsection (a).
REPORTER'S COMMENTS
Section 2-606: Section 2-606 establishes the rule that a specific devise of any property, including securities also governed by Section 2-605, is construed to pass, not only as much of the specifically devised property as remains at testator's death, but also the proceeds of sale, subsection (a)(1), and condemnation, subsection (a)(2), of the property, and the proceeds of policies of insurance against fire or casualty to the property, subsection (a)(3), but only if such proceeds are yet unpaid to the testator at the testator's death, Section 2-606(a), or if such proceeds have been paid to a conservator, defined at Section 1-201(6), of the testator during the testator's life, provided less than one year separates the death of the testator and a prior adjudication that his disability had ceased, Section 2-606(b). Further, a specific devise of a secured obligation passes the products of foreclosure, or settlement in lieu of foreclosure, of such security, Section 2-606(a)(4). Section 2-606 applies unless the decedent's will provides otherwise, Section 2-601.
Section 2-607. Nonexoneration. A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
REPORTER'S COMMENTS
Section 2-607: Section 2-607 establishes a rule of construction that specific devises pass not exonerated of but subject to any related security interests, unless the decedent's will provides otherwise, Section 2-601. Realty passing intestate is entitled to exoneration of liens as against the residuary and general personal estate of a testator.
See Section 3-814 empowering the personal representative to pay an encumbrance under some circumstances; the last sentence of that section makes it clear that such payment does not increase the right of the specific devisee. The present section governs the substantive rights of the devisee.
For the rule as to exempt property, see Section 2-401.
Section 2-608. Exercise of Power of Appointment. A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
REPORTER'S COMMENTS
Section 2-608: Section 2-608 follows the common law rule of construction that, unless the decedent's will provides otherwise, Sections 2-601 and 2-608, general dispositive provisions in a will do not pass property subject to the testator's powers of appointment.
Section 2-609. Construction of Generic Terms to Accord with Relationships as Defined for Intestate Succession. Half bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father.
REPORTER'S COMMENTS
Section 2-609: Section 2-609 establishes the meaning of terms of family relationship, as used in wills, as including the meaning which such terms have for purposes of intestate succession by certain persons under Part 1 of Article II, unless the decedent's will provides otherwise, Section 2-601. Hence, references to "children", "issue", or "heirs", and the like, are read to include or exclude half blood and adopted persons and persons born out of wedlock according to the rules of Sections 2-103(3) and 2-107, half bloods, 2-109(1), adopted persons, 2-109(2), persons born out of wedlock, and 2-112, aliens, and 2-113, twice related persons, at least those who are otherwise implicated by mention in Section 2-609.
Half Blood:
Section 2-107 generally treats half bloods just as whole bloods in the event of intestacy; hence, Section 2-609 would generally treat them without discrimination in the construction of wills. But Sections 2-107 and 2-103(3) exclude half blood brothers and sisters and their issue from taking in intestacy in case whole blood brothers and sisters of the intestate decedent survive him. Accordingly, Section 2-609 would exclude half blood brothers and sisters from wills' references to "brothers and sisters" of the testator and would exclude them and their issue from references to "issue of the parents" of the testator, in case whole blood brothers or sisters survive as members of the class described. This results from the discrimination against half blood brothers and sisters built into the intestacy provisions of this Code.
Adopted Persons:
Section 2-109(1) generally treats adopted persons as natural born members of their adoptive families in the event of intestacy, as would Section 2-609 generally treat them in the construction of wills.
Persons Born Out of Wedlock:
Section 2-109(2) treats persons born out of wedlock just as legitimate persons in the event of the intestacy of their mothers, as would Section 2-609 treat them in the construction of wills. Section 2-109 treats persons born out of wedlock just as legitimate persons in the event of the intestacy of their fathers, but only in cases of ceremonial marriage of the person's parents, Section 2-109(2)(i), or in cases of adjudication of the father's paternity, Section 2-109(2)(ii), and so would Section 2-609 treat them in the construction of wills but for its important additional proviso that the person born out of wedlock is treated as the child of the father only if the father himself openly and notoriously so treated him.
Section 2-610. Ademption by Satisfaction.
Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.
REPORTER'S COMMENTS
Section 2-610: Section 2-610 concerns the effect on testate succession of lifetime gifts made by the testator to persons who are also devisees under his will. The section establishes a rule of construction which charges such lifetime gifts, in satisfaction, against the will's devise, but only if either they are declared thus to be in satisfaction, either by the will or by the testator, contemporaneously in writing, or they are thus acknowledged by the devisee, again in writing.
If the devisee predeceases the testator, but issue of the devisee survive as beneficiaries of the anti-lapse provision of this Code, Section 2-603, then Sections 2-610 and 2-603 read together charge the ancestor's lifetime gifts in satisfaction against the devise to the issue, again, however, only if the above-mentioned writing exists.
Section 2-610 values the satisfaction at the earlier of the devisee's actual receipt of the gift or the testator's date of death, resulting in most cases in a valuation at the date of the gift rather than at the date of death.
See Section 2-110 on advancements, for a rule analogous to the rule of satisfaction, but operative in the event of intestacy.
Section 2-611. Construction That Devise Passes Fee Simple. A devise of land is construed to pass an estate in fee simple, regardless of the absence of words of limitation in the devise.
PART 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
Section 2-701. Contracts Concerning Succession. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of this act, can be established only by (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract and extrinsic evidence proving the terms of the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
REPORTER'S COMMENTS
Section 2-701: Section 2-701 allows the proof of a contract binding a decedent and concerning the succession to his estate, testate or intestate, only by way of some signed writing, either (1) his written, signed will containing the material provisions of the contract; (2) his written, signed will containing an express reference to the contract (extrinsic evidence proving its terms); or (3) a writing other than a will but signed by the decedent and containing evidence of the contract (allowing extrinsic evidence to prove its terms). The section's requirement of a signed writing to prove such contracts is meant to apply only prospectively, leaving the prior South Carolina law in effect retrospectively.
Noting that the only concern of Section 2-701 is with the proof of contracts concerning succession, it should be recognized that the prior South Carolina law, concerning the formation of such contracts and the effects of such contracts' formation and the breach thereof, remains intact. See 19 S.C. Digest, Wills Section 56-68; C. Karesh, Course Notes: Wills 81-90a; C. Karesh, Wills 46, 55-59 (1977); W. Brown, Note: Specific Performance of Oral Contracts to Devise, 17 S.C.L. Rev. 540 (1965); and T. Stubbs, Oral Contracts to Make Wills, rx Selden Soc. Y.B. Part III, 10 (1948).
The policies basing Section 2-701 and Sections 2-502 (execution of wills), 2-506 (revocation of wills), and 2-509 (incorporation of other matter by reference in wills) are the same. All of these sections are aimed at protecting the integrity of the process of succession to the estates of decedents in accordance with their own true wills. Each of these sections requires that the decedent's will be expressed either in some writing or by way of a physical act done to some writing; the writings are required in the expectation of increasing the reliability of the proof of the decedent's true will. See K. Walsh, Note: The Statute of Frauds' Lifetime and Testamentary Provisions: Safeguarding Decedents' Estates, 50 Ford. L. Rev. 239 (1981) (hereinafter Walsh).
Section 36-2-201(1) of the 1976 Code requires contracts concerning the "sale of goods for the price of five hundred dollars or more" to be in "some writing . . . and signed by the party against whom enforcement is sought." Sections 36-2-105 and 36-2-106 of the 1976 Code define the "sale of goods." Whether the form of consideration, furnishing the support in contracts theory for interpreting as a contract an agreement between a survivor and a decedent as to the survivor's succession to goods as assets of the decedent's estate, the consideration being typically personal services rendered by the promisee, even if that consideration has a value of five hundred dollars or more, and whether the nature of the agreement itself, are bases upon which it may be fairly concluded that the contract is one for the "sale of goods for the price of $500 or more," and so falls within the application of a statute worded as is Section 36-2-201(1), is a question subject to some doubt in other jurisdictions. See Walsh, supra at 247, Fn. 48 and see M. Schnebly, Contracts to Make Testamentary Dispositions As Affected By the Statute of Frauds, 24 Mich. L. Rev. 749, 754 (1926).
In South Carolina, there is, however, some authority for the application of the statute which was the predecessor of Section 36-2-201(1) to contracts concerning succession to the decedent's goods, Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757 (1900) (concerning the fourth clause of Section 17 of the Statute of Frauds (Rev. Stat. Section 2151), a case of part performance, constructive trust and restitution). Whether this dated authority would serve to answer the question of the applicability of Section 36-2-201(1)is problematic.
Other provisions of the South Carolina Uniform Commercial Code require signed writings for contracts concerning the "sale of securities," Section 36-8-319, and for contracts concerning the "sale of personal property . . . . beyond five thousand dollars (other than those covered by Sections 36-2-201 and 36-8-319)", Section 36-1-206. Whether contracts concerning succession to the described items of property fall within the application of these UCC provisions is also problematic.
However, Section 32-3-10(4) of the 1976 Code does require contracts concerning land to be "in writing and signed by the party to be charged therewith." Accordingly, contracts concerning the succession to land as an asset of a decedent's estate were, Brown v. Golightly, 106 S.C. 519, 91 S.E. 869 (1917), White v. McKnight, 146 S.C. 59, 143 S.E. 552 (1928), and will yet be required to be in writing and signed by the decedent, i.e., "by the party to be charged therewith (only in the sense that to charge the personal representative or other successor or assign of the decedent is to charge the decedent himself)." Similarly, as to contracts concerning succession, either in the nature of a surety contract or made upon consideration of marriage, Section 2-701 require that they be in writing and signed.
In addition, prior South Carolina case law was said to require that contracts concerning succession be proved by "clear, cogent, and convincing evidence." Caulder v. Knox, 251 S.C. 337, 346, 162 S.E.2d 262 (1968), Brown v. Graham, 242 S.C. 491, 131 S.E.2d 421 (1963). While Section 2-701 fails to codify the stated higher standard of proof per se, the provision's requirement of a signed writing is consistent with the spirit of the former higher standard of proof and perpetuates its intended effect.
Further, Section 2-701 provides that no presumption of the existence of a contract concerning succession arises from the mere execution of mutual wills or of a joint will. And while there is South Carolina authority, relying on the reciprocating nature of the terms of a Joint will, together with surrounding family circumstances, for the satisfaction by implication of the clear, cogent, and convincing evidentiary standard as to the existence of a contract not to revoke the joint will, in a case in which the joint will failed to actually express an agreement of nonrevocability, Pruitt v. Moss, 271 S.C. 305, 247 S.E.2d 324 (1978), Section 2-701 seems to preclude the establishment of any such contract of nonrevocability where the material provision thereof, i.e., the promise not to revoke, is not expressed in the joint will and the joint will otherwise fails to expressly refer to the contract.
Extrinsic evidence is freely admissible under Section 2-701 to prove the important terms of a contract whose mere existence is proved by a signed writing. However, as a brake on the provision's liberality with respect to extrinsic evidence, Section 19-11-20 of the 1976 Code, the "Dead man's" statute, will continue to limit the admissibility of that extrinsic evidence which is subject to its application, this notwithstanding the enactment of Section 2-701. See Brown v. Golightly, supra.
Section 2-701 avoids the problems, both that of the possibly uneven application of the stated higher standard of proof of contracts concerning succession and that of the questionable breadth of application of the several pre-existing Statutes of Frauds provisions as to contracts concerning succession, quite simply by establishing a signed writing requirement specifically applicable to all such contracts. Presumably Section 2-701 will be construed as preempting the field, rendering all other such statutory and case law provisions inapplicable to such contracts in the future.
However, it may be questioned whether Section 2-701 should not be subject, in its operation, to the familiar legal and equitable exceptions to the operation of the other Statutes of Frauds provisions. See Section 1-103 and Walsh, supra, at 258-270. These include the remedies of restitution of monies advanced and the imposition of a constructive trust to force the restitution of other specific assets advanced by the promisee on an oral contract, and the effects of part performance of the oral contract by the promisee as well as equitable and promissory estoppel, either matter binding the promissor to the oral contract notwithstanding any applicable Statute of Frauds. See White v. McKnight, supra, Turnipseed v. Sirrine, supra 57 S.C. at 578, Riddle v. George, 181 S.C. 360, 187 S.E. 524 (1936), Bruce v. Moon, 57 S.C. 60, 35 S.E. 415 (1900). See W. Brown, Note: Specific Performance of Oral Contracts to Devise, 17 S.C.L. Rev. 540 (1965).
PART 8
GENERAL PROVISIONS
Section 2-801. Disclaimer. (a) In addition to any methods available under existing law, statutory or otherwise, if a person (or his executor, administrator, successor personal representative, special administrator, guardian, attorney-in-fact, trustee, committee, conservator, or his other fiduciary or agent who performs substantially similar functions under the law governing his status, acting with or without the approval of a specific court order and with or without the receipt of consideration for the act), as a disclaimant, makes a disclaimer as defined in Section 12-17-44 of the 1976 Code, with respect to any transferor's transfer (including transfers by any means whatsoever, lifetime and testamentary, voluntary and by operation of law, initial and successive, by grant, gift, trust, contract, intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, devise, bequest, beneficiary designation, survivorship provision, exercise and nonexercise of a power, and otherwise) to him of any interest in, including any power with respect to, property, or any undivided portion thereof, the interest, or such portion, shall be deemed never to have been transferred to the disclaimant.
(b) The right to disclaim exists notwithstanding any limitation on the disclaimant's interest in the nature of a spendthrift provision or similar restriction.
(c) The right to disclaim is barred by the disclaimant's written waiver of the right.
(d) Unless the transferor has provided otherwise in the event of a disclaimer, the disclaimed interest shall be transferred (or fail to be transferred, as the case may be) as if the disclaimant had predeceased the date of effectiveness of the transfer of the interest; the disclaimer shall relate back to that date of effectiveness for all purposes; and any future interest which is provided to take effect in possession or enjoyment after the termination of the disclaimed interest shall take effect as if the disclaimant had predeceased the date on which he or she as the taker of the disclaimed interest became finally ascertained and the disclaimed interest became indefeasibly vested; provided, that an interest disclaimed by a disclaimant who is the spouse of a decedent, the transferor of the interest, may pass by any further process of transfer to such spouse, notwithstanding the treatment of the transfer of the disclaimed interest as if the disclaimant had predeceased.
(e) The date of effectiveness of the transfer of the disclaimed interest is (1) as to transfers by intestacy, wrongful death, elective share, forced share, homestead allowance, exempt property allowance, devise and bequest, the date of death of the decedent transferor of, or that of the donee of a testamentary power of appointment (whether exercised or not exercised) with respect to, the interest, as the case may be, and (2) as to all other transfers, the date of effectiveness of the instrument, contract, or act of transfer.
(f) It is the intent of the legislature of the State of South Carolina by this provision to clarify the laws of this State with respect to the subject matter hereof in order to ensure the ability of persons to disclaim interests in property without the imposition of federal and state estate, inheritance, gift, and transfer taxes. This provision is to be interpreted and construed in accordance with, and in furtherance of, that intent.
REPORTER'S COMMENTS
Section 2-801: Section 2-801 provides for the state law effectiveness of the disclaimer of transfers by way of succession to the estates of decedents and otherwise. It affects transfers by will as well as transfers through intestate estates.
Section 2-801 also regulates the method by which a disclaimer must be made in order to be effective, its nature, timeliness, formal execution and delivery, and also the effect of a disclaimer on the further disposition of the interest renounced.
The purpose of the enactment of Section 2-801 is to establish the state property law basis for the recognition of the effectiveness of such disclaimers for purposes of the application of the federal and state tax laws.
The antilapse statute, Section 2-603, applies to cases of disclaimers of gifts under wills unless the transferor provides otherwise.
Section 2-802. Effect of Divorce; Annulment; Decree of Separate Maintenance; Order Terminating Marital Property Rights. (a) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he is married to the decedent at the time of death. A decree of separate maintenance which does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of Parts 1, 2, 3, and 4 of Article II and of Section 3-203, a surviving spouse does not include:
(1) a person who obtains or consents to a final decree or Judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this State, unless they subsequently participate in a marriage ceremony purporting to marry each to the other, or subsequently live together as husband and wife;
(2) a person who, following a decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third person; or
(3) a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights or confirming equitable distribution between spouses.
(c) A divorce or annulment is not final until signed by the court and filed in the office of the clerk of court.
REPORTER'S COMMENTS
Section 2-802: Section 2-802 provides, with respect to the capacity of a putative surviving spouse to take by way of succession to the estate of a decedent, whether testate or intestate, for the effects of (1) a divorce, (2) an annulment, (3) a decree of separate maintenance, and (4) an order terminating marital property rights, or confirming equitable distribution between spouses, in cases in which any such event affects the marriage of the decedent to the putative surviving spouse.
Valid Divorce and Annulment.
Under Section 2-802(a), a valid divorce or a valid annulment deprives the putative spouse of the status of surviving spouse of the decedent and the capacity to take as such in succession to the decedent's estate under this Code, i.e., by way of provisions in favor of a "surviving spouse," whether found in the decedent's will, Parts 5 and 6 of Article II, or in the intestacy statute, Section 2-102, or in the provision for an omitted spouse, Section 2-301, or in that for a spouse with respect to exempt property, Section 2-401. However, the issuance of a decree of separate maintenance, not terminating the marital status, has no such effect. It should be apparent that a valid divorce or annulment must always have deprived the former spouse of the status of spouse of the decedent for purposes of succession.
Marital Conditions Other than Divorce or Annulment.
Under Section 2-802(b), any one of the following, an order terminating marital property rights, or confirming equitable distribution between spouses, subsection (3), a divorce or an annulment not recognized as valid in South Carolina if the putative spouse obtained or consented to it, subsection (1), or subsequent to it he or she participated in a marriage ceremony with some third person, subsection (2), deprives the putative spouse of the status of surviving spouse of the decedent; but, under Section 2-802(b) itself, the deprivation is only for the purposes of succession to the decedent's estate in intestacy, as an omitted spouse, as a spouse with respect to exempt property, and as a spouse in line for appointment as an administrator in intestacy, i.e., as under Parts 1, 3, and 4 of Article II and under Section 3-203.
However, under Section 2-507, such an order, a divorce or annulment, whether valid or invalid as under Section 2-802(b) has the additional effect of revoking, by operation of law, so much of the decedent's will as affects the putative spouse. Section 2-507 refers to Section 2-802(b) for the definition of divorce and annulment.
Perhaps other marital conditions, not valid as divorces or annulments and not detailed in Section 2-802(b), will continue by the common law to estop a putative spouse from claiming as a surviving spouse. See Section 1-103. Further, matters of succession not within the coverage of Sections 2-802(b) and 2-507 will continue to be governed by the prior South Carolina law, e.g., recovery under the Wrongful Death Act, Section 15-51-20 of the 1976 Code. See Folk v. U.S., 102 F. Supp. 736 (W.D.S.C. 1952), and see Lytle v. Southern Ry.-Carolina Division, 171, S.C. 221, 171 S.E. 42 (1933) and Lytle v. Southern Ry.-Carolina Division, 152 S;C. 161, 149 S.E. 692 (1929).
Both of Sections 2-802 and 2-507 provide for the exceptional case of the subsequent intermarriage of the decedent to the putative spouse, the sections being rendered inapplicable to such a case.
Section 2-803. Effect of Homicide on Intestate Succession, Wills, Joint Assets, Life Insurance, and Beneficiary Designations. (a) A surviving spouse, heir, or devisee who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under this article, and the estate of decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
(b) Any joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions, and other institutions, and any other form of co-ownership with survivorship incidents.
(c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section. A beneficiary whose interest is increased as a result of feloniously and intentionally killing shall be treated in accordance with the principles of this section.
(e) A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this section.
(f) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer, for value and without notice, property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.
REPORTER'S COMMENTS
Section 2-803: Section 2-803, subsections (a) through (d), governs the effects of the proof of a putative successor's felonious and intentional killing of a decedent upon whose death some matter of succession depends. Under this Code, such a killer is disabled from taking the succession and the succession proceeds as if the killer had predeceased the decedent. Under Section 2-803(e), a final judgment of conviction of felonious and intentional killing conclusively invokes the operation of Section 2-803, but the lack of a conviction is no bar to invocation of the provision where the killing is proved by the preponderance of the evidence.
At common law, according to the maxim that "no one shall be permitted to profit by his own ... wrong," Smith v. Todd, 155 S.C. 323, 152 S.E. 506 (1930), those, who were by the preponderance of the evidence, Smith v. Todd, supra, proven to have feloniously, Smith v. Todd, supra; and Keels v. Atlantic Coast Line R.Co., 159 S.C. 520, 157 S.E. 834 (1931), and intentionally, i.e., maliciously and not merely recklessly or involuntarily, Leggette v. Smith, 226 S.C. 403, 85 S.E.2d 576 (1955), but see Fowler v. Fowler, 242 S.C. 252, 254, 130 S.E.2d 568 (1963), killed another, were disabled from taking in succession to their victim, whether by their being named as the beneficiary of a policy of life insurance on their victim, Smith v. Todd, supra, or of employment death benefits with respect to their victim, Keels, supra, or by their taking in intestacy from their victim, or otherwise, Leggette v. Smith, supra. The maxim applied and the civilly proven killer was disabled from taking notwithstanding that on the criminal side he had been convicted of involuntary manslaughter, Keels, supra, or had been acquitted of crime, Leggette v. Smith, supra.
Former Section 21-1-50 of the 1976 Code was enacted, importantly, in supplementation of the common law maxim disabling a killer from taking in succession to his victim, and was enacted merely in order to establish a conclusive presumption of the disablement of the killer in the single specified case of his criminal court conviction of an unlawful killing Sections 16-3-10 and 16-3-50 of the 1976 Code and Rasor v. Rasor, 173 S.C. 365, 175 S.E. 545 (1934), presumably because of the higher standard of proof bound to have been imposed in that proceeding; not including coroner's convictions, Smith v. Todd, supra, nor including, of course, complete acquittals, Leggette v. Smith, supra, nor involuntary manslaughter convictions, Keels, supra, Sections 16-3-50 and 16-3-60 of the 1976 Code, but, perhaps, including other reckless homicide convictions, Section 56-5-2910 of the 1976 Code, unlawful albeit unintended, i.e., nonmalicious and involuntary. See Fowler v. Fowler, supra, at 254 and C. Karesh, Survey of South Carolina Law, 8 S.C.L.Q. 150 (1955) and E. McCrackin, Inheritance - Unintentional Killing, 7 S.C.L.Q. 475 (1955).
The thrust of Section 2-803 is meant to encompass not only the intended unlawful killing cases covered by former Section 21-1-50 of the 1976 Code, but also the cases left to the common law maxim. See Section 2-803(d). Perhaps the common law maxim retains some validity, as under Section 1-103, with respect to cases of killings or of succession, not covered by Section 2-803, if any. For instance, perhaps the common law maxim will yet apply to deprive unintended but reckless homicides of the benefits of the Wrongful Death Act, Sections 15-51-10, 15-51-20 of the 1976 Code et seq. See Fowler v. Fowler, supra at 254 but compare Leggette v. Smith, supra.
Under Section 2-803, subsections (a) through (d), the effect of the proving of the killing is not only to disable the killer from taking in succession but also to redirect the succession so that the matter proceeds as if the killer had predeceased the decedent.
Section 2-803(f) provides for the protection, from the claims of the takers on the redirected succession, of obligors who pay benefits to a killer without notice of such claims and also for the protection, from such claims, of purchasers from a killer, for value and without notice, who purchase before the adjudication of such claims.
In protecting the killer's subsequent purchasers, for value and without notice, Section 2-803(f), having first established the theoretical base that the killer is deprived by his crime of all legal title in the property which the killer would have acquired except for this section, the interest then, however, accords to the killer's subsequent purchasers, for value and without notice, in whom presumably later mere equitable title arises, the kind of protection against the claims of the earlier legal title claimants, i.e., those who take the redirected succession under Section 2-803. Thus, Section 2-803(f) carves out a further statutory exception to the common law rule of priority.
Section 2-804. Effect of Provision for Survivorship on Succession to Joint Tenancy in Real Property. When any person shall be seized or possessed of any estate of joint tenancy, at the time of his death, such joint tenancy shall be deemed to have been severed by the death of the joint tenant and such estate shall be distributable as a tenancy in common unless the instrument which created the joint tenancy expressly provides for a right of survivorship, in which case the severance shall not occur.
REPORTER'S COMMENTS
Section 2-804: Section 2-804 is incorporated into Article II in order to integrate particularly with Sections 2-101 and 2-501 the South Carolina law on the effects of the establishment of a joint tenancy in real property, with and without express provision for right of survivorship, on the succession to a decedent joint tenant's interest in such real property by, respectively, the surviving joint tenants or the decedent's testate or intestate successors. The case law developed in South Carolina in the application of former Section 21-3-50 of the 1976 Code and its predecessor statutes, recodified as Section 2-804, continues to apply.
PART 9
DELIVERY AND SUPPRESSION OF WILLS
Section 2-901. Delivery of Will to Judge of Probate; Filing. Every executor, devisee, legatee, trustee, guardian, attorney, or other person having in his possession, custody, or control any last will and testament, including any codicil or codicils thereto, of any person dying shall within thirty days after notice or knowledge of the death of the testator deliver such last will or testament, including any codicil or codicils thereto, to the judge of the probate court having jurisdiction to admit the same to probate and such judge of probate shall file the same in his court and if proceedings for the probate are not begun within thirty days he shall publish a notice of such delivery and filing in one of the newspapers in his county for fifteen days. Any executor, devisee, legatee, guardian, attorney, or other person who shall fail to deliver any last will and testament, including any codicil or codicils, thereto upon conviction, shall be punished as for a misdemeanor. Any person who shall intentionally or fraudulently destroy, suppress, conceal, or fail to file with the judge of the probate court having jurisdiction to admit it to probate any last will and testament, including any codicil or codicils thereto, for the purpose and with the intent to prevent the institution of proceedings for its probate shall, upon conviction thereof, be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year, or both, in the discretion of the court.
ARTICLE III
PROBATE OF WILLS AND ADMINISTRATION
TABLE OF CONTENTS
PART 1 GENERAL PROVISIONS
Section
3-101. [Devolution of Estate at Death; Restrictions.]
3-102. [Necessity of Order of Probate for Will.]
3-103. [Necessity of Appointment for Administration.]
3-104. [Claims Against Decedent; Necessity of Administration.]
3-105. [Proceedings Affecting Devolution and Administration, Jurisdiction of Subject Matter.]
3-106. [Proceedings Within the Jurisdiction of Court; Service; Jurisdiction Over Persons.l 3-107. [Scope of Proceedings; Proceedings Independent; Exception.]
3-108. [Probate, Testacy, and Appointment Proceedings; Ultimate Time Limit.]
3-109. [Statutes of Limitation on Decedent's Cause of Action.]
PART 2
VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
3-201. [Venue for First and Subsequent Estate Proceedings; Location of Property.]
3-202. [Appointment or Testacy Proceedings; Conflicting Claim of Domicile in Another State.]
3-203. [Priority Among Persons Seeking Appointment as Personal Representative.]
3-204. [Demand for Notice of Order or Filing Concerning Decedent's Estate.]
PART 3
INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS
3-301. [Informal Probate or Appointment Proceedings; Application; Contents.]
3-302. [Informal Probate; Duty of Court; Effect of Informal Probate.]
3-303. [Informal Probate; Proof and Findings Required.]
3-304. [Informal Probate; Unavailable in Certain Cases.]
3-305. [Informal Probate; Court not Satisfied.]
3-306. [Informal Probate; Notice Requirements.]
3 307. [Informal Appointment Proceedings; Delay in Order; Duty of Court; Effect of Appointment.]
3-308. [Informal Appointment Proceedings; Proof and Findings Required.]
3 309. [Informal Appointment Proceedings; Court not Satisfied.]
3-310. [Informal Appointment Proceedings; Notice Requirements.]
3-311. [Informal Appointment Unavailable in Certain Cases.]
PART 4
FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
3-401. [Formal Testacy Proceedings; Nature; When Commenced.]
3-402. [Formal Testacy or Appointment Proceedings; Petition; Contents.]
3-403. [Formal Testacy Proceedings; Notice of Hearing on Petition.]
3-404. [Formal Testacy Proceedings; Written Objections to Probate.]
3-405. [Formal Testacy Proceedings; Uncontested Cases; Hearings and Proof.]
3-406. [Formal Testacy Proceedings; Contested Cases; Testimony of Attesting Witnesses.]
3-407. [Formal Testacy Proceedings; Burdens in Contested Cases.]
3-408. [Formal Testacy Proceedings; Effect of Final Order in Another Jurisdiction.]
3-409. [Formal Testacy Proceedings; Order; Foreign Will.]
3-410. [Formal Testacy Proceedings; Probate of More than One Instrument.]
3-411. [Formal Testacy Proceedings; Partial Intestacy.]
3-412. [Formal Testacy Proceedings; Effect of Order; Vacation.]
3-413. [Formal Testacy Proceedings; Vacation of Order for Other Cause.]
3-414. [Formal Proceedings Concerning Appointment of Personal Representative.]
PART 5
ADMINISTRATION UNDER PART 5
3-501. [Administration Under Part 5; Nature of Proceeding.]
3-502. [Administration Under Part 5; Petition; Order.]
3-503. [Administration Under Part 5; Effect on Other Proceedings.]
3-504. [Administration Under Part 5; Powers of Personal Representative.]
3-505. [Administration Under Part 5; Interim Orders; Distribution and Closing Orders.]
PART 6
PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
3-601. [Qualification.]
3-602. [Acceptance of Appointment; Consent to Jurisdiction.]
3-603. [Bond Not Required Without Court Order; Exceptions.]
3-604. [Bond Amount; Security; Procedure; Reduction.]
3-605. [Demand for Bond by Interested Person.]
3-606. [Terms and Conditions of Bonds.]
3-607. [Order Restraining Personal Representative.]
3-608. [Termination of Appointment; General.]
3-609. [Termination of Appointment; Death or Disability.]
3-610. [Termination of Appointment Voluntary.]
3-611. [Termination of Appointment by Removal; Cause; Procedure.]
3-612. [Termination of Appointment; Change of Testacy Status.]
3-613. [Successor Personal Representative.]
3-614. [Special Administrator; Appointment.]
3-615. [Special Administration; Who may be Appointed.]
3-616. [Special Administrator; Appointed Informally; Powers and Duties.]
3-617. [Special Administrator; Formal Proceedings; Powers and Duties.]
3-618. [Termination of Appointment; Special Administrator.]
3-619. [Executor de son tort Defined.]
3-620. [Executor de son tort Shall Account for Deceased's Property; Decree of Damages.]
3-621. [Liability.]
PART 7
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
3-701. [Time of Accrual of Duties and Powers.]
3-702. [Priority Among Different Letters.]
3-703. [General Duties; Relation and Liability to Persons Interested in Estate; Standing to Sue.]
3-704. [Personal Representative to Proceed with Court Sanction.]
3-705. [Duty of Personal Representative; Information to Heirs and Devisees.]
3-706. [Duty of Personal Representative; Inventory and Appraisement.]
3-707. [Employment of Appraisers.]
3-708. [Duty of Personal Representative; Supplementary Inventory.]
3-709. [Duty of Personal Representative; Possession of Estate.J 3-710. [Power to Avoid Transfers.]
3-711. [Powers of Personal Representatives; In General.]
3-712. [Improper Exercise of Power; Breach of Fiduciary Duty.]
3-713. [Sale, Encumbrance, or Transaction Involving Conflict of Interest; Voidable; Exceptions.]
3-714. [Persons Dealing with Personal Representative; Protection.]
3-715. [Transactions Authorized for Personal Representatives; Exceptions.]
3-716. [Powers and Duties of Successor Personal Representative.]
3-717. [Co-representatives; When Joint Action Required.]
3-718. [Powers of Surviving Personal Representative.]
3-719. [Compensation of Personal Representative.]
3-720. [Expenses in Estate Litigation.]
3-721. [Proceedings for Review of Employment of Agents and Compensation of Personal Representatives and Employees of Estate.]
PART 8
CREDITOR'S CLAIMS
3-801. [Notice to Creditors.]
3-802. [Statutes of Limitations.]
3-803. [Limitations on Presentation of Claims.]
3-804. [Manner of Presentation of Claims.]
3-805. [Classification of Claims.]
3-806. [Allowance of Claims.]
3-807. [Payment of Claims.]
3-808. [Individual Liability of Personal Representative.]
3-809. [Secured Claims.]
3-810. [Claims Not Due and Contingent or Unliquidated Claims.]
3-811. [Counterclaims.]
3-812. [Execution and Levies Prohibited.l 3-813. [Compromise of Claims.]
3-814. [Encumbered Assets.]
3-815. [Administration in More Than One State; Duty of Personal Representative.]
3-816. [Final Distribution to Domiciliary Representative.]
PART 9
SPECIAL PROVISIONS RELATING TO DISTRIBUTION
3-901. [Successors' Rights if no Administration.l
3-902. [Distribution; Order in Which Assets Appropriated; Abatement.]
3-903. [Right of Retainer.]
3-904. [Interest on General Pecuniary Devise.]
3-905. [Penalty Clause for Contest.]
3-906. [Distribution in Kind; Valuation; Method.]
3-907. [Distribution in Kind; Evidence.]
3-908. [Distribution; Right or Title of Distributee.]
3-909. [Improper Distribution; Liability of Distributee.]
3-910. [Purchasers from Distributees Protected.]
3-911. [Partition for Purpose of Distribution.]
3-912. [Private Agreements Among Successors to Decedent Binding on Personal Representative.]
3-913. [Distribution to Trustee.]
3-914. [Disposition of Unclaimed Assets.]
3-915. [Distribution to Person Under Disability.]
3-916. [Apportionment of Estate Taxes.
PART 10
CLOSING ESTATES
3-1001. [Formal Proceedings Terminating Administration; Testate or Intestate; Order of General Protection.]
3-1002. [Formal Proceedings Terminating Testate Administration; Order Construing Will Without Adjudicating Testacy.]
3-1003. [Formal Proceedings Accounting for Administration; Testate or Intestate; Order of Protection.]
3-1004. [Liability of Distributees to Claimants.]
3-1005. [Reserved.]
3-1006. [Limitations on Actions and Proceedings Against Distributees.]
3-1007. [Certificate Discharging Liens Securing Fiduciary Performance.]
3-1008. [Subsequent Administration.]
PART 11
COMPROMISE OF CONTROVERSIES
3-1101. [Effect Or Approval of Agreements Involving Trusts, Inalienable Interests, or Interests of Third Persons.]
3-1102. [Procedure for Securing Court Approval of Compromise.]
PART 12
COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
3-1201. [Collection of Personal Property by Affidavit.]
3-1202. [Effect of Affidavit.]
3-1203. [Small Estates; Summary Administrative Procedure.]
3-1204. [Small Estates; Closing by Sworn Statement of Personal Representative.]
PART 13
SALE OF REAL ESTATE BY PROBATE COURT TO PAY DEBTS
3-1301. [Only Procedure for Sale of Lands by Probate Court.]
3-1302. [Sale of Real Estate to Pay Deceased's Debts When Personal Estate is Insufficient.]
3-1303. [Issuance of Summons Upon Application for Sale.]
3-1304. [Forms of Summons.]
3-1305. [Service of Summons and Petition.
3-1306. [Execution of Process Shall be by Sheriff; Fees.]
3-1307. [Publication as to Nonresidents and Parties With Unknown Residences.]
3-1308. [Filing Notice of Pendency of Action.]
3-1309. [Time for Return; Sale of Real Estate After Hearing and Notice.]
3-1310. [Bond for Handling of Proceeds by Personal Representative.]
3-1311. [Filing of Papers; Requirement of Returns.]
3-1312. [Entry of Releases of Liens on Property Sold.]
PART 1
GENERAL PROVISIONS
Section 3-101. Devolution of Estate at Death; Restrictions. The power of a person to leave property by will, and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this Code to facilitate the prompt settlement of estates, including the exercise of the powers of the personal representative. Upon the death of a person, his real property devolves to the persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estates or, in the absence of testamentary disposition, to his heirs or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting the devolution of intestate estates, subject to exempt property, to rights of creditors, and to administration, and his personal property devolves, first, to his personal representative, for the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purposes of administration, particularly the exercise of the powers of the personal representative under Sections 3-709, 3-710, and 3-711, and, at the expiration of three years after the decedent's death, if not yet distributed by the personal representative, his personal property devolves to those persons to whom it is devised by will or who are his heirs in intestacy, or their substitutes, as the case may be, just as with respect to real property.
REPORTER'S COMMENTS
Section 3-101: Real property devolves to the devisees or substitutes, under decedent's will, or to his heirs or substitutes, in an intestate estate, at the death of the owner whereas personal property devolves at the expiration of three years after decedent's death if not yet distributed by the personal representative.
As to devolution of real property, see Sections 3-711 and 3-715 concerning certain powers of the personal representative over real estate.
The devolution of personal property to devisees or heirs is expressly made subject to other provisions of this Code regarding exempt property, the rights of creditors, and the administration of estates. Further, the power (and fiduciary obligation) of the personal representative to apply personal property to the benefit of creditors and others interested in the estate is provided for in Section 3-711. Only if the property is not required to protect the rights of creditors or others does it devolve with no affirmative act of transfer of title by distribution being necessary. Thus, under the system of this Code and the provisions of this section, title to personal property devolves to devisees or heirs, but subject to exempt property provisions and the power to shift title to the personal representative where required in administration and to protect the rights of creditors or others.
Section 3-102. Necessity of Order of Probate for Will. Except as provided in Section 3-1201, to be effective to prove the transfer of any property or to nominate an executor, a will must be declared to be valid by an order of informal probate by the court or an adjudication of probate by the court.
REPORTER'S COMMENTS
Section 3-102: A duly executed, unrevoked will must be declared to be valid by order of informal probate or an adjudication of probate in order to be effective to prove the transfer of any property or to nominate an executor, with one exception, the affidavit procedures authorized for collection of estates worth less than ten thousand dollars. Section 3-1201. The time limitations on probate proceedings to establish testacy are stated in Section 3-108.
Section 3-103. Necessity of Appointment for Administration. Except as otherwise provided in this article and in Article IV, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court, qualify, and be issued letters. Administration of an estate is commenced by the issuance of letters.
REPORTER'S COMMENTS
Section 3-103: Before one acquires the status of personal representative, he must be appointed by the court, qualify, and be issued letters. Failure to secure appointment by one who possesses the goods of a decedent makes him liable as executor in his own wrong, Sections 3-619, 3-620, 3-621.
The exceptions provided in Article IV permit a personal representative appointed in another state to collect certain assets in this State, Sections 4-201 through 4-203, and to exercise the powers of a local personal representative, if no local administration or application is pending in this State, by filing authenticated copies of his appointment and any will and any bond, Sections 4-204, 4-205.
For "qualification," see Section 3-601; for "letters," see Section 1-305; for the time of accrual of duties and powers of personal representative, see Section 3-701.
Section 3-108 imposes time limitations on appointment proceedings.
Section 3-104. Claims Against Decedent; Necessity of Administration. No proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative. After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this article. After distribution, a creditor whose claim has not been barred may recover from the distributees as provided in Section 3-1004 or from a former personal representative individually liable as provided in Section 3-1005. This section has no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency Judgment which might be sought therein.
REPORTER'S COMMENTS
Section 3-104: This section requires creditors of decedents to assert their claims against a duly appointed personal representative. Notice to creditors, time limitations, payment of claims, and other provisions relating to creditors' claims are in Part 8 of Article III. Creditors are interested persons who may seek appointment either in informal proceedings for appointment of a personal representative, Section 3-301, or in formal proceedings for appointment, Section 3-414. A creditor may seek appointment as personal representative, and has priority for appointment if no other interested person has applied for appointment within forty-five days after death, Section 3-203, and may do so at any time within ten years of decedent's death, Section 3-108.
If a personal representative has been appointed and has closed the estate under circumstances which leave a creditor's claim unbarred and unpaid, the creditor may recover from the distributees, Section 3-1004, or from the former personal representative individually liable for breach of fiduciary duty as provided in Sections 3-807 and 3-1003, subject to the limitations of Section 3-1005.
A secured creditor is not affected by this section except as to any deficiency Judgment sought. A secured creditor is not required to assert his claim against the personal representative of the deceased debtor; however, the secured creditor who wishes to enforce a claim for deficiency, even if unliquidated or only potential, is required to comply with the claims provisions of this section and Part 8 of this article.
Section 3-105. Proceedings Affecting Devolution and Administration; Jurisdiction of Subject Matter. Persons interested in decedents' estates may apply to the court for determination in the informal proceedings provided in this article and may petition the court for orders in formal proceedings within the court's jurisdiction including but not limited to those described in this article.
Section 3-106. Proceedings Within the Jurisdiction of Court, Service, Jurisdiction Over Persons. In proceedings within the exclusive jurisdiction of the court where notice is required by this Code or by rule, and in proceedings to construe probated wills or determine heirs which concern estates that have not been and cannot now be opened for administration, interested persons may be bound by the orders of the court in respect to property in or subject to the laws of this State by notice in conformity with Section 1-401. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified.
REPORTER'S COMMENTS
Section 3-106: The notice provisions of this section cover all proceedings within the exclusive jurisdiction of the probate court where notice is required by this Code or by rule. Notice provisions also apply to proceedings to construe probated wills or to determine heirs in an intestate estate which has not been and cannot be opened for administration due to time limitations. Thus, this section and the exceptions to the time limitations of Section 3-108 make it clear that proceedings to construe a probated will or to determine heirs of intestates may be commenced more than ten years after death. Notice may be given to less than all interested persons but is binding upon only those who are given notice. For the time and method of giving notice, see Section 1-401; and waiver of notice, Section 1-402.
Section 3-107. Scope of Proceedings; Proceedings Independent; Exception. Unless administration under Part 5 is involved, (1) each proceeding before the court is independent of any other proceeding involving the same estate; (2) petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay, but, except as required for proceedings which are particularly described by other sections of this article, no petition is defective because it fails to embrace all matters which might then be the subject of a final order; (3) proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives; and (4) a proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.
REPORTER'S COMMENTS
Section 3-107: This section and the other provisions of this article are designed to establish a flexible system of administration of decedents' estates which permits interested persons to determine the extent to which matters relating to estates become the subjects of judicial orders. Administration under Part 5, Sections 3-501, et seq., is a single proceeding for judicial determination of testacy, priority, and qualification for appointment as personal representative and administration and settlement of decedents' estates. Section 3-107 applies to all other proceedings except those which are particularly described in other sections of this article. With the exceptions stated, proceedings for probate of wills and adjudication of intestacy may be combined with proceedings for appointment of personal representatives. Jurisdiction over interested persons is facilitated by Sections 3-106 and 3-602. Venue is determined by Section 3-201.
Except in circumstances which permit appointment of a special administrator, Section 3-614, a personal representative may not be appointed unless the will to which the requested appointment relates has been formally or informally probated, Sections 3-308, 3-402, and 3-414.
Section 3-108. Probate, Testacy, and Appointment Proceedings; Ultimate Time Limit.
No informal probate or appointment proceeding or formal testacy or appointment proceeding, other than a proceeding to probate a will previously probated at the testator's domicile and appointment proceedings relating to an estate in which there has been a prior appointment, may be commenced more than ten years after the decedent's death, except (1) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate, appointment, or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding; (2) appropriate probate, appointment, or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; and (3) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of twelve months from the informal probate or three years from the decedent's death. If no informal probate and no formal testacy proceedings are commenced within ten years after the decedent's death, and no proceedings under (2) above are commenced within the applicable period of three years, it shall be incontestable that the decedent left no will and that the decedent's estate passes by intestate succession. These limitations do not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under (1) or (2) above, the date on which a testacy or appointment proceeding is properly commenced shall be deemed to be the date of the decedent's death for purposes of other limitations provisions of this Code which relate to the date of death.
REPORTER'S COMMENTS
Section 3-108: This section establishes a time limitation of ten years after decedent's death for commencement of any proceeding to determine whether a decedent died testate or for commencing administration of his estate, with the following exceptions:
(1) a proceeding to probate a will previously probated in testator's domicile;
(2) appointment proceedings relating to an estate in which there has been a prior appointment;
(3) if a previous proceeding was dismissed because of doubt about the fact of death, and if decedent's death in fact occurred prior to commencement of the previous proceeding, and if there has been no undue delay in commencing the subsequent proceeding;
(4) if the decedent was a protected person, as an absent, disappeared, or missing person, Section 5-401, for whose estate a conservator has been appointed, and if the proceeding is commenced within three years after the conservator is able to establish the death of the protected person; or
(5) a proceeding to contest an informally probated will and appointment if the contest is successful, may be commenced within the later of twelve months from informal probate or three years from decedent's death.
These limitations do not apply to proceedings to construe wills or to determine heirs of an intestate. See Comments, Section 3-107.
This section also fixes as the date of death for purposes of the other limitations of this Code which relate to date of death, the date of proper commencement of a testacy or appointment proceeding more than three years after the established date of death in the two exceptions relating to dismissal of a formal proceeding because of doubt about the fact of death and estates of protected persons for whom a conservator has been appointed.
If no will is probated within ten years from death, or within the time permitted by one of the exceptions, this section makes the assumption of intestacy final.
If a will has been probated informally within ten years, this section makes the informal probate conclusive within the later of three years from death or twelve months from informal probate, whichever is later. The limitation period prescribed applies to all persons including those under disability.
Interested persons can protect themselves against changes within the period of doubt concerning whether a person died testate or intestate by commencing at an earlier date a formal proceeding, Sections 3-412, 3-413.
Protection to a personal representative appointed after informal probate of a will or informally issued letters of administration, but which is subject to change in a subsequent formal proceeding commenced within the limitations prescribed, is afforded under Section 3-703.
Distributees who receive distributions from an estate before the expiration of the period remain potentially liable to those determined to be entitled in properly commenced formal proceedings, Section 3-909, 3-1006.
Purchasers from the personal representative or a distributee may be protected without regard to whether the period has run, Sections 3-715, 3-910.
Creditors' claims are barred against the personal representative, heirs, and devisees after three years from date of death in any event. Section 3-803(a)(2). See, also, Comments, Section 3-102.
Section 3-109. Statutes of Limitation on Decedent's Cause of Action. The running of any statute of limitations on a cause of action belonging to a decedent which had not been barred as of the date of his death is suspended during the four months following the decedent's death but resumes thereafter unless otherwise tolled.
REPORTER'S COMMENTS
Section 3-109: Any statute of limitations running on a decedent's cause of action surviving decedent, which had not been barred at decedent's death, is tolled for four months after decedent's death. This section has the effect of extending the running of a statute of limitations with respect to a cause of action surviving decedent for four months from the time when it would have run, if the action had not been barred at decedent's death.
For the tolling or suspension of any statute of limitations running on a cause of action against decedent for the four months following decedent's death, see Section 3-802.
PART 2
VENUE FOR PROBATE AND ADMINISTRATION;
PRIORITY TO ADMINISTER;
DEMAND FOR NOTICE
Section 3-201. Venue for First and Subsequent Estate Proceedings; Location of Property.
(a) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:
(1) in the county where the decedent had his domicile at the time of his death; or
(2) if the decedent was not domiciled in this State, in any county where property of the decedent was located at the time of his death.
(b) Venue for all subsequent proceedings within the exclusive jurisdiction of the court is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in Section 1-303 or (c) of this section.
(c) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.
(d) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides or, if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.
REPORTER'S COMMENTS
Section 3-201: Venue for the first informal or formal testacy and appointment proceedings and subsequent proceedings is established in Section 3-201. For domiciliaries, venue is the county of domicile. For decedents not domiciled in this State, venue is in any county where property of the decedent was located.
If proceedings concerning the same estate are commenced in more than one court of this State, the court in which the proceeding was first commenced makes the finding of proper venue, Sections 3-201, 1-303. Upon finding that venue is elsewhere, the court in which the first proceeding was filed may transfer the proceeding to some other court, Section 3-201(c). Where a proceeding could be maintained in more than one court in this State, the court in which the first proceeding was commenced has the exclusive right to proceed or to transfer, Section 1-303.
Section 3-202. Appointment or Testacy Proceedings; Conflicting Claim of Domicile in Another State. If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this State, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this State must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the proceeding in this State.
***REPORTER'S COMMENTS
Section 3-202: Conflicting claims of domicile arising in a formal testacy or appointment proceeding in a court of this State and a testacy or appointment proceeding after notice pending in another state are resolved by the court in which the first proceeding was commenced.
Section 3-203. Priority Among Persons Seeking Appointment as Personal Representative.
(a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent;
(6) forty-five days after the death of the decedent, any creditor.
(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) apply except that:
(1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
(2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value or, in default of this accord, any suitable person.
(c) Conservators of the estates of protected persons or, if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to be appointed as personal representative, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
(d) Appointment of one who does not have priority, including priority resulting from renunciation, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
(e) No person is qualified to serve as a personal representative who is:
(1) under the age of eighteen;
(2) a person whom the court finds unsuitable in formal proceedings;
(3) with respect to the estate of any person domiciled in this State at the time of his death, a corporation created by another state of the United States or by any foreign state, kingdom or government, or a corporation created under the laws of the United States and not having a business in this State, or an officer, employee, or agent of such foreign corporation, whether the officer, employee, or agent is a resident or a nonresident of this State, if such officer, employee, or agent is acting as personal representative on behalf of such corporation.
(f) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representatives in this State and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
(g) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
REPORTER'S COMMENTS
Section 3-203: The priorities of the right to appointment as personal representative or successor personal representative (but not special administrator, Sections 3-203(b), 3-615) are, in order, a person determined by a probated will, a spouse who is a devisee, other devisees, a spouse who is not a devisee, other heirs, and, after forty-five days after death, a creditor, Section 3-203(a). Objections to appointment can be made only in formal proceedings, Section 3-203(b). Conservators or guardians of protected persons may exercise the same right to nominate for or object to appointment which the protected person would have if qualified, Section 3-203(c). Persons disqualified include persons under age eighteen, those found unsuitable by the court, and foreign corporations not having a place of business in this State, Section 3-203(e).
Section 3-204. Demand for Notice of Order or Filing Concerning Decedent's Estate. Any person desiring notice of any order or filing pertaining to a decedent's estate in which he has a financial or property interest, may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant's address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in Section 1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.
REPORTER'S COMMENTS
Section 3-204: Interested persons may file a demand for notice, requiring notice to be given to them or their attorneys prior to the making of any order or acceptance of any filing by the court.
As to the method and time of giving the notice referred to, see Section 1-401.
PART 3
INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS
Section 3-301. Informal Probate or Appointment Proceedings; Application; Contents.
(a) Applications for informal probate or informal appointment shall be directed to the court, and verified by the applicant to be accurate and complete to the best of his knowledge and belief as to the following information:
(1) Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:
(i) a statement of the interest of the applicant;
(ii) the name, and date of death of the decedent, his age, and the county and state of his domicile at the time of death, and the names and addresses of the spouse, children, heirs and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;
(iii) if the decedent was not domiciled in the State at the time of his death, a statement showing venue;
(iv) a statement identifying and indicating the address of any personal representative of the decedent appointed in this State or elsewhere whose appointment has not been terminated;
(v) a statement indicating whether the applicant has received a demand for notice, or is aware of a demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this State or elsewhere;
(vi) that the time limit for informal probate or appointment as provided in this article has not expired either because ten years or less has passed since the decedent's death
or, if more than ten years from death have passed, circumstances as described by Section 3-108 authorizing tardy probate or appointment have occurred;
(vii) such further information as may be prescribed by the South Carolina Tax Commission pursuant to Sections 12-15-510 and 12-15-540 of the 1976 Code.
(2) An application for informal probate of a will shall state the following in addition to the statements required by (1):
(i) that the original of the decedent's last will is in the possession of the court, or accompanies the application, or that an authenticated copy of a will probated in another jurisdiction accompanies the application;
(ii) that the applicant, to the best of his knowledge, believes the will to have been validly executed;
(iii) that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will.
(3) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate and state the name, address, and priority for appointment of the person whose appointment is sought.
(4) An application for informal appointment of an administrator in intestacy shall state in addition to the statements required by (1):
(i) that after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this State under Section 1-301 or, a statement why any such instrument of which he may be aware is not being probated;
(ii) the priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under Section 3-203.
(5) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.
(6) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in Section 3-610(c), or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.
(b) By verifying an application for informal probate, or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application, or for perjury, that may be instituted against him.
REPORTER'S COMMENTS
Section 3-301: This section prescribes the contents of the application for the informal probate of a will or for the informal appointment of a personal representative. The proofs and findings required for issuance of any order of informal probate or informal appointment are contained in Sections 3-303 and 3-308. This section requires that the application be verified, 3-301(a) and (b). The application is a part of the public record. Persons injured by deliberately false representation may invoke remedies for fraud without any specified time limit (See Article I).
This section allows the court to probate a will without appointing a personal representative. Further, it allows the court to appoint a personal representative without notice. Under Subsection (a)(1)(vii) of this section, the Tax Commission may prescribe the contents of the application beyond the basic contents required by this section.
Section 3-302. Informal Probate; Duty of Court; Effect of Informal Probate. Upon receipt of an application requesting informal probate of a will, the court, upon making the findings required by Section 3-303, shall issue a written statement of informal probate if at least one hundred twenty hours have elapsed since the decedent's death. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.
REPORTER'S COMMENTS
Section 3-302: "Informal Probate" is designed to keep the vast majority of wills, which are simple and generate no controversy, from becoming involved in truly judicial proceedings. An order of informal probate makes the will operative and may be the only official action concerning its validity. The order is subjected to the safeguards which seem appropriate to this transaction. To that extent it is roughly approximate to probate in common form. Informal probate is conclusive unless superseded by a formal testacy proceeding.
Section 3-303. Informal Probate; Proof and Findings Required. (a) In an informal proceeding for original probate of a will, the court shall determine whether:
(1) the application is complete;
(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in Section 1-201(20);
(4) on the basis of the statements in the application, venue is proper;
(5) an original, duly executed and apparently unrevoked will is in the court's possession;
(6) any notice required by Section 3-204 has been given and that the application is not within Section 3-304;
(7) it appears from the application that the time limit for original probate has not expired.
(b) The application shall be denied if it indicates that a personal representative has been appointed in another county of this State or except as provided in subsection (d) below, if it appears that this or another will of the decedent has been the subject of a previous probate order.
(c) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 2-502 or 2-505 have been met shall be probated without further proof. In other cases, the court may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
(d) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.
(e) A will from a place which does not provide for probate of a will after death and which is not eligible for probate under subsection (a) above, may be probated in this State upon receipt by the court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
REPORTER'S COMMENTS
Section 3-303: This section lists the proofs and findings required to be made by the court as a part of an order of informal probate.
The purpose of subparagraph (c) of the section is to permit the informal probate of a will which, from a simple attestation clause, appears to have been executed properly. It is not necessary that the will be notarized or self-proved. If the will has been made self-proved under Section 2-503 it will of course "appear" to be well executed and will include the recitals necessary for ease of probate under this section. This section does not require that the court examine one or both of the subscribing witnesses to the will. Any interested person who desires more rigorous proof of due execution may commence a formal testacy proceeding.
Note the provision of subparagraph (b) that informal probate is generally unavailable if there has been a previous probate of this or another will, unless, as under subparagraph (d), ancillary probate is desired.
Section 3-304. Informal Probate; Unavailable in Certain Cases. Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than a will and its codicils), the latest of which does not expressly revoke the earlier, shall be declined.
REPORTER'S COMMENTS
Section 3-304: The court is required to decline applications for informal probate in the circumstances specified in this section where a formal proceeding with notice and hearing would provide a desirable safeguard.
Section 3-305. Informal Probate; Court Not Satisfied. If the court is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 3-303 and 3-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
REPORTER'S COMMENTS
Section 3-305: This section confers upon the court the discretion to deny probate to an instrument even though all of the statutory requirements have arguably been met. The denial of an application for informal probate does not give rise to a right of appeal. The proponent of the will is left with the option of initiating a formal testacy proceeding.
Section 3-306. Informal Probate; Notice Requirements. (a) The moving party must give notice as described by Section 1-401 of his application for informal probate to any person demanding it pursuant to Section 3-204, and to any personal representative of the decedent whose appointment has not been terminated. No other notice of informal probate is required.
(b) If an informal probate is granted, within thirty days thereafter the applicant shall give written information of the probate to the heirs and devisees. The information shall include the name and address of the applicant, the date of execution of the will, and any codicil thereto, the name and location of the court granting the informal probate, and the date of the probate. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the applicant. No duty to give information is incurred if a personal representative is appointed who is required to give the written information required by Section 3-705. An applicant's failure to give information as required by this section is a breach of his duty to the heirs and devisees but does not affect the validity of the probate.
REPORTER'S COMMENTS
Section 3-306: The party seeking informal probate of a will (who may or may not be seeking informal appointment as personal representative) must give notice of his application for informal probate, presumably at the time he makes his application. The notice must be given to any personal representative of the decedent whose appointment has not been terminated, and to any other person who demands notice pursuant to Section 3-204. Section 3-204 prescribes that a person demanding notice under that section must have "a financial or property interest." The notice must be in conformity with Section 1-401, which provides that a notice may be given by certified, registered, or ordinary first class mail, by personal service, or if the address or identity of the person sought to be notified cannot be ascertained, by publication.
As to notice after informal probate is granted, the requirement in subsection (b) of giving written information of the probate to heirs and devisees is unnecessary if a personal representative is appointed who is required to give the written information required by Section 3-705. This latter section provides that every personal representative except any special administrator must give written information of his appointment to heirs and devisees. The information requirement of Section 3-306(b) is effectively limited to those circumstances where an informal probate is granted but no personal representative is appointed. The term "heirs and devisees" appears to encompass not only those persons who take by virtue of a probated will, but also those persons who would have been the decedent's heirs had he died intestate.
Section 3-307. Informal Appointment Proceedings; Delay in Order; Duty of Court; Effect of Appointment. (a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in Section 3-614, if at least one hundred twenty hours have elapsed since the decedent's death, the court, after making the findings required by Section 3-308, shall appoint the applicant subject to qualification and acceptance; provided, that if the decedent was a nonresident, the court shall delay the order of appointment until thirty days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that his estate be subject to the laws of this State.
(b) The status of a personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created thereby, is subject to termination as provided in Sections 3-608 through 3-612, but is not subject to retroactive vacation.
REPORTER'S COMMENTS
Section 3-307: This section and those that follow establish the mechanism for informal appointment of a personal representative.
The thirty day waiting period in the case of a nonresident decedent is designed to permit the first appointment to be at the decedent's domicile and presumably, to allow the domiciliary personal representative to then seek appointment in this State.
Section 3-308. Informal Appointment Proceedings; Proof and Findings Required. (a) In informal appointment proceedings, the court must determine whether:
(1) the application for informal appointment of a personal representative is complete;
(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(3) the applicant appears from the application to be an interested person as defined in Section 1-201(20);
(4) on the basis of the statements in the application, venue is proper;
(5) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;
(6) any notice required by Section 3-204 has been given;
(7) from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.
(b) Unless Section 3-612 controls, the application must be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Section 3-610(c) has been appointed in this or another county of this State, that (unless the applicant is the domiciliary personal representative or his nominee) the decedent was not domiciled in this State and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
REPORTER'S COMMENTS
Section 3-308: Subsection (a) sets out those findings required of the court in an order of informal appointment of a personal representative. Of particular importance is the finding that any will to which the requested appointment relates has been formally or informally probated. As noted in the comment to Section 3-301, this Code allows the court to probate a will without appointing a personal representative. However, the effect of subsection (a) is that while the court may probate a will without appointing the personal representative designated in that will, it cannot informally appoint the personal representative without a prior formal or informal probate of the will to which the personal representative's appointment relates.
The court must enter a finding that the person appears to have priority entitling him to appointment. Section 3-203 establishes priority among persons seeking appointment as personal representative.
Subsection (b) sets out certain circumstances in which the application must be denied. The first such circumstance is where another personal representative has been appointed in this or another county of this State, except under the special situation of Section 3-612. The second such circumstance is in the case of a nondomiciliary decedent. Here, the section is designed to prevent informal appointment of a personal representative in this State when a personal representative has been previously appointed at the decedent's domicile. Sections 4-201, 4-204, and 4-205 may make local appointment unnecessary.
Section 3-309. Informal Appointment Proceedings; Court not Satisfied. If the court is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 3-307 and 3-308 or, for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
REPORTER'S COMMENTS
Section 3-309: Because the appointment of a personal representative confers broad powers over the assets of the decedent's estate, the authority granted the court to deny the appointment for unclassified reasons is an important safeguard.
Section 3-310. Informal Appointment Proceedings; Notice Requirements. The moving party must give notice as described by Section 1-401 of his intention to seek an appointment informally: (1) to any person demanding it pursuant to Section 3-204; and (2) to any person having a prior or equal right to appointment not waived in writing and filed with the court. No other notice of an informal appointment proceeding is required.
REPORTER'S COMMENTS
Section 3-310: This section requires that the party seeking informal appointment must give notice to Section 3-204 demandants and to any person having a prior or equal right to appointment, presumably in the order established by Section 3-203.
Section 3-311. Informal Appointment Unavailable in Certain Cases. If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this State, and which is not filed for probate in this court, the court shall decline the application.
REPORTER'S COMMENTS
Section 3-311: This section is the counterpart of Section 3-304. Section 3-301(a)(4) requires that an applicant for informal appointment make certain representations concerning the existence of any unrevoked testamentary instrument. If any such instrument is not being offered for probate by the applicant, nor has been otherwise offered for probate, the court must decline the application for informal appointment. This section is a necessary safeguard against the abuse of the informal process.
PART 4
FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
Section 3-401. Formal Testacy Proceedings; Nature- When Commenced. A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in Section 3-402(a) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with Section 3-402(b) for an order that the decedent died intestate.
A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
During the pendency of a formal testacy proceeding, the court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
REPORTER'S COMMENTS
Section 3-401: This section establishes the formal testacy proceeding and prescribes the effect of a formal proceeding on an informal probate proceeding. The word "testacy" as used in this section encompasses any determination with respect to the testacy status of the decedent including that the decedent died without a will. See Section 1-201 (43). Although not specifically listed, the six uses for a formal testacy proceeding are: (1) an original proceeding to secure probate of a will; (2) a proceeding to corroborate a previous informal probate; (3) a proceeding to block a pending application for informal probate or to prevent informal application from occurring thereafter; (4) a proceeding to contradict a previous order of informal probate; (5) a proceeding to secure a declaratory judgment of intestacy or partial intestacy and a determination of heirs; (6) a proceeding to probate a will that has been lost, destroyed, or is otherwise unavailable.
The pendency of an action under this section automatically suspends any informal probate proceeding. Unless the petitioner requests confirmation of a previous informal appointment, a formal testacy proceeding suspends the personal representative's power of distribution but has no effect on the representative's other powers. If the petitioner seeks the appointment of a different personal representative, the court may further restrain the representative's powers, specifying the court's power over representative's. See also Sections 3-607 and 3-611. It should be noted that a "distribution" does not include a payment of claims. See Section 1-121(10) for the definition of "distributee" and Section 3-807 regarding payment of claims.
Under this section, any interested person may initiate a formal testacy proceeding. See Section 1-201 (20) for the definition of "interested person."
A formal testacy proceeding need not follow an informal proceeding and can be commenced without regard to whether a personal representative has been appointed.
The representative's power of distribution is automatically suspended upon the representative's receipt of notice of the proceeding. If there is a contest over who should serve, the court has the discretion to restrict further the representative's power.
Section 3-402. Formal Testacy or Appointment Proceedings; Petition; Contents. (a) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:
(1) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(2) contains the statements required for informal applications as stated in the seven subitems under Section 3-301(a)(1), the statements required by subitems (ii) and (iii) of Section 3-301(a)(2);
(3) states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.
(b) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by (1) and (4) of Section 3-301(a) and indicate whether administration under Part 5 is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by subitem (ii) of Section 3-301(a)(4) above may be omitted.
REPORTER'S COMMENTS
Section 3-402: An interested person who petitions the court for a formal testacy proceeding must comply with the requirements of this section concerning the contents of the petition. Regardless of whether the formal testacy proceeding concerns a testate or intestate decedent, the petitioner must request an order determining the decedent's heirs. Requiring the determination of heirship precludes later questions that might arise at the time of distribution. If formal probate of a will is requested, the petition must provide the court with information concerning the location of the original will. If the original is "lost, destroyed, or otherwise unavailable," the petition must contain the terms of the missing will. The petition should indicate whether administration under Part 5 of this article is desired. Once a formal testacy proceeding has been initiated, notice must be given as specified in Section 3-403.
If a formal order of appointment is sought because of a dispute over who should serve, Section 3-414 describes the appropriate procedure.
Section 3-403. Formal Testacy Proceeding; Notice of Hearing on Petition. (a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by Section 1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 3-204. Notice shall be given to the following persons: the surviving spouse, children, and other heirs of the decedent, the devisees, and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated.
(b) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:
(1) by inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
(2) by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;
(3) by engaging the services of an investigator.
The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
REPORTER'S COMMENTS
Section 3-403: Section 3-403(a) specifies those persons to whom notice of a formal testacy proceeding must be given. If another will has been or is being offered for probate within the county, those persons named in that will must be notified. The petitioner is not required to determine whether another will has been probated or offered for probate in other counties, but if the petitioner has actual knowledge of such a will, the devisees and executors named therein must be notified.
If the notice which is given does not fully comply with the requirements of this section, that defect is not necessarily fatal to the validity of an order. Section 3-106 provides that an order is valid as to those given notice though less than all interested persons were given notice. Section 3-1001(b) allows the court to confirm or amend as it affects those persons who were not notified of the formal testacy proceeding.
Section 3-403(b) sets out the additional steps which must be taken if the fact of the decedent's death is in doubt. In addition to giving notice to the alleged decedent, the petitioner must make a "reasonably diligent search" for that individual. The court is to determine whether the search has been sufficiently diligent in light of the circumstances. In the event the alleged decedent is in fact alive or if the court is not convinced of the death of the alleged decedent, the petitioner is responsible for the costs of the search. In the event the court finds the alleged decedent is dead, the estate of that decedent will bear the cost of the search.
Section 3-404. Formal Testacy Proceedings; Written Objections to Probate. Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.
REPORTER'S COMMENTS
Section 3-404: In order to object to the formal probate of a will, the objections must be stated in a pleading. The filing of such a response makes the proceeding a contested matter, and a hearing must be held in accordance with Section 3-406.
Section 3-405. Formal Testacy Proceedings; Uncontested Cases; Hearings and -Proof. If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 3-409 have been met or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.
REPORTER'S COMMENTS
Section 3-405: If proper notice has been given and no objection has been stated in a pleading, the proceeding is an uncontested one. The court may enter relief on the pleadings alone and without a hearing if the court finds that the alleged decedent is dead, venue is proper, and the proceeding is a timely one. Even in the absence of an objection, the court may require a hearing and evidence concerning the execution of the will. In the latter case, the section provides that the affidavit or testimony of one or more witnesses is sufficient proof of such execution.
Section 14-23-330 establishes a mechanism for the judge to receive the deposition of an attesting witness who lives at a distance from the court. Under Section 3-405, the court is given more flexibility in considering evidence of proof of execution of the will in an uncontested proceeding.
Section 3-406. Formal Testacy Proceedings; Contested Cases; Testimony of Attesting Witnesses. (a) If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the State, competent and able to testify, is required. Due execution of an attested will may be proved by other evidence.
(b) If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
REPORTER'S COMMENTS
Section 3-406: In the event an objection to a formal testacy proceeding has been received, the evidence necessary to prove the will depends upon whether the will is self-proved. If the will is not self-proved, testimony of at least one attesting witness is required; an affidavit is not sufficient if one of the witnesses is within the State, competent and able to testify. For this reason the deposition procedure of Section 14-23-330 was retained. Compliance with the self-proving procedure of Section 2-503 gives rise to a conclusive presumption that the will was properly executed, and the testimony of attesting witnesses is not required. The presumption does not extend to other grounds of attack, such as undue influence, lack of testamentary intent or capacity, fraud, duress, mistake, or revocation.
Section 3-407. Formal Testacy Proceedings; Burdens in Contested Cases. In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.
REPORTER'S COMMENTS
Section 3-407: In all contested formal testacy proceedings, the petitioner bears the burden of proving death and venue. If the petitioner is attempting to establish that the decedent died intestate, he must also prove heirship. Any person asserting that a will is valid bears the burden of proving due execution. Section 3-406.
This section also specifies the order of proof when two wills are offered and the later will purports to revoke the earlier. Proof of the later will is considered first, and an earlier will cannot be probated unless the later will is found to be invalid.
Section 3-408. Formal Testacy Proceedings; Effect of Final Order in Another Jurisdiction.
A final order of a court of another state determining testacy, or the validity of a will made in a proceeding involving notice to and an opportunity for contest by all interested persons, must be accepted as determinative by the courts of this State if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.
REPORTER'S COMMENTS
Section 3-408: This section makes it incumbent upon the local court to give full faith and credit to final orders of courts in another jurisdiction in the United States determining testacy or the validity of a will regardless of whether the parties before the local court were personally before the foreign court. However, the foreign proceeding must have provided the requisite notice and opportunity for contest for the resulting order to be binding locally.
This section does not apply unless the foreign proceeding has been previously concluded. If a local proceeding is concluded before completion of the foreign formal proceedings, local law will control.
If there is a contest concerning the decedent's domicile in formal proceedings commenced in different jurisdictions, Section 3-202 applies.
Local courts are bound by the foreign court's determination of the validity of the will so long as this determination is part of a final order; local courts are not bound by the foreign court's construction of the will.
Section 3-409. Formal Testacy Proceedings; Order; Foreign Will. After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, venue is proper, and that the proceeding was commenced within the limitation prescribed by Section 3-108, it shall determine the decedent's domicile at death, his heirs, and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by Section 3-612. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this State by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place.
REPORTER'S COMMENTS
Section 3-409: This section governs the scope and content of the formal testacy order. Every order must contain the court's findings regarding whether the alleged decedent is dead, the decedent's domicile at death, whether venue is proper, and whether the proceeding is a timely one. Regardless of whether the decedent is alleged to have died intestate, the order must contain a determination of heirs. If the court is not convinced of the alleged decedent's death, the court may dismiss the proceeding or it may permit amendment of the proceeding so as to make it a proceeding to protect the estate of a missing and therefore "disabled" person under Article V. Provision is made for proof of a will from a foreign jurisdiction which does not provide for probate of wills.
Section 3-410. Formal Testacy Proceedings; Probate of more than one Instrument. If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of Section 3-412.
REPORTER'S COMMENTS
Section 3-410: An order in a formal testacy proceeding ends the time within which it is possible to probate after-discovered wills, though subject to the provisions for vacation of that order under Sections 3-412 and 3-413. While a determination of heirs is not barred by the ten year limitation under Section 3-108, a judicial determination of heirs in a final order is conclusive unless the order is vacated or modified.
Under this section the court may admit more than one will to probate if the court in the exercise of its sound discretion determines that the instruments can be construed together.
Section 3-411. Formal Testacy Proceedings; Partial Intestacy. If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.
Section 3-412. Formal Testacy Proceedings; Effect of Order; Vacation. Subject to appeal and subject to vacation as provided herein and in Section 3-413, a formal testacy order under Sections 3-409 through 3-411, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:
(1) The court shall entertain a petition for modification for vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication.
(2) If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of his death, or were given no notice of any proceeding concerning his estate, except by publication.
(3) A petition for vacation under either (1) or (2) above must be filed prior to the earlier of the following time limits:
(i) If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate or, if the estate is closed by statement, six months after the filing of the closing statement.
(ii) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 3-108 when it is no longer possible to initiate an original proceeding to probate a will of the decedent.
(iii) Twelve months after the entry of the order sought to be vacated.
(4) The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances by the order of probate of the later-offered will or the order redetermining heirs.
(5) The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under Section 3-403(b) was made.
If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.
REPORTER'S COMMENTS
Section 3-412: This section establishes the exceptions to the res judicata effect of a formal testacy order. If a decedent's will has been probated and a final order issued, the court may modify or vacate the order only if: (1) the proponents of a later-offered will had no knowledge of the existence of the will at the time of the proceeding; or (2) the proponents of the later will did not have actual knowledge of the earlier proceeding and were given no notice of it other than by publication. If the final order determined that all or a part of the estate was intestate, that order may be vacated or modified only if the petitioner can establish: (1) that one or more heirs were omitted and (2) that the omitted heir or heirs had no knowledge of their status as an heir, that they were unaware the decedent had died, or that they were given no notice of the proceeding other than by publication.
Section 3-412(3) prescribes the time limits for filing a petition for vacation under this section. The petition must be filed prior to the earlier of the following: (1) in an estate where a personal representative has been appointed, the entry of an order approving final distribution as provided in Sections 3-1001 and 3-1002, or if the estate has been closed by statement under Section 3-1003, six months after the filing of the statement; (2) twelve months from the entry of the formal testacy order; (3) the ten-year ultimate time limit under Section 3-108. The individual submitting a petition for vacation bears the burden of proving that modification or vacation of the order is "appropriate under the circumstances."
This section also specifies the procedure to be followed when an alleged decedent is discovered to be alive subsequent to a final order finding the fact of death. In such a situation, the alleged decedent may recover assets retained by the personal representative. The heirs and distributees may be required to restore the "estate or its proceeds" if it is "equitable in view of all the circumstances."
Section 3-413. Formal Testacy Proceedings; Vacation of Order For Other Cause. For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
REPORTER'S COMMENTS
Section 3-413: This section deals with the modification or vacation of an order during the pendency of an appeal or within the time allowed for appeal. Under Section 1-308, a party may appeal within fifteen days of receipt of notice of a final order.
Broadly speaking, the power to vacate or modify an order under Section 3-412 provides the court with a means of dealing with facts not before the court during the proceeding. Section 3-413 gives the court the option of reconsidering its decision although it has no new evidence before it.
Section 3-414. Formal Proceedings Concerning Appointment of Personal Representative. (a) A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as a personal representative, or of one who previously has been appointed a personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by Section 3-402, as well as by this section. In other cases, the petition shall contain or adopt the statements required by Section 3-301(a)(1) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.
(b) After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as a personal representative, the court shall determine who is entitled to appointment under Section 3-203, make a proper appointment, and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 3-611.
REPORTER'S COMMENTS
Section 3-414: If there is a question concerning the priority or qualifications of a personal representative, the issue may be combined with a request for the determination of testacy in a petition for a formal testacy proceeding. However, the formal appointment of a personal representative can be considered alone. If the proceeding under this section is combined with a formal testacy proceeding, the petition must not only comply with the requirements of a petition for formal testacy, but must also describe the issue regarding appointment. Once a proceeding has been initiated under this section alone, the court must receive a petition which complies with the requirements of Section 3-402 and describes the issue regarding appointment. Once initiated, a proceeding under this section effects a stay of any pending informal appointment proceedings. If a representative had been appointed prior to this proceeding, the filing of a petition under this section automatically effects a restraint on all of the representative's powers which are not necessary to preserve the estate. Under this section, notice must be given to all interested persons as defined in subparagraph (b).
Formal proceedings concerning appointment should be distinguished from administration under Part 5. The former includes any proceeding after notice involving a request for an appointment. Administration under Part 5 begins with a formal proceeding and may be requested in addition to a ruling concerning testacy or appointment, but it is descriptive of a special proceeding with a different scope and purpose than those concerned merely with establishing the bases for an administration. A personal representative appointed in a formal proceeding may or may not be subject to administration under Part 5. Procedures for securing the appointment of a new personal representative after a previous assumption as to testacy under Section 3-612 may be informal or related to pending formal proceedings concerning testacy.
When an order authorizing appointment is issued, the personal representative must then comply with Section 3-601 et seq., concerning bond requirements.
This section does not require notice by a publication; rather, notice is to be given by certified or ordinary mail. See Section 1-402.
PART 5
ADMINISTRATION UNDER PART 5
Section 3-501: Administration Under Part 5; Nature of Proceeding. Administration under Part 5 is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A personal representative under Part 5 is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this part, or as otherwise ordered by the court, a personal representative under Part 5 has the same duties and powers as a personal representative who is not subject to administration under Part 5.
REPORTER'S COMMENTS
Section 3-501: This section and the following sections of this part describe an optional procedure for settling an estate in one continuous proceeding in the court. The proceeding is a single "in rem" action designed to secure complete administration and settlement of a decedent's estate when it is desired to make sure that every step in probate is adjudicated with notice and hearing. If administration under Part 5 is not requested or ordered, there may be no compelling reason to employ all the available formal proceedings in the administration of an estate.
Section 3-502. Administration Under Part 5; Petition; Order. A petition for administration under Part 5 may be filed by any
interested person or by a personal representative at any time, a prayer for administration under Part 5 may be joined with a petition in a testacy or appointment proceeding, or the court may order administration under Part 5 on its own motion. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for administration under Part 5 shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for administration under Part 5, even though the request for administration under Part 5 may be denied. After notice to interested persons, the court shall order administration under Part 5 of a decedent's estate: (1) if the decedent's will directs administration under Part 5, it shall be ordered unless the court finds that circumstances bearing on the need for administration under Part 5 have changed since the execution of the will and that there is no necessity for administration under Part 5; (2) if the decedent's will directs no administration under Part 5, then administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that administration under Part 5 is necessary under the circumstances.
REPORTER'S COMMENTS
Section 3-502: Under this section any "interested person" or the personal representative may request administration under Part 5, or the probate court may order it on its own motion. If the decedent's will directs such administration it must be ordered unless the court finds circumstances have changed since execution of the will. Likewise, where the will directs no such administration, it will be ordered only if the court finds it is necessary for protection of interested persons.
Even though it is possible that a request for administration under Part 5 may be made after a determination of testacy has been made, this section requires the petition for such administration to include matters necessary to put the issue of testacy before the court. The result is that the question of testacy will be adjudicated.
While administration under Part 5 compels a judicial settlement of an estate there are other sections which grant a judicial review and settlement. This fact leads to the conclusion that administration under Part 5 will be valuable primarily when there is some advantage in a single judicial proceeding which will adjudicate all major points involved in an estate settlement.
Section 3-503. Administration under Part 5; Effect on Other Proceedings. (a) The pendency of a proceeding for administration under Part 5 of a decedent's estate stays action on any informal application then pending or thereafter filed.
(b) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for administration under Part 5 is as provided for formal testacy proceedings by Section 3-401.
(c) After he has received notice of the filing of a petition for administration under Part 5, a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers duties unless the court restricts the exercise of any of them pending full hearing on the petition.
REPORTER'S COMMENTS
Section 3-503: This section deals with the effect of administration under Part 5 on other proceedings. Primarily pendency of such administration does two things: (1) it stays action on any informal proceedings and (2) it prohibits the personal representative from exercising his power to distribute the estate. However, the filing of the petition does not otherwise affect the powers and duties of the personal representative unless the court restricts the exercise of such power.
In regard to the effect of such action on the personal representative's ability to create good title in a purchaser of estate assets, it should be noted that such a power is not hampered by the fact that the personal representative may breach a duty created by statute or otherwise. However, the personal representative may be held for contempt of court. In any event, the pendency of the proceeding could be recorded as is usual under a lis pendens.
Section 3-504. Administration under Part 5; Powers of Personal Representative. Unless restricted by the court, a personal representative under Part 5 has, without interim orders approving exercise of a power, all powers of personal representatives under this Code, but he shall not exercise his power to make any distribution of the estate without prior order of the court. Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on his letters of appointment and any court certification thereof, and unless so endorsed is ineffective as to persons dealing in good faith with the personal representative.
REPORTER'S COMMENTS
Section 3-504: This section acknowledges that the powers of a personal representative in an administration under Part 5 are the same as in any other administration unless restricted by the court and endorsed on the letters of appointment. If not so endorsed, the restrictions are ineffective as to persons dealing with the estate in good faith. The practical effect of this provision is to require persons dealing with the personal representative to examine the representative's letters.
Section 3-505. Administration under Part 5; Interim Orders; Distribution and Closing Orders.
Unless otherwise ordered by the court, administration under Part 5 is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under Section 3-1001. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of an administration under Part 5 on the application of the personal representative or any interested person.
REPORTER'S COMMENTS
Section 3-505: This section requires additional notice for a closing order. The requirement for notice of interim orders is left to the discretion of the court except to the extent such notice is required by other sections, see e.g. Section 3-204, which entitles any interested person to notice of any interim order.
PART 6
PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
Section 3-601. Qualification. Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.
REPORTER'S COMMENTS
Section 3-601: This and related sections of this part describe details and conditions of appointment which apply to all personal representatives without regard to whether the appointment proceeding involved is formal or informal, or whether the personal representative is subject to administration under Part 5. Section 1-305 authorizes issuance of copies of letters and prescribes their content. The section should be read with Section 3-504 which directs endorsement on letters and any court certification of any restrictions of powers of an administrator under Part 5.
No formal oath is required of a personal representative.
Section 3-602. Acceptance of Appointment; Consent to Jurisdiction. By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed to him by ordinary first class mail at his address as listed in the application or petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
REPORTER'S COMMENTS
Section 3-602: Except for personal representatives appointed pursuant to Section 3-502, appointees are not deemed to be officers of the appointing court or to be parties in one continuous judicial proceeding that extends until final settlement. See Section 3-107
In order to prevent a personal representative who might make himself unavailable to service within the State from affecting the power of the appointing court to enter valid orders affecting him, each appointee is required to consent in advance to the personal jurisdiction of the court in any proceeding relating to the estate that may be instituted against him. The section requires that he be given notice of any such proceeding, which, when considered in the light of the responsibility he has undertaken, should make the procedure sufficient to meet the requirements of due process.
Section 3-603. Bond Not Required Without Court Order; Exceptions. No bond is required of a personal representative who is named in a will. Bond will be 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 that personal representative is a banking corporation or trust company qualified under Section 34-15-10; (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 3-605. No bond is required of any 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) above.
REPORTER'S COMMENTS
Section 3-603: A bond is required of any personal representative who is not named in a will, including an administrator in intestacy and a special administrator, whether in probate or in intestacy, whether resident or nonresident, but excluding corporate fiduciaries not required to be bonded. A bond is not required of any personal representative who is named in a will, unless appointed as a special administrator, or unless the personal representative is a nonresident individual not excused by the will from being bonded, or unless the will or some interested person, under Section 3-605, requires a bond. Thus, corporate fiduciaries of any type, as well as resident individual fiduciaries and also expressly excused, nonresident individual fiduciaries, but only if named in a will, are not required to be bonded, unless the will or some interested person, under Section 3-605, requires a bond.
Section 3-604. Bond Amount; Security; Procedure; Reduction. If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in Section 6-101) in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, or permit the substitution of another bond with the same or different sureties.
REPORTER'S COMMENTS
Section 3-604: This section permits estimates of value needed to fix the amount of required bond to be filed when it becomes necessary. A consequence of this procedure is that estimates of value of estates are not required to appear in the petition and applications which will attend every administered estate. Hence, a measure of privacy that is not possible under most existing procedures may be achieved.
Release of sureties was formerly interpreted to mean that the probate court might release a surety if he petitioned for relief and established that he reasonably believes himself to be in danger of suffering a loss on account of his suretyship. See Bellinger v. United States Fidelity Co., 115 S.C. 469, 106 S.E. 470 (1921); and McKay v. Donald, 8 Rich. 311 (42 S.C.L. 331) (1855). Section 3-604 is more flexible and should not be construed so narrowly as to permit release of sureties only on the limited basis available at prior law.
Section 3-605. Demand For Bond by Interested Person. Any person apparently having an interest in the estate worth in excess of one thousand dollars, or any creditor having a claim in excess of one thousand dollars, may make a written demand that a personal representative give bond. The demand must be filed with the court and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases to be interested in the estate. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within thirty days after receipt of notice is cause for his removal and appointment of a successor personal representative.
REPORTER'S COMMENTS
Section 3-605: The demand for bond described in this section may be made in a petition or application for appointment of a personal representative, or may be made after a personal representative has been appointed. The mechanism for compelling bond is designed to function without unnecessary judicial involvement. If demand for bond is made in a formal proceeding, the judge can determine the amount of bond to be required with due consideration for all circumstances. If demand is not made in formal proceedings, methods for computing the amount of bond are provided by statute so that demand can be complied with without resort to judicial proceedings. The information which a personal representative is required by Section 3-705 to give each beneficiary includes a statement concerning whether bond has been required. Section 3-605 is consistent with the general policy of this Code to minimize the formalities of estate administration unless interested parties ask for specific protection.
Section 3-606. Terms and Conditions of Bonds
(a) The following requirements and provisions apply to any bond required by this part:
(1) Bonds shall name the Judge of the court as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law.
(2) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.
(3) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner.
(4) On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.
(5) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
REPORTER'S COMMENTS
Section 3-606: This section provides for the terms and conditions of bonds to be furnished by personal representatives. It provides that the judge of the court is the obligee of the bond and that the sureties are jointly and severally liable if they consent to the jurisdiction of the court by executing the bond.
Section 3-607. Order Restraining Personal Representative. (a) On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.
(b) The matter shall be set for hearing within ten days or at such other times as the parties may agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition.
REPORTER'S COMMENTS
Section 3-607: This section provides that a person who appears to have an interest in an estate may petition the court for an order to restrain a personal representative from performing acts of administration if it appears to the court that the personal representative may take some action which would jeopardize the interest of the applicant or some other interested person. The matter must be set for hearing on the restraining order within ten days or at such other time as the parties may agree. There is also a provision for notice which must be given to the personal representative, his attorney, and to any other parties named defendant in the petition.
Section 3-608. Termination of Appointment; General. Termination of appointment of a personal representative occurs as indicated in Sections 3-609 to 3-612, inclusive. Termination ends the right and power pertaining to the office of personal representative as conferred by this Code or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative. Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination, or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets. Termination does not affect the jurisdiction of the court over the personal representative, but terminates his authority to represent the estate in any pending or future proceeding.
REPORTER'S COMMENTS
Section 3-608: "Termination," as defined by this Section and Sections 3-609 through 3-612 provide definiteness respecting when the rights and powers of a personal representative (who may or may not be discharged of duty and liability by court order) terminate. An order of the court entered under Sections 3- 1001 or 3- 1002 both terminates the appointment of, and discharges, a personal representative.
It is to be noted that this section does not relate to jurisdiction over the estate in proceedings which may have been commenced against the personal representative prior to termination. In such cases, a substitution of successor or special representative should occur if the plaintiff desires to maintain his action against the estate.
Section 3-609. Termination of Appointment; Death or Disability. The death of a personal representative or the appointment of a conservator for the estate of a personal representative, terminates his appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification.
REPORTER'S COMMENTS
Section 3-609: This section deals with the termination of a representative by death or disability. The personal representative of the disabled or deceased representative will sometimes succeed to the duties and powers of the office.
Section 3-610. Termination of Appointment; Voluntary. (a) An order closing an estate as provided in Section 3-1001, 3-1002, or 3- 1003 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 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.
REPORTER'S COMMENTS
Section 3-610: Under subparagraph (a) a formal closing immediately terminates the authority of a personal representative. Subparagraph (b) allows resignation of a personal representative.
The more informal process for resignation coupled with the comparative ease of securing appointment of a successor, see Sections 3-613 through 3-618, infra, facilitates the substitution of personal representatives.
Section 3-611. Termination of Appointment by Removal; Cause; Procedure. (a) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in Section 3-607, after receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration, or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
(b) Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office. Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or his nominee as ancillary personal representative may obtain removal of another who was appointed personal representative in this State to administer local assets.
REPORTER'S COMMENTS
Section 3-611: This section deals with the termination of a personal representative by removal for cause. Any interested person may petition the court for the removal of a representative although notice and hearing are required.
Section 3-612. Termination of Appointment Change of Testacy Status. Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in Section 3-401. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within thirty days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.
REPORTER'S COMMENTS
Section 3-612: This section and Section 3-401 describe the relationship between formal or informal proceedings. The basic assumption of both sections is that an appointment, with attendant powers of management, is separable from the basis of appointment; i.e., intestate or testate?; what will is the last will? Hence, a previously appointed personal representative continues in spite of formal or informal probate that may give another a prior right to serve as personal representative. But, if the testacy status is changed in formal proceedings, the petitioner also may request appointment of the person who would be entitled to serve if his assumption concerning the decedent's will prevails. Provision is made for a situation where all interested persons are content to allow a previously appointed personal representative to continue to serve even though another has a prior right because of a change relating to the decedent's will. It is not necessary for the continuing representative to seek a reappointment under the new assumption for Section 3-703 is broad enough to require him to administer the estate as intestate, or under the later probated will, if either status is established after he was appointed. Under Section 3-403, notice of a formal testacy proceeding is required to be given to any previously appointed personal representative. Hence, the testacy status cannot be changed without notice to a previously appointed personal representative.
Section 3-613. Successor Personal Representative. Parts 3 and 4 of this article govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party, and no notice, process, or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated.
REPORTER'S COMMENTS
Section 3-613: This section provides that all powers and authority of the initial representative pass to the successor personal representative.
Section 3-614. Special Administrator; Appointment. A special administrator may be appointed:
(1) informally by the court on the application of any interested person when necessary 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 3-609;
(2) in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.
REPORTER'S COMMENTS
Section 3-614: Appointment of a special administrator would enable the estate to participate in a transaction which the general personal representative could not, or should not, handle because of conflict of interest. If a need arises because of temporary absence or anticipated incapacity for delegation of the authority of a personal representative, the problem may be handled without judicial intervention by use of the delegation powers granted to personal representatives by Section 3-715(19).
Section 3-615. Special Administration; Who may be Appointed. (a) If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available and qualified.
(b) In other cases, any proper person may be appointed special administrator.
REPORTER'S COMMENTS
Section 3-615: In some areas of the country, particularly where wills cannot be probated without full notice and hearing, appointment of special administrators pending probate is sought almost routinely. The objective of this section is to reduce the likelihood that contestants will be encouraged to file contests as early as possible simply to gain some advantage via having a person who is sympathetic to their cause appointed special administrator. Most will contests are not successful. Hence, it seems reasonable to prefer the named executor as special administrator where he is otherwise qualified.
Section 3-616. Special Administrator; Appointed Informally; Powers and Duties. A special administrator appointed by the court in informal proceedings pursuant to Section 3-614(1) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor, and to deliver them to the general personal representative upon his qualification. The special administrator has the power of a personal representative under this Code necessary to perform his duties.
REPORTER'S COMMENTS
Section 3-616: Duties of the special administrator are provided throughout this particular section, although the power to distribute assets is specifically omitted.
Section 3-617. Special Administrator; Formal Proceedings; Powers and Duties. A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct.
REPORTER'S COMMENTS
Section 3-617: In formal proceedings in which a special administrator is appointed, the powers of a special administrator are the same as those of a personal representative except in the instance where the powers are limited by the court.
Section 3-618. Termination of Appointment; Special Administrator. The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in Sections 3-608 through 3-611.
REPORTER'S COMMENTS
Section 3-618: Appointment of a special administrator would terminate according to the provisions of the order of appointment.
Section 3-619. 'Executor de son tort' Defined. Any person who shall obtain, receive, and have any goods or debts of any decedent or a release or other discharge of any debt or duty that belonged to the decedent upon any fraud or without such valuable consideration as shall amount to the value of the same goods or debts or near thereabouts (except it be in or toward satisfaction of some just and principal debt of the value of the same goods or debts to him owing by the decedent at the time of his decease) shall be charged and chargeable as executor of his own wrong, so far as such goods and debts coming to his hands or whereof he is released or discharged by such administrator will satisfy, deducting, nevertheless, to and for himself allowance of all just, due, and principal debts upon good consideration without fraud owing to him by the decedent at the time of his decease and all other payments made by him which lawful personal representatives may and ought to have and pay by the laws and statutes of this State.
REPORTER'S COMMENTS
Section 3-619: This section defines as an executor de son tort any person who by fraud or without valuable consideration obtains assets of a decedent without appointment as his personal representative, charging him with liability therefor.
Section 3-620. Executor de son tort Shall Account for Deceased's Property; Decree for Damages. The judge of probate of the county in which a deceased person may have died may, either of his own accord or at the instance of any creditor or other person interested in the estate of the deceased, cite before him such person as, neither being appointed personal representative nor having obtained administration of the effects of such deceased person, shall nevertheless possess himself of the goods, chattels, rights, and credits of such person deceased and, upon such person being cited as aforesaid, the judge of probate shall require of him a discovery and account of all and singular the goods, chattels, rights, and credits of the deceased and shall proceed to decree against him for the value of the estate and effects of the deceased which he may have wasted or which may have been lost by his illegal interference, charging him as executors of their own wrong are made liable at common law as far as assets shall have come into his hands.
REPORTER'S COMMENTS
Section 3-620: This section provides that the probate judge may cite before him the executor de son tort and require him to account for the deceased's property. It also enables the probate judge to enter a decree against the executor de son tort for any property of the deceased that he has wasted or has lost by his illegal interference.
Section 3-621. Liability. Every personal representative of any person who, as executor in his own wrong, shall waste or convert any goods, chattels, estate, or assets of any person deceased to his own use shall be liable and chargeable in the same manner as his testator or intestate would have been if he had been living.
REPORTER'S COMMENTS
Section 3-621: This section provides that a personal representative of an executor de son tort may be liable for the waste or conversion committed by the executor de son tort.
PART 7
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
Section 3-701. Time of Accrual of Duties and Powers. The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
REPORTER'S COMMENTS
Section 3-701: The authority of a personal representative relates back to death upon appointment and stems from his appointment. The personal representative may ratify acts done by others prior to appointment.
Section 3-702. Priority Among Different Letters. A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
REPORTER'S COMMENTS
Section 3-702: This section provides that a person to whom letters are issued has exclusive authority until the appointment is terminated or modified. It also allows the personal representative to recover any property in the hands of a second erroneously appointed representative.
Section 3-703. General Duties; Relation and Liability to Persons Interested in Estate; Standing to Sue. (a) A personal representative is a fiduciary who shall observe the standards of care applicable to trustees as described by Section 7-302. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this Code, and as expeditiously and efficiently as is consistent with the best interests of the estate. He shall use the authority conferred upon him by this Code, the terms of the will, if any, and any order in proceedings to which he is party for the best interests of successors to the estate.
(b) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his appointment or fitness to continue, or a proceeding for administration under Part 5. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent as described elsewhere in this Code.
(c) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this State at his death has the same standing to sue and be sued in the courts of this State and the courts of any other jurisdiction as his decedent had immediately prior to death.
REPORTER'S COMMENTS
Section 3-703: This section is especially important because it states the basic theory underlying the duties and powers of the personal representative. The personal representative is classified as a fiduciary and must adhere to the "prudent man" rule provided for trustees by Section 7-302. In general the personal representative is required to settle and distribute the estate as fast and efficiently as possible for the best interest of the estate. The section holds the power of distribution as the most significant power the personal representative performs. Finally, the section grants a personal representative the same standing to sue and be sued in the courts of this State and any other jurisdiction as the decedent had immediately prior to his death, except as to proceedings which do not survive the decedent's death.
Section 3-704. Personal Representative to Proceed with Court Sanction. A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate under the supervision of the court, as follows:
(a) Immediately after his appointment he shall publish the notice to creditors required by Section 3-801.
(b) Within sixty days after his appointment he shall file with the court the inventory and appraisement required by Section 3-706. (c) Upon the expiration of four months from the date of first publication of the notice to creditors, the personal representative shall proceed to pay the claims allowed against the estate, as provided in Section 3-807.
(d) Upon the expiration of the relevant period, as set forth in Section 3-1003, the personal representative shall file the account, proposal for distribution, and proofs required by Section 3-1003.
(e) The time periods stated herein for completing the above requirements are not intended to supplant any other time periods stated elsewhere in this Code. The court may on its own motion, or on the motion of the personal representative or of any interested person, extend the time for completing any of the requirements of administration contained in Article III including any of the above requirements, and especially including the requirement to account, under Section 3-1003, in cases of estates which remain significantly unadministered as of the expiration of the relevant time period, either as to the marshalling of assets or as to the allowance of claims.
REPORTER'S COMMENTS
Section 3-704: This section requires the personal representative to proceed expeditiously with the settlement and distribution of the estate. It further provides that the settlement and distribution are under the court's supervision. Where informal procedures are in effect, the section does not impose any burdens on the personal representative other than those of Part 5 and of any other pertinent provision of Article III, requiring or permitting such direct court supervision.
Section 3-705. Duty of Personal Representative; Information to Heirs and Devisees. Not later than thirty days after his appointment every personal representative, except any special administrator, shall give information of his appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any will mentioned in the application for appointment of a personal representative. The information shall be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information shall include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, and describe the court where papers relating to the estate are on file. The personal representative's failure to give this information is a breach of his duty to the persons concerned but does not affect validity of his appointment, his powers, or other duties. A personal representative may inform other persons of his appointment by delivery or ordinary first class mail.
REPORTER'S COMMENTS
Section 3-705: This section requires the personal representative to inform of his appointment those persons who appear to have an interest in the estate as it is being administered. Such notice must be given within thirty days of his appointment. The notice may be sent through ordinary mail. The notice must include the personal representative's name and address, indicate that the information is being sent to all those who might have an interest in the estate and whether a bond was required and where the papers relating to the estate are filed. The notice should not be confused with the notice requirements relating to litigation.
Section 3-706. Duty of Personal Representative; Inventory and Appraisement. Within sixty days after his appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare and file or mail an inventory of property owned by the decedent at the time of his death, together with such other information as may be required by the South Carolina Tax Commission, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item.
The personal representative shall file the original of the inventory with the court. He also shall mail a copy to interested persons who request it. The court, upon application of the personal representative, may extend the time for filing or making the inventory and appraisement.
REPORTER'S COMMENTS
Section 3-706: This section requires the personal representative within sixty days after his appointment to file an inventory listing the fair market value of each asset as of decedent's date of death. He must also list the type and amount of any encumbrances. He is also required to mail copies to interested persons who request it.
The court may upon application extend the time for filing.
Section 3-707. Employment of Appraisers. The personal representative may obtain a qualified and disinterested appraiser approved by the court to assist him in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised. Each appraiser shall execute the inventory, stating thereon the item or items he appraised. On motion of any interested person, the court may require that one or more qualified appraisers be appointed to ascertain the fair market value of all or any part of the estate.
REPORTER'S COMMENTS
Section 3-707: This section allows the personal representative to employ expert appraisers and also authorizes the court to require the appointment of expert appraisers upon notice by any interested person.
Section 3-708. Duty of Personal Representative; Supplementary Inventory. If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court, and furnish copies thereof or information thereof to persons who receive the original inventory, and to persons interested in the new information.
Section 3-709. Duty of Personal Representative; Possession of Estate. Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
REPORTER'S COMMENTS
Section 3-709: Section 3-101 provides that title to real and personal property devolves on death or thereafter to heirs or devisees "subject . . . to administration." Section 3-711 vests in the personal representative a power over title to real and personal property during administration. This section deals with the personal representative's duty and right to possess assets, real and personal. It proceeds from the assumption that it is desirable wherever possible to avoid disruption of the possession of the decedent's assets by his heirs or devisees. But if the personal representative considers it advisable he may take possession and his judgment is made conclusive. It is likely that the personal representative's judgment could be questioned in a later action but this possibility should not interfere with the personal representative's administrative authority as it relates to possession of the estate.
Section 3-710. Power to Avoid Transfers. The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.
REPORTER'S COMMENTS
Section 3-710: This section authorizes the personal representative to recover any property transferred by the decedent in a transaction which would be void or voidable against creditors.
Section 3-711. Powers of Personal Representatives; In General. (a) Until termination of his appointment 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 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.
REPORTER'S COMMENTS
Section 3-711: This section grants a personal representative the same power over title to property that an absolute owner would have, in trust, however, for the benefit of creditors and others interested in the estate. This power over title is limited in two respects. First, except where the will provides to the contrary, an order from the probate court must be obtained before personal property having an aggregate value in excess of five thousand dollars may be sold. Secondly, and again except where the will provides to the contrary, the representative cannot exercise the power to sell real property unless he follows the mechanism of Section 3-1301 et seq. This allows sale of a decedent's real property in aid of deficient personal assets, under the direct supervision of the probate court.
Under this section, Section 3-101, and Section 3-709, title to personal property (as well as real property) devolves at or soon after death to heirs and devisees, and not to the personal representative. Further, the representative can exercise power over the title to real property (as well as personal property) subject to limitations.
Section 3-712. Improper Exercise of Power; Breach of Fiduciary Duty. If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in Sections 3-713 and 3-714.
REPORTER'S COMMENTS
Section 3-712: This section provides that the personal representative is liable for his acts and omissions and for any breach of duty to the same extent as the trustee of an express trust. The rights of purchasers and others dealing with the personal representative are governed by the next two sections. Additionally, this section should be read in conjunction with Sections 3-607 and 3-611, the first of which deals with an interested party obtaining an order restraining the personal representative from performing a specified act or exercising a specified power and the second of which deals with the right of an interested party to petition for the removal of the personal representative.
Section 3-713. Sale, Encumbrance, or Transaction Involving Conflict of Interest; Voidable; Exceptions. Any sale or encumbrance to the personal representative, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure unless:
(1) the will or a contract entered into by the decedent expressly authorized the transaction; or
(2) the transaction is approved by the court after notice to interested persons.
REPORTER'S COMMENTS
Section 3-713: This section provides that certain actions of a personal representative are voidable. Exceptions to the general rule are provided in the event the will or a contract entered into by the decedent expressly authorizes the transaction or if the transaction is approved by the probate court after notice to interested parties. Presumptively, a broad authorization in the will of a decedent for his personal representative to deal with himself in both a fiduciary and an individual capacity would not fall under the first exception which is limited to "the transaction" and must, therefore, be held to require authorization for a specific transaction.
The general principles of law pertaining to a bona fide purchaser for value will protect the title to property in the hands of such a purchaser who obtained it without notice of the conflict of interest or act of self-dealing.
Section 3-714. Persons Dealing with Personal Representative, Protection. A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of personal representatives under Part 5 which are endorsed on letters as provided in Section 3-504, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
REPORTER'S COMMENTS
Section 3-714: This section is designed to provide protection to persons who deal with a personal representative. Persons dealing with representatives generally are not charged with the duty to inquire into any restrictions pertaining to the exercise of powers by such personal representative. Any person dealing with a representative under Part 5 will be charged with knowledge of the restrictions upon exercise of power set forth in the letters.
For example, a bona fide purchaser for value dealing with a representative will be completely protected with respect to claims by interested parties. However, the personal representative will be liable to persons interested in the estate if his dealings with such bona fide purchaser were inconsistent with directions set forth in the will or other restrictions imposed by order of the probate court. However, if such a purchaser had actual knowledge of any such restrictions, then this section will not provide protection to such purchaser; instead, he is subject to having title to the property acquired from the personal representative declared void upon the petition of some interested party.
Section 3-715. Transactions Authorized for Personal Representatives; Exceptions. Except as restricted or otherwise provided by the will or by an order in a formal proceeding and subject to the restrictions imposed in Section 3-711(b) and to the priorities stated in Section 3-902, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(1) retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;
(2) receive assets from fiduciaries or other sources;
(3) perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as he may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:
(i) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or
(ii) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;
(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;
(5) if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including monies received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements or other prudent investments which would be reasonable for use by trustees generally;
(6) subject to the restrictions imposed in Section 3-711(b), acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, raze existing, or erect new party walls or buildings;
(8) satisfy and settle claims and distribute the estate as provided in this Code;
(9) subject to the restrictions imposed in Section 3-711(b), enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, but not for a term extending beyond the period of administration;
(10) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(11) vote stocks or other securities in person or by general or limited proxy;
(12) pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;
(13) hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;
(14) insure the assets of the estate against damage, loss, and liability and himself against liability as to third persons;
(15) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, lien, or other security interest upon property of another persons, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;
(16) pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
(17) sell, or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(18) allocate items of income or expense to either estate income or principal, as permitted or provided by law;
(19) employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;
(20) prosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties;
(21) subject to the restrictions imposed in Section 3-711(b), sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;
(22) continue any unincorporated business or venture in which the decedent was engaged at the time of his death (i) in the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will; (ii) in the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or (iii) throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;
(23) make payment in cash or in kind, or partly in cash and partly in kind, upon any division or distribution of the estate (including the satisfaction of any pecuniary distribution) without regard to the income tax basis of any specific property allocated to any beneficiary and value and appraise any asset and distribute such asset in kind at its appraised value.
REPORTER'S COMMENTS
Section 3-715: The purpose of this section is to grant personal representatives a broad array of powers reasonably necessary for the proper administration of an estate. The purpose of this section is to set forth in some detail the powers which a personal representative may exercise with respect to the estate and without the necessity of obtaining an order from the probate court in order to do so. Note the introductory provision that the representative may exercise his powers, including the power of sale, only within the restrictions of Section 3-711(b) (see the comments to that section, supra.).
Section 3-716. Powers and Duties of Successor Personal Representative. A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
REPORTER'S COMMENTS
Section 3-716: This section provides that a successor personal representative has the same powers and duties imposed upon the original personal representative except any such powers or duties which are expressly made personal to the original personal representative named in the will.
Section 3-717. Corepresentatives; When Joint Action Required. If two or more persons are appointed corepresentatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any corepresentative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a corepresentative has been delegated to act for the others. Persons dealing with a corepresentative if actually unaware that another has been appointed to serve with him or if advised by the personal representative with whom they deal that he has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the persons with whom they dealt had been the sole personal representative.
REPORTER'S COMMENTS
Section 3-717: This section provides that all corepresentatives are required to unanimously consent to any matter pertaining to the administration and distribution of the estate except when any corepresentative receives and receipts for property due the estate, when an emergency arises and action is necessary in order to preserve the estate or when the corepresentatives have delegated the right to act to one or more of their number.
This section absolves any person dealing with one corepresentative for any excesses committed by such corepresentative in the exercise of his duty to the extent that such person dealing with the corepresentative is unaware that the existence of other corepresentatives or has been advised by such corepresentative that he has the authority to so act. The thrust of this section is to protect such a person dealing with a corepresentative and to eliminate the need for such person to inquire into the validity of the actions taken by such corepresentative. However, the rules pertaining to administration under Part 5 would have the effect of at least requiring a person dealing with a personal representative to determine whether or not the letters granted by the probate court restrict the actions of the representative. That being the case, it would seem that a person exercising due diligence in determining whether or not there is an administration under Part 5 would necessarily come across the fact that more than one representative has been appointed by the probate court to represent the estate. That leads to the inescapable fact that a person dealing with the representative of an estate who exercises due diligence would necessarily come across the existence of additional corepresentatives and would, therefore, not be able to rely upon the protections purportedly granted to him as stated above, unless such corepresentative represents in some fashion that he has the authority to act for all other corepresentatives. See the third sentence of Section 3-714 in connection with the purchaser's implicit duty to inquire into the authority of a representative to act on behalf of the estate.
Section 3-718. Powers of Surviving Personal Representative. Unless the terms of the will otherwise provide, every power exercisable by personal corepresentatives may be exercised by the one or more remaining after the appointment of one or more is terminated and, if one of two or more nominated as coexecutors is not appointed, those appointed may exercise all the powers incident to the office.
REPORTER'S COMMENTS
Section 3-718: This section merely provides that remaining corepresentatives will have full authority to act if one or more of their number loses the capacity to so act by reason of death or other termination of appointment as a personal representative.
Section 3-719. Compensation of Personal Representative. (a) A personal representative shall for his care in the execution of his duties receive a sum from estate funds not to exceed five percent of the appraised value of the personal property of the estate plus the sales proceeds of real property of the estate received on sales directed 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 receive a sum not to exceed five percent of the income earned by the estate in which he acts as fiduciary. No such additional commission is payable by any 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 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 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.
REPORTER'S COMMENTS
Section 3-719: Unless provided otherwise by contract, by the will or by the personal representative's renunciation, his compensation is limited to sums equal to five percent of personal property and five percent of sold real property, in the normal course, plus five percent of income on invested monies, unless the probate court disapproves.
Section 3-720. Expenses in Estate Litigation.
If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements including reasonable attorneys' fees incurred.
REPORTER'S COMMENTS
Section 3-720: If any personal representative in good faith prosecutes or defends an action, he is entitled to reimbursement from the estate for reasonable expenses as well as reasonable attorney fees.
Section 3-721. Proceedings for Review of Employment of Agents and Compensation of Personal Representatives and Employees of Estate.
(a) After notice to all interested persons, on petition of an interested person or on appropriate motion if administration is under Part 5, the propriety of employment of any person by a personal representative including any attorney, auditor, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for his own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
(b) Upon the settlement of their accounts by personal representatives the court shall allow each appraiser appointed by the court a reasonable daily fee for each day spent on appraising the property of the estate and also mileage at the same rate that members of state boards, commissions, and committees receive for each mile actually traveled in going to and from the place where the property ordered to be appraised is situated. In determining the reasonableness of the fee to each appraiser the court shall consider the value of the estate, the actual time consumed by the appraisers in the performance of their duties, and other such circumstances and conditions surrounding the appraisal as the court deems appropriate.
REPORTER'S COMMENTS
Section 3-721: This section allows a personal representative to seek prior approval of the probate court before an advisor is hired.
PART 8
CREDITORS' CLAIMS
Section 3-801. Notice to Creditors. Unless notice has already been given under this section, a personal representative upon his appointment shall publish a notice once a week for three successive weeks in a newspaper of general circulation in the county announcing his appointment and address and notifying creditors of the estate to present their claims within four months after the date of the first publication of the notice or be forever barred.
REPORTER'S COMMENTS
Section 3-801: This section provides for the publication of notice to creditors by the personal representative. The notice is published once a week for three successive weeks in a paper of general circulation in the county. There is no requirement that demands be duly attested. Section 3-1203 relieves the personal representative of the obligation to advertise pursuant to this statute in certain small estates.
Section 3-802. Statutes of Limitations. Unless an estate is insolvent, the personal representative, with the consent of all successors whose interests would be affected
may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. The running of any statute of limitations measured from some other event than death and advertisement for claims against a decedent is suspended during the four months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections which follow. For purposes of any statute of limitations, the proper presentation of a claim under Section 3-804 is equivalent to commencement of a proceeding on the claim.
REPORTER'S COMMENTS
Section 3-802: This section provides for waiver of and the suspension of the running of any statute of limitations, measured from some event other than death and advertisement for claims during the four months following the decedent's death, resuming thereafter.
Section 3-803. Limitations on Presentation of Claims. (a) All claims against a decedent's estate which arose before the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, if not barred earlier by other statutes of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) as to claims founded on tort, within one year after the date of the first publication of notice to creditors if notice is given in compliance with Section 3-801; provided, claims barred by the nonclaim statute at the decedent's domicile before the first publication for claims in this State are also barred in this State;
(2) as to claims founded on contract, including claims which arose out of any contract concerning succession established pursuant to Section 2-701, or other legal basis (except in tort), within four months after the date of the first publication of notice to creditors if notice is given in compliance with Section 3-801; provided, claims barred by the nonclaim statute at the decedent's domicile before the first publication for claims in this State are also barred in this State;
(3) as to claims founded on contract, tort, or other legal basis, within three years after the decedent's death, if notice to creditors has not been published.
(b) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(1) a claim based on a contract with the personal representative, within four months after performance by the personal representative is due;
(2) any other claim, within four months after it arises.
(c) Nothing in this section affects or prevents:
(1) any proceeding to enforce any mortgage, pledge, lien, or other security interest upon property of the estate; or
(2) to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by liability insurance.
REPORTER'S COMMENTS
Section 3-803: Under this section, claims encompass those that are due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis. The claims are then divided into those which arose before the death of the decedent and those which arise at or after the death of the decedent.
Claims sounding in tort arising before death, unless barred by other statutes of limitation, are barred unless presented within one year after the date of the first publication of notice to creditors if notice is given, while claims founded on contract or other legal basis (except in tort), can be presented within four months after the date of the first publication of notice to creditors if notice is given. If notice to creditors has not been published, the period of limitation is three years. Also, if a claim is barred by the nonclaim statute of the decedent's domicile before the first publication for claims in this State, it is also barred in this State.
Claims arising at or after death must be presented as follows: (1) if against the personal representative, within four months after his performance is due; (2) otherwise, within four months after the claim arises.
The limitations of Section 3-803 do not apply to proceedings to enforce mortgages, pledges, or other liens upon property of the estate, or proceedings to establish liability of the decedent or the personal representative for which there is liability insurance. Section 3-804. Manner of Presentation of Claims. Claims against a decedent's estate may be presented as follows:
(1) The claimant may deliver or mail to the personal representative a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, and must file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. The claim is deemed presented on the first to occur of receipt of the written statement of claim by the personal representative, or the filing of the claim with the court. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.
(2) The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim, and the claimant must file a written statement of the claim as in (1) above, with the clerk of the probate court. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death.
(3) If a claim is presented under subsection (1), no proceeding thereon may be commenced more than thirty days after the personal representative has mailed a notice of disallowance; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the thirty-day period, or to avoid injustice the court, on petition presented to the court prior to the expiration of such thirty-day period, may order an extension of the thirty-day period, but in no event shall the extension run beyond the applicable statute of limitations.
REPORTER'S COMMENTS
Section 3-804: This section establishes the mechanism for presenting claims. The claim may be delivered to the personal representative and must be filed with the court. Certain information must be included for claims not yet due, contingent, unliquidated, and secured claims.
In lieu of presenting a claim, a proceeding may be commenced against a personal representative in any appropriate court, but the commencement must occur within the time for presenting claims. No claim is required in matters which were pending at the time of decedent's death.
Actions on claims must be commenced within the thirty days after the personal representative has mailed a notice of disallowance, but the personal representative or the court may consent prior to the expiration of the thirty-day period to extensions which do not run beyond the applicable statute of limitations.
Section 3-805. Classification of Claims
(a) If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:
(1) costs and expenses of administration, including attorney's fees, and reasonable funeral expenses;
(2) reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;
(3) debts and taxes with preference under federal law;
(4) debts and taxes with preference under other laws of this State, in the order of their priority;
(5) all other claims.
(b) Except as is provided under subsection (a)(4) above, no preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
REPORTER'S COMMENTS
Section 3-805: This section sets up the classification of claims where the assets of the estate are insufficient to pay all claims in full. Claims due and payable are not entitled to a preference over claims not due.
Section 3-806. Allowance of Claims. (a) As to claims presented in the manner described in Section 3-804 within the time limit prescribed in Section 3-803, the personal representative may mail a notice to any claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant files a petition for allowance in the court or commences a proceeding against the personal representative not later than thirty days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on his claim for thirty days after the time for original presentation of the claim has expired has the effect of a notice of disallowance with warning of the impending bar.
(b) Upon the petition of the personal representative or of a claimant in a proceeding for the purpose, the court may allow in whole or in part any claim or claims presented to the personal representative or filed with the court in due time and not barred by subsection (a) of this section. Notice in this proceeding shall be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct by order entered at the time the proceeding is commenced.
(c) A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is an allowance of the claim.
(d) Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing thirty days after the time for original presentation of the claim has expired unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.
REPORTER'S COMMENTS
Section 3-806: This section provides the procedure by which the personal representative acts on claims and claimants react to disallowed claims. Within thirty days after the mailing of notice of disallowance, if the notice warns of the impending bar, a claimant must commence a proceeding against the personal representative. This relates to claims allowed in whole or in part. Failure of a personal representative to mail notice of his action within thirty days after the claim-filing period has expired constitutes a notice of disallowance with warning of the impending bar. A claimant has thirty days to react to a disallowed claim. A judgment in a proceeding in another court to enforce a claim constitutes an allowance of a claim.
Unless otherwise provided, or unless interest is based upon contract, allowed claims bear interest at the legal rate commencing thirty days after the time for original presentation of the claims has expired.
The personal representative or the claimant may begin an action in the court for allowance of the claim. This gives the courts jurisdiction over any claim or claims presented to the personal representative or filed with the court.
Section 3-807. Payment of Claims. (a) Upon the expiration of four months from the date of the first publication of the notice to creditors, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, for exempt property, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is under Part 5, a claimant whose claim has been allowed but not paid as provided herein may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment.
(b) The personal representative at any time may pay any just claim which has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
(1) the payment was made before the expiration of the time limit stated in subsection (a) and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
(2) the payment was made, due to the negligence or wilful fault of the personal representative, in such manner as to deprive the injured claimant of his priority.
REPORTER'S COMMENTS
Section 3-807: This provides a remedy for a claimant whose claim has been allowed but has not been paid. Under Section 3-807(b), a personal representative is liable for claims paid out of order.
Section 3-808. Individual Liability of Personal Representative. (a) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity or identify the estate in the contract.
(b) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(c) Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.
(d) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.
REPORTER'S COMMENTS
Section 3-808: This section clarifies that the personal representative is not individually liable for contracts properly entered into in his fiduciary capacity on obligations arising from ownership or control of the estate. He is liable for torts committed in the course of his administration only if he is personally at fault.
It also provides for a variety of appropriate proceedings to determine the issues of liability between the estate and the personal representative.
Section 3-809. Secured Claims. Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; otherwise, payment is upon the basis of one of the following:
(1) if the creditor exhausts his security before receiving payment, upon the amount of the claim allowed less the fair market value of the security as agreed by the parties, or as determined by the court; or
(2) if the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.
REPORTER'S COMMENTS
Section 3-809: This provides for payment of allowed secured claims in full if the security is surrendered by the creditor.
Where the creditor exhausts his security before receiving payment, he receives the claim allowed less the fair market value of security as agreed or determined by the court.
If the security has not been exhausted, the creditor is paid the amount of the claim less the value of the security if covered.
Section 3-810. Claims Not Due and Contingent or Unliquidated Claims. (a) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
(b) In other cases the personal representative or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
(1) if the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
(2) arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage or other security interest, obtaining a bond or security from a distributee, or otherwise.
REPORTER'S COMMENTS
Section 3-810: This provides various arrangements by which the personal representative can secure future payment of claims which are not due, contingent, or unliquidated.
Section 3-811. Counterclaims. In allowing a claim, the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate, a court shall reduce the amount allowed by the amount of any counterclaims allowed and, if such counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.
REPORTER'S COMMENTS
Section 3-811: This provides for the reduction of a claim against the estate by any counterclaim, liquidated or unliquidated.
Section 3-812. Execution and Levies Prohibited. No execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative, but this section shall not be construed to prevent the enforcement of mortgages, pledges, liens, or other security interests upon real or personal property in an appropriate proceeding.
REPORTER'S COMMENTS
Section 3-812: This prohibits executions and levies against property of the estate under judgments against the decedent or the personal representative, but excepts enforcement of mortgages, pledges, and liens in appropriate proceedings.
Section 3-813. Compromise of Claims When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.
REPORTER'S COMMENTS
Section 3-813: This section gives the personal representative the authority to compromise claims in the best interests of the estate. The consent of the probate judge is not necessary.
Section 3-814. Encumbered Assets
If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew, or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.
REPORTER'S COMMENTS
Section 3-814: This gives the personal representative essential authority to deal with encumbered assets.
Section 3-815. Administration in More Than One State; Duty of Personal Representative.
(a) All assets of estates being administered in this State are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed. (b) If the estate either in this State or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances, and charges, each claimant whose claim has been allowed either in this State or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this State, the creditor so benefitted is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit.
(c) In case the family exemptions and allowances, prior charges, and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this State is not the state of the decedent's last domicile, the claims allowed in this State shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this State the amount to which they are entitled, local assets shall be marshaled so that each claim allowed in this State is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this State from assets in other jurisdictions.
REPORTER'S COMMENTS
Section 3-815: This section deals with various matters related to the payment of claims where there is administration in more than one state. As to the order of priorities of payment of claims, local creditors are not preferred over creditors in the decedent's domicile.
Section 3-816. Final Distribution to Domiciliary Representative. The estate of a nonresident decedent being administered by a personal representative appointed in this State shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless (1) by virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this State without reference to the local law of the decedent's domicile; (2) the personal representative of this State, after reasonable inquiry is unaware of the existence or identity of a domiciliary personal representative; or (3) the court orders otherwise in a proceeding for a closing order under Section 3-1001 or incident to the closing of an administration under Part 5. In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of this article.
REPORTER'S COMMENTS
Section 3-816: The estate of a nonresident decedent being administered in this State is, upon conclusion of the local administration, paid over to the domiciliary personal representative.
PART 9
SPECIAL PROVISIONS RELATING TO DISTRIBUTION
Section 3-901. Successors' Rights if no Administration. In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by exemption or intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.
REPORTER'S COMMENTS
Section 3-901: This section governs the rights of heirs and devisees when the administrator of an estate is not able to proceed for one reason or another or in the absence of administration. This section provides that in the absence of administration the rights of the heirs or devisees will be established by the laws of intestate succession or by the terms of a probated will. Without an administration, heirs and devisees take the property subject to charges, such as charges incident to administration and creditors' claims. In addition, successors in title are "subject to the rights of others" which may result from "abatement, retainer, advancement, and ademption. These charges can only be eliminated by an administration which requires the publishing of a creditor's notice or by the running of the statute of limitations on actions.
Section 3-902. Distribution; Order in Which Assets Appropriated; Abatement. (a) Except as provided in subsection (b), shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), as, for instance, in case the will was executed before the effective date of this Code, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
REPORTER'S COMMENTS
Section 3-902: The purpose of Section 3-902 is to provide a defined order in which assets of an estate are used or applied for the payment of debts, in the absence of intent by the testator that an alternate order of abatement be used. The design of this section is to insure that the testator's intent, whether expressed or implied by the terms of the will, would be given first priority in the order of abatement. The section is to be used only to resolve doubts as to the testator's intent, rather than defeating his purpose.
Under this section, there is no distinction made with regard to the character of the assets. A devise encompasses any testamentary passage of property, whether real estate or personalty. Within classifications, abatement will be prorata.
Section 3-903. Right of Retainer. The amount of a liquidated indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.
REPORTER'S COMMENTS
Section 3-903: This section provides that if the amount of liquidated indebtedness of a successor to the estate is due, then the personal representative is to offset any devise to that successor by the amount of the liquidated indebtedness. In the event the indebtedness is liquidated but not yet due, the representative can use the present value of the indebtedness to offset that amount against the devise to the successor.
Section 3-904. Interest on General Pecuniary Devise. General pecuniary devises bear interest at the legal rate beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.
REPORTER'S COMMENTS
Section 3-904: This section provides that if a general pecuniary devise (a devise of an amount of money) is not paid to the devisee within one year from the appointment of the personal representative, the devisee receives, in addition to the devise, interest at the legal rate beginning one year from the appointment of the personal representative.
Section 3-905. Penalty Clause for Contest. A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
Section 3-906. Distribution in Kind; Valuation; Method. (a) Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions:
(1) A specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in Section 2-401 shall receive the items selected.
(2) Any devise payable in money may be satisfied by value in kind provided:
(i) the person entitled to the payment has not demanded payment in cash;
(ii) the property distributed in kind is valued at fair market value as of the date of its distribution;
(iii) no residuary devisee has requested that the asset in question remain a part of the residue of the estate.
(3) For the purpose of valuation under paragraph (2) securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.
(4) The personal property of the residuary estate shall be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. In other cases, personal property of the residuary estate may be converted into cash for distribution.
(b) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal.
REPORTER'S COMMENTS
Section 3-906: Section 3-906(a) establishes a preference for distributions "in kind."
Section 3-906(a) sets out the rights of the three classes of successors specific devisees (3-906(a)(1)), general pecuniary devisees (3-906(a)(2)), and residuary devisees (3-906(a)(3)).
As to specific devisees, Section 3-906(a)(1) provides that the specific devisee is entitled to the thing devised to him.
Section 3-906(a)(2) authorizes the personal representative to make "in kind" distributions to satisfy devises payable in money (general pecuniary devises) provided (1) the devisee has not demanded payment in cash, (2) the property is fairly valued as of the date of distribution under Section 3-906(a)(3) and, (3) a residuary devisee has not requested that the asset remain part of the residue estate.
Residuary devisees are to receive "in kind" distribution provided (1) there is no objection to the proposed distribution and (2) it is practicable to distribute undivided interests.
Section 3-906(b) provides that the personal representative may submit a proposal for distribution to all parties in interest. This section effectively eliminates the interested party's right to object to the distribution if he fails to object to the plan in writing within thirty days from receipt of the proposal.
Section 3-907. Distribution in Kind; Evidence. If distribution in kind is made,the personal representative shall 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.
REPORTER'S COMMENTS
Section 3-907: This section provides that evidence of distribution "in kind" will be in the form of an instrument of deed of distribution which the personal representative will give to the distributees. This instrument serves as a transfer of the interest an estate had in an asset or assets. Sections 3-907 should be read in conjunction with Sections 3-908 through 3-910 to determine right of distributees and purchasers therefrom. In addition the personal representative may use this instrument as a release under Section 3-709 where the representative determines that certain assets of the decedent's estate should be left in the possession of the party who would ultimately receive these assets by way of distribution "in kind."
Section 3-908. Distribution; Right or Title of Distributee. Proof that a distributee has received an instrument or deed of distribution of assets in kind, 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.
REPORTER'S COMMENTS
Section 3-908: Section 3-908 contemplates that all actions for overpayment to a devisee be funneled through the personal representative.
Section 3-909. Improper Distribution; Liability of Distributee. Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.
REPORTER'S COMMENTS
Section 3-909: This section provides that an innocent distributee does not have the protection of a bona fide purchaser. The purpose of Section 3-909 is to shift questions concerning propriety of distribution from fiduciary to distributees. It should be remembered that a distribution under Section 3-703 may be "authorized at the time" but may still be improper under this section.
The provisions of Sections 3-909 and 3-910 establish the proposition that liability follows the property and in the case of an informally probated will the fiduciary may be absolved from liability.
Section 3-910. Purchasers from Distributees Protected. If property distributed in kind 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 persons, 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 shall be prima facie evidence that such transfer was made for value.
REPORTER'S COMMENTS
Section 3-910: Section 3-910 provides that an instrument of distribution (as defined in Section 3-907) is an essential element in the chain of title to ensure that purchasers or lenders from or to a distributee would have good title. This section seems generally consistent with Section 12-15-1020 that the sale of property subject to a lien for estate taxes is divested of the lien.
Section 3-911. Partition for Purpose of Distribution. When two or more heirs or devisees are entitled to distribution of undivided interests in any personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in kind if it can be fairly and equitably partitioned in kind. If not subject to fair and equitable partition in kind, the court shall direct the personal representative to sell the property and distribute the proceeds.
REPORTER'S COMMENTS
Section 3-911: This section makes provision for the probate court to partition personal property.
Section 3-912. Private Agreements Among Successors to Decedent Binding on Personal Representative. Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees of any duties owed to beneficiaries of trusts.
REPORTER'S COMMENTS
Section 3-912: Section 3-912 sanctions settlement agreements among successors allowing them to vary the distributions of an estate, whether testate or intestate, without the necessity of seeking court approval.
Section 3-913. Distributions to Trustee.
(a) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which it is to be administered provides for registration and that the trustee inform the beneficiaries as provided in Section 7-303.
(b) If the trust instrument does not excuse the trustee from giving bond, the personal representative may petition the appropriate court to require that the trustee post bond if he apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves, and he may withhold distribution until the court has acted.
(c) No inference of negligence on the part of the personal representative shall be drawn from his failure to exercise the authority conferred by subsections (a) and (b).
REPORTER'S COMMENTS
Section 3-913: This section gives the right to the personal representative to require a trustee to register where the state law allows for registration. In addition this section permits the representative to require that a trustee post a bond unless the trust document provides otherwise.
This section grants powers to the representative to withhold distributions to a trust where the representative feels that the beneficiaries may not be informed of the existence of the trust or when the representative has doubts as to the capability and competency of the trustee or of the trustee's intention to hold the funds without profit to himself.
Under this section, testamentary trustees would enjoy the status of a devisee, distributee, and successor.
Section 3-914. Disposition of Unclaimed Assets. (a) If an heir, devisee, or claimant cannot be found, the personal representative shall distribute the share of the missing person to his conservator, if any, otherwise to the State Treasurer to become a part of the state escheat fund.
(b) The money received by the State Treasurer shall be paid to the heir, devisee, claimant, or his successor, on proof of his right thereto or, if the State Treasurer refuses or fails to pay, such person may petition the court which appointed the personal representative, whereupon the court upon notice to the State Treasurer may determine the person entitled to the money and order the treasurer to pay it to him. Interest is allowed thereon at the legal rate and the heir, devisee, or claimant or his successor shall pay all costs and expenses incident to the proceeding. If no petition is made to the court within eight years after payment to the State Treasurer, the right of recovery is barred.
REPORTER'S COMMENTS
Section 3-914: Section 3-914 provides that the distributive share to a missing heir, devisee, or claimant must be paid to the conservator of the missing person or, if there is no conservator, to the State Treasurer, to become part of the escheat fund. This section sets aside the assets belonging to a missing person. Within eight years of payment to the State Treasurer, the missing distributee can petition the court for his share. See Section 3-908 providing that the personal representative is a necessary party to an action by the missing distributee to recover his share.
Section 3-915. Distribution to Person Under Disability. A personal representative may discharge his obligation to distribute to any person under legal disability by distributing to his conservator or any other person authorized by this Code or otherwise to give a valid receipt and discharge for the distribution.
REPORTER'S COMMENTS
Section 3-915: Section 3-915 provides that the personal representative will be absolved if he distributes to a conservator of a disabled or incompetent distributee.
Section 3-916. Apportionment of Estate Taxes.
(a) For purposes of this section:
(1) "Estate" means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this State.
(2) "Person" means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency.
(3) "Persons interested in the estate" means any person entitled to receive, or who has received, from a decedent or by reason of the death of a decedent any property or interest therein included in the decedent's estate. It includes a personal representative, conservator, and trustee.
(4) "State" means any state, territory, or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
(5) "Tax" means the federal estate tax and the basic and any additional estate tax imposed by the State of South Carolina and interest and penalties imposed in addition to the tax.
(6) "Fiduciary" means personal representative or trustee.
(b) Unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in this Code, the method described in the will controls.
(c)(1) The court in which venue lies for the administration of the estate of a decedent, on petition for the purpose, may determine the apportionment of the tax.
(2) If the court finds that it is inequitable to apportion interest and penalties in the manner provided in subsection (b), because of special circumstances, it may direct apportionment thereof in the manner it finds equitable.
(3) If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge him with the amount of the assessed penalties and interest.
(4) In any action to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this Code, the determination of the court in respect thereto shall be prima facie correct.
(d)(1) The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to him, the amount of tax attributable to his interest. If the property in possession of the personal representative or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the personal representative or other person required to pay the tax may recover the deficiency from the person interested in the estate. If the property is not in the possession of the personal representative or the other person required to pay the tax, the personal representative or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this act.
(2) If property held by the personal representative is distributed prior to final apportionment of the tax, the distributee shall provide a bond or other security for the apportionment liability in the form and amount prescribed by the personal representative.
(e)(1) In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate, and for any deductions and credits allowed by the law imposing the tax.
(2) Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing such relationship or receiving the gift; but if an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal.
(3) Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or his estate inures to the proportionate benefit of all persons liable to apportionment.
(4) Any credit for inheritance, succession, or estate taxes or taxes in the nature thereof applicable to property or interest includable in the estate, inures to the benefit of the persons or interests chargeable with the payment thereof to the extent proportionately that the credit reduces the tax.
(5) To the extent that property passing to or in trust for a surviving spouse or any charitable, public, or similar purpose is not an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property is not included in the computation provided for in subsection (b) hereof, and to that extent no apportionment is made against the property. The sentence immediately preceding does not apply to any case if the result would be to deprive the estate of a deduction otherwise allowable under Section 2053(d) of the Internal Revenue Code of 1954, as amended, of the United States, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.
(f) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder. The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.
(g) Neither the personal representative nor other person required to pay the tax is under any duty to institute any action to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax. A personal representative or other person required to pay the tax who institutes the action within a reasonable time after the three months' period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the personal representative or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be equitably apportioned among the other persons interested in the estate who are subJect to apportionment.
(h) A personal representative acting in another state or a person required to pay the tax domiciled in another of this State and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state or of a death duty due by a decedent s estate to another state, from a person interested in the estate who is either domiciled in this State or who owns property in this State subject to attachment or execution. For the purposes of the action, the determination of apportionment by the court having jurisdiction of the administration of the decedents estate in the other state is prima facie correct.
REPORTER'S COMMENTS
Section 3-916: Section 3-916(b) establishes a true apportionment of estate taxes among all takers, whether they be probate or nonprobate, unless a will states otherwise.
Section 3-916(g) imposes an affirmative duty on the personal representative to attempt to recover from any distributee any portion o the estate tax liability. The representative must act within three months after final determination of estate taxes or the representative might be guilty of negligence.
PART 10
CLOSING ESTATES
Section 3-1001. Formal Proceedings Terminating Administration; Testate or Intestate; Order of General Protection. (a) A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs and adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.
(b) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. ~n the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.
REPORTER'S COMMENTS
Section 3-1001: Section 3-1001 describes procedures for obtaining orders of complete settlement of an estate.
The fully adjudicated closing under Section 3-1001(a) requires notice to all interested parties including unpaid creditors. After notice and hearing, the court may determine issues of testacy and heirship if not previously determined. The court upon application may order or approve an accounting, may interpret the terms of the will, direct or approve distribution of estate assets, discharge the personal representative, and close the estate. Such a discharge of the personal representative terminates his authority and discharges him from further liability to any person. The personal representative or any other interested person may petition for an order of complete settlement under this section after the claim period has expired, but a devisee may not seek such an order until a year has elapsed from the issuance of the appointment of the representative.
Section 3-1001(b) provides that on proper petition for an order of complete settlement, the court is authorized to "determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs." Resort to this section by the personal representative would result from discovery of additional persons interested in matters concerning testacy who were omitted from earlier testacy proceedings. The hearing may be held without notice to parties involved in the previous testacy proceedings, and evidence at the earlier proceeding may be used by the court, absent objection by the previously omitted person. The representative may determine that the interests of parties to the previous proceedings may be affected by the outcome of this Section 3-1001(b) hearing and could afford them the opportunity to appear at the hearing, but such notice would not be required.
Section 3-1002. Formal Proceedings Terminating Testate Administration; Order Construing Will Without Adjudicating Testacy.
A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate which will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one year, from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will and adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those he represents. If lt appears that a part of the estate is intestate the proceedings shall be dismissed or amendments made to meet the provisions of Section 3-1001.
REPORTER'S COMMENTS
Section 3-1002: Section 3-1002 prescribes a procedure for discharge of the personal representative less formal than the procedure under Section 3-1001, but such procedure applies only in the event the will was informally probated and is binding only upon the devisees. The order of settlement is not an adjudication of the testacy status of the decedent. Intestate heirs are not notified of the Section 3-1002 petition and are not bound by the resulting order.
As in Section 3-1001, the petition for settlement may be filed by the personal representative or any other interested person after the claim period has expired, but a devisee may not seek such an order until a year has elapsed after the issuance of letters. Since the proceedings would be binding only upon devisees under the informally probated will, the procedure cannot be used if it appears that part of the estate is intestate. Were that the case, a proceeding under Section 3-1001 would be appropriate with notice to all interested persons including all potential heirs.
Notice to creditors is not given under Section 3-1002 so a resulting settlement order would not be binding upon creditors.
Section 3-1003. Formal Proceedings Accounting For Administration; Testate or Intestate; Order of Protection. (a) A personal representative shall file with the court a full account in writing of his administration. Where the personal representative is not required to file an estate tax return with the South Carolina Tax Commission, he shall file his account within seven months after the date of the first publication of notice to creditors. Where the personal representative is required to file an estate tax return with the South Carolina Tax Commission, he shall file his account within thirty days after his receipt of a South Carolina estate tax closing letter. He shall also file a proposal for distribution of the estate, as well as proof that copies of the account and proposal for distribution have been sent to all distributees of the estate whose interests are affected thereby and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred.
(b) The personal representative or any interested person may petition for an order of settlement of the account within thirty days of its filing. The petition may request the court to consider the account, to approve the account and distribution, to construe any will and adjudicate the settlement and distribution of the estate. After notice to all interested persons and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.
REPORTER'S COMMENTS
Section 3-1003: Section 3-1003(a) requires the personal representative to circulate to interested distributees and creditors and to file a formal accounting on the later of (1) seven months after first publication of the notice to creditors and (2) thirty days after receipt of a South Carolina estate tax closing letter. Section 3-1003(b) provides a procedure for obtaining an order approving the accounting and the proposed distribution.
Section 3-1004. Liability of Distributees to Claimants. After assets of an estate have been distributed and subject to Section 3-1006, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property or for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.
REPORTER'S COMMENTS
Section 3-1004: Section 3-1004 allows a creditor of an estate to pursue assets distributed against one or more distributees. A distributee's liability to a claimant is for amounts received as distributions in excess of exempt property but no more than the value of the property received, valued as of the time of the distribution.
A distributee has a right of contribution against other distributees if he gives timely notice to the distributees so that they can participate in the proceedings under which the claimant is asserting his claim.
Section 3-1005. Rights of Successors and Creditors. Unless previously barred by adjudication and except as provided in the accounting, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the account and proposal for distribution of the estate required by Section 3-1003. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.
Section 3-1006. Limitations on Actions and Proceedings Against Distributees. Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee, or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is forever barred at the later of (1) three years after the decedent's death- or (2) one year after the time of distribution thereof. This section does not bar an action to recover property or value received as the result of fraud.
REPORTER'S COMMENTS
Section 3-1006: Section 3-1006 creates a statute of limitations for claims against distributees by creditors or other persons claiming to be entitled to distribution from the estate. The time limitation provided is three years after the decedent's death or one year after the time of the distribution thereof.
As in Section 3-1005, this section does not create a time bar for any action to recover property received as a result of fraud.
Section 3-1007. Certificate Discharging Liens Securing Fiduciary Performance. After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the court that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety, but does not preclude action against the personal representative or the surety.
REPORTER'S COMMENTS
Section 3-1007: Under Section 3-1007, after termination of the personal representative's appointment, and upon the filing of an application showing that no action is pending concerning the estate, the personal representative or his sureties may obtain from the court a certificate to the effect that the personal representative appears to have fully administered the estate. A certificate issued by the court affects a release of any security given in connection with the personal representative's bond, but does not prevent an action against the personal representative or his surety.
Section 3-1008. Subsequent Administration. If other property of the estate is discovered after an estate has been settled and the personal representative discharged, the court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently discovered estate. If a new appointment is made, unless the court orders otherwise, the provisions of this Code apply as appropriate; but no claim previously barred may be asserted in the subsequent administration.
REPORTER'S COMMENTS
Section 3-1008: Section 3-1008 provides a procedure for reopening an estate following discharge of the personal representative. Such a supplemental or subsequent administration of a decedent's estate would be required if other property of the estate is discovered after the personal representative's discharge. Upon petition of an interested party and upon notice as required by the court, the court may reappoint the former personal representative or a different person to administer the subsequently discovered assets.
In administering the subsequently discovered assets, the procedure of this Code would apply as appropriate, except that previously barred claims could not be asserted in the subsequent administration.
PART 11
COMPROMISE OF CONTROVERSIES
Section 3-1101. Effect of Approval of Agreements Involving Trusts, Inalienable Interests, or Interests of Third Persons. A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interests in the estate of the decedent, of any 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.
REPORTER'S COMMENTS
Section 3-1101: Section 3-1101 provides that compromises of controversies regarding estates can be made binding on interested parties by court confirmation.
Such controversies would include disagreements regarding the admission to probate of and instrument as the will of the decedent, the construction, validity, and effect of a probated will, the rights of successors to decedent s estate, and the personal representative's administration of the estate.
Approval of the compromise agreement is by order of the probate court following a formal proceeding. The order confirming the agreement is binding upon parties to the proceeding, and is binding upon unborn or unascertained persons and upon persons who could not be located.
After court confirmation, the agreement is binding even though the agreement affects a trust contained in an instrument separate from decedent's will, and even though it affects an unalienable right.
The agreement as confirmed by the court is not binding on creditors of the estate or trust estate, or on taxing authorities, unless they are parties to the agreement.
Section 3-1102. Procedure for Securing Court Approval of Compromise. The procedure for securing court approval of a compromise is as follows:
(1) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.
(2) Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.
(3) After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable
shall make an order approving the agreement and directing all fiduciaries subject to its jurisdiction to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.
REPORTER'S COMMENTS
Section 3-1102: Section 3-1102 provides the procedure by which agreements for compromise of estate controversies are confirmed by the probate court.
Subsection (1) requires the agreement be in written form setting forth all of the terms of the compromise. The agreement must be signed by all persons having a beneficial interest in or claim against the estate, whose interest or claim is affected by the agreement. If an interested party is a minor, the agreement may be executed on his behalf by his parent.
Execution of the agreement is not required by unknown parties or by parties whose whereabouts are unknown or cannot reasonably be ascertained. The agreement should clearly specify the effect of the compromise on the minors, on unknown parties, and on unlocated parties. Subsection (2) would imply that the agreement is not to be signed by the personal representative or trustees of the affected testamentary trust prior to submission of the agreement to the probate court, but the agreement should specify the proposed effect on the personal representative and affected trusts.
Subsection (2) requires submission of the agreement to the probate court for approval. The application for approval may be made by an interested party or by the personal representative. The application would request approval of the agreement and would request an order directing or permitting the personal representative and the trustee of an affected testamentary trust to execute the agreement.
Pursuant to subsection (3), a hearing after notice to all interested parties is conducted by the probate Judge. In addition to parties to the agreement, the personal representative and trustees of affected trusts must be notified of the hearing.
The advocates of the agreement must prove to the court that a controversy existed in good faith among the interested parties. This requirement is to avoid sham arrangements designed to prejudice unknown parties or parties whose addresses are unknown but would be bound by an order confirming the agreement.
The advocates of the agreement must prove that the effect of the agreement on persons, including minors and incompetents represented by fiduciaries or other representatives, is fair, equitable, and reasonable.
Upon such proof to the court, the court will by order approve the agreement and will direct the personal representative and all fiduciaries subject to the court's jurisdiction to execute the agreement.
The agreement as confirmed by the court will govern further disposition of the decedent's estate in accordance with the terms of the agreement. Subsection (3) further provides that minor children who are represented only by their parents may be bound only if their parents executed the agreement with other competent persons. In the event this requirement cannot be met, execution of the agreement on behalf of the minor could be made binding if by a court appointed guardian.
PART 12
COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
Section 3-1201. Collection of Personal Property by Affidavit.
(a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor stating that:
(1) the value of the entire estate, wherever located, less liens and encumbrances, does not exceed ten thousand dollars;
(2) thirty days have elapsed since the death of the decedent;
(3) no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
(4) the claiming successor is entitled to payment or delivery of the property.
(b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).
REPORTER'S COMMENTS
Section 3-1201: Section 3-1201 provides for a simplified handling of small estates of ten thousand dollars or less through the use of an affidavit. The small estate affidavit may be used starting thirty days after the death of the decedent if the entire estate of the decedent, wherever located, after deduction of liens and encumbrances, does not exceed ten thousand dollars. The affiant must state that the value of the estate does not exceed ten thousand dollars, that thirty days have elapsed since the decedent's death, that no person has applied for appointment as, or has been appointed as, personal representative in any jurisdiction, and that affiant as successor to decedent is entitled to payment or delivery of the property.
Upon presentment of such an affidavit, holders of property of decedent, or persons obligated to decedent, must transfer the property, or discharge their debt, to the successor. Stock transfer agents in subparagraph (6) are directed to transfer stock based on such affidavits.
The small estate affidavit cannot be used to transfer title to real estate and it cannot be used by creditors of the estate to reach assets of the estate.
Section 3-1202. Effect of Affidavit. The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
REPORTER'S COMMENTS
Section 3-1202: Section 3-1202 discharges and releases any person who transfers personal property of a decedent or who pays his debt to the decedent pursuant to the small estate affidavit pursuant to Section 3-1201 to the same extent he would have been released from liability had he dealt with a court-appointed personal representative of the decedent. The person so released is not required to inquire into the accuracy of the affidavit nor to insure the proper application of the personal property by the successor.
This section also provides that the successor may compel performance through a proceeding against the holder of personal property or a person obligated to the decedent.
This section creates a liability in the recipient of property through the use of an affidavit to any personal representative of the estate and to any person having a superior right, including creditors of the decedent or of the estate, or other successors of the decedent.
Section 3-1203. Small Estates; Summary Administrative Procedure.
If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed ten thousand dollars and exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 3-1204.
REPORTER'S COMMENTS
Section 3-1203: Sections 3-1203 and 3-1204 provide for an expedited administration by a personal representative. Under Section 3-1203, if the personal representative determines after inventory and appraisal that the estate assets, after deduction of liens and encumbrances, do not exceed the total of ten thousand dollars, plus exempt property, plus costs and expenses of administration, reasonable funeral expenses, and medical and hospital expenses of the decedent's last illness, then the personal representative may immediately pay the administration, funeral, medical, and hospital expenses and distribute the balance to distributees. Prior notice to creditors of this election is not required. Following the disbursement of the assets, the personal representative would file the closing statement required by Section 3-1204.
Section 3-1204. Small Estates; Closing by Sworn Statement of Personal Representative.
(a) Unless prohibited by order of the court and except for estates being administered under Part 5, a personal representative may close an estate administered under the summary procedures of Section 3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:
(1) to the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed ten thousand dollars and exempt property, costs, and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent;
(2) the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto;
(3) the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected.
(b) If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
REPORTER'S COMMENTS
Section 3-1204: Section 3-1204 provides the procedure for closing the estate following the disbursement and distribution of assets pursuant to Section 3-1203. The procedure would not be used if prohibited by the probate court or if the estate was in administration under Part 5
The personal representative would file with the probate court his verified statement stating that: (1) to the best of his knowledge the estate assets do not exceed the limitations described in Section 3-1203; (2) he has disbursed and distributed the assets to the proper persons, he has sent a copy of the closing statement to the distributees, unpaid creditors, and claimants whose claims are not barred, and he has sent to all distributees a written account of his administration of the estate.
If no action regarding the estate is pending one year after the personal representative files the closing statement, the court will terminate the appointment of the personal representative.
PART 13
SALE OF REAL ESTATE BY PROBATE COURT TO PAY DEBTS
Section 3-1301. Only Procedure for Sale of Lands by Probate Court. The provisions of this part are hereby declared to be the only procedure for the sale of lands in aid of assets by the probate court.
Section 3-1302. Sale of Real Estate to Pay Deceased's Debts When Personal Estate is Insufficient. The judges of probate of the several counties of this State may, as herein provided, if the personal estate of any intestate or testator in the hands of the personal representative or the assets set apart by the last will and testament be insufficient to pay the debts of the deceased, sell all or so much of the real estate of such deceased person as will pay the outstanding debts of the deceased.
REPORTER'S COMMENTS
Section 3-1302: Section 3-1302 establishes the circumstances under which the probate court has the power to sell the land of the deceased. Those circumstances are that the personal estate in the hands of the personal representative or assets set aside under the will of the deceased to pay the debts of the estate are insufficient to pay the outstanding debts of the deceased.
Section 3-1303. Issuance Or Summons Upon Application for Sale. On application to the probate judge at any time after the qualification of any personal representative by a creditor of the deceased or the personal representative by petition in writing, setting forth the indebtedness of the deceased and the deficiency of assets, and showing the ownership of real estate by the deceased, the judge of probate shall forthwith issue a summons to the heirs-at-law or devisees of the estate requiring them to appear before him at his office at such time as may be fixed in the summons to show cause, if any they might have, why such real estate should not be sold.
REPORTER'S COMMENTS
Section 3-1303: Section 3-1303 specifies the process by which an action for the sale of real estate in aid of assets is commenced. The action is commenced by a petition filed after qualification of the personal representative. The petition may be filed by the personal representative or by a creditor of the deceased. The petition must specify the indebtedness of the deceased in general and if filed by a creditor should specify the indebtedness to the creditor in particular. The petition must also specify the personal assets of the estate and should allege the deficiency of the assets to satisfy the estate indebtedness.
Upon filing of the petition, Section 3-1303 provides that the probate judge will issue a summons directed to the heirs-at-law or devisees of the estate specifying the time of a hearing to show cause why the real estate should not be sold pursuant to the petition.
Section 3-1304. Form of Summons. The form of such summons shall be as follows: 'You are hereby required to appear at the court of probate to be held at courthouse, for _______ County, on the _______day of _____ A.D. to show cause, if any you can, why so much of the real estate of ________, deceased should not be sold by me and the proceeds thereof paid over to_____, personal representative of ____________ to be applied by him to the payment of the debts of___________.
Given under my hand and seal this day of _______ , A.D. 19 ________
Probate Judge of ___________ County'.
Section 3-1305. Service of Summons and Petition. To such summons a copy of the petition shall be attached and copies of the summons and petition shall be served on the parties interested in like manner as summons and complaints are served in civil actions in the circuit courts. If there be minors the probate judge shall appoint guardians ad litem who shall be served with copies of the summons and petition and the appointment and acceptance of such guardian shall be endorsed on the petition. Nothing herein contained shall preclude any of the parties from accepting service of the summons and petition or from consenting to the sale as prayed for in the petition.
REPORTER'S COMMENTS
Section 3-1305: This section provides for the manner of service of the summons and petition and incorporates by reference the methods of service of summons and complaints in civil actions in the circuit courts. This section further provides for appointment of guardian ad litem to represent minors and specifies that the guardian ad litem will be served with copies of the summons and petition. A copy of the order appointing the guardian ad litem and a statement of the guardian to serve must be endorsed on the petition. This section further provides that any of the parties may accept service of the summons and petition and may also consent to the sale prayed for in the petition.
Section 3-1306. Execution of Process Shall be by Sheriffs' Fees. The sheriffs of the several counties in this State are required to serve all processes which may be issued by the probate judge under the provisions of this part, for which they shall receive the same fees as are allowed them by law for similar services, which shall be paid from the proceeds of sale or by the petitioner.
REPORTER'S COMMENTS
Section 3-1306: Section 3-1306 provides for service of the summons and petition within the State of South Carolina by the sheriffs of the various counties in which interested parties are located. This section specifies that the sheriffs' fees for service shall be as in other circumstances and are to be paid by the petitioner or from the proceeds of the sale.
Section 3-1307. Publication as to Nonresidents and Parties With Unknown Residences. If there be any party who resides beyond the limits of this State or whose residence is unknown and who does not consent in writing to the sale, the judge of probate shall advertise for his appearance by publication of the summons as provided by this Code and if such party shall not appear and show sufficient cause within the time named in the summons the judge of probate shall enter of record his consent as confessed and shall proceed with the sale.
REPORTER'S COMMENTS
Section 3- 1307: This section provides for service of the summons and petition by publication on interested parties who are not residents of South Carolina or whose addresses are unknown. If the party consented to the sale, service would not be required. If the party after such service did not appear or answer, the probate judge will enter of record his consent by default.
Section 3-1308. Filing Notice of Pendency of Action. Upon the filing of the petition the probate judge shall file in the office of the clerk of the circuit court a notice of pendency of action authorized by Sections 15-11-10 to 15-11-50 and upon the filing of such notice it shall have the same force and effect as notice of pendency of action filed in an action in the circuit court.
REPORTER'S COMMENTS
Section 3-1308: This section prescribes the filing of a notice of pendency of action, or lis pendens, by the probate judge in the office of the clerk of court for the county in which the land is located, at the time the petition is filed, pursuant to Sections 15-11-10 to 15-11-50. Such filing will eliminate from consideration by the court any party who acquires subsequent to the filing of the notice a lien upon or an interest for value in the land.
Section 3-1309. Time for Return; Sale of Real Estate After Hearing and Notice. The time for return shall be at least twenty days from the date of service. Should any of the heirs-at-law or devisees desire to make a return it shall be in writing and the judge of probate shall in regular order, as in the case of other litigated cases, proceed to determine the issues made by petition and return and should he decide that the real estate should be sold he shall then, in his discretion, either (a) order the personal representative to sell the same at private sale upon such terms and conditions as the judge of probate may impose; or (b) proceed to sell the same upon the next or some subsequent convenient sales day after publishing a notice of such sale three weeks prior thereto in some paper published in his county. Upon the sale being made, after the payment of the costs and expenses thereof, the Judge of probate shall pay over to the personal representative the net proceeds of such sale. The personal representative shall administer such proceeds in like manner as proceeds of personal property coming into his hands. Nothing in this part shall be construed to abridge homestead exemptions.
REPORTER'S COMMENTS
Section 3-1309: Section 3-1309 allows interested parties twenty days in which to file written return to the petition. Following this period, the probate judge would schedule a hearing of the case.
If the probate judge determines that the land should be sold in accordance with the petition, he would either order a private sale or schedule a public auction of the land for the normal day of court sales, being the first Monday of each month, or the first day following that Monday that is not a legal holiday if the Monday is a legal holiday. The notice of the sale must be published once a week for three weeks during the three weeks preceding the sale in a newspaper published in the county of the probate court.
Following the sale, the net proceeds of the sale will be paid over to the personal representative for distribution in accordance with law as if it were personal property originally belonging to the estate.
Section 3-1309 further provides that the proceedings are not to abridge the rights of homestead exemption in the land.
Section 3-1310. Bond for Handling of Proceeds by Personal Representative.
The regular bond of the personal representative shall protect the creditors, heirs-at-law, and devisees in the handling of the proceeds of sale by the personal representative but in case no such bond has been given then the judge of probate shall require the giving of a bond by such personal representative as provided in Sections 3-603 and 3-605.
REPORTER'S COMMENTS
Section 3-1310: Section 3-1310 provides that the regular bond of the personal representative protects claimants to the proceeds of the sale. If no bond has been filed previously, the personal representative will be required to file one pursuant to Sections 3-603 and 3-605. If a bond has previously been filed, the personal representative may be required to increase the amount of the bond.
Section 3-1311. Filing of Papers; Requirement of Returns. The judge of probate shall file and keep in his office the original petition with due proof of service thereon and all original papers connected with the sale and shall require from such personal representative his final account showing the distribution of the funds received by him.
REPORTER'S COMMENTS
Section 3-1311: Section 3-1311 requires the filing and preserving in the probate court of
all original documents relating to the action for the sale of the land including the petition, proofs of service, and order.
This section further requires the personal representative file a final accounting to document the distribution of the proceeds of sale of the land.
Section 3-1312. Entry of Releases of Liens on Property Sold. In case any lands of the deceased subject to the lien of any judgment, mortgage, or other lien shall be sold under the provisions of this part the probate judge shall enter a release of the lands so sold upon the records in the office of the clerk of court or register of mesne conveyances of his county from the lien of such judgment, mortgage, or other lien and in case such mortgage, judgment, or other lien debt shall have been paid in full out of the proceeds of the sale of such lands the probate judge shall have cancellation of the same entered on the record thereof. The foregoing duties shall not be imposed upon the probate judge in case such mortgage, judgment, or other creditor shall have such liens released or canceled within thirty days following the sale of such lands nor shall any judgment, mortgage, or other lien creditor be relieved of the duty, as provided otherwise by law, of releasing or canceling such liens. Each release, satisfaction, or cancellation provided for herein shall refer by proper notation to the file number of such estate in the probate court. The provisions of this section shall not apply when the order of sale shall direct the sale of any lands which shall be sold subject to any existing mortgage, judgment, or other lien, but only when such lands are sold freed and discharged from all such liens.
REPORTER'S COMMENTS
Section 3-1312: This section provides that the probate judge must file in the offices of the clerk of court and of the register of mesne conveyances releases of the land sold from the lien of any mortgage, judgment, or other lien on said land. If the lien claim is paid in full from the proceeds of sale, the probate judge will file a cancellation of the lien. Such filing of releases by the probate judge will not be required if such releases are filed by the lien claimants within thirty days of the sale. Such releases by the probate judge must make reference to the probate court file number for the estate.
This section specifies that releases must also be filed by the lien claimants even if a release has been filed by the probate judge.
This section further provides that the probate judge may sell the land subject to any existing lien on the land, and, in which case, no release from the lien would be required.
TABLE OF CONTENTS
ARTICLE IV
LOCAL AND FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION
PART 1
DEFINITIONS
Section
4-101. [Definitions.]
PART 2
POWERS OF FOREIGN PERSONAL REPRESENTATIVES
4-201. [Payment of Debt and Delivery of Property to Domiciliary Foreign Personal Representative Without Local Administration.]
4-202. [Payment or Delivery Discharges.]
4-203. [Resident Creditor Notice.]
4-204. [Proof of Authority-Bond.]
4-205. [Powers.]
4-206. [Power of Representatives in Transition.]
4-207. [Ancillary and Other Local Administrations; Provisions Governing.]
PART 3
JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES
4-301. [Jurisdiction by Act of Foreign Personal Representative.]
4-302. [Jurisdiction by Act of Decedent.]
4-303. [Service on Foreign Personal Representative.]
PART 4
JUDGMENTS AND PERSONAL REPRESENTATIVES
4-401. [Effect of Adjudication for or Against Personal Representative.]
ARTICLE IV
LOCAL AND FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION
PART 1
DEFINITIONS
Section 4-101. Definitions. In this article:
(1) 'Local administration' means administration by a personal representative appointed in this State pursuant to appointment proceedings described in Article III.
(2) 'Local personal representative' includes any personal representative appointed in this State pursuant to appointment proceedings described in Article III and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to Section 4-205.
(3) 'Resident creditor' means a person domiciled in, or doing business in, this State who is, or could be, a claimant against an estate of a nonresident decedent.
REPORTER'S COMMENTS
Section 4-101: Section 4-101 defines "local administration" and "local personal representative" in order to distinguish "local" matters from that matter covered by Article IV, the "foreign personal representative" and his administrative acts in South Carolina undertaken on the strength of his "foreign administration," without his appointment in South Carolina pursuant to Article III of this Code. Section 1-201 includes definitions of "foreign personal representative", "personal representative", and "non-resident decedent."
PART 2
POWERS OF FOREIGN PERSONAL REPRESENTATIVES
Section 4-201. Payment of Debt and Delivery of Property to Domiciliary Foreign Personal Representative Without Local Administration. At any time after the expiration of sixty days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock, or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock, or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:
(1) the date of the death of the nonresident decedent;
(2) that no local administration, or application or petition therefor, is pending in this State;
(3) that the domiciliary foreign personal representative is entitled to payment or delivery.
REPORTER'S COMMENTS
Section 4-201: Sections 4-201, 4-202, and 4-203 must be read, together with Section 4-206, as providing a means, less cumbersome than those provided by Sections 4-204 and 4-205 and by Section 4-207, for the unification and simplification of the administration of multi-state estates in the hands of the domiciliary foreign personal representatives of nonresident decedents. These sections allow the domiciliary foreign personal representative to collect estate assets in South Carolina without requiring local appointment (Section 4-201), while protecting debtors of the estate against double payment (Section 4-202) and also protecting resident creditors of the estate from nonpayment (Section 4-203). See Section 5-431 for a provision similarly allowing the collection of the assets of a nonresident protected person by his domiciliary foreign conservator.
Sections 4-201 and 4-202 preserve the domiciliary foreign personal representative's power to collect estate assets in South Carolina from debtors willing to make voluntary payment on the strength of his foreign appointment, and also preserve the corresponding effect, the full discharge of the debtor, resulting from the payment.
These sections by their terms apply only to estates of nonresident decedents and allow for payment only to the domiciliary, not to any ancillary, foreign personal representative. Presumably, an ancillary personal representative is empowered to collect assets only in the state of his appointment. The debtor's good faith reliance on the foreign personal representative's proof of appointment and affidavit, inaccurately showing that the decedent was a nonresident of South Carolina and that the personal representative was appointed as a domiciliary personal representative, should protect the debtor under Section 4-202. These sections apply even if local administration is actually pending or applied for, as long as the foreign personal representative supplies the documentation detailed in Section 4-201 and the debtor has no actual notice of the pending local administration. Section 4-202 requires only good faith of the debtor who receives that documentation; his release then depends solely on his making payment to the foreign personal representative. See Section 4-206.
These sections apply even though interested persons, including estate creditors, are domiciled in, or doing business in, South Carolina. Such creditors are protected under Section 4-203.
These sections apply to the collection of all debts owed to and tangible and intangible personal property owned by the estate. Section 3-201(d) refers to the location of tangible personal property and intangible personal property which may be evidenced by an instrument. Transfers of securities are covered by these sections as well as by Sections 35-7-10, et seq. the Uniform Act for Simplification of Fiduciary Security Transfers.
Section 4-201 provides for a waiting period of sixty days from the death of the decedent before payment can be made with the expectation of an immediate discharge of the debtor. Presumably
having made payment before the expiration of the period, a debtor will be discharged at the expiration of the period if he would have been discharged had he then paid, but, for example, not if, in the meantime, a local administration has come to the attention of the debtor
See Section 12-15-270 for estate tax duties and liabilities imposed on personal representatives.
Section 4-202. Payment or Delivery Discharges.
Payment or delivery made in good faith on the basis of the proof of authority and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
REPORTER'S COMMENTS
Section 4-202: See Comment to Section 4-201.
Section 4-203. Resident Creditor Notice.
Payment or delivery under Section 4-201 may not be made if a resident creditor of the nonresident decedent has given written notice to the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
REPORTER'S COMMENTS
Section 4-203: For the context of Section 4-203, see comment to Section 4-201. Section 4-203 provides a means by which a resident creditor of the decedent can attempt to protect himself from nonpayment of his debt, resulting from assets of the estate being removed from South Carolina by a domiciliary foreign personal representative. The creditor simply notifies the debtors of the decedent not to pay their debts under Sections 4-201 and 4-202. The notice must be in writing, thereby excluding constructive notice. Section 4-203 provides for a mechanism protective of resident creditors, while Section 4-202 deprives of such protection resident creditors who fail to give notice under Section 4-203.
Section 4-204. Proof of Authority Bond. If no local administration or application or petition therefor is pending in this State, a domiciliary foreign personal representative may file with a court in this State in a county in which property belonging to the decedent is located, authenticated copies of his appointment, the will, if any, and of any official bond he has given, which bond shall name the court in this State as co-obligee on such bond.
REPORTER'S COMMENTS
Section 4-204: Sections 4-204 and 4-205 must be read, together with Section 4-206, as providing a means, additional to those of Sections 4-201 through 4-203 and of Section 4-207, for the unification and simplification of the administration of multi-state estates, without requiring the local appointment of a personal representative. Predicated on no local administration having been instituted, the domiciliary foreign personal representative, who files with the court the documents required by Section 4-204, obtains under Section 4-205 all of the powers of a local personal representative. See article III for the powers of local personal representatives.
Section 4-205. Powers. A domiciliary foreign personal representative who has complied with Section 4-204 may exercise as to assets in this State all powers of a local personal representative and may maintain actions and proceedings in this State subject to any conditions imposed upon nonresident parties generally.
REPORTER'S COMMENTS
Section 4-205: See comment to Section 4-204.
Section 4-206. Power of Representatives in Transition. The power foreign personal representative under Section 4-201 or 4-205 shall be exercised only if there is no administration or application therefor pending in this State. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 4-205, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of
local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this State.
REPORTER'S COMMENTS
Section 4-206: Section 4-206 limits the powers of foreign personal representatives, under both Sections 4-201, et seq., and 4-204, et seq., to cases in which no local administration is pending, with provision, however, for court approved exercise of limited powers to preserve the estate, for protection of any person acting in reliance upon these sections and without actual notice of a pending local administration, and for subjection of the local personal representative to the obligations accrued by the foreign personal representative under these sections. See Article III for provisions concerning local administration.
Section 4-207. Ancillary and Other Local Administrations; Provisions Governing. In respect to a nonresident decedent, the provisions of Article III 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.
REPORTER'S COMMENTS
Section 4-207: The purpose of this section is to direct attention to Article III for sections
controlling ancillary, i.e., local administration of estates of nonresident decedents. See in particular Sections 3-101, 3-201, 3-202, 3-203, 3-307(a), 3-308, 3-611(b), 3-803(a), 3-815, and 3-816. Section 4-207 and Article III must be read as providing an alternative to the procedures available to a foreign personal representative under Sections 4-201 through 4-206.
PART 3
JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES
Section 4-301. Jurisdiction by Act of Foreign Personal Representative. A foreign personal representative submits personally to the jurisdiction of the courts of this State in any proceeding relating to the estate by (1) filing authenticated copies of his appointment as provided in Section 4-204, (2) receiving payment of money or taking delivery of personal property under Section 4-201, or (3) doing any act as a personal representative in this State which would have given the State jurisdiction over him as an individual. Jurisdiction under (2) is limited to the money or value of personal property collected.
REPORTER'S COMMENTS
Section 4-301: Sections 4-301 and 4-302 assert the South Carolina courts' jurisdiction over foreign personal representatives, not appointed in South Carolina pursuant to Article III
Jurisdiction is asserted in the circumstances; under Section 4-301, of the foreign personal representative's acting (1) under Section 4-204 of this Code, (Z) under Section 4-201 of this Code, or (3) within the state in a manner which would have subJected him, as an individual, to the state's jurisdiction, and, under Section 4-302, (4) of the decedent's having been subject to the courts' jurisdiction immediately prior to his death. The words "courts of this state" are sufficient under federal legislation to include a federal court having jurisdiction in South Carolina.
A foreign personal representative appointed at the decedent's domicile has priority for appointment in any local administration. See Section 3-203(g). Once appointed as local personal representative, he remains subject to the jurisdiction of the appointing court under
Section 3-602.
Section 4-302. Jurisdiction by Act of Decedent. In addition to jurisdiction conferred by Section 4-301, a foreign personal representative is subject to the jurisdiction of the courts of this State to the same extent that his decedent was subject to jurisdiction immediately prior to death.
REPORTER'S COMMENTS
Section 4-302: For the context of Section 4-302, see comment to Section 4-301. Section 4-302 subjects the foreign personal representative to jurisdiction on the basis of his decedent's immediate pre-death condition or activities, whether the decedent was domiciled, doing business, or maintaining his principal place of business in South Carolina (see Section 36-2-802 of the 1976 Code) or engaged in conduct encompassed in South Carolina's "long-arm' statutes (see Sections 36-2-803, 15-5-130, 15-5-140, and 15-9-350, et seq.). As to survival of causes of action, see Sections 15-5-90, 15-51-10, et seq., and 35-1-1520 of the 1976 Code
Uniform Commercial Code Section 36-2-801 might be read to subject a personal representative "whether or not a citizen or domiciliary of this State," including a foreign personal representative, to the jurisdiction of the South Carolina courts. Section 4-302 settles any doubt as to the foreign personal representative's immunity from suit.
Section 4-302 should be read with Sections 15-5-130 and 15-5-140 as augmenting and simplifying the process available to persons involved in South Carolina in automobile accidents also involving deceased nonresident motorists.Section 4-302 allows for suit directly against the foreign personal representative.
Section 4-303. Service on Foreign Personal Representative. (a) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this State on either the foreign personal representative or his decedent immediately prior to death.
(b) If service is made upon a foreign personal representative as provided in subsection (a), he shall be allowed thirty days within which to appear or respond.
REPORTER'S COMMENTS
Section 4-303: Section 4-303 provides for service of process upon a foreign personal representative, first, either by registered or by certified mail, with return receipt requested, if available under postal regulations; second, by ordinary first class mail, where registered or certified mail is unavailable; and, third, by any means available under other laws of South Carolina for service on the decedent (or on the foreign personal representative himself) immediately prior to the decedent's death. For service on the decedent, see Sections 36-2-804, et seq., for service of process in support of personal jurisdiction under the "long-arm" provisions of the Uniform Commercial Code, Sections 36-2-801, et seq. See Sections 15-9-350, et seq., for substituted service of process in South Carolina on the statutorily designated agents of nonresident motorists, motor carriers, aircraft operators, vessel operators, certain traveling shows, nonresident directors of domestic corporations, nonresident trustees of inter vivos trusts, and nonresident individual fiduciaries.
See Sections 1-401 through 1-403 of this Code for the general notice provisions of this Code.
PART 4
JUDGMENTS AND PERSONAL REPRESENTATIVES
Section 4-401. Effect of Adjudication for or Against Personal Representative. An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication; provided, however, that notice and the opportunity to defend must be given to the local representative in order that the judgment be collectible.
REPORTER'S COMMENTS
Section 4-401: For the determinative effect of domiciliary foreign orders determining testacy or the validity of a will and of domiciliary certificates of the efficacy of a will, see Section 3-408 and 3-409.
ARTICLE V
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
TABLE OF CONTENTS
PART I
GENERAL PROVISIONS
Section
5-101. [Definitions and Use of Terms.]
5-102. [Jurisdiction of Subject Matter; Consolidation of Proceedings.]
5-103. [Facility of Payment or Delivery.]
5-104. [Delegation of Powers by Parent or Guardian.]
5-105. [State Commissioner of Mental Health or His Designee may act as Conservator.]
PART 2
RESERVED
PART 3
GUARDIANS OF INCAPACITATED PERSONS
5-301. [Testamentary Appointment of Guardian for Incapacitated Person.]
5-302. [Venue.]
5-303. [ Procedure for Court Appointment of a Guardian of an Incapacitated Person.]
5-304. [Findings; Order of Appointment.]
5-305. [ Acceptance of Appointment; Consent to Jurisdiction.]
5-306. [Termination of Guardianship for Incapacitated Person.]
5-307. [ Removal or Resignation of Guardian; Termination of Incapacity.]
5-308. [Visitor in Guardianship Proceeding.]
5-309. [Notices in Guardianship Proceedings.]
5-310. [ Temporary Guardians.]
5-311. [Who May be Guardian; Priorities.]
5-312. [General Powers and Duties of Guardian.]
5-313. [Proceedings Subsequent to Appointment; Venue.]
PART 4
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
5-401. [Protective Proceedings.]
5-402. [Protective Proceedings; Jurisdiction of Affairs of Protected Persons.]
5-403. [Venue.]
5-404. [Original Petition for Appointment or Protective Order.]
5-405. [Notice.]
5-406. [Protective Proceedings; Request for Notice; Interested Person.]
5-407. [Procedure Concerning Hearing and Order on Original Petition.]
5-408. [Permissible Court Orders.]
5-409. [Protective Arrangements and Single Transactions Authorized.]
5-410. [Who May be Appointed Conservator; Priorities.]
5-411. [Bond.]
5-412. [Terms and Requirements of Bonds.]
5-413. [Acceptance of Appointment; Consent to Jurisdiction.]
5-414. [Compensation and Expenses.]
5-415. [Death, Resignation, or Removal of Conservator.]
5-416. [Petitions for Orders Subsequent to Appointment.]
5-417. [General Duty of Conservator.]
5-418. [Inventory and Records.]
5-419. [ Accounts.]
5-420. [Conservators; Title by Appointment.]
5-421. [Recording of Conservator's Letters.]
5-422. [Sale, Encumbrance, or Transaction Involving Conflict of Interest; Voidable; Exceptions.]
5-423. [Persons Dealing with Conservators; Protection.]
5-424. [ Powers of Conservator in Administration.]
5-425. [Distributive Duties and Powers of Conservator.]
5-426. [Enlargement or Limitation of Powers of Conservator.]
5-427. [ Preservation of Estate Plan.]
5-428. [Claims Against Protected Person; Enforcement.]
5-429. [Individual Liability of Conservator.
5-430. [Termination of Proceeding.]
5-431. [Payment of Debt and Delivery of Property to Foreign Conservator
Without Local Proceedings.]
5-432. [Foreign Conservator; Proof of Authority; Bond; Powers.]
PART 5
POWERS OF ATTORNEY
5-501. [When Power of Attorney Not Affected by Disability.]
5-502. [Other Powers of Attorney Not Revoked Until Notice of Death or Disability.]
PART 6
UNIFORM VETERAN'S GUARDIANSHIP ACT
5-601. [Short Title.]
5-602. [ Definitions.]
5-603. [Appointment of Guardians.]
5-604. [Persons Who May File Petition for Appointment.]
5-605. [Contents of Petition for Appointment of Guardian.]
5-606. [Facts Which Constitute Prima Facie Evidence of Need for Guardian of a
Minor Ward.]
5-607. Facts Which Constitute Prima Facie Evidence of Need for Guardian of a
Mentally Incompetent Ward.]
5-608. [Notice of Petition.]
5-609. [Fitness of Guardian; Bond.]
5-610. [Limitation on Number of Wards of One Guardian.]
5-611. [Annual Account of Guardians Receiving Funds from Veterans Administration.]
5-612. [Exhibit of Securities at Time of Filing Account.]
5-613. [Effect of Failure to Account.
5-614. [Accountability for Funds not Received from Administration.]
5-615. [Investments Which Guardians May Make.]
5-616. [Use of Estate for Support of Person Other Than Ward.]
5-617. [Copies of Public Records Shall be Furnished Without charge.]
5-618. [Compensation of Guardians.]
5-619. [Final Discharge of Guardian; Paying out Funds Less Than One Thousand Dollars.]
5-620. [Proceedings in Which Administrator shall be a Party in Interest.]
5-621. [Copies of Accounts, Certificates or Pleadings Shall be Sent to Veterans Administration.]
5-622. [Time, Place, and Notice of Hearing on Account, Petition or Other Pleading.]
5-623. [Notice of Hearings Shall be Given to Guardian; Orders.]
5-624. [Construction.]
ARTICLE V
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
PART 1
GENERAL PROVISIONS
Section 5-101. Definitions and Use of Terms. Unless otherwise apparent from the context, in this Code:
(1) "Incapacitated person" means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property;
(2) A "protective proceeding" is a proceeding under the provisions of Section 5-401 to determine if a person is an incapacitated person, or to secure the administration of the estates of incapacitated persons or minors;
(3) A "protected person" is a minor or incapacitated person for whom a conservator has been appointed or other protective order has been made;
(4) A "ward" is a person for whom a guardian has been appointed.
REPORTER'S COMMENTS
Section 5-101: Sections 5-101 and 1-201 define certain terms which are used in Article V. This Code uses the term guardian to refer to a fiduciary who has custody of a minor or mentally incompetent adult. See Section 1-201(16).
Under this Code, a fiduciary appointed to manage the assets of any person under disability is referred to as a conservator. See Section 1-201(6).
Any person for whom a guardian has been appointed for reasons other than solely minority is referred to as a ward, and any person for whom a guardian has been appointed solely by reason of minority is referred to as a minor ward. See Section 5-101(4).
An incapacitated person is a person under disability for reasons other than minority. Se~ Section 5-101(1). A protected person is any person under disability, including a person under disability by reason of minority, for whom a conservator has been appointed or for whose benefit any protective order has been issued. See Section 5-101(3). A protective proceeding is a proceeding under Part 4 relating to the appointment of a conservator or issuance of some other protective order. See Section 5-101(2).
Section 5-102. Jurisdiction of Subject Matter; Consolidation of Proceedings. (a) The court has jurisdiction over protective proceedings and guardianship proceedings.
(b) When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.
REPORTER'S COMMENTS
Section 5-102: Under Section 5-102, the probate courts are given subject matter jurisdiction over the appointment of fiduciaries who will have custody of or manage assets of persons under disability. When proceedings relating to the appointment of a fiduciary who will have custody and proceedings relating to the appointment of a fiduciary who will manage assets are commenced in the same probate court, such proceedings may be consolidated.
Section 5-103. Facility of Payment or Delivery. Any person under a duty to pay or deliver money or personal property to a minor may perform this duty in amounts not exceeding ten thousand dollars per annum, by paying or delivering the money or property to (1) the minor if he is married; (2) any person having the care and custody of the minor with whom the minor resides; (3) a guardian of the minor; or (4) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor 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 are pending. The persons, other than the minor or any financial institution under (4) above, receiving money or property for a minor, are obligated to apply the money to the support and education of the minor, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's support. Any excess sums shall be preserved for future support of the minor and any balance not so used and any property received for the minor must be turned over to the minor when he attains majority. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof.
REPORTER'S COMMENTS
Section 5-103: Section 5-103 only applies to the property of minors. This section does not require a court order. The payment may be made directly to the minor only if he is married. The payment may be deposited in a federally insured savings account in the minor's name.
Section 5-104. Delegation of Powers by Parent or Guardian. A parent or 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, any of his powers regarding care and custody of the incapacitated person.
REPORTER 'S COMMENTS
Section 5-104: This section allows a parent or a guardian of any incapacitated person to delegate temporarily to someone else his responsibilities with respect to the person of such incapacitated person. Such delegation cannot exceed six months and is effected by means of the execution of a power of attorney.
Section 5-105. State Commissioner of Mental Health or His Designee may act as Conservator.
If any patient of a State mental health facility has no legally appointed conservator, the State Commissioner of Mental Health or his designee may receive and accept for the use and benefit of any such patient any sum of money, not in excess of the sum of ten thousand dollars in any one calendar year, which may be due such patient or trainee by inheritance, gift, pension, or otherwise. The Commissioner or his designee may act as conservator for any such patient and his endorsement or receipt shall discharge the obligor for such sum so received. Upon receipt of any such fund the Commissioner or his designee shall use it for the proper maintenance, use, and benefit of such patient or as much thereof as may be necessary for such purposes. In the event any such patient should die leaving an unexpended balance of any such funds in the hands of the Commissioner or his designee, he shall apply such balance first to the funeral expenses of such patient or trainee, and any balance remaining shall be held by the Commissioner or his designee for a period of six months, and if he is not within such period, contacted by the personal representative of such deceased patient, the balance in the personal fund account shall be applied to the maintenance and medical care account of the deceased patient. Any further balance shall be paid to the judge of probate of the county from which the patient or trainee was admitted for distribution according to law.
PART 2
RESERVED
PART 3
GUARDIANS OF INCAPACITATED PERSONS
Section 5-301. Testamentary Appointment of Guardian for Incapacitated Person. (a) The parent of an incapacitated person may by will appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given twenty days prior written notice of intention to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, if prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.
(b) The spouse of a married incapacitated person may by will appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given twenty days prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.
(c) This State shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.
(d) On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding section of this Part.
Section 5-302. Venue. The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.
Section 5-303. Procedure for Court Appointment of a Guardian of an Incapacitated Person. (a) The incapacitated person or any person interested in his welfare may petition for a finding of incapacity and appointment of a guardian.
(b) Upon the filing of a petition, the court shall send a visitor to the place where the allegedly incapacitated person resides to observe conditions and report in writing to the court. The court shall set a date for hearing on the issues of incapacity and unless the allegedly incapacitated person has counsel of his own choice, it shall appoint an attorney to represent him in the proceedings and that attorney shall have the powers and duties of a guardian ad litem. The person alleged to be incapacitated shall be examined by two examiners, one of whom shall be a physician appointed by the court who shall submit their
in writing to the court. The person alleged to be incapacitated is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon his condition. He is entitled to be represented by counsel, to present evidence including testimony by a physician of his own choosing, to cross-examine witnesses, including the court-appointed examiners. The issue may be determined at a closed hearing if the person alleged to be incapacitated or his counsel so requests.
Section 5-304. Findings; Order of Appointment. The court may appoint a guardian as requested if it is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person. Alternatively, the court may dismiss the proceeding or enter any other appropriate order.
Section 5-305. Acceptance of Appointment; Consent to Jurisdiction. By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.
Section 5-306. Termination of Guardianship for Incapacitated Person. The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in Section 5-307. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.
Section 5-307. Removal or Resignation of Guardian; Termination of Incapacity. (a) On petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept his resignation and make any other order which may be appropriate.
(b) An order adjudicating or readjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in his welfare may petition for an order that he is no longer incapacitated, and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.
(c) Before acting upon any such petition, the court shall send a visitor to the residence of the present guardian and to the place where the ward resides or is detained to observe conditions and report in writing to the court. After reviewing the report of the visitor, the court may order termination of the ward's incapacity or a hearing following the procedures set forth in Section 5-303.
Section 5-308. Visitor in Guardianship Proceeding. A visitor is, with respect to guardianship proceedings, a person who is trained in law, nursing, or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings.
Section 5-309. Notices in Guardianship Proceedings. (a) In a proceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following:
(1) the ward or the person alleged to be incapacitated and his spouse, parents, and adult children;
(2) any person who is serving as his guardian, conservator, or who has his care and custody; and
(3) in case no other person is notified under (1), at least one of his closest adult relatives, if any can be found.
(b) Notice shall be served personally on the alleged incapacitated person and his spouse and parents if they can be found within the State. Notice to the spouse and parents, if they cannot be found within the State, and to all other persons except the alleged incapacitated person, shall be given as provided in Section 1-401. Waiver of notice by the person alleged to be incapacitated is not effective unless he attends the hearing or his waiver of notice is given by his attorneys or, in proceedings for removal, confirmed in an interview with the visitor, which may be done at any time. Representation of the alleged incapacitated person by a guardian ad litem is not necessary.
Section 5-310. Temporary Guardians. If an incapacitated person has no guardian and an emergency exists, the court may exercise the power of a guardian pending notice and hearing to be held within fourteen days. If an appointed guardian is not effectively performing his duties and the court further finds that the welfare of the incapacitated person requires immediate action, it may, with or without notice, appoint a temporary guardian for the incapacitated person for a specified period not to exceed six months. A temporary guardian is entitled to the care and custody of the ward and the authority of any permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority. A temporary guardian may be removed at any time. A temporary guardian shall make any report the court requires. In other respects the provisions of this Code concerning guardians apply to temporary guardians.
REPORTER'S COMMENTS
Section 5-310: Section 5-310 allows the court to appoint a temporary guardian without petition and in effect could remove or appoint a temporary guardian without a formal hearing process.
Section 5-311. Who May be Guardian; Priorities. (a) Any competent person or a suitable institution may be appointed guardian of an incapacitated person.
(b) Subject to the discretion of the court, persons who are not disqualified have priority for appointment as guardian in the following order:
(1) the spouse of the incapacitated person;
(2) an adult child of the incapacitated person;
(3) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;
(4) any other relative of the incapacitated person;
(5) a person nominated by the person who is caring for him or paying benefits to him.
REPORTER'S COMMENTS
Section 5-311: Under Section 5-311 any competent person or suitable institution may be appointed as guardian.
Section 5-312. General Powers and Duties of Guardian. (a) A guardian of an incapacitated person has the same powers, rights, and duties respecting his ward that a parent has respecting his unemancipated minor child except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court:
(1) to the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, he is entitled to custody of the person of his ward and may establish the ward's place of abode within or without this State.
(2) If entitled to custody of his ward he shall make provision for the care, comfort, and maintenance of his ward and, whenever appropriate, arrange for his training and education. Without regard to custodial rights of the ward's person, he shall take reasonable care of his ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of his ward is in need of protection.
(3) A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service.
(4) If no conservator for the estate of the ward has been appointed or if the guardian is also conservator, he may:
(i) institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform his duty;
(ii) receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but, he may not use funds from his ward's estate for room and board or services which he, his spouse, parent, or child have furnished the ward unless a charge for the services and/or room and board is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. He must exercise care to conserve any excess for the ward's needs.
(5) A guardian is required to report the condition of his ward and of the estate which has been subject to his possession or control, as required by the court or court rule, but at least on an annual basis.
(6) If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in this Code, and the guardian must account to the conservator for funds expended.
(b) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for his services and for room and board furnished to the ward as agreed upon between him and the conservator, provided the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.
REPORTER'S COMMENTS
Section 5-312: Section 5-312(1) would allow the guardian to establish the ward's place of abode within or without the State.
Section 5-313. Proceedings Subsequent to Appointment; Venue. (a) The court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, has jurisdiction over resignation, removal, accounting, and other proceedings relating to the guardianship.
(b) If the court which appointed the guardian, or in which acceptance of appointment is filed, being the court in which proceedings subsequent to appointment are commenced, determines that the proceedings more appropriately belong in the court located where the ward resides, the first court shall notify the other court, in this or another state, and after consultation with the other court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.
REPORTER'S COMMENTS
Section 5-313: Section 5-313 provides primary Jurisdiction in the court which appointed the guardian and secondary jurisdiction in the court where the ward presently resides.
PART 4
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
Section 5-401. Protective Proceedings. Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:
(1) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may nave business affairs which may be jeopardized or prevented by his minority, or that funds are needed for his support and education and that protection is necessary or desirable to obtain or provide funds.
(2) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that (i) the person is unable to manage his property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and (ii) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him and that protection is necessary or desirable to obtain or provide funds.
REPORTER'S COMMENTS
Section 5-401: This is the basic section of this part providing for protective proceedings for minors and disabled persons. "Protective proceedings" is a generic term used to describe proceedings to establish conservatorships and obtain protective orders. Persons who may be subjected to the proceedings described here include a broad category of persons who, for a variety of different reasons, may be unable to manage their own property.
The comment to Section 5-304, supra, points up the different meanings of incapacity (warranting guardianship), and disability.
Section 5-402. Protective Proceedings; Jurisdiction of Affairs of Protected Persons. After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:
(1) exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;
(2) exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this State shall be managed, expended, or distributed to or for the use of the protected person or any of his dependents;
(3) concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person.
REPORTER'S COMMENTS
Section 5-402: This section vests in the probate court, upon filing of the petition, exclusive jurisdiction over determination of the need for a conservator and the management of the protected person's estate. Concurrent jurisdiction with the circuit court is given to determine the validity of claims.
Section 5-403. Venue. Venue for proceedings under this part is:
(1) In the place in this State where the person to be protected resides whether or not a guardian has been appointed in another place; or
(2) If the person to be protected does not reside in this State, in any place where he has property.
REPORTER'S COMMENTS
Section 5-403: 5-403 puts venue for proceedings in the county of residence of the person to be protected, or if he resides out of state, where his property lies.
Section 5-404. Original Petition or Appointment or Protective Order. (a) The person to be protected, any person who is interested in his estate, affairs, or welfare, including his parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order.
(b) The petition shall set forth to the extent known, the interest of the petitioner; the name, age, residence, and address of the person to be protected; the name and address of his guardian, if any; the name and address of his nearest relative known to the petitioner; a general statement of his property with an estimate of the value thereof, including any compensation, insurance, pension, or allowance to which he is entitled; and the reason why appointment of a conservator or other protective order is necessary. If the appointment of a conservator is requested, the petition also shall set forth the name and address of the person whose appointment is sought and the basis of his priority for appointment.
Section 5-405. Notice. (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 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 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.
(b) Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under Sections 5-406 and to interested persons and other persons as the court may direct. Except as otherwise provided in (a), notice shall be given in accordance with Section 1-401.
REPORTER'S COMMENTS
Section 5-405: This section sets up a tiered system for giving notice. The petition is served first on the spouse and, if none, the parents. Section 5-405(b) provides that notice of a petition must be given to a person who has filed a request for notice and to interested persons or those whom the court may choose.
Section 5-405 specifically establishes a twenty-day period between service and a hearing.
Section 5-406. Protective Proceedings; Request for Notice; Interested Person. Any interested person who desires to be notified before any order is made in a protective proceeding may file with the court a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the demand to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and his address, or that of his attorney. and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings.
REPORTER'S COMMENTS
Section 5-406: This section provides for notification of any interested person prior to filing of an order.
Section 5-407. Procedure Concerning Hearing and Order on Original Petition. (a) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if fourteen years of age or older. A lawyer appointed by the court to represent a minor has the powers and duties of a guardian ad litem. If the minor already has an attorney, that attorney shall act as his guardian ad litem.
(b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has counsel of his own choice, the court must appoint a lawyer to represent him who then has the powers and duties of a guardian ad litem. If the protected person already has representation by an attorney that attorney shall act as his guardian ad litem. If the alleged disability is mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, or chronic intoxication, the court shall direct that the person to be protected be examined by one or more physicians designated by the court, preferably physicians who are not connected with any institution in which the person is a patient or is detained.
(c) After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order.
Section 5-408. Permissible Court Orders. The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:
(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing upon such notice by the court as is reasonable under the circumstances, and if the petition requests temporary relief, the court has the power to preserve and apply the property of the person to be protected as may be required for his benefit or the benefit of his dependents; however, notice of such actions of the court shall be given to interested parties as soon thereafter as practicable.
(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, his family, and members of his household.
(3) 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.
(4) An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists, has no effect on the capacity of the protected person, except to the extent the order affects his estate or affairs.
REPORTER'S COMMENTS
Section 5-408: This section gives specific powers to the court to take action with respect to the estate and affairs of a person if necessary even if that person has not yet been judged incompetent.
Section 5-409. Protective Arrangements and Single Transactions Authorized. (a) If it is established in a proper proceeding that a basis exists as described in Section 5-401 for affecting the property and affairs of a person the court, without appointing a conservator, may authorize, direct, or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.
(b) When it has been established in a proper proceeding that a basis exists as described in Section 5-401 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct, or ratify any contract, trust, or other transaction relating to the protected person's financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.
(c) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.
Section 5-410. Who May Be Appointed Conservator; Priorities. (a) The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:
(1) a conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
(2) an individual or corporation nominated by the protected person if he is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(3) an attorney in fact appointed by such protected person pursuant to Section 5-501;
(4) the spouse of the protected person;
(5) an adult child of the protected person;
(6) a parent of the protected person, or a person nominated by the will of a deceased parent;
(7) any other relative of the protected person;
(8) a person nominated by the person who is caring for him or paying benefits to him.
(b) A person in priorities (1), (4), (5), (6), or (7) may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority.
REPORTER'S COMMENTS
Section 5-410: This section sets forth in detail the tiered system prioritizing those who may be appointed conservator.
Section 5-411. Bond. The court may require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law and will approve all sureties. The bond shall be in a penalty equal to the estimated value of the personal property of the estate minus the value of securities deposited with the court and held by the court, and shall have two or more good sureties, the aggregate value of whose estates, over and above their indebtedness, shall not be less than the full amount of the penalty of the bond. When the surety on any bond is a corporate surety authorized and licensed to do business in this State such bond, in the discretion of the probate court, need only be in a penalty of one and one-half times the estimated value of the personal property of the estate, exclusive of securities on deposit with the court.
Section 5-412. Terms and Requirements of Bonds. (a) The following requirements and provisions apply to any bond required under Section 5-411:
(1) Sureties shall be jointly and severally liable with the conservator and with each other;
(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;
(3) On petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;
(4) Subject to applicable statutes of limitation, the bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
REPORTER'S COMMENTS
Section 5-412: Section 5-412 amplifies 5-411.
Section 5-413. Acceptance of Appointment; Consent to Jurisdiction. By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
REPORTER'S COMMENTS
Section 5-413: This section specifies the jurisdiction of the court over a conservator who accepts appointment and provides for notice to him .
Section 5-414. Compensation and Expenses. If not otherwise compensated for services rendered, any visitor, lawyer, physician, conservator, or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate, as determined by the court.
REPORTER'S COMMENTS
Section 5-414: Section 5-414 entitles those who have served the estate to reasonable compensation.
Section 5-415. Death, Resignation, or Removal of Conservator. The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of his predecessor.
Section 5-416. Petitions for Orders Subsequent to Appointment. (a) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order (1) requiring bond or security or additional bond or security, or reducing bond, (2) requiring an accounting for the administration of the trust, (3) directing distribution, (4) removing the conservator and appointing a temporary or successor conservator, or (5) granting other appropriate relief.
(b) A conservator may petition the appointing court for instructions concerning his fiduciary responsibility.
(c) Upon notice and hearing, the court may give appropriate instructions or make any appropriate order.
REPORTER'S COMMENTS
Section 5-416: This permits any interested person to petition the court for subsequent orders including instructions.
Section 5-417. General Duty of Conservator In the exercise of his powers, a conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees as described by Section 7-302.
REPORTER'S COMMENTS
Section 5-417: This section imposes the standard of care applicable to trustees, the "prudent man dealing with the property of another" rule.
Section 5-418. Inventory and Records. Within thirty days after his appointment, every conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with his oath or affirmation that it is complete and accurate so far as he is informed. The court may, for good cause shown, increase the allotted time. The conservator shall provide a copy thereof to the protected person if he can be located, has attained the age of fourteen years and has sufficient mental capacity to understand these matters, and to any parent or guardian with whom the protected person resides. The conservator shall keep suitable records of his administration and exhibit the same on request of any interested person.
REPORTER'S COMMENTS
Section 5-418: Section 5-418 requires the conservator to file a verifiable inventory of the protected estate within thirty days after his appointment.
Section 5-419. Accounts. Every conservator must account to the court for his administration of the trust annually and upon his resignation or removal, and at other times as the court may direct. On termination of the protected person's minority or disability a conservator shall account to the court. Subject to appeal within the same time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to his liabilities concerning the matters shown in connection therewith and an order, made upon notice and hearing, allowing a final account adjudicates as to all unsettled liabilities of the conservator to the protected person or his successors relating to the conservatorship concerning the matters shown. In connection with any account, the court may require a conservator to submit to a physical check of the estate in his control, to be made in any manner the court may specify.
REPORTER'S COMMENTS
Section 5-419: This section requires every conservator to account to the court annually and at the time of his resignation or removal. It also establishes protection for those dealing with the conservator.
Section 5-420. Conservators; Title by Appointment. The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact. The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provision by contract or dispositive instrument relating to a conservator.
REPORTER'S COMMENTS
Section 5-420: This section permits independent administration of the property of protected persons once the appointment of a conservator has been obtained. Any interested person may require the conservator to account in accordance with Section 5-419. As a trustee, a conservator holds title to the property of the protected person. Once appointed, he is free to carry on his fiduciary responsibilities. If he should default in these in any way, he may be made to account to the court.
Unlike a situation involving appointment of a guardian, the appointment of a conservator has no bearing on the capacity of the disabled person to contract or engage in other transactions.
Section 5-421. Recording of Conservator's Letters. Letters of conservatorship transfer all assets of a protected person to the conservator. An order terminating a conservatorship transfers all assets of the estate from the conservator to the protected person or his successors. Letters of conservatorship, and orders terminating conservatorships, shall be filed and recorded in the office where conveyances of real estate are recorded for the county in which the protected person resides and in the other counties where the protected person owns real estate.
REPORTER'S COMMENTS
Section 5-421: Since the legal title to the real property is transferred to the conservator
in order to prevent fraudulent conveyances and to inhibit erroneous conveyances letters of conservatorship should be recorded.
Section 5-422. Sale, Encumbrance, or Transaction Involving Conflict of Interest; Voidable; Exceptions. Any sale or encumbrance to a conservator, his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is void unless the transaction is approved by the court after notice to interested persons and others as directed by the court.
REPORTER'S COMMENTS
Section 5-422: This section allows court authorized sales and purchases of protected property.
Section 5-423. Persons Dealing with Conservators; Protection. A person who in good faith either assists a conservator or deals with him for value in any transaction other than those requiring a court order as provided in Sections 5-408 and 5-422, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 5-426 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
REPORTER'S COMMENTS
Section 5-423: Section 5-423 carries Section 5-422 one step further by affording protection to bona fide purchasers for value of protected property.
Section 5-424. Powers of Conservator in Administration. (a) A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in this State.
(b) A conservator has power without court authorization or confirmation to invest and reinvest funds of the estate as would a trustee.
(c) 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 interested;
(2) receive additions to the estate;
(3) invest and reinvest estate assets in accordance with subsection (b);
(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 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 claim; to settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise; and to release, in whole or in part, any 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 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 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) 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 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 act deemed 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 5-425.
REPORTER'S COMMENTS
Section 5-424: Section 5-424 sets out the powers of a conservator in administration. Subsection (a) provides that a conservator has all powers conferred in this section and also any additional powers granted by law to trustees in South Carolina. In subsection (b) a conservator is expressly granted power to invest and reinvest funds of the estate "as would a trustee," without court authorization or confirmation. Subsection (c) contains a list of eighteen specifically itemized powers which a conservator has and may exercise without court authorization or confirmation, where "acting reasonably in efforts to accomplish the purpose for which he was appointed." Subsection (d) contains a list of nine specifically itemized powers which a conservator may exercise with court approval.
Section 5-425. Distributive Duties and Powers of Conservator. (a) A conservator may expend or distribute sums from the principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person and his dependents in accordance with the following principles:
(1) The conservator is to consider recommendations relating to the appropriate standard of support, education, and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education, or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.
(2) The conservator is to expend or distribute sums reasonably necessary for the support, education, care, or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him- (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person.
(3) The conservator may expend funds of the estate for the support of persons legally dependent on the protected person.
(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person, to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.
(b) When a minor who has not been adjudged disabled under Section 5-401(2) attains his majority, 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.
(c) When the conservator is satisfied that a protected person's disability (other than minority) has ceased, then he shall petition the court, and after determination by the court that the disability has ceased in accordance with Section 5-430, the 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.
(d) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after thirty days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate. Upon application for an order granting the powers of a personal representative to conservator, after notice to any person demanding notice under Section 3-204 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that ere is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in Section 3-308 and Parts 6 through 10 of Article III except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
(e) A person shall not be disqualified as an executor of a deceased protected person solely by reason of his having been appointed and acting conservator of that protected person.
REPORTERS COMMENTS
Section 5-425: Section 5-425 sets out the distributive duties and powers of a conservator. u section (a) provides that a conservator may expend or distribute sums from the principal of the estate without court authorization or confirmation for the support, care, or benefit of the protected person and his dependents in accordance with principles stated in paragraphs (1) through (4). Subsection (b) simply directs distribution to a former minor when he attains majority, unless he has ben adjudged disabled under Section 5-401(2).
Subsection (c) directs a conservator for a disabled person to petition the court when the conservator is satisfied that disability has ceased, and upon determination that the disability has ceased, to make distribution to the formerly disabled person. Subsection (d) provides for distribution in case of the death of the protected person. Subsection (e) merely provides that previous service as a conservator for a protected person does not disqualify the previous conservator from serving as executor of the protected person.
Section 5-426. Enlargement or Limitation of Powers of Conservator. The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by Sections 5-424 and 5-425, or previously conferred by the court, and may at any time relieve him of any limitation. If the court limits any power conferred on the conservator by Section 5-424 or Section 5-425, the limitation shall be endorsed upon his letters of appointment and upon any certificate evidencing his appointment.
REPORTER'S COMMENTS
Section 5-426: Section 5-426 permits the court to limit the powers of a conservator which he otherwise would have pursuant to Sections 5-424 and 5-425 and also to relieve him of any limitation at any time.
Section 5-427. Preservation of Estate Plan. In investing the estate, and in selecting assets of the estate for distribution under subsections (a) and (b) of Section 5-425, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, any revocable trust of which he is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated.
REPORTER'S COMMENTS
Section 5-427: This section provides that the conservator and the court "should" take into account any known estate plan of the protected person, in making investments, in distribution of assets, and in exercising certain other powers.
Section 5-428. Claims Against Protected Person; Enforcement. (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 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. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance.
(b) A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is initiated against a protected person, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.
(c) If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration.
REPORTER'S COMMENTS
Section 5-428: Section 5-428 sets out the procedure for presentation and enforcement of claims against the estate of the protected person. Presentation of a claim in the prescribed manner tolls any statute of limitations relating to the claim until thirty days after its disallowance. In subsection (c) preference is given to "prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration."
Section 5-429. Individual Liability of Conservator. (a) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the court of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.
(b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(c) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable therefor.
(d) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.
REPORTER'S COMMENTS
Section 5-429: Section 5-429 relieves a conservator of personal liability for contracts properly entered into in his fiduciary capacity unless he fails to reveal his representative capacity and identify the estate in the contract, and also relieves him from obligations arising from ownership or control of property and tort liability unless he is personally at fault. Claims may be asserted by proceeding against the conservator in his fiduciary capacity, whether or not he is individually liable. Questions of liability between the conservator and the estate may be determined in a proceeding for accounting or other appropriate proceeding .
Section 5-430. Termination of Proceeding.
The protected person, his personal representative, the conservator, or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The court, upon determining after notice and hearing that the minority or disability of the protected person has ceased, may terminate the conservatorship.
REPORTER'S COMMENTS
Section 5-430: Section 5-430 provides that the conservatorship may be terminated upon determination, after notice and hearing, that the minority or disability of the protected person has ceased.
Section 5-431. Payment of Debt and Delivery of Property to Foreign Conservator Without Local Proceedings. Any person indebted to a protected person, or having possession of property of or an instrument evidencing a debt, stock, or chose in action belonging to a protected 'person may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:
(1) that no protective proceeding relating to the protected person is pending in this State;
(2) that the foreign conservator is entitled to payment or to receive delivery.
If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this State, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.
REPORTER'S COMMENTS
Section 5-431: Section 5-431 provides that any debtor (or person having possession of property) of a protected person may pay the debt (or deliver the property) to any conservator or other fiduciary appointed by a court of the state of residence of the protected person, upon presentation by the fiduciary of proof of appointment and his affidavit that there is no protective proceeding relating to the protected person pending in this State and that the foreign fiduciary is entitled to payment or receive delivery. The person making payment or delivery is then discharged.
Section 5-432. Foreign Conservator; Proof of Authority; Bond; Powers. If no local conservator has been appointed and no petition in a protective proceeding is pending in this State, then, except as provided in Section 5-431, a domiciliary foreign conservator may file with the court in this State in all counties in which property belonging to the protected person is located, authenticated copies of his appointment and of any official bond he has given. Thereafter, he may exercise as to assets in this State all powers of a local conservator and maintain actions and proceedings in this State subject to any conditions imposed upon nonresident parties generally.
REPORTER'S COMMENTS
Section 5-432: This section provides that a foreign conservator may file authenticated copies of his appointment in all counties where the protected person has property and exercise all powers of a local conservator, if no local conservator has been appointed and no petition is pending.
PART 5
POWERS OF ATTORNEY
Section 5-501. When Power of Attorney Not Affected by Disability. (a) Whenever a principal designates another his attorney-in-fact by a power of attorney in writing and the writing contains the words "This power of attorney shall not be affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate", or similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his 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 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 any 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 physically disabled.
(b) An instrument to which this section is applicable may also provide for successor attorneys-in-fact and provide conditions for their succession, and the succession may occur whether or not the principal is then physically disabled or mentally incompetent. The appointment of an attorney in fact under this section shall not prevent a person or his representative from applying to the court and having a conservator appointed, after which the power of attorney shall become inoperative.
(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 probated and 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 prior to or after the onset of the principal's physical disability or mental incompetence, it is effective notwithstanding the mental incompetence or physical disability.
(d) The court may, in its discretion, and at any time after the onset of physical disability or mental incompetence, on motion of any interested party or on its own motion, require that an inventory of all deposits, chooses in action, and personal property be filed with the court and a surety bond be posted by the attorney-in-fact in the manner and amount that would be applicable to an intestate's estate.
Section 5-502. Other Powers of Attorney not Revoked Until Notice of Death or Disability.
(a) The death, disability, or incompetence of any principal who has executed a power of attorney in writing does not revoke or terminate the agency as to the attorney-in-fact, agent, or other person who, without actual knowledge of the death, disability, or incompetence of the principal, acts in good faith under the power of attorney or agency. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees, and personal representatives.
(b) An affidavit, executed by the attorney-in-fact or agent stating that he did not have, at the time of doing an act pursuant to the power of attorney, actual knowledge of the revocation or termination of the power of attorney by death, disability, or incompetence, is, in the absence of fraud, conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power requires execution and delivery of any instrument which is recordable, the affidavit when authenticated for record is likewise recordable.
(c) This section shall not be construed to alter or affect any provision for revocation or terminatiOn contained in the power of attorney.
REPORTER'S COMMENTS
Section 5-502: Section 5-502 supplements Sections 32-11-10 through 32-11-40 of the 1976 Code, providing for the actual death of as well as the disability of the principal, even with respect to powers of attorney not made durable as under Section 5-501, so long as the agent is, in good faith, unaware of the death or disability of the principal.
PART 6
UNIFORM VETERANS' GUARDIANSHIP ACT
Section 5-601. Short Title. This chapter may be cited as the "Uniform Veterans' Guardianship Act."
Section 5-602. Definitions. As used in this chapter:
(1) The term "Veterans' Administration" means the United States Veterans' Administration or its successor.
(2) The terms "estate" and "income" shall include only monies received by the guardian from the Veterans' Administration and all earnings, interest, and profits derived therefrom.
(3) The term "benefits" means all monies payable by the United States through the Veterans' Administration.
(4) The term "Administrator" means the Administrator of Veterans' Affairs of the United States or his successor.
(5) The term "ward" means a beneficiary of the Veterans' Administration.
(6) The term "guardian" means any person acting as a fiduciary for any ward, including a committee for a person over twenty-one years old.
Section 5-603. Appointment of Guardians. Whenever, pursuant to any law of the United States or regulation of the Veterans' Administration, the Administrator requires, prior to payment of benefits, that a guardian be appointed for a ward, such appointment shall be made in the manner hereinafter provided.
Section 5-604. Persons Who May File Petition for Appointment. A petition for the appointment of a guardian may be filed in any court of competent jurisdiction by or on behalf of any person who under existing law is entitled to priority of appointment. If there be no person so entitled or if the person so entitled shall neglect or refuse to file such a petition within thirty days after the mailing of notice by the Veterans' Administration to the last known address of such person indicating the necessity of such filing, a petition for such appointment may be filed in any court of competent jurisdiction by or on behalf of any responsible person residing in this State.
Section 5-605. Contents of Petition for Appointment of Guardian. The petition for such an appointment shall set forth (a) the name, age and place of residence of the ward, (b) the names and places of residence of the nearest relatives, if known, (c) the fact that such ward is entitled to receive monies payable by or through the Veterans' Administration and (d) the amount of monies then due and the amount of probable future payments.
The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward.
In the case of a mentally incompetent ward the petition shall show that such ward has been rated incompetent on examination by the Veterans' Administration in accordance with the laws and regulations governing the Veterans' Administration.
Section 5-606. Facts Which Constitute Prima Facie Evidence of Need for Guardian of a Minor Ward. When a petition is filed for the appointment of a guardian of a minor ward a certificate of the Administrator or his representative, setting forth the age of such minor as shown by the records of the Veterans' Administration and the fact that the appointment of a guardian is a condition precedent to the payment of any monies due the minor by the Veterans' administration, shall be prima facie evidence of the necessity for such an appointment.
Section 5-607. Facts Which Constitute Prima Facie Evidence of Need for Guardian of a Mentally Incompetent Ward. When a petition is filed for the appointment of a guardian of a mentally incompetent ward a certificate of the Administrator or his representative, setting forth the fact that such person has been rated incompetent by the Veterans' Administration on examination in accordance with the laws and regulations governing the Veterans' Administration and that the appointment of a guardian is a condition precedent to the payment of any monies due such person by the Veterans' Administration, shall be prima facie evidence of the necessity for such appointment.
Section 5-608. Notice of Petition. Upon the filing of a petition for the appointment of a guardian, under the provisions of this chapter the court shall cause such notice to be given as is provided by law.
Section 5-609. Fitness of Guardian; Bond.
Before making an appointment under the provisions of this chapter, the court shall be satisfied that the guardian whose appointment is sought is a fit and proper person to be appointed. Upon the appointment being made the guardian shall execute and file a bond to be approved by the court in an amount not less than the sum then due and estimated to become payable during the ensuing year. The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship laws of this State. The court may, from time to time, require the guardian to file an additional bond.
When a bond is tendered by a guardian with personal sureties, such sureties shall file with the court a certificate under oath which shall describe the property owned by them both real and personal, and that they are each worth the sum named in the bond as the penalty thereof over and above all their debts and liabilities and exclusive of property exempt from execution.
Section 5-610. Limitation on Number of Wards of One Guardian. Except as hereinafter provided it shall be unlawful for any person to accept appointment as guardian of any ward if such proposed guardian shall at that time be acting as guardian for five wards. Upon presentation of a petition by an attorney of the Veterans' Administration under this section alleging that a guardian is acting in a fiduciary capacity for more than five wards and requesting his discharge as a guardian of any such ward for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from such guardian and shall discharge such guardian in such case.
The limitations of this section shall not apply when the guardian is a bank or trust company acting for the wards' estates only. An individual may be guardian of more than five wards if they are all members of the same family.
Section 5-611. Annual Account of Guardians Receiving Funds from Veterans' Administration. Every guardian who has received or shall receive on account of his ward any monies from the Veterans' Administration, its predecessors or successors, shall file with the court, annually, on the anniversary date of the appointment, in addition to such other accounts as may be required by the court, a full, true, and accurate account under oath of all monies so received by him and of all disbursements thereof and showing the balance thereof in his hands at the date of such account and how such balance is invested.
Section 5-612. Exhibit of Securities at Time of Filing Account. Such guardian, at the time of filing his account, shall exhibit all securities or investments shown by the account to have been acquired with funds so received and then on hand and described therein to (a) an officer of the bank or other depository wherein such securities are held for safekeeping, (b) an authorized representative of the corporation which is surety on his bond, (c) the clerk or other officer of a court of record in this State or (d) upon the request of the guardian or other interested party, to any other reputable person designated by the court. The person to whom such assets are so exhibited shall certify in writing that he has examined such securities or investments and identified them as those described in the account; provided, however, if such depository is the guardian, such certifying officer shall be an officer other than the officer verifying the account. Or, in lieu of exhibiting such securities to any of the persons mentioned above, the guardian may exhibit such securities or investments to the court, who shall endorse on the account and copy thereof a certificate that the securities or investments shown therein as on hand were each in fact exhibited to him and that those exhibited to him were the same as those show~ in the account. Such certificate and the certificate of an official of the bank in which are deposited any funds for which the guardian is accountable, showing the amount of the deposit, shall be filed by the guardian with his account.
Section 5-613. Effect of Failure to Account. If any guardian shall fail to file any account of the monies received by him from the Veterans' Administration on account of his ward within thirty days after such account is required by either the court or the Administration or shall fail to furnish the Veterans' Administration a copy of his accounts as required by this chapter, such failure shall be grounds for removal.
Section 5-614. Accountability for Funds not Received from Administration. If the guardian is accountable for property derived from sources other than the Veterans' Administration, he shall be accountable as is or may be required under the applicable law of this State pertaining to the property of minors or persons of unsound mind who are not beneficiaries of the Veterans' Administration.
Section 5-615. Investments Which Guardians May Make. Every guardian shall invest the surplus funds in his ward's estate in such securities, or otherwise, as allowed by law, and in which the guardian shall have no interest, but only upon prior order of the court. Such funds may be invested, without prior court authorization, in direct interest-bearing obligations of this State or of the United States and in obligations the interest and principal of which are both unconditionally guaranteed by the United States Government.
Section 5-616. Use of Estate for Support of Persons Other Than Ward. A guardian shall not apply any portion of the estate of his ward for the support and maintenance of any person other than his ward, except upon order of the court after a hearing, notice of which has been given the proper office of the Veterans' Administration in the manner provided in Sections 5-622 and 5-623.
Section 5-617. Copies of Public Records Shall Be Furnished Without Charge. Whenever a copy of any public record is required by the Veterans' Administration to be used in determining the eligibility of any person to participate in benefits made available by the Administration, the official charged with the custody of such public record shall without charge provide the applicant for such benefits or any person acting on his behalf or the representative of the Veterans' Administration with a certified copy of such record.
Section 5-618. Compensation of Guardians. Compensation payable to guardians shall not exceed five per cent of the income of the ward during any year. If extraordinary services are rendered by any such guardian the court may, upon petition and after hearing thereon, authorize additional compensation therefor payable from the estate of the ward. Notice of such petition and hearing shall be given the proper office of the Veterans' Administration in the manner provided in Sections 5-622 and 5-623. No compensation shall be allowed on the corpus of an estate received from a preceding guardian. The guardian may be allowed from the estate of his ward reasonable premiums paid by him to any corporate surety upon his bond.
Section 5-619. Final Discharge of Guardian; Paying Out Funds Less Than One Thousand Dollars.
When a minor ward for whom a guardian has been appointed under the provisions of this chapter or other laws of this State shall have attained his majority and, if incompetent, shall be declared competent by the Veterans' Administration and the court and when any incompetent ward, not a minor, shall be declared competent by the Administration and the court, the guardian shall, upon making a satisfactory accounting, be discharged upon a petition filed for that purpose.
If no further income is anticipated by the guardian and the funds held by the guardian do not exceed one thousand dollars, the guardian may pay such funds to the ward if the ward is eighteen years of age and is competent. If the ward is incompetent, the guardian may pay the sum to his committee if one has been previously appointed. If no committee exists, then the guardian shall pay to the father or mother of the ward, if living, or either, and if neither be living then to a duly appointed committee. When the final disbursement has been made and satisfactorily accounted for, the guardian may then be discharged upon a petition filed for that purpose.
Section 5-620. Proceedings in Which Administrator Shall be a Party in Interest. The Administrator or his successor is and shall be a party in interest (a) in any proceeding brought under any law of this State for the appointment, confirmation, recognition, or removal of any guardian of a minor, or of a mentally incompetent person, to whom or on whose behalf benefits have been paid or are payable by the Veterans' Administration, its predecessor or successor, (b) in any guardianship proceeding involving such person or his estate, (c) in any suit or other proceeding arising out of the administration of such person's estate or assets and (d) in any proceeding the purpose of which is the removal of the disability of minority or of mental incompetency of such person. ~n any case or proceeding involving property or funds of such minor or mentally incompetent person not derived from the Veterans' Administration, the Veterans' Administration shall not be a necessary party but may be a proper party to such proceedings. This section shall not apply unless the Veterans' Administration shall designate in writing filed with the Secretary of State, its chief attorney, acting chief attorney or other agent within this State as a person authorized to accept service of process or upon whom process may be served.
Section 5-621. Copies of Accounts, Certificates or Pleadings Shall Be Sent To Veterans' Administration. A certified copy of each of the accounts filed pursuant to Section 5-611 and a signed duplicate of each of the certificates filed with the court shall be sent by the guardian to the office of the Veterans' Administration having jurisdiction over the area in which such court is located. A duplicate signed copy or certified copy of any petition, motion, or other pleading which is filed in the guardianship proceeding or in any proceeding for the purpose of removing the disability of minority or of mental incapacity shall be furnished by the person filing the same to the office of the Veterans' Administration concerned.
Section 5-622. Time, Place and Notice of Hearing on Account, Petition, or Other Pleading. The court, unless hearing be waived in writing by an attorney of the Veterans' Administration, shall fix a time and place for the hearing on such account, petition, or other pleading not less than fifteen days nor more than thirty days from the date of filing the same, unless a different available date be stipulated in writing. Unless waived in writing, written notice of the time and place of such hearing shall be given to the aforesaid Veterans' Administration office not less than fifteen days prior to the date fixed for the hearing. Such notice may be given by mail, in which event it shall be deposited in the mails not less than fifteen days prior to such date.
Section 5-623. Notice of Hearings Shall Be Given to Guardian; Orders. Notice of such hearing shall in like manner be given to the guardian and to any other .person entitled to notice. The court, or clerk thereof, shall mail to the Veterans' Administration office a copy of each order entered in any guardianship proceeding wherein the Veterans' Administration is an interested party.
Section 5-624. Construction. This chapter shall be construed liberally to secure the beneficial intents and purposes thereof and shall apply only to beneficiaries of the Veterans' Administration. This chapter shall also be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact substantially identical legislation.
ARTICLE VI
NONPROBATE TRANSFERS
TABLE OF CONTENTS
PART 1
MULTIPLE-PARTY ACCOUNTS
Section
6-101. [Definitions.]
6-102. [Ownership as Between Parties; and Others; Protection of Financial Institutions.]
6-103. [Ownership During Lifetime.]
6-104. [Right of Survivorship.]
6-105. [Effect of Written Notice to Financial Institution.]
6-106. [Accounts and Transfers Nontestamentary.]
6-107. [Rights of Creditors.]
6-108. [Financial Institution Protection; Payment on Signature of One Party.]
6-109. [Financial Institution Protection; Payment After Death or Disability;
Joint Account.]
6-110. [Financial Institution Protection; Payment of P.O.D. Account.]
6-111. [Financial Institution Protection; Payment of Trust Account.]
6-112. [Financial Institution Protection; Discharge.]
6-113. [Financial Institution Protection; Set-off.]
PART 2
PROVISIONS RELATING TO EFFECT OF DEATH
6-201. [Provisions for Payment or Transfer at Death.]
Article VI
NONPROBATE TRANSFERS
PART 1
MULTIPLE-PARTY ACCOUNTS
Section 6-101. Definitions. In this part, unless the context otherwise requires:
(1) "Account" means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account, and other like arrangement.
(2) "Beneficiary" means a person named in a trust account as one for whom a party to the account is named as trustee.
(3) "Financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions.
(4) "Joint account" means an account payable on request to one or more of two or more parties (whether "and", "or", "and/or", or any other designation), whether or not mention is made of any right of survivorship.
(5) A "Multiple-Party account" is any of the following types of account: (i) a joint account
(ii) a P.O.D. account, or (iii) a trust account. It does not include accounts established for deposit of funds of a partnership, joint venture, or other association for business purposes, or accounts controlled by one or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization, or a regular fiduciary or trust account where the relationship is established other than by deposit agreement.
(6) "Net contribution" of a party to a joint account as of any given time is the sum of all deposits thereto made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance. The term includes, in addition, any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question.
(7) "Party" means a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account. A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to him by reason of his surviving the original payee or trustee. Unless the context otherwise requires, it includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party. It also includes a person identified as a trustee of an account for another whether or not a beneficiary is named, but it does not include any named beneficiary unless he has a present right of withdrawal.
(8) "Payment" of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party and any set-off, or reduction or other disposition of all or part of an account pursuant to a pledge.
(9) "Proof Of death" includes a death certificate or record or report which is prima facie proof of death under Section 1-107.
(10) "P.O.D. account" means an account payable on request to one person during his lifetime and on his death to one or more P.O.D. payees, or to one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees.
(11) "P.O.D. payee" means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one or more persons.
(12) "Request" means a proper request for withdrawal, or a check or order for payment, which complies with all conditions of the account, including special requirements concerning necessary signatures and regulations of the financial institution; but if the financial institution conditions withdrawal or payment on advance notice, for purposes of this part the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal.
(13) "Sums On Deposit" means the balance payable on a multiple-party account including interest, dividends, and in addition any deposit life insurance proceeds added to the account by reason of the death of a party.
(14) "Trust account" means an account in the name of one or more parties as trustee for one or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; it is not essential that payment to the beneficiary be mentioned in the deposit agreement. A trust account does not include a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account, or a fiduciary account arising from a fiduciary relationship such as attorney-client.
(15) "Withdrawal" includes payment to a third person pursuant to check or other directive of a party.
REPORTER'S COMMENTS
Section 6-101: Section 6-101 defines the terms of the application of Part 1 generally to the "joint" (4), the "P.O.D." (10) and the "trust" (14) versions of the "multiple-party" (5) "accounts" (1) offered by "financial institutions" (3), with certain types of accounts expressly excluded (5) and (14), and also the application of Part 1 more specifically to the "withdrawal" (15) or "payment" (8) of the "net contributions" of a party (6) or of the "sums on deposit" (13) in such accounts, as per the "request" ( 12) of a "party," or his representative (7), of a "P.O.D. payee" (11) or of a "beneficiary" (2), perhaps on some "proof of death" (9).
Section 6-102. Ownership As Between Parties; and Others; Protection of Financial Institutions.
The provisions of Sections 6-103 to 6-105 concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. The provisions of Sections 6-108 to 6-113 govern the liability of financial institutions who make payments pursuant thereto and their set-off rights.
REPORTER'S COMMENTS
Section 6-102: Section 6-102 serves to protect financial institutions against the claims of contributing parties, their creditors, noncontributing parties, and any other persons, founded on the alleged mispayment of the funds on deposit in multiple-party accounts. If the financial institution makes payment of the funds in accordance with the terms of the account contract, then Sections 6-108 through 6-113 apply to protect it.
Section 6-103. Ownership During Lifetime.
(a) A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
(b) A P.O.D. account belongs to the original payee during his lifetime and not to the P.O.D. payee or payees; if two or more parties are named as original payees, during their lifetimes rights as between them are governed by subsection (a) of this section.
(c) Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime, and if two or more parties re named as trustee on the account, during their lifetimes beneficial rights as between them are governed by subsection (a) of this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.
REPORTER'S COMMENTS
Section 6-103: Section 6-103 establishes the beneficial ownership of the funds on deposit in multiple-party accounts, first, as among the living parties, contributing and noncontributing, and, second, as between the living parties and the P.O.D. payees and trust account beneficiaries.
First, under Section 6-103(a), (b), and (c), living parties, as defined in Section 6-101(7), as among themselves, share beneficial ownership of the funds on deposit not only in joint accounts but also in P.O.D. accounts, as original payees, as well as in trust accounts, as trustees. They always share in proportion to the individual net contributions made by or for them, as defined in Section 6-101(6); Deceased parties' ownership, if any, is governed by Sections 6-104, 6-105, and 6-107.
Second, under Section 6-103(b) and (e), living parties do not share beneficial ownership with P.O.D. payees and with trust account beneficiaries; instead, the living parties exclude the others from ownership during their own lives, unless, under Section 6-103(c), an irrevocable trust is shown, and then the trust account beneficiary beneficially owns the funds on deposit even during the life of the living party, trustee.
Section 6-104. Right of Survivorship.
(a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is a writing filed with the financial institution at the time the account is created (or subsequently as provided under Section 6-105) which indicates a different intention. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under Section 6-103 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.
(b) If the account is a P.O.D. account:
(1) on death of one of two or more original payees the rights to any sums remaining on deposit are governed by subsection (a);
(2) on death of the sole original payee or of the survivor of two or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the original payee; if two or more P.O.D. payees survive, there is no right of survivorship in the event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(c) If the account is a trust account:
(1) on death of one of two or more trustees, the right to any sums remaining on deposit are governed by subsection (a);
(2) on death of the sole trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear evidence of a contrary intent; if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account on deposit agreement expressly provide for survivorship between them.
(d) In other cases, the death of any party to a multiple party account has no effect on beneficial ownership on the account other than to transfer the rights of the decedent as part of his estate.
(e) A right to survivorship arising from the express terms of the account or under this section, a beneficiary designation in a trust account, or a P.O.D. payee designation, cannot be changed by will; however, a party who owns an account under the provisions of Section 6-103(a) may effect such change by will to the extent of his ownership if the will contains clear and convincing evidence of his intent to do so.
(f) The provisions of Section 6-104(a) shall be applicable to all accounts created subsequent to the effective date of this section. Sums remaining on deposit at the death of a party to a joint account created prior to the effective date of this section belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account was created. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under Section 6-103 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of survivorship continues between the surviving parties.
REPORTER'S COMMENTS
Section 6-104: Section 6-104 establishes the beneficial ownership of the funds on deposit in multiple-party accounts, as between, first, the estates of deceased parties and, second, the yet living parties, P.O.D. payees and trust account beneficiaries; it establishes the right of survivorship. Under Section 6-104(a), (b), (c), and (f), the estates of deceased parties, as defined at Section 6-101(7), lose their shares of ownership of the funds on deposit in both joint accounts as well as in P.O.D. accounts, as original payees, and in trust accounts, as trustees. The surviving party or parties, whether as such, Section 6-104(a) and (f), or as original payees, Section 6-104(b)(1), or as trustees, Section 6-104(c)(1), and whether one or more survives, continue as beneficial owners of the funds on deposit in the multiple-party account. They continue as such owners individually if only one survives and, if more than one survives, they continue as owners as under Section 6-103, with some adjustment, however, to dispose of the deceased party's share. In those cases in which no parties, as original payees or as trustees, survive beyond the death of the deceased party, the surviving P.O.D. payees or the surviving trust account beneficiaries become the beneficial owners of the funds on deposit in the multiple-party account, individually, however, whether one or more than one survives, and without any right of survivorship as among themselves.
The provisions of Section 6-104 establishing the right of survivorship will normally apply, even to accounts established prior to the effective date of this statute, Section 6-104(f), but they may be overcome by sufficient expressions of an intention to the contrary, as in a writing filed with the financial institution under either of Sections 6-104(a), 6-104(b)(2), and 6-104(c)(2), or 6-105, and also as in the will of a party, who by way of his net contributions owns some part of an account under Section 6-103(a), as under the proviso to Section 6-104(e), but otherwise not by will. Once the provisions of Section 6-104 are overcome the death of a party does not occasion the passing by right of survivorship of any funds on deposit, Section 6-104(d).
Section 6-105. Effect of Written Notice to Financial Institution. The provisions of Sec~ion 6-104 as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written order given by a party to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order or request must be signed by a party, received by the financial institution during the party's lifetime, and not countermanded by other written order of the same party during his lifetime.
REPORTER'S COMMENTS
Section 6-105: Section 6-105 allows a writing signed by one of the parties and filed with the financial institution to overcome the normally applicable provisions of Section 6-104 establishing the right of survivorship with respect to a multiple-party account. See the comment to Section 6-104. Either a contributing party or a noncontributing party may alone order the alteration of the right of survivorship, consistent with the rule of Section 6-103(a), that funds on deposit in a joint account belong to the living parties in proportion to their respective net contributions, and with the rules of Section 6-108 et seq., as to the noncontributing parties' rights.
Section 6-106. Accounts and Transfers Nontestamentary. Any transfers resulting from the application of Section 6-104 are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary or subject to Articles I through IV, except as a consequence of, and to the extent directed by, Section 6-107.
REPORTER'S COMMENTS
Section 6-106: Section 6-106 establishes the theoretical basis for the legally effective transfer at death by survivorship right of multiple-party account assets, more practically established by Sections 6-104 and 6-105. The transfers are effective as third party beneficiary contracts to make gifts, and by statutory allowance, even though they are testamentary in their nature, and they are not to be governed by this Code's provisions otherwise governing testamentary transfers except so far as they are affected by Section 6-107.
Section 6-107. Rights of Creditors. No multiple-party account will be effective against an estate of a deceased party to transfer to a survivor sums needed to pay debts, taxes, and expenses of administration, if other assets of the estate are insufficient. A surviving party, P.O.D. payee, or beneficiary who receives payment from a multiple-party account after the death of a deceased party shall be liable to account to his personal representative for amounts the decedent owned beneficially immediately before his death to the extent necessary to discharge the claims and charges mentioned above remaining unpaid after application of the decedent's estate. No proceeding to assert this liability shall be commenced unless the personal representative has received a written demand by a creditor of the decedent, and no proceeding shall be commenced later than two years following the death of the decedent. Sums recovered by the personal representative shall be administered as part of the decedent's estate. This section shall not affect the right of a financial institution to make payment on multiple-party accounts according to the terms thereof, or make it liable to the estate of a deceased party unless before payment the institution has been served with an order of the probate court.
REPORTER'S COMMENTS
Section 6-107: Section 6-107, in derogation of the survivorship rights established in Sections 6-104 through 6-106, establishes in the estate of a deceased party a limited beneficial ownership of the funds on deposit in a multiple-party account, limited, however, to the payment of the debts, taxes, and the expenses of administration of the estate of the deceased party, and existing only if other assets of that estate are insufficient to that purpose, only up to the amount to which the deceased party was beneficially entitled prior to death, and only if a creditor's claim proceeding is brought within two years of the deceased party's death.
Section 6-108. Financial Institution Protection; Payment on Signature of One Party. Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request, to any one or more of the parties. A financial institution shall not be required to inquire as to the source of funds received for deposit to a multiple-party account, or to inquire as to proposed application of any sum withdrawn from an account, for purposes of establishing an account, contributions.
REPORTER'S COMMENTS
Section 6-108: Section 6-108 allows the financial institution to make payment, on request, to any one or more of the parties to any multi-party account. See Section 6-101(7) for the definition of "party," and see Sections 6-109, 6-110, and 6-111 for more specific provisions concerning the several commonly available versions of the multiple-party account. Under Section 6-108, the financial institution need not inquire of the source of funds deposited or of the application of funds withdrawn.
Section 6-109. Financial Institution Protection; Payment After Death or Disability; Joint Account. Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proofs of death are presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under Section 6-104.
REPORTER'S COMMENTS
Section 6-109: Section 6-109 allows the financial institution to make payment of a "joint account," on request, to any party, not only to contributing parties but also to noncontributing parties, whether any other party, e.g., a contributing party, is then dead or alive and even though the other party is not only then alive but also is incapacitated. Notwithstanding the limits on the rights of noncontributing parties as against those of yet living contributing parties established under Section 6-103(a), the financial institution may make payment of a joint account to any party and will be protected.
Because of the survivorship aspect of the rights of the respective parties to a joint account, assumed under Section 6-104(a), unless negated as provided for in Sections 6-104(a), 6-104(e), or 6-105; under Section 6-109 the financial institution may not make payment of a joint account to the representatives of a deceased party unless it is shown that he was the survivor of all the parties.
Section 6-110. Financial Institution Protection; Payment of P.O.D. Account. Any P.O.D. account may be paid, on request, to any original party to the account. Payment may made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased
original payee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee.
REPORTER'S COMMENTS
Section 6-110: Section 6-110 allows the financial institution to make payment of a "P.O.D. account," on request, to any party, "original party," thereby invoking the application of Section 6-109 to P.O.D. accounts to the extent that as between the several parties themselves such accounts may be described as "joint accounts." See Section 6-103(a) and (b) and the comment to Section 6-109. However, the last sentence of Section 6-110 also concerns a matter which is part of the concern of Section 6-109, but goes further than does Section 6-109 to preclude the financial institution from making payment of a P.O.D. account to the representatives of a deceased party, unless it is shown that he was the survivor of both all the parties and also all the P.O.D. payees. That is consistent with the rights established under Section 6-104(b)(2).
Section 6-110 allows the financial institution to make payment of a "P.O.D. account" to a P.O.D. payee, or his representative, only if it is shown that he was the survivor of all of the parties, "original payees." That is consistent with the limitation of the rights of a P.O.D. payee to a right of survivorship, as under Sections 6-103(b) and 6-104(b)(2).
Section 6-111. Financial Institution Protection; Payment of Trust Account. Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon his surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary or to the personal representative or heirs of a deceased beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.
REPORTER'S COMMENTS
Section 6-111: Section 6-111 allows the financial institution to make payment of a "trust account," on request, to any party, "trustee," without regard to whether the trust is irrevocable and without regard to whether the beneficiary has a vested interest, thereby preserving the administrative control of the trustee of the funds on deposit. The application of Section 6-109 to trust accounts is invoked to the extent that as between the several parties themselves, if there are several, such accounts may be described as "joint accounts." See Section 6-103(a) and (c) and the comment to Section 6-109. However the second sentence of Section 6-111 also concerns a matter which is part of the concern of Section 6-109, but goes further than does Section 6-109 to preclude the financial institution from making payment of a trust account to the representatives of a deceased party, not only unless it is shown that he was the survivor of both all the parties and also all the beneficiaries, consistent with the rights established under Section 6-104(c)(2), but also if the beneficiary is shown to have had a vested interest not dependent upon his surviving the trustee, as projected as a possibility by Section 6-103(c).
Section 6-111 allows the financial institution to make payment of a "trust account" to a beneficiary, only if it is shown that he was the survivor of all the parties, "trustees." That is consistent with the limitation of the rights of a trust account beneficiary to a right of survivorship, as under Sections 6-103(c) and 6-104(c)(2), which obtains unless some greater right is shown to have been intended.
Section 6-112. Financial Institution Protection; Discharge. Payment made pursuant to Section 6-108, 6-109, 6-110, or 6-111 discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees, or beneficiaries, or their successors. The protection here given does not extend to payments made after a financial institution has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in any demand for withdrawal if the financial institution is to be protected under ~his section. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided here. The protection here provided shall have no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts.
REPORTER'S COMMENTS
Section 6-112: Under Section 6-112, notwithstanding its receipt of other notice or information, the financial institution is discharged of all responsibility in the matter of the competing rights of the contributing parties, of their creditors and of the noncontributing parties, unless a party has given written notice to, and unless a creditor of a deceased party has served a probate court order on, the financial institution not to permit withdrawals in accordance with the terms of the account, Section 6-107.
Section 6-113. Financial Institution Protection; Set-off. Without qualifying any other statutory right to set-off or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to set-off against the account in which the party has or had immediately before his death a present right of withdrawal. The amount of the account subject to set-off is that proportion to which the debtor is, or was immediately before his death, beneficially entitled, and in the absence of proof of net contributions, to an equal share with all parties having present rights of withdrawal.
REPORTER'S COMMENTS
Section 6-113: Section 6-113 allows the financial institution, as creditor of a party, to set-off in its own favor an amount from a multiple-party account to cover the indebtedness of that party, but that set-off is limited to affect the amount to which the party is, or was, beneficially entitled.
PART 2
PROVISIONS RELATING TO EFFECT OF DEATH
Section 6-201. Provisions for Payment or Transfer at Death. (a) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, or other security interest, promissory note, deposit agreement, pension plan, trust agreement, conveyance, or any other written instrument otherwise effective as a contract, gift, conveyance, or trust is deemed to be nontestamentary, and this Code does not invalidate the instrument or any provision:
(1) that money or other benefits theretofore due to, controlled, or owned by a decedent shall be paid after his death to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently;
(2) that any money due or to become due under the instrument shall cease to be payable in event of the death of the promisee or the promissor before payment or demand; or
(3) that any property which is the subject of the instrument shall pass to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently.
(b) Nothing in this section limits the rights of creditors under other laws of this State.
REPORTER'S COMMENTS
Section 6-201: Section 6-201(a) establishes the blanket rule that, so long as a form of ownership involves a written instrument and is otherwise supportable on one of the theories of contract, gift, conveyance, or trust, that form's provisions for the transfer of assets to a survivor at the death of their owner is valid although the provision is not contained in a duly executed will.
Section 6-201(b) will preserve to creditors of decedents all of the rights they otherwise may have to assert claims against such assets as pass by the right of survivorship recognized under Section 6-201(a).
ARTICLE VII
TRUST ADMINISTRATION
TABLE OF CONTENTS
PART 1
TRUST ESTATES
Section
7-101. [All Declarations or Creations of Trusts in Land Shall be
in Writing.]
7-102. [Grants and Assignments of Trusts Shall be in Writing.]
7-103. [Trusts of Land Arising, Transferred, or Extinguished by
Implication of Law.]
7-104. [Word "Writing" Shall Include Typewriting.]
7-105. [Religious, Educational, Charitable, or Benevolent Trusts
Shall not be Void Because of Discretion Vested in Trustee
or Establishment of Perpetuities.]
7-106. [Religious, Educational, or Charitable Trusts Created by
Nonresidents Shall be Valid.]
7-107. [Estate and Possession of Trust Estates Shall be in
Beneficiaries Thereof.]
7-108. [Several Seized Jointly to use of one or More of Them.]
7-109. [Beneficiaries' Title to Rent Out of Trust Shall be Same
as Conveyed by Grant.]
7-110. [Trusts Shall be Assets in the Hands of Heirs.]
7-111. [Heir Shall not be Chargeable out of his own Estate for
Debts of his Ancestor.]
PART 2
JURISDICTION OF COURTS CONCERNING TRUSTS
7-201. [Courts; Exclusive Jurisdiction of Trusts.]
7-202. [Trust Proceedings; Venue.]
7-203. [Trust Proceedings; Dismissal of Matters Relating to
Foreign Trusts.]
7-204. [Courts; Concurrent Jurisdiction of Litigation Involving
Trusts and Third Parties.]
7-205. [Proceedings for Review of Employment of Agents and
Review of Compensation of Trustee and Employees of
Trust.]
7-206. [Trust Proceedings; Initiation by Notice; Necessary
Parties.]
7-207. [Trustees; Eligibility of Nonresident Corporations and
Individuals.]
7-208. [When Conveyance From Infant Trustee or Mortgagee is
Permissible.]
7-209. [Effect of such Conveyance.]
7-210. [Infant Trustee or Mortgagee may be Compelled to make
Conveyance.]
PART 3
DUTIES AND LIABILITIES OF TRUSTEES
7-301. [General Duties Not Limited.]
7-302. [Trustee's Standard of Care.]
7-303. [Duty to Inform and Account to Beneficiaries.]
7-304. [Duty to Provide Bond. l
7-305. [Trustee's Duties; Appropriate Place of Administration;
Deviation.]
7-306. [Personal Liability of Trustee to Third Parties.]
7-307. [Limitations on Proceedings Against Trustees After Final
Account.]
PART 4
REVISED UNIFORM PRINCIPAL AND INCOME ACT
7-401. [Short Title.]
7-402. [Definitions.]
7-403. [Application of Chapter.]
7-404. [Allocation of Receipts and Expenditures of Trust Between
Income and Principal.]
7-405. [Income Generally.]
7-406. [Principal Generally.]
7-407. [Time When Income Beneficiary Becomes Entitled to
Income; Allocation of Income Receipts; Termination of
Income Interest.]
7-408. [Determination and Distribution of Income After
Testator's Death.]
7-409. [Allocation of Distributions by Corporations; Regulated
Investment Company and Certain Trusts.]
7-410. [Bonds and Other Obligations for Payment of Money.]
7-411. [Allocation of Profits and Losses From Settlor's Business
Continued; Accounting Principles Applicable to
Agricultural Operations.]
7-412. [Allocation of Receipts From Royalties, Production
Payments, or the Taking of Natural Resources.]
7-413. [Allocation of Receipts From Timber.]
7-414. [Allocation of Receipts From Property Subject to
Depletion.]
7-415. [Allocation of Receipts From Sale of Underproductive
Property; Delayed Income.]
7-416. [Expenses and Other Charges Which Shall be Charged to
Income or Principal.]
7-417. [Charges Which Shall be Made Against Income.]
7-418. [Charges Which Shall be Made Against Principal.]
7-419. [Expenses Incurred in Settlement of Decedent's Estate
Shall be Charged Against Principal.]
7-420. [Apportionment of Regularly Recurring Charges.]
7-421. [Construction.]
PART 5
CHARITABLE TRUSTS
7-501. [Trustees Shall File Copy of Trust Instrument With
Attorney General.]
7-502. [Trustees Shall File Annual Reports With Attorney
General.]
7-503. [Action by Attorney General to Compel Compliance.]
7-504. [Rules and Regulations of Attorney General.]
7-505. [Exemptions.]
7-506. [Trustees Shall not Subject Trust to Certain Federal
Taxes on Private Foundations. l
PART 6
POWERS OF FIDUCIARIES
7-601. [Sale of Notes and other Evidences of Indebtedness.]
7-602. [Deposit of Securities in Clearing Corporation by
Fiduciary or Custodian.]
PART 1
TRUST ESTATES
Section 7-101. All Declarations or Creations of Trusts in Land Shall be in Writing. All declarations or creations of trusts or confidences of any lands, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such uses or trust or by his last will in writing, or else they shall be utterly void and of no effect.
Section 7-102. Grants and Assignments of Trusts Shall be in Writing. All grants and assignments of any trust or confidence shall be in writing, signed by the party granting or assigning them or shall be made by last will or else shall be utterly void and of no effect.
Section 7-103. Trusts of Land Arising, Transferred, or Extinguished by Implication of Law. When any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by the implication or construction of law or be transferred or extinguished by act or operation of law, such trust or confidence shall be of like force and effect as it would have been without the two previous sections of this Code.
Section 7-104. Word "Writing" Shall Include Typewriting. The word "writing" used in this part shall be construed to include typewriting.
Section 7-105. Religious, Educational, Charitable, or Benevolent Trusts Shall not be Void Because of Discretion Vested in Trustee or Establishment of Perpetuities. No gift, grant, bequest, or devise, whether in trust or otherwise, to religious, educational, charitable, or benevolent uses or for the purpose of providing for the care or maintenance of any part of any public cemetery shall be invalid because the instrument confers upon the trustee discretionary power in the selection and designation of the objects or beneficiaries of such trust or in carrying out the purposes thereof or by reason of contravening any statute or rule against perpetuities.
Section 7-106. Religious, Educational, or Charitable Trusts Created by Nonresidents Shall be Valid. Every such religious, educational, or charitable trust created by any person domiciled in another state, which shall be valid under the laws of the state of the domicile of such creator or donor, shall be held in all respects valid under the laws of this State, even though one or more of the trustees named in the instrument creating the trust shall be domiciled in another state or one or more of the beneficiaries named in the trust shall reside or be located in a foreign state. This section shall apply to all trusts heretofore or hereafter created in which one or more of the beneficiaries or objects of such trust shall reside or be located in this State.
Section 7-107. Estate and Possession of Trust Estates Shall be in Beneficiaries Thereof. When any person shall be seized of any lands, tenements, rents, reversions, remainders, or other hereditaments to the use, confidence, or trust of any other person or of any body politic by reason of any bargain, sale, feoffment, covenant, contract, agreement, will, or otherwise, the person or body politic that shall have such use, confidence, or trust, in fee simple, fee tail, for term of life or for years or otherwise or any use, confidence, or trust in remainder or reversion, shall be deemed and adjudged in lawful seizin, estate and possession of and in such lands, tenements, rents, reversions, remainders, and hereditaments, with their appurtenances, to all intents, constructions, and purposes in law of and in such like estates as they shall have in use, trust, or confidence of or in them.
Section 7-108. Several Seized Jointly to Use of One or More of Them. When several persons shall be jointly seized of any lands, tenements, rents, reversions, remainders, or other hereditaments to the use, confidence, or trust of any of them that be so jointly seized, such person or persons who shall have any such use, confidence, or trust in any such lands, tenements, rents, reversions, remainders, or hereditaments shall have such estate, possession, and seizin of and in such lands, tenements, rents, reversions, remainders, and other hereditaments only to him or them that shall have any such use, confidence, or trust, in like nature, manner, form, condition, and course as he or they had before in the use, confidence, or trust of such lands, tenements, or hereditaments, saving and reserving to all and singular persons and bodies politic, their heirs and successors, other than such person or persons who are seized of such lands, tenements, or hereditaments to any use, confidence, or trust, all such right, title, entry, interest, possession, rents, and action as they or any of them had or might have had without this section and also saving to all and singular those persons and their heirs who are seized to any use ali such former right, title, entry, interest, possession, rents, customs, services, and action as they or any of them might have had to his or their own proper use in or to any lands, tenements, rents, or hereditaments whereof they are seized to any other use, anything contained in this chapter to the contrary notwithstanding.
Section 7-109. Beneficiaries' Title to Rent Out of Trust Shall Be Same as Conveyed by Grant.
When several persons are seized of and in any lands, tenements, or hereditaments, in fee simple or otherwise, to the use and intent that some other person shall have and receive yearly to him and to his heirs one annual rent out of such lands and tenements and some other person one other annual rent, to him and his assigns for a term of life or years or for some other special time, according to such intent and use as has been before declared, limited, and made thereof, the persons, their heirs and assigns, that have such use and interest to have and receive any such annual rents out of any lands, tenements, or hereditaments, and every one of them, their heirs and assigns, shall be deemed to be in the possession and seizin of such rent, of and in such like estate as they had in the title, interest, or use of such rent or profit, and as if a sufficient grant, or other lawful conveyance had been made and executed to them by such as were seized to the use or intent of any such rent to be had, made, or paid, according to the trust and intent thereof. All such persons as have or shall have any title, use, and interest in or to any such rent or profit shall have all suits, entries, and remedies for such rents, according to such conditions, pains or other things, limited and appointed, upon the trust and intent or payment or surety of such rent.
Section 7-110. Trusts Shall be Assets in the Hands of Heirs. If any cestui que trust shall die leaving a trust in fee simple to descend to his heir such trust shall be deemed and taken, and is hereby declared to be, assets by descent and the heir shall be liable to and chargeable with the obligation of his ancestors for and by reason of such assets as fully and amply as he might or ought to have been if the estate in law had descended to him in possession in like manner as the trust descended, any law, custom, or usage to the contrary in any wise notwithstanding.
Section 7-111. Heir Shall not be Chargeable out of his own Estate for Debts of his Ancestor.
No heir that shall become chargeable by reason of any estate or trust made assets in his hand by Section 7-110 shall, by reason of any kind of plea or confession of the action, suffering judgment by default or any other matter, be chargeable to pay the condemnation out of his own estate but execution shall be sued of the whole estate so made assets in his hands by descent in whosesoever hands it shall come after the commencement of the action.
PART 2
JURISDICTION OF COURT CONCERNING TRUSTS
Section 7-201. Court, Exclusive Jurisdiction _f Trusts. (a) Subject to the provisions of Section 1-302(C)~ the court has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of trusts. Proceedings which may be maintained under this section are those concerning the administration and distribution of trusts, the declaration of rights, and the determination of other matters involving trustees and beneficiaries of trusts. These include, but are not limited to, proceedings to:
(1) appoint or remove a trustee;
(2) review trustees' fees and to review and settle interim or final accounts;
(3) ascertain beneficiaries, determine any question arising in the administration or distribution of any trust including questions of construction of trust instruments, to instruct trustees, and determine the existence or nonexistence of any immunity, power, privilege, duty, or right.
(b) A proceeding under this section does not result in continuing supervisory proceedings. The management and distribution of a trust estate, submission of accounts and reports to beneficiaries, payment of trustee's fees and other obligations of a trust, acceptance and change of trusteeship, and other aspects of the administration of a trust shall proceed expeditiously consistent with the terms of the trust, free of judicial intervention and without order, approval, or other action of any court, subject to the jurisdiction of the court as invoked by interested parties or as otherwise exercised as provided by law.
REPORTER'S COMMENTS
Section 7-201: Section 7-201(a) grants exclusive subject matter jurisdiction to the probate court of interested parties' proceedings concerning the internal affairs of trusts. The subsection provides two illustrative and nonexclusive lists of such proceedings. The lists have this in common: all items on both lists are matters of dispute primarily between and among the trustees and the beneficiaries of trusts, i. e. , matters internal to trust administration, and are not matters immediately involving third parties, such as creditors and debtors of trusts. Compare the actions and proceedings concerning the external affairs of trusts, which are the subject matter of Section 7-204. See also the specific coverage of proceedings concerning a trustee's compensation, Section 7-205, and for this State's Uniform Declaratory Judgments Act, see Section 15-53-10 of the 1976 Code et seq., especially Section 15-53-50.
Section 7-201(b) makes it clear that no single proceeding in the probate court concerning the internal affairs of a trust will have the effect of subJecting the administration of the trust to later continuous supervision by the probate court.
Section 7-202. Trust Proceedings; Venue.
Venue for proceedings under Section 7-201 involving trusts is in the place in which the trust has its principal place of administration. Unless otherwise designated in the trust instrument, the principal place of administration of a trust is the trustee's usual place of business where the records pertaining to the trust are kept, or at the trustee's residence if he has no such place of business. In the case of co-trustees, the principal place of administration, if not otherwise designated in the trust instrument, is (1) the usual place of business of the corporate trustee if there is but one corporate co-trustee, or (2) the usual place of business or residence of the individual trustee who is a professional fiduciary if there is but one such person and no corporate co-trustee, and otherwise (3) the usual place of business or residence of any of the co-trustees as agreed upon by them.
REPORTER'S COMMENTS
Section 7-202: Section 7-202 establishes the trust's principal place of administration as the venue of any proceedings of which the probate court has exclusive jurisdiction under Section 7-201. Compare the treatment of the matters covered in Section 7-204.
The section also provides tests for use in identifying the trust's principal place of administration in actual cases, giving weight, in order, to the preferences of the creator of the trust, to the physical location of the records of the trust, and to the residence of the trustee. The section also provides for cases of multiple trustees, giving weight, in order, to the locus of the corporate trustee, to the locus of the individual trustee who is a professional fiduciary, and to the locus agreed upon by multiple trustees other than those types above mentioned.
Section 7-203. Trust Proceedings; Dismissal of Matters Relating to Foreign Trusts. The court will not, over the objection of a party, entertain proceedings under Section 7-201 involving a trust registered or having its principal place of administration in another state, unless (1) when all appropriate parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration or (2) when the interests of justice otherwise would seriously be impaired. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state in which the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.
REPORTER'S COMMENTS
Section 7-203: Section 7-203 establishes the foreign state in which a trust's principal place of administration is located or the foreign state in which a trust is registered as the appropriate forum for the bringing of any proceedings of which, however, the South Carolina probate court undoubtedly has subject matter jurisdiction under Section 7-201. This principle of forum non conveniens will not apply, however, when the interests of justice seriously indicate that it should not.
No provision, analogous to those of Section 4-401 with respect to foreign judgments for or against personal representatives of decedent's estates, and of Section 3-408 with respect to foreign judgments as to the probate of wills, is contained in Article VII with respect to foreign judgments for or against trustees of trust estates.
Section 7-204. Court, Concurrent Jurisdiction of Litigation Involving Trusts and Third Parties.
The court has concurrent jurisdiction with the circuit courts of this State of actions and proceedings to determine the existence or nonexistence of trusts created other than by will, of actions by or against creditors or debtors of trusts, and of other actions and proceedings involving trustees and third parties. Venue is determined by the rules generally applicable to civil actions.
REPORTER'S COMMENTS
Section 7-204: Section 7-204 grants subject matter jurisdiction to the probate court, concurrent with the other courts of South Carolina, i. e., the circuit court, of third party actions and proceedings concerning the external affairs of trusts. The section provides two illustrative but nonexclusive examples of such matters: the determination of the question of the existence of an inter vivos trust and the actions of and against creditors and debtors of trusts. Compare the proceedings concerning the internal affairs of trusts, which are the subject matter of Sections 7-201, 7-202, 7-203, 7-205, and 7-206.
Section 7-205. Proceedings for Review of Employment of Agents and Review of Compensation of Trustee and Employees of Trust. On petition of an interested person, after notice to all interested persons, the court may review the propriety of employment of any person by a trustee including any attorney, auditor, investment advisor or other specialized agent or assistant, and the reasonableness of the compensation of any person so employed, and the reasonableness of the compensation determined by the trustee for his own services. Any person who has received excessive compensation from a trust may be ordered to make appropriate refunds.
REPORTER'S COMMENTS
Section 7-205: Section 7-205 specifically establishes the presumably exclusive jurisdiction of the probate court over interested parties' proceedings concerning such "internal affairs" of trusts as the employment of agents by trustees and their and the trustees' own compensation out of trust assets for their services rendered. The section contemplates that trustees will, at least initially, fix their own fees.
Section 7-206. Trust Proceedings; Initiation by Notice; Necessary Parties. Proceedings under Section 7-201 are initiated by filing a petition in the court and giving notice pursuant to Section 1-401 to interested parties. The court may order notification of additional persons. A decree is valid as to all who are given notice of the proceeding though fewer than all interested parties are notified.
REPORTER'S COMMENTS
Section 7-206: Section 7-206 establishes the methods and times set forth in Section 1401 of this Code as those governing the giving of notice to interested parties of the initiation, by petition, of proceedings in the probate court under Section 7-201. Note the lack of treatment of the matters covered in Section 7-204. The section provides for cases in which notice is given to less than all of the interested parties: the probate court may order further notice but, in any case, those who are given notice are bound by the proceedings.
Section 7-207. Trustees; Eligibility of Nonresident Corporations and individuals.
(a) No corporation created by another state of the Untied States or by any foreign state, kingdom, or government, and no corporation created under the laws of the United States and not having a place of business in the State of South Carolina shall be eligible or entitled to qualify, serve, or hold title to property in this State as testamentary trustee of an estate of any person domiciled in this State at the time of his death, whether the decedent shall die testate or intestate, except, however, such foreign corporations may act as testamentary trustee in this State if:
(1) it has a bona fide capital of at least two hundred fifty thousand dollars actually paid in;
(2) it is authorized to act as testamentary trustee in the state in which it is incorporated or if such foreign corporation be a national banking association in the state in which it has its principal place of business; and
(3) any bank or other corporation organized under the laws of this State or a national banking association having its principal place of business in this State is permitted by law to act as testamentary trustee in the state in which such foreign corporation seeking to act in this State is organized or in which it has its principal place of business if it is a national banking association without further showing or qualification other than that it is authorized to act in such fiduciary capacity in this State and upon compliance with the laws of such other state, if any concerning service of process on nonresident fiduciaries. No officer, employee, or agent of any such foreign corporation shall be eligible or entitled to serve as testamentary trustee in this State whether such officer, employee, or agent is a resident or a nonresident of this State if such officer, employee, or agent is acting as testamentary trustee on behalf of any such foreign corporation except when such foreign corporation itself shall be eligible to serve.
(b) No letters of appointment of a trustee shall be granted or issued to any nonresident individual by the court unless such applicant for such appointment as trustee shall first file appointment is made, his consent in writing that service of all claims, demands, debts, dues, summons, and any other process of pleadings, in suits or actions, relating to the administration of the estate in his charge in this State, may be made by service upon such resident of such county as may be appointed in such written removal, resignation, absence from the State, or any other inability to obtain service upon such agent named in such written instrument or any successor named by similar instrument filed with the court upon the probate judge of such county. Nothing herein contained shall require a nonresident trustee named as such trustee under a will executed at the time when such trustee is a nonresident to make reports to the court in this State or shall prevent an executor in administering an estate from paying any legacy so directed under the will to such foreign trustee.
REPORTER'S COMMENTS
Section 7-207: Section 7-207 should be read together with the provisions of Article I, Part 4, if any, concerning service on nonresidents by way of service upon their local agents.
Section 7-208. When Conveyance From Infant Trustee or Mortgagee is Permissible. Any person under the age of eighteen years, having estates in lands, tenements, or hereditaments only ln trust for others or by way of mortgage, may by the direction of the court, signified by an order made upon hearing all parties concerned, on the petition of the person for whom such infant shall be seized or possessed in trust or of the mortgagor or guardian of such infant or person entitled to the monies secured by or upon any such lands, tenements, or hereditaments whereof such infant is or shall be seized or possessed by way of mortgage, or of the person entitled to the redemption thereof, convey and assure to any other person any such lands, tenements, or hereditaments in such manner as the court shall by such order so to be obtained direct.
Section 7-209. Effect of such Conveyance. Such conveyance or assurance, to be had and made as stated in Section 7-208, shall be as effectual in law, to all intents and purposes whatsoever, as if the infant was, at the time of making such conveyance or assurance, of the full age of twenty-one years.
Section 7-210. Infant Trustee or Mortgagee may be compelled to Make Conveyance. Every such infant, being only trustee or mortgagee as stated in Section 7-208, may be compelled by any such order, so as herein stated to be obtained to make such conveyance or assurance, as stated herein, in like manner as trustees or mortgagees of full age are compellable to convey or assign trust estates or mortgages.
PART 3
DUTIES AND LIABILITIES OF TRUSTEES
Section 7-301. General Duties Not Limited.
Except as specifically provided, the general duty of the trustee to administer a trust expeditiously for the benefit of the beneficiaries is not altered by this Code.
REPORTER'S COMMENTS
Section 7-301: Section 7-301 establishes the intended limited breadth of effect of the codification of the rules found in Part 3 of Article VII. Their enactment is not meant to suggest that the elaborately developed body of law on the administration of trusts is to be discarded. Rather, that law is merely altered and only as, and if, specifically so provided in Part 3; and, otherwise, trustees continue to be bound to administer their trusts "expeditiously for the benefit of the beneficiaries. "For a survey of that body of law see C. Karesh, Trusts 44-62 (1977).
Section 7-302. Trustee's Standard of Care.
(a) Except as otherwise provided by the terms or limitations set forth in any will, agreement court order, or other instrument creating or defining the fiduciary's duties and powers (the terms "legal investment" or "authorized investment" or words of similar import, as used in any such instrument being taken, however, to mean any investment which is permitted by the terms of this section), in acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property for the benefit of another, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property and every kind of investment, specifically including but not by way of limitation, bonds, debentures, and other corporate obligations, and stocks, preferred or common, and within the limitations of the foregoing standard a fiduciary may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase, and a fiduciary may retain the property received by such fiduciary on the creation of the estate, guardianship, or trust (including, in the case of a corporate fiduciary, stock, or other securities of its own issue) without regard to its suitability for original purchase, and, in the case of corporate securities, a fiduciary may retain the securities into which the securities originally received may be converted or which may be derived therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and similar procedures (and may exercise by purchase or otherwise any rights, warrants, or conversion features attaching to any such securities).
(b) The provisions of this section shall not be construed as restricting the power of a court of proper jurisdiction to permit a fiduciary to deviate from the terms of any will, agreement, or other instrument relating to the acquisition, investment, reinvestment, exchange, retention, sale, or management of fiduciary property.
(c) When a fiduciary shall invest the property in his charge in whole or in part in the manner authorized by this section such fiduciary shall not be chargeable in his account at a greater rate of interest, as to such property so invested, than such property shall have so earned.
(d) Whenever a trust instrument reserves unto the trustor, or vests in an advisory or investment committee or in any other person or persons, including a co-trustee, to the exclusion of the trustee or to the exclusion of one or more of several trustees, authority to direct the making or retention of investments or of any investment, the excluded trustee or co-trustee shall be liable, if at all, only as a ministerial agent and shall not be liable as trustee or co-trustee for any loss resulting from the making or retention of any investment pursuant to such authorized direction.
Section 7-303. Duty to Inform and Account to Beneficiaries. The trustee shall keep the beneficiaries of the trust reasonably informed of the trust and its administration. In addition:
(a) within thirty days after his acceptance of the trust, the trustee shall inform in writing the current beneficiaries and if possible, one or more persons who under Section 1-403 may represent beneficiaries with future interest, of his name and address;
(b) upon reasonable request, the trustee shall provide the beneficiary with a copy of the terms of the trust which describe or affect his interest and with relevant information about the assets of the trust and the particulars relating to the administration;
TABLES A-D FOR EACH OF ARTICLES I-VII
Article I 503
Article II 514
Article III 539
Article IV 567
Article V 574
Article VI 588
Article VII 595
TABLES A - D FOR EACH OF ARTICLES I - VII
TABLE A
Article I: Cross-References to Provisions of the South Carolina Probate Code:
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
1-101.
1-102.
1-103.
1-104.
1-105.
1-106. 3-108
1-107. 1-501 to 1-508
1-108.
PART 2
DEFINITIONS
1-201. 3-803(c)(2), 4-101, 5-101, 6-101
PART 3
SCOPE, JURISDICTION, AND COURTS
1-301.
1-302. 3-105
1-303. 3-201
1-304.
1-305.
1-306. 1-308
1-307.
1-308. 1-306
1-309.
PART 4
NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS
1-401. 3-402, 3-403
1-402.
1-403. 5-301 et seq., 5-401 et seq., 5-303(b), 5-407(b)
PART 5
UNIFORM SIMULTANEOUS DEATH ACT
1-501. 1-107
1-502.
1-503.
1-504.
1-505.
1-506.
1-507.
1-508.
TABLE B
Article I: Cross-References to Retained Provisions of the Code of Laws of South Carolina, 1976:
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
1-101.
1-102.
1-103.
1-104.
1-106. 15-3-530(7), 14-23-290
1-107. 19-5-310
1-108.
PART 2
DEFINITIONS
1-201.
PART 3
SCOPE, JURISDICTION, AND COURTS
1-301. 14-23-260
1-302. 14-23-250, 14-23-1150
1-303. 14-23-250, 14-23-260, 15-7-40, 15-7-50
1-304. Probate Court Rule 15, 14-23-280, 14-23-1140
1-305. 14-23-1100, Probate Court Rule 1
1-306. 14-23-280
1-307. 14-23-1030, 14-23-1070, 14-23-1100
1-308. 18-5-60
1-309. 14-23-1020
PART 4
NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS
1-401. 14-23-280, Probate Court Rules 5, 6
1-402.
1-403.
PART 5
UNIFORM SIMULTANEOUS DEATH ACT
1-501.
1-502.
1-503.
1-504.
1-505.
1-506.
1-507.
1-508.
TABLE C
Article I: Derivation From and Cross-References to Repealed Provisions of the Code of Laws of South Carolina 1976:
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
1-101.
1-102.
1-103.
1-104.
1-105.
1-106. 21-15-330, 21-15-390
1-107. 21-3-20(11)
1-108.
PART 2
DEFINITIONS
1-201.
PART 3
SCOPE, JURISDICTION, AND COURTS
1-301. 21-15-10
1-302. 21-29-29-10
1-303. 21-15-10
1-304.
1-305.
1-306.
1-307.
1-308. 21-19-260, 18-5-10, 18-5-20, 18-5-30, 18-5-40, 18-5-50, 18-5-60, 18-5-70, 18-5-80,
44-23-750, 44-23-820
1-309
PART 4
NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS
1-401.
1-402.
1-403.
PART 5
UNIFORM SIMULTANEOUS DEATH ACT
1-501. 21-9-10
1-502. 21-9-20
1-503. 21-9-30
1-504. 21-9-40
1-505. 21-9-50
1-506. 21-9-60
1-507. 21-9-70
1-508. 21-9-80
TABLE D
Article I: Derivation From Provisions of the Uniform Probate Code:
GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT
PART 1
SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
1-101. 1-101 "c" ("c" indicates some change)
1-102. 1-102 "v" ("v" indicates verbatim)
1-103. 1-103 "v"
1-104. 1-104 "v"
1-105. 1-105 "v"
1-106. 1-106 "c"
1-107. 1-107 "v"
1-108. 1-108 "c"
PART 2
DEFINITIONS
1-201. 1-201 "c"
PART 3
SCOPE, JURISDICTION, AND COURTS
1-301. 1-301 "v"
1-302. 1-302 "c"
1-303. 1-303 "c"
1-304. 1-304 "c"
1-305. 1-305 "c"
1-306. 1-306 "c"
1-307. 1-307 "c"
1-308. 1-308 "c"
1-309. 1-309 "c"
PART 4
NOTICE, PARTIES, AND REPRESENTATION IN ESTATE LITIGATION AND OTHER MATTERS
1-401. 1-401 "c"
1-402. 1-402 "v"
1-403 1-403 "c"
PART 5
UNIFORM SIMULTANEOUS DEATH ACT
1-501 Code of Laws of South Carolina, 1976, Sections 21-9-10 to 21-9-80 adopted as SCPC
Sections 1-501 to 1-508; no UPC provision exists.
1-502.
1-503.
1-504.
1-505.
1-506.
1-507.
1-508.
TABLE A
Article II: Cross-References to Provisions of the South Carolina Probate Code:
INTESTATE SUCCESSION AND WILLS
PART 1
INTESTATE Succession
2-101. 2-102 et seq., 2-501, 2-602, 1-201(11), 1-201(33)
2-102. 2-802
2-103. 2-102, 2-106, 2-107, 1-201(40)
2-104. 1-501, 2-105, 2-401, 3-302, 3-307
2-105. 2-102, 2-103
2-106. 2-103(1)
2-107. 2-103(3), 2-609
2-108. 2-609
2-109. 1-201(3), 1-201(21), 1-201(28), 2-102, 2-103, 2-106, 2-302, 2-401, 2-402, 2-603,
2-113, 2-609
2-110. 1-201(17), 2-610
2-111. 3-903
2-112.
2-113. 2-109
PART 2
RESERVED
PART 3
SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
2-301. 2-302, 2-507, 2-801
2-302. 2-301, 2-507
PART 4
EXEMPT PROPERTY
2-401. 2-104, 3-805(a)(1)
2-402. 2-401, 3-902, 3-906, 3-907
2-403.
PART 5
WILLS
2-501. 2-101, 1-201(11), 1-201(33), 2-804
2-502. 2-505, 2-512, 3-303(c), 3-303(d), 3-408
2-503. 3-405, 3-406
2-504. 3-406
2-505. 2-502, 3-303(c), 3-303(d), 3-408
2-506. 1-201(48), 2-507, 2-508
2-507. 2-506, 2-508, 2-802(b), 2-802(c), 2-301, 2-302
2-508. 2-506, 2-507
2-509. 2-510, 2-512
2-510. 2-509
2-511. 2-512
2-512. 2-509, 2-511
PART 6
CONSTRUCTION
2-601. 2-611
2-602. 2-601
2-603. 2-601, 2-610, 2-801(c), 2-803, 1-201(21), 1-201(3), 1-201(28), 2-109, 2-106, 1-501
et seq., 2-103(1)
2-604. 2-601, 2-603, 1-501 et seq., 2-801(c), 2-803
2-605. 2-601, 2-606, 1-201(36)
2-606. 2-601, 2-605, 1-201(6)
2-607. 2-601, 3-814, 2-401
2-608. 2-601
2-609. 2-601, 2-103(3), 2-107, 2-109, 2-112, 2-113
2-610. 2-110, 2-601, 2-603
2-611. 2-601
PART 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
2-701. 2-502, 2-506, 2-509, 1-103
PART 8
GENERAL PROVISIONS
2-801. 2-204, 2-503
2-802. 2-102, 2-231, 2-301, 2-401, 2-507, 1-103, 3-203
2-803. 1-103, 2-603
2-804. 2-101, 2-501
PART 9
DELIVERY AND SUPPRESSION OF WILLS
2-901.
TABLE B
Article II: Cross-References to Retained Provisions of the Code of Laws of South Carolina, 1976:
INTESTATE SUCCESSION AND WILLS
PART 1
INTESTATE SUCCESSION
2-101.
2-102.
2-103.
2-104. 21-9-10 to 21-9-80, retained as 1-501 to 1-508, 15-41-10 et seq., 15-41-100,
15-41-310
2-105. 27-19-10 et seq., Art. 111, Section 3 S.C. Const.
2-106.
2-107.
2-108.
2-109. 20-7-1770 amend, 20-7-1820 amend, 20-1-30 to 20-1-90, 21-7-480 and
27-23-100 recommend repeal; 15-51-20 and 15-51-30 amend
2-110.
2-111.
2-112. Art. 3, Section 35 S.C. Const., 27-13-10, 27-13-20, 27-13-30, and 27-13-40
2-113.
PART 2
ELECTIVE SHARE OF SURVIVING SPOUSE
2-201.
2-202.
2-203.
2-204.
2-205.
2-206.
2-207.
PART 3
SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
2-301.
2-302.
PART 4
EXEMPT PROPERTY
2-401. Art. 3, Section 28 S.C. Const., Art. 17, Section 9 S.C. Const. amend, 15-41-10
et seq., 15-41-20, 15-41-100, 15-41-120, 15-41-200, 15-41-310
2-402. 15-41-10 et seq.
2-403.
PART 5 WILLS
2-501. 27-13-10, 20-5-20, 21-3-50 retained as 2-804
2-502.
2-503.
2-504. 19-11-10, 19-11-20, 19-11-30, and 19-11-40
2-505.
2-506.
2-507.
2-508.
2-509.
2-510.
2-511.
2-512.
PART 6
CONSTRUCTION
2-601.
2-602.
2-603. 21-9-10 et seq., retained as 1-501 et seq.
2-604. 21-9-10 et seq., retained as 1-501 et seq.
2-605. 21-35-80(1), retained as 7-408(1)
2-606.
2-607.
2-608.
2-609. 21-1-30 retained as 27-5-120, 20-7-1770, 21-7-480, and 27-23-100 recommend
repeal, 15-51-20 and 15-51-30 amend
2-610.
2-611.
PART 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
2-701. 32-3-10, 36-2-201, 36-8-319, 36-1-206, 19-11-20
PART 8
GENERAL PROVISIONS
2-801. 12-17-44
2-802. 15-51-20, 15-41-100, 20-3-190
2-803. 15-51-10 and 15-51-20, 16-3-10, 16-3-50, 16-3-60, 56-5-2910, 34-11-10, 33-11-280
2-804.
PART 9
DELIVERY AND SUPPRESSION OF WILLS
2-901.
TABLE C
Article II: Derivation From and Cross References to Repealed Provisions of the Code of Laws of South Carolina, 1976:
INTESTATE SUCCESSION AND WILLS
PART 1
INTESTATE SUCCESSION
2-101. 21-3-10, 21-3-20 and 19-52 (1962), 21-17-80
2-102. 21-3-20(1)-(6), 21-3-70
2-103. 21-3-20(1), (2), (3), (4), (5), (6), (8), (9), and (10)
2-104. 21-3-20
2-105. 21-3-20
2-106.
2-107.
2-108.
2-109. 21-3-20, 21-3-30, 21-3-40, 21-7-480, 27-23-100
2-110. 21-3-60
2-111.
2-112. 21-1-40
2-113.
PART 2
ELECTIVE SHARE OF SURVIVING SPOUSE
2-201.
2-202.
2-203.
2-204.
2-205.
2-206.
2-207.
PART 3
SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
2-301. 21-7-220
2-302. 21-7-450, 21-7-460, and 21-7-220
PART 4
EXEMPT PROPERTY
2-401. 21-7-440, 21-17-110
2-402.
2-403. 21-15-700
PART 5 WILLS
2-501. 21-7-10, 21-7-20, 21-7-30, 21-7-40
2-502. 21-7-20, 21-7-50, 21-7-60, 21-7-1110 to 21-7-1140, 21-1-10, 21-15-70
2-503. 21-7-615
2-504. 21-7-50, 21-7-690, 21-7-700
2-505. 21-7-70
2-506. 21-7-210
2-507. 21-7-220, 21-7-230
2-508.
2-509.
2-510. 21-33-10, 21-33-20, 21-33-30, 21-33-40
2-511.
2-512.
PART 6
CONSTRUCTION
2-601.
2-602. 21-7-410
2-603. 21-7-470, 21-1-50 partly repealed
2-604.
2-605.
2-606.
2-607.
2-608. 21-7-430
2-609. 21-7-480, 27-23-100
2-610. 21-7-470
2-611. 21-7-420
PART 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
2-701.
PART 8
GENERAL PROVISIONS
2-801. 21-37-10 to 21-37-80
2-802. 21-3-70, 21-7-220, 21-7-230
2-803. 21-1-50
2-804. 21-3-50
PART 9
DELIVERY AND SUPPRESSION OF WILLS
2-901. 21-7-730, 21-7-780, 21-7-790
TABLE D
Article II: Derivation From Provisions of the Uniform Probate Code:
INTESTATE SUCCESSION AND WILLS
PART 1
INTESTATE SUCCESSION
2-101. 2-101 "v" ("v" indicates verbatim)
2-102. 2-102 "c" ("c" indicates some change)
2-103. 2-103 "c"
2-104. 2-104 "v"
2-105. 2-105 "v"
2-106. 2-106 "v"
2-107. 2-107 "c"
2-108. 2-108 "c"
2-109. 2-109 "c"
2-110. 2-110 "c"
2-111. 2-111 "v"
2-112. 2-112 "v"
2-113. 2-113 "v"
PART 2
ELECTIVE SHARE OF SURVIVING SPOUSE
2-201. "c"
2-202. "c"
2-203. "c"
2-204. "v"
2-205. "c"
2-206. "c"
2-207. "c"
PART 3
SPOUSE AND CHILDREN UNPROVIDED FOR IN WILLS
2-301. 2-301 "c"
2-302. 2-302 "c"
PART 4
EXEMPT PROPERTY
2-401. 2-402 "c"
2-402. 2-404 "c"
2-403. Code of Laws of South Carolina, 1976, Section 21-15-700 adopted as SCPC Section
2-403; no UPC provision exists.
PART 5
WILLS
2-501. 2-501 "c"
2-502. 2-502 "c"
2-503. 2-504 "v"
2-504. Code of Laws of South Carolina, 1976, Sections 21-7-690 and 21-7-700 adopted as
SCPC Section 2-504; UPC Section 2-505 rejected.
2-505. 2-506 "c"
2-506. 2-507 "v"
2-507. 2-508 "c"
2-508. 2-509 "c"
2-509. 2-510 "v"
2-510. 2-511 "v" plus Code of Laws of South Carolina, 1976, Section 21-33-30(a)-(e)
2-511. 2-512 "v"
2-512. 2-513 "c"
PART 6
CONSTRUCTION
2-601. 2-603 "v"
2-602. 2-604 "v"
2-603. 2-605 "c"
2-604. 2-606 "v"
2-605. 2-607 "v"
2-606. 2-608 "c"
2-607. 2-609 "c"
PART 6
CONSTRUCTION
2-608. 2-610 "v"
2-609. 2-611 "v" (earlier version of UPC)
2-610. 2-612 "v"
2-611. Code of Laws of South Carolina, 1976, Section 21-7-420 adopted as SCPC Section
2-611; no UPC provision exists.
PART 7
CONTRACTUAL ARRANGEMENTS RELATING TO DEATH
2-701. 2-701 "c"
PART 8
GENERAL PROVISIONS
2-801. Code of Laws of South Carolina, 1976, Sections 21-37-10 to 21-37-80 adopted with
changes as SCPC Section 2-801; UPC Section 2-801 rejected.
2-802. 2-802 "c"
2-803. 2-803 "c"
2-804. Code of Laws of South Carolina, 1976, Section 21-3-50 adopted as SCPC Section
2-804; no UPC provision exists.
PART 9
DELIVERY AND SUPPRESSION OF WILLS
2-901. Code of Laws of South Carolina, 1976, Sections 21-7-730, 21-7-780, and 21-7-790
adopted as SCPC Section 2-901; UPC Sections 2-901 and 2-902 rejected.
TABLE A
Article III: Cross-References to Provisions of the South Carolina Probate Code:
PROBATE OF WILLS AND ADMINISTRATION
PART 1
GENERAL PROVISIONS
3-101. 1-201, 2-301, 2-302, 3-102, 3-103, 3-104, 3-105, 3-106, 3-108, 3-711, 3-712, 3-714,
3-715, 3-1201
3-102. 3-107, 3-108, 3-1201
3-103. 1-305, 3-108, 3-601, 3-619, 3-620, 3-701, 4-204, 4-205, 4-206, 4-207
3-104. 3-108, 3-203, 3-301, 3-414, 3-801, 3-803, 3-804, 3-807, 3-1003, 3-1004, 3-1005
3-105. 1-301, 1-302, 1-303, 1-306, 1-308, 3-106
3-106. 1-401, 1-402, 1-403, 3-105, 3-108, 3-204, 3-602
3-107. 3-106, 3-201, 3-301, 3-401, 3-402, 3-501, 3-602, 3-614
3-108. 3-102, 3-412, 3-803(a)(2), 3-909, 3-1006
3-109. 3-802
PART 2
VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
3-201. 1-303
3-202. 3-408
3-203. 1-201, 3-912
3-204. 1-401
PART 3
INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS
3-301. 3-302, 3-303, 1-310, 3-107(3)
3-302. 3-301, 3-303
3-303. 3-301
3-304. 3-303
3-305. 1-401, 3-204, 3-705
3-306. 3-614, 3-308, 3-608, 3-612
3-307. 3-308
3-308. 3-204, 3-612, 3-610(c)
3-309. 3-307, 3-308
3-310. 3-705, 1-401, 3-204
3-311. 3-307, 3-308
PART 4
FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
3-401. 3-402, 3-403, 3-414, 3-301, 1-403, 3-107, 3-607
3-402. 3-401, 3-403, 3-301, 3-310, 1-403
3-403. 3-401, 1-401, 3-204, 1-107(3), 3-106, 3-1001
3-404. 3-406, 1-403
3-405. 3-409, 3-404
3-406. 3-404, 3-407, 3-403
3-407. 3-406, 3-303, 1-107, 2-502
3-408. 2-602, 3-409, 3-202
3-409. 3-412, 3-413, 3-410, 3-411, 3-801, 1-401, 3-202, 2-612, 1-701
3-410. 3-412, 3-413
3-411. 3-409, 2-604
3-412. 3-408, 3-409, 3-410, 3-411, 3-1001, 3-1002, 3-1003, 3-1004, 3-108, 3-909
3-413. 1-308, 3-412, 3-409, 3-410, 3-411
3-414. 3-402, 3-107, 3-301, 3-307, 3-612, 3-203, 3-611, 1-402
PART 5
ADMINISTRATION UNDER PART 5
3-501.
3-502.
3-503. 3-401
3-504.
3-505. 3-1001
PART 6
PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
3-601. 1-310, 1-305, 3-504
3-602. 3-502, 3-107
3-603. 3-204, 3-604, 3-605, 3-606, 3-105, 3-607
3-604.
3-605. 3-705
3-606.
3-607. 3-306, 3-401, 3-502, 3-602
3-608. 3-1001, 3-1002
3-609. 3-718
3-610. 3-1001, 3-1002, 3-613, 3-614, 3-615, 3-616, 3-617, 3-618, 3-401
3-611. 3-608
3-612. 3-401, 3-703, 3-403, 3-301
3-613.
3-614. 3-716
3-615. 3-203
3-616.
3-617.
3-618.
3-619. 3-620
3-620. 3-619
3-621.
PART 7
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
3-701.
3-702.
3-703. 3-702
3-704. 3-801, 3-706, 3-807, 3-1003
3-705.
3-706. 3-704
3-707.
3-708.
3-709.
3-710.
3-711.
3-712. 3-713, 3-714
3-713.
3-714. 3-504
3-715. 3-902
3-716.
3-717.
3-718.
3-719.
3-720.
3-721.
PART 8
CREDITORS' CLAIMS
3-801. 3-1203, 3-704
3-802.
3-803.
3-804.
3-805. 2-401
3-806.
3-807. 3_704
3-808.
3-809.
3-810.
3-811.
3-812.
3-813.
3-814.
3-815.
3-816.
PART 9
SPECIAL PROVISIONS RELATING TO DISTRIBUTION
3-901. 3-101
3-902.
3-903.
3-904.
3-905.
3-906. 2-401, 3-101, 3-901
3-907. 3-908, 3-909, 3-910
3-908. 3-108, 3-1006, 3-907, 3-909, 3-910
3-909. 3-907, 3-908, 3-910, 3-703
3-910. 3-907
3-911. 1-302, 3-105
3-912. 2-701
3-913. 7-303
3-914. 3-908
3-915. 5-103
3-916.
PART 10
CLOSING ESTATES
3-1001.
3-1002. 1-403(2)(11)
3-1003. 3-704
3-1004.
3-1005.
3-1006.
3-1007.
3-1008.
PART 11
COMPROMISE OF CONTROVERSIES
3-1101.
3-1102. 3-403(2)(11)
PART 12
COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION
PROCEDURE FOR SMALL ESTATES
3-1201.
3-1202.
3-1203.
3-1204.
PART 13
SALE OF REAL ESTATE BY PROBATE COURT TO PAY DEBTS
3-1301.
3-1302.
3-1303.
3-1304.
3-1305.
3-1306.
3-1307.
3-1308.
3-1309.
3-1310. 3-603, 3-605
3-1311.
3-1312.
TABLE B
Article III: Cross-References to Retained Provisions of the Code of Laws of South Carolina, 1976:
PROBATE OF WILLS AND ADMINISTRATION
PART 1
GENERAL PROVISIONS
3-101.
3-102.
3-103.
3-104. 15-5-120, 15-5-130, 15-5-140
3-105. 14-23-1150
3-106.
3-107.
3-108.
3-109. 15-5-90, 15-5-100, 15-5-110
PART 2
VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
3-201.
3-202.
3-203.
3-204.
PART 3
INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS
3-301. 12-15-510, 12-15-540
3-302.
3-303.
3-304.
3-305.
3-306.
3-307.
3-308.
3-309.
3-310.
3-311.
PART 4
FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
3-401. 15-53-20 et seq .
3-402.
3-403.
3-404.
3-405. 14-23-330
3-406. 14-23-330
3-407.
3-408.
3-409.
3-410. 15-53-20 et seq.
3-411.
3-412.
3-413.
3-414.
PART 5
ADMINISTRATION UNDER PART 5
3-501.
3-502.
3-503.
3-504.
3-505.
PART 6
PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
3-601.
3-602.
3-603.
3-604.
3-605.
3-606.
3-607.
3-608.
3-609.
3-610.
3-611.
3-612.
3-613.
3-614.
3-615.
3-616.
3-617.
3-618.
3-619.
3-620.
3-621.
PART 7
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
3-701.
3-702.
3-703.
3-704.
3-705.
3-706.
3-707.
3-708.
3-709.
3-710.
3-711.
3-712.
3-713.
3-714.
3-715.
3-716.
3-717.
3-718.
3-719.
3-720.
3-721.
PART 8
CREDITORS' CLAIMS
3-801.
3-802.
3-803.
3-804.
3-805.
3-806.
3-807.
3-808.
3-809.
3-810.
3-811.
3-812.
3-813.
3-814.
3-815.
3-816.
PART 9
SPECIAL PROVISIONS RELATING TO DISTRIBUTION
3-901.
3-902.
3-903.
3-904. 21-35-70, 21-35-80 retained as 7-407, 7-408
3-905.
3-906. 21-15-1760 to 21-15-1780 retained in Title 12
3-907.
3-908.
3-909.
3-910. 12-15-1020
3-911.
3-912.
3-913.
3-914.
3-915.
3-916.
PART 10
CLOSING ESTATES
3-1001.
3-1002.
3-1003.
3-1004.
3-1005.
3-1006.
3-1007.
3-1008.
PART 11
COMPROMISE OF CONTROVERSIES
3-1101.
3-1102.
PART 12
COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
3-1201.
3-1202. 21-13-510 et seq., retained as 3-619 et seq.
3-1203.
3-1204.
PART 13
SALE OF REAL ESTATE BY PROBATE COURT TO PAY DEBTS
3-1301.
3-1302.
3-1303.
3-1304.
3-1305.
3-1306.
3-1307.
3-1308. 15-11-10 to 15-11-50
3-1309.
3-1310.
3-1311.
3-1312.
TABLE C
Article III: Derivation From and Cross References to Repealed Provisions of the South Carolina Code:
PROBATE OF WILLS AND ADMINISTRATION
PART 1
GENERAL PROVISIONS
3-101. 21-7-610, 21-7-440, 21-15-80, 21-17-10 to 21-17-60, 21-17-80, 21-17-90
3-102. 21-7-610, 21-7-620, 21-15-80
3-103.
3-104. 21-7-440, 21-17-10 to 21-17-60, 21-17-80, 21-17-90
3-105. 21-13-370 to 21-13-390, 21-15-330, 21-13-390, 21-15-1270, 21-15-1280
3-106. 21-13-370 to 21-13-390, 21-15-330, 21-15-390
3-107. 21-15-50
3-108.
3-109. 15-3-70
PART 2
VENUE FOR PROBATE AND ADMINISTRATION; PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
3-201. 21-15-10, 21-15-1610
3-202. 21-7-650
3-203. 21-15-30, 21-15-110, 21-13-310, 21-13-320, 21-13-340, 21-13-350, 21-13-360,
21-15-140, 21-15-610
3-204.
PART 3
INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS
3-301. 21-15-310, 21-7-610, 21-7-620, 21-7-630, 21-7-740 to 21-7-760, 21-15-150,
21-15-380, 21-15-1910 to 21-15-1940
3-302. 21-7-610, 21-7-620, 21-7-630
3-303. 21-7-610, 21-7-620, 21-7-630, 21-7-660 to 21-7-680, 21-7-910 to 21-7-960
3-304.
3-305.
3-306. 21-15-90
3-307.
3-308.
3-309.
3-310.
3-311.
PART 4
FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
3-401 21-7-610, 21-7-640
3-402 21-7-610, 21-7-640, 21-7-740 to 21-7-760, 21-15-150, 21-15-310, 21-15-380,
21-15-1910 to 21-15-1940
3-403. 21-7-650, 21-15-90
3-404.
3-405. 21-7-610, 21-7-620, 21-7-640, 21-7-710
3-406. 21-7-610, 21-7-640
3-407 21-7-720
3-408 21-7-910, 21-7-920, 21-7-930, 21-7-940, 21-7-950, 21-7-960
3-409. 21-7-610, 21-7-640, 21-7-910 to 21-7-960
3-410.
3-411.
3-412.
3-413.
3-414.
PART 5
ADMINISTRATION UNDER PART 5
3-501.
3-502.
3-503.
3-504.
3-505.
PART 6
PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
3-601 21-13-10 to 21-13-130, 21-15-50
3-602 21-13-10 to 21-13-130, 21-13-370, 21-13-380, 21-13-390
3-603. 21-13-10 to 21-13-130, 21-13-310, 21-13-330, 21-13-340, 21-11-100, 21-11-110,
21-15-20
3-604. 21-13-10 to 21-13-130, 21-11-100, 21-11-110, 21-13-330
3-605. 21-13-10 to 21-13-130, 21-11-100, 21-11-110
3-606. 21-13-10 to 21-13-130, 21-11-100, 21-11-110
3-607. 21-13-370 to 21-13-390
3-608.
3-609. 21-15-100, 21-15-130, 21-15-1620
3-610. 21-15-120
3-611. 21-13-370, 21-13-380, 21-13-390
3-612.
3-613.
3-614. 21-15-20, 21-15-60
3-615.
3-616.
3-617.
3-618.
3-619. 21-13-510
3-620. 21-13-520
3-621. 21-13-530
PART 7
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
3-701.
3-702.
3-703. 21-15-1620, 21-15-610, 21-15-620, 21-15-1240
3-704. 21-15-1270, 21-15-1280
3-705.
3-706. 21-15-320, 21-15-340 to 21-15-370, 21-15-430
3-707. 21-15-340 to 21-15-370, 21-15-430
3-708.
3-709. 21-15-620
3-710.
3-711. 21-15-1210, 21-15-1250, 21-15-1270, 21-15-1280
3-712. 21-15-620, 21-15-1240, 21-15-1620
3-713. 21-15-620, 21-15-1240, 21-15-1290, 21-15-1300, 21-15-1620
3-714.
3-715. 21-15-400, 21-15-720, 21-15-1210, 21-15-1250, 21-15-1260, 21-15-1265,
21-15-1270, 21-15-1280, 21-15-1450 to 21-15-1480
3-716. 21-15-1220, 21-15-1230
3-717.
3-718.
3-719. 21-15-1450, 21-15-1460, 21-15-1470, 21-15-1480
3-720.
3-721. 21-15-400, 21-15-1450 to 21-15-1480
PART 8
CREDITORS' CLAIMS
3-801. 21-15-630, 21-15-1630
3-802. 21-15-1640, 15-3-70
3-803. 21-15-640, 21-15-650, 21-15-1630, 21-15-1640
3-804. 21-7-440, 21-15-640, 21-17-10 to 21-17-60, 21-17-80, 21-17-90
3-805. 21-15-660, 21-15-690
3-806. 21-15-1640
3-807.
3-808.
3-809.
3-810.
3-811.
3-812.
3-813.
3-814.
3-815. 21-15-710
3-816. 21-15-710
PART 9
SPECIAL PROVISIONS RELATING TO DISTRIBUTION
3-901.
3-902.
3-903.
3-904.
3-905.
3-906. 21-15-1630, 21-15-1760 to 21-15-1780 (retained in Title 12)
3-907.
3-908.
3-909. 21-7-770
3-910. 21-7-770
3-911.
3-912.
3-913.
3-914. 21-15-1680, 21-15-1690, 21-15-1700, 21-15-1710, 21-15-1720, 21-15-1730,
21-15-1740, 21-15-1750
3-915.
3-916.
PART 10
CLOSING ESTATES
3-1001. 21-11-140 to 21-11-170, 14-23-350
3-1002.
3-1003. 14-23-350, 21-15-1410 to 21-15-1440
3-1004. 21-7-440, 21-17-10 to 21-17-60, 21-17-80, 21-17-90
3-1005.
3-1006.
3-1007. 21-15-1410 to 21-15-1440
3-1008.
PART 11
COMPROMISE OF CONTROVERSIES
3-1101.
3-1102.
PART 12
COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
3-1201. 21-15-1650 to 21-15-1670
3-1202. 21-15-1650 to 21-15-1670
3-1203. 21-15-1650 to 21-15-1670
3-1204. 21-15-1650 to 21-15-1670
PART 13
SALE OF REAL ESTATE BY PROBATE COURT TO PAY DEBTS
3-1301. 21-15-910, 21-15-1030, 21-15-1040
3-1302. 21-15-920
3-1303. 21-15-930
3-1304. 21-15-940
3-1305. 21-15-950
3-1306. 21-15-960
3-1307. 21-15-970
3-1308. 21-15-980
3-1309 21-15-990
3-1310. 21-15-1000
3-1311. 21-15-1010
3-1312. 21-15-1020
TABLE D
Article III: Derivation from Provisions of the Uniform Probate Code:
PROBATE OF WILLS AND ADMINISTRATION
PART 1
GENERAL PROVISIONS
3-101. 3-101 "c" ("c" indicates some change)
3-102. 3-102 "c"
3-103. 3-103 "c"
3-104. 3-104 "v" ("v" indicates verbatim)
3-105. 3-105 "c"
3-106. 3-106 "v"
3-107. 3-107 "c"
3-108. 3-108 "c"
3-109. 3-109 "c"
PART 2
VENUE FOR PROBATE AND ADMINISTRATION PRIORITY TO ADMINISTER; DEMAND FOR NOTICE
3-201. 3-201 "v"
3-202. 3-202 "v"
3-203. 3-203 "c"
3-204. 3-204 "v"
PART 3
INFORMAL PROBATE AND APPOINTMENT PROCEEDINGS
3-301. 3-301 "c"
3-302. 3-302 "c"
3-303. 3-303 "c"
3-304. 3-304 "v"
3-305. 3-305 "c"
3-306. 3-306 "c"
3-307. 3-307 "c"
3-308. 3-308 "c"
3-309. 3-309 "c"
3-310- 3-310 "v"
3-311. 3-311 "c"
PART 4
FORMAL TESTACY AND APPOINTMENT PROCEEDINGS
3-401. 3-401 "v"
3-402. 3-402 "c"
3-403. 3-403 "c"
3-404. 3-404 "v"
3-405. 3-405 "v"
3-406. 3-406 "c"
3-407. 3-407 "v"
3-408. 3-408 "c"
3-409. 3-409 "v"
3-410. 3-410 "v"
3-411. 3-411 "v"
3-412. 3-412 "v"
3-413. 3-413 "v"
3-414. 3-414 "v"
PART 5
ADMINISTRATION UNDER PART 5
3-501. 3-501 "v"
3-502. 3-502 "c"
3-503. 3-503 "v"
3-504. 3-504 "c"
3-505. 3-505 "v"
PART 6
PERSONAL REPRESENTATIVE; APPOINTMENT, CONTROL, AND TERMINATION OF AUTHORITY
3-601. 3-610 "v"
3-602. 3-602 "v"
3-603. 3-603 "c"
3-604. 3-604 "c"
3-605. 3-605 "c"
3-606. 3-606 "v"
3-607. 3-607 "c"
3-608. 3-608 "v"
3-609. 3-609 "v"
3-610. 3-610 "c"
3-611. 3-611 "v"
3-612. 3-612 "v"
3-613. 3-613 "v"
3-614. 3-614 "c"
3-615. 3-615 "v"
3-616. 3-616 "c"
3-617. 3-617 "v"
3-618. 3-618 "v"
3-619. South Carolina Code Sections 21-13-510 to 21-13-530 adopted as SCPC Sections
3-619 to 3-621; no UPC provision exists.
3-620.
3-621.
PART 7
DUTIES AND POWERS OF PERSONAL REPRESENTATIVES
3-701. 3-701 "v"
3-702. 3-702 "v"
3-703. 3-703 "v"
3-704. 3-704 "c"
3-705. 3-705 "v"
3-706. 3-706 "c"
3-707. 3-707 "c"
3-708. 3-708 "c"
3-709. 3-709 "v"
3-710. 3-710 "v"
3-711. 3-711 "c"
3-712. 3-712 "v"
3-713. 3-713 "v"
3-714. 3-714 "v"
3-715. 3-715 "c"
3-716. 3-716 "v"
3-717. 3-717 "v"
3-718. 3-718 "v"
3-719. 3-719 "c"
3-720. 3-720 "v"
3-721. 3-721 "c"
3-801. 3-801 "v"
3-802. 3-802 "v"
3-803. 3-803 "c"
3-804. 3-804 "c"
3-805. 3-805 "c"
3-806. 3-806 "c"
3-807. 3-807 "c"
3-808. 3-808 "c"
3-809. 3-809 "c"
3-810. 3-810 "v"
3-811. 3-811 "c"
3-812. 3-812 "v"
3-813. 3-813 "v"
3-814. 3-814 "v"
PART 8
CREDITORS' CLAIMS
3-815. 3-815 "v"
3-816. 3-816 "v"
PART 9
SPECIAL PROVISIONS RELATING TO DISTRIBUTION
3-901. 3-901 "c"
3-902. 3-902 "c"
3-903. 3-903 "c"
3-904. 3-904 "v"
3-905. 3-905 "v"
3-906. 3-906 "c"
3-907. 3-907 "v"
3-908. 3-908 "v"
3-909. 3-909 "v"
3-910. 3-910 "v"
3-911. 3-911 "c"
3-912. 3-912 "v"
3-913. 3-913 "v"
3-914. 3-914 "c"
3-915. 3-915 "v"
3-916. 3-916 "v"
PART 10
CLOSING ESTATES
3-1001. 3-1001 "v"
3-1002. 3-1002 "v"
3-1003. 3-1003 "c"
3-1004. 3-1004 "c"
3-1005. 3-1005 "v"
3-1006. 3-1006 "v"
3-1007. 3-1007 "c"
3-1008. 3-1008 "c"
PART 11
COMPROMISE OF CONTROVERSIES
3-1101. 3-1101 "v"
3-1102. 3-1102 "v"
PART 12
COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
3-1201. 3-1201 "c"
3-1202. 3-1202 "v"
3-1203. 3-1203 "c"
3-1204. 3-1204 "c"
PART 13
SALE OF REAL ESTATE BY PROBATE COURT TO PAY DEBTS
3-1301. South Carolina Code Sections 21-15-910 to 21-15-1020 adopted, with some changes,
as SCPC Sections 3-1301 to 3-1312; no UPC provision exists.
3-1302.
3-1303.
3-1304.
3-1305.
3-1306.
3-1307.
3-1308.
3-1309.
3-1310.
3-1311.
3-1312.
TABLE A
Article IV: Cross References to Provisions of the South Carolina Probate Code:
LOCAL AND FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION
PART 1
DEFINITIONS
4-101. 1-201, Art. III, 4-207
PART 2
POWERS OF FOREIGN PERSONAL REPRESENTATIVES
4-201. 3-201(d), 5-431
4-202.
4-203.
4-204. 5-432
4-205. Art. III
4-206. Art. III
4-207. Art. III, 1-301, 3-201, 3-202, 3-203, 3-307(a), 3-308, 3-611(b) 3-803(a), 3-815,
3-816
PART 3
JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES
4-301. Art. III, 3-203(g), 3-602, 4-201, 4-202, 4-203, 4-204, 4-205
4-302.
4-303. 1-401, 1-402, 1-403
PART 4
JUDGMENTS AND PERSONAL REPRESENTATIVES
4-401. 3-408, 3-409
TABLE B
Article IV: Cross-References to Retained Provisions of the Code of Laws of South Carolina, 1976:
LOCAL AND FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION
PART 1
DEFINITIONS
4-101.
PART 2
POWERS OF FOREIGN PERSONAL REPRESENTATIVES
4-201. 35-7-10 et seq., 12-15-270 amend 4-202.
4-203.
4-204.
4-205. 12-15-270 amend
4-206.
4-207.
PART 3
JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES
4-301.
4-302. 15-5-90, 15-5-130, 15-5-140, 15-9-350 et seq., 15-51-10 et seq., 35-1-1520,
36-2-801, 36-2-802, 36-2-803
4-303. 15-9-350 et seq., 15-9-710 et seq.
PART 4
JUDGMENTS AND PERSONAL REPRESENTATIVES
4-401.
TABLE C
Article IV: Derivation From and Cross-References to Repealed Provisions of the Code of Laws of South Carolina, 1976,:
LOCAL AND FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION
PART 1
DEFINITIONS
4-101.
PART 2
POWERS OF FOREIGN PERSONAL REPRESENTATIVES
4-201. 21-13-400
4-202. 21-13-400
4-203. 21-13-400
4-204. 21-19-70
4-205.
4-206.
4-207.
PART 3
JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES
4-301.
4-302.
4-303.
PART 4
JUDGMENTS AND PERSONAL REPRESENTATIVES
4-401.
TABLE D
Article IV: Derivation from Provisions of the Uniform Probate Code:
LOCAL AND FOREIGN PERSONAL REPRESENTATIVES; ANCILLARY ADMINISTRATION
PART 1
DEFINITIONS
4-101. 4-101 "v" ("v" indicates verbatim)
PART 2
POWERS OF FOREIGN PERSONAL REPRESENTATIVES
4-201. 4-201 "v"
4-202. 4-202 "v"
4-203. 4-203 "v"
4-204. 4-204 "v"
4-205. 4-205 "v"
4-206. 4-206 "v"
4-207. 4-207 "v"
PART 3
JURISDICTION OVER FOREIGN PERSONAL REPRESENTATIVES
4-301. 4-301 "v"
4-302. 4-302 "v"
4-303. 4-303 "v"
PART 4
JUDGMENTS AND PERSONAL REPRESENTATIVES
4-401. 4-401 "c" ("c" indicates some change)
TABLE A
Article V: Cross-References to Provisions of the South Carolina Probate Code:
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
PART 1
GENERAL PROVISIONS
5-101. 1-201(6), (9), (11), (13), (16), (18), (20), (24), (28), (31), (34), (35), (46)
5-102.
5-103. 5-312, 5-208
5-104.
5-105.
PART 2
RESERVED
5-301.
5-302.
5-303.
5-304.
5-305.
5-306.
5-307.
5-308.
5-309.
5-310.
5-311.
5-312.
5-313.
PART 3
GUARDIANS OF INCAPACITATED PERSONS
PART 4
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
5-401. 5-304
5-402.
5-403.
5-404.
5-405.
5-406.
5-407.
5-408.
5-409.
5-410.
5-411.
5-412.
5-413.
5-414.
5-415.
5-416.
5-417.
5-418.
5-419.
5-420.
5-421.
5-422.
5-423.
5-424. 5-209
5-425.
5-426.
5-427.
5-428.
5-429.
5-430.
5-431.
5-432.
PART 5
POWERS OF ATTORNEY
5-501. 5-502
5-502. 5-501
PART 6
UNIFORM VETERANS' GUARDIANSHIP ACT
5-601.
5-602.
5-603.
5-604.
5-605.
5-606.
5-607.
5-608.
5-609.
5-610.
5-611.
5-612.
5-613.
5-614.
5-615.
5-616.
5-617.
5-618.
5-619.
5-620.
5-621.
5-622.
5-623.
5-624.
TABLE B
Article V: Cross-References to Retained Provisions of the Code of Laws of South Carolina:
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
PART 1
GENERAL PROVISIONS
5-101.
5-102. 43-29-10 to 43-29-100, 44-17-10 to 44-17-900, 44-21-10 to 44-21-1080, 44-23-10 et
seq., 14-23-1150 amend
5-103. 34-11-20
5-104. 20-7-10 et seq., 20-7-100
5-105.
PART 2
RESERVED
PART 3
GUARDIANS OF INCAPACITATED PERSONS
5-301.
5-302.
5-303. 43-29-10 to 43-29-100, 44-17-10 to 44-17-900, 44-21-10 to 44-21-1080, 44-23-10 et
seq.
5-304.
5-305.
5-306.
5-307.
5-308.
5-309.
5-310.
5-311.
5-312.
5-313.
PART 4
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
5-401. S. C. Constitution Article 5, Section 8, 44-23-10 et seq.
5-402. 44-23-10 et seq.
5-403.
5-404.
5-405.
5-406.
5-407.
5-408. 34-11-20
5_409. 34-11-20
5-410.
5-411.
5-412.
5-413.
5-414.
5-415.
5-416. 14-23-340
5-417.
5-418.
5-419.
5-420.
5-421.
5-422.
5-423. 34-11-20
5-424.
5-425.
5-426.
5-427.
5-428.
5-429.
5-430.
5-431.
5-432.
PART 5
POWERS OF ATTORNEY
5-501.
5-502. 32-11-10, 32-11-20, 32-11-30, 32-11-40
PART 6
UNIFORM VETERANS' GUARDIANSHIP ACT
5-601.
5-602.
5-603.
5-604.
5-605.
5-606.
5-607.
5-608.
5-609.
5-610.
5-611.
5-612.
5-613.
5-614.
5-615.
5-616.
5-617.
5-618.
5-619.
5-620.
5-621.
5-622.
5-623.
5-624.
TABLE C
Article V: Derivation From and Cross References to Repealed Provisions of the 1976 Code:
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
PART 1
GENERAL PROVISIONS
5-101.
5-102. 21-19-10, 15-71-110 to 15-71-190
5-103. 15-71-10, 21-15-1650 to 21-15-1670
5-104.
5-105. 44-23-770
PART 2
RESERVED
PART 3
GUARDIANS OF INCAPACITATED PERSONS
5-301. 21-19-80, 21-19-90, 21-19-230, 21-19-250
5-302.
5-303. 21-19-200, 21-19-230
5-304.
5-305. 21-19-60
5-306.
5-307.
5-308.
5-309.
5-310. 21-19-50
5-311. 21-19-240
5-312. 21-19-80, 21-19-90
5-313.
PART 4
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
5-401. 21-19-230, 21-19-250, 21-21-15, 21-25-10 to 21-25-240, 44-23-710 to 44-23-760,
44-23-780 to 44-23-820, 15-71-110 to 15-71-190
5-402. 15-71-110 to 15-71-190, 21-19-20
5-403. 21-19-20
5-404. 44-23-710
5-405. 44-23-710, Probate Court Rule 5
5-406. 44-23-710
5-407. 44-23-240, Probate Court Rule 6
5-408. 21-23-10 to 21-23-110, 21-25-10 to 21-25-240, Probate Court Rule 14, 44-23-730,
21-19-200, 21-19-210, 21-19-230, 20-7-1530 to 20-7-1550, 21-21-20 to 21-21-60,
20-7-120, 20-7-130
5-409. 15-71-10, 15-71-20, 15-71-110 to 15-71-190, 44-23-730, 44-23-760, 21-19-50,
21-19-230, 21-23-10 to 21-23-110, 21-25-10 to 21-25-240
5-410. 21-19-80, 21-19-90, 21-19-240, 21-23-10 to 21-23-110
5-411. 21-11-100, 21-11-110, 21-19-40, 21-19-50, 21-19-60, 15-71-110 to 15-71-190
5-412. 21-11-100, 21-11-110, 21-19-170
5-413. 21-19-60
5-414. 21-19-180, 21-19-190
5-415.
5-416.
5-417.
5-418. 21-19-130
5-419. 14-23-350, 21-19-130, 21-19-140, 21-19-150, 44-23-780, 21-11-140 to 21-11-170
5-420.
5-421.
5-422.
5-423.
5-424. 15-71-30, 15-71-110 to 15-71-190, 21-19-120, 21-19-160
5-425. 15-71-20
5-426.
5-427.
5-428. 15-71-30
5-429.
5-430. 44-23-800, 44-23-810, 21-19-220
5-431. 21-19-70
5-432. 21-19-70
PART 5
POWERS OF ATTORNEY
5-501. 32-13-10
5-502.
PART 6
UNIFORM VETERANS' GUARDIANSHIP ACT
5-601. 21-25-10
5-602. 21-25-20
5-603. 21-25-30
5-604. 21-25-40
5-605. 21-25-50
5-606. 21-25-60
5-607. 21-25-70
5-608. 21-25-80
5-609. 21-25-90
5-610. 21-25-100
5-611. 21-25-110
5-612. 21-25-120
5-613. 21-25-130
5-614. 21-25-140
5-615. 21-25-150
5-616. 21-25-160
5-617. 21-25-170
5-618. 21-25-180
5-619. 21-25-190
5-620. 21-25-200
5-621. 21-25-210
5-622. 21-25-220
5-623. 21-25-230
5-624. 21-25-240
TABLE D
Article V: Derivation From Provisions of the Uniform Probate Code:
PROTECTION OF PERSONS UNDER DISABILITY AND THEIR PROPERTY
PART 1
GENERAL PROVISIONS
5-101. 5-101 "c" ("c" indicates some change)
5-102. 5-102 "v" ("v" indicates verbatim)
5-103. 5-103 "v"
5-104. 5-104 "c"
5-105. Section 44-23-770, of the 1976 Code adopted as SCPC Section 5-105; no UPC
provision exists.
PART 2
RESERVED
PART 3
GUARDIANS OF INCAPACITATED PERSONS
5-301. 5-301 "c"
5-302. 5-302 "v"
5-303. 5-303 "c"
5-304. 5-304 "v"
5-305. 5-305 "v"
5-306. 5-306 "v"
5-307. 5-307 "c"
5-308. 5-308 "v"
5-309. 5-309 "c"
5-310. 5-310 "c"
5-311. 5-311 "c"
5-312. 5-312 "c"
5-313. 5-313 "c"
PART 4
PROTECTION OF PROPERTY OF PERSONS UNDER DISABILITY AND MINORS
5-401. 5-401 "v"
5-402. 5-402 "c"
5-403. 5-403 "v"
5-404. 5-404 "v"
5-405. 5-405 "c"
5-406. 5-406 "v"
5-407. 5-407 "c"
5-408. 5-408 "c"
5-409. 5-409 "v"
5-410. 5-410 "c"
5-411. 5-411 "c"
5-412. 5-412 "c"
5-413. 5-413 "v"
5-414. 5-414 "c"
5-415. 5-415 "v"
5-416. 5-416 "v"
5-417. 5-417 "v"
5-418. 5-418 "c"
5-419. 5-419 "c"
5-420. 5-420 "v"
5-421. 5-421 "c"
5-422. 5-422 "c"
5-423. 5-423 "c"
5-424. 5-424 "c"
5-425. 5-425 "c"
5-426. 5-426 "c"
5-427. 5-427 "c"
5-428. 5-428 "c"
5-429. 5-429 "v"
5-430. 5-430 "c"
5-431. 5-431 "v"
5-432. 5-432 "c"
PART 5
POWERS OF ATTORNEY
5-501. 5-501 "c"
5-502. 5-502 "c"
PART 6
UNIFORM VETERANS' GUARDIANSHIP ACT
5-601. Sections 21-25-10 to 21-25-240 of the 1976 Code adopted as SCPC Sections 5-601
to 5-624; no UPC provision exists.
5-602.
5-603.
5-604.
5-605.
5-606.
5-607.
5-608.
5-609.
5-610.
5-611.
5-612.
5-613.
5-614.
5-615.
5-616.
5-617.
5-618.
5-619.
5-620.
5-621.
5-622.
5-623.
5-624.
TABLE A
Article VI: Cross-References to Provisions of the South Carolina Probate Code:
NONPROBATE TRANSFERS
PART 1
MULTIPLE-PARTY ACCOUNTS
6-101.
6-102. 6-108 through 6-113
6-103. 6-101(6) and (7), 6-104, 6-105, 6-107
6-104. 6-101(7), 6-103, 6-105
6-105. 6-104
6-106. 6-104, 6-105, 6-107
6-107. 6-104 through 6-106
6-108. 6-101(7), 6-109 through 6-111
6-109. 6-103(a), 6-104(a) and (e), 6-105
6-110. 6-103(a) and (b), 6-104(b)(2), 6-109
6-111. 6-103(a) and (c), 6-104(c)(2), 6-109
6-112. 6-107
6-113.
PART 2
PROVISIONS RELATING TO EFFECT OF DEATH
6-201.
TABLE B
Article VI: Cross References to Retained Provisions of the 1976 Code:
NONPROBATE TRANSFERS
PART 1
MULTIPLE-PARTY ACCOUNTS
6-101.
6-102.
6-103.
6-104. 33-11-280, 38-21-760, 38-31-10, 38-35-440, and 38-35-960
6-105.
6-106.
6-107.
6-108.
6-109.
6-110.
6-111.
6-112.
6-113.
PART 2
PROVISIONS RELATING TO EFFECT OF DEATH
6-201. 33-11-280
TABLE C
Article VI: Derivation From and Cross References to Repealed Provisions of the 1976 Code:
NONPROBATE TRANSFERS
PART 1
MULTIPLE-PARTY ACCOUNTS
6-101. 34-11-10, 34-25-80
6-102.
6-103. 34-11-10, 34-25-80
6-104. 21-7-50, 34-11-10, 34-25-80
6-105.
6-106.
6-107.
6-108.
6-109. 34-11-10, 34-25-80
6-110.
6-111.
6-112.
6-113.
PART 2
PROVISIONS RELATING TO EFFECT OF DEATH
6-201. 34-11-10, 34-25-80
TABLE D
Article VI: Derivation From Provisions of the Uniform Probate Code:
NONPROBATE TRANSFERS
PART 1
MULTIPLE-PARTY ACCOUNTS
6-101. 6-101 "c" ("c" indicates some change)
6-102. 6-102 "v" ("v" indicates verbatim)
6-103. 6-103 "v"
6-104. 6-104 "c"
6-105. 6-105 "v"
6-106. 6-106 "c"
6-107. 6-107 "c"
6-108. 6-108 "v"
6-109. 6-109 "v"
6-110. 6-110 "v"
6-111. 6-111 "c"
6-112. 6-112 "v"
6-113. 6-113 "v"
PART 2
PROVISIONS RELATING TO EFFECT OF DEATH
6-201. 6-201 "c"
TABLE A
Article VII: Cross-References to Provisions of the South Carolina Probate Code:
TRUST ADMINISTRATION
PART 1
TRUST ESTATES
7-101.
7-102.
7-103.
7-104.
7-105.
7-106.
7-107.
7-108.
7-109.
7-110.
7-111.
PART 2
JURISDICTION OF COURTS CONCERNING TRUSTS
7-201. 7-204, 7-205, 1-302(c)
7-202. 7-201, 7-204
7-203. 7-201, 7-204, 3-401, 4-401
7-204. 7-201 et seq., 1-401, 1-302(c)
7-205. 7-201, 1-302(c)
7-206. 1-401, 7-201, 7-204
7-207. Art. I, Part 4
7-208.
7-209.
7-210.
PART 3
DUTIES AND LIABILITIES OF TRUSTEES
7-301.
7-302. Art. V
7-303. 3-705, 7-201, 7-501 et seq.
7-304. 3-603, 3-604, 3-605, 3-606
7-305. 7-207
7-306. 3-805(1), 3-808, 5-429, 7-306
7-307. 1-103, 1-108, 1-403, 5-103
PART 4
REVISED UNIFORM PRINCIPAL AND INCOME ACT
7-401.
7-402.
7-403.
7-404.
7-405.
7-406.
7-407.
7-408.
7-409.
7-410.
7-411.
7-412.
7-413.
7-414.
7-415.
7-416.
7-417.
7_418.
7-419.
7-420.
7-421.
PART 5
CHARITABLE TRUSTS
7-501. 7-303
7-502.
7-503.
7-504.
7-505.
7-506.
PART 6
POWERS OF FIDUCIARIES
7-601.
7-602.
TABLE B
Article VII: Cross-References to Retained Provisions of the 1976 Code:
TRUST ADMINISTRATION
PART 1
TRUST ESTATES
7-101. 30-7-10 et seq.
7-102.
7-103.
7-104.
7-105.
7-106.
7-107.
7-108.
7-109.
7-110.
7-111.
PART 2
JURISDICTION OF COURTS CONCERNING TRUSTS
7-201. S.C. Const. Art. V, Sections 7 and 8, 15-53-10 et seq., 15-71-310 amend, 15-71-330
amend, 14-23-1150 amend
7-202.
7-203
7-204 S.C. Const. Art. V, Sections 7 and 8, 14-23-1150 amend
7-205.
7-206.
7-207. 15-9-210 et seq., 33-23-10 et seq.
7-208.
7-209.
7-210.
PART 3
DUTIES AND LIABILITIES OF TRUSTEES
7-301.
7-302. 5-21-460, 5-21-760, 11-15-560, 31-3-1630, 31-19-10, 31-19-20, 31-19-40,
33-37-410, 34-7-70, 34-13-150, 34-13-160, 34-15-50, 34-21-50, 34-21-220 et seq.,
59-71-170, 59-71-540
7-303.
7-304.
7-305.
7-306. 12-37-610, 12-37-730, 12-37-740, 15-37-180, 15-51-50, 33-11-230(d), 33-53-10 et
seq., 34-15-50, 36-3-403
7-307.
PART 4
REVISED UNIFORM PRINCIPAL AND INCOME ACT
7-401.
7-402.
7-403.
7-404.
7-405.
7-406.
7-407.
7-408.
7-409.
7-410.
7-411.
7-412.
7-413.
7-414.
7-415.
7-416.
7-417.
7-418.
7-419.
7-420.
7-421.
PART 5
CHARITABLE TRUSTS
7-501.
7-502.
7-503.
7-504.
7-505.
7-506.
PART 6
POWERS OF FIDUCIARIES
7-601.
7-602.
TABLE C
Article VII: Derivation From and Cross-References to Repealed Provisions of the 1976 Code:
TRUST ADMINISTRATION
PART 1
TRUST ESTATES
7-101. 21-27-10
7-102. 21-27-20
7-103. 21-27-30
7-104. 21-27-40
7-105. 21-27-50
7-106. 21-27-60
7-107. 21-27-70
7-108. 21-27-80
7-109. 21-27-90
7-110. 21-17-70
7-111. 21-17-100.
PART 2
JURISDICTION OF COURTS CONCERNING TRUSTS
7-201. 15-9-450, 21-11-140, 21-11-150, 21-11-160, 21-11-170, 21-29-10, 21-29-20,
21-29-30, 21-29-50, 21-29-60, 21-29-80
7-202.
7-203.
7-204. 21-29-10
7-205. 21-15-1450 to 21-15-1480, 21-29-70
7-206. 15-9-450, 21-11-140, 21-11-150, 21-11-160, 21-11-170
7-207. 15-9-450, 21-29-40
7-208. 15-71-310
7-209. 15-71-320
7-210. 15-71-330
PART 3
DUTIES AND LIABILITIES OF TRUSTEES
7-301.
7-302. 21-11-10, 21-11-20, 21-11-30, 21-11-40, 21-11-50, 21-11-80, 21-11-90, 21-19-120
7-303. 14-23-350, 21-11-140, 21-11-150, 21-11-160, 21-11-170, 21-29-80
7-304. 21-29-40, 21-11-100, 21-11-110
7-305. 21-11-40 retained as 7-302, 21-29-20, 21-29-30, 21-29-50, 21-29-60
7-306.
7-307.
PART 4
REVISED UNIFORM PRINCIPAL AND INCOME ACT
7-401. 21-35-10
7-402. 21-35-20
7-403. 21-35-30
7-404. 21-35-40
7-405. 21-35-50
7-406. 21-35-60
7-407. 21-35-70
7-408. 21-35-80
7-409. 21-35-90
7-410. 21-35-100
7-411. 21-35-110
7-412. 21-35-120
7-413. 21-35-130
7-414. 21-35-140
7-415. 21-35-150
7-416. 21-35-160
7-417. 21-35-170
7-418. 21-35-180
7-419. 21-35-190
7-420. 21-35-200
7-421. 21-35-210
PART 5
CHARITABLE TRUSTS
7-501. 21-31-10
7-502. 21-31-20
7-503. 21-31-30
7-504. 21-31-40
7-505. 21-31-50
7-506. 21-31-60
PART 6
POWERS OF FIDUCIARIES
7-601. 21-11-60
7-602. 21-11-70
TABLE D
Article VII: Derivation from Provisions of the Uniform Probate Code:
TRUST ADMINISTRATION
PART 1
TRUST ESTATES
7-101. Sections 21-27-10 to 21-27-90, 21-17-70, and 21-17-100 of the 1976 Code adopted
as SCPC Sections 7-101 to 7-111; no UPC provisions exist.
7-102.
7-103.
7-104.
7-105.
7-106.
7-107.
7-108.
7-109.
7-110.
7-111.
PART 2
JURISDICTION OF COURTS CONCERNING TRUSTS
7-201. 7-201 "c" ("c" indicates some change)
7-202. 7-202 "c" to incorporate part of UPC 7-101
7-203. 7-203 "v" ("v" indicates verbatim)
7-204. 7-204 "c"
7-205. 7-205 "v"
7-206. 7-206 "v"
7-207. Section 21-29-40 of the 1976 Code, adopted with some change as SCPC Section
7-207; Sections 15-71-310 to 15-71-330 as SCPC Sections 7-208 to 7-210; no UPC
provisions exist.
7-208.
7-209.
7-210.
PART 3
DUTIES AND LIABILITIES OF TRUSTEES
7-301 7-301
7-302 Sections 21-11-10, 21-11-30, 21-11-40, 21-11-50, 21-11-80, and 21-11-90 of the 1976
Code adopted with some change as SCPC Section 7-302; UPC 7-302 rejected.
7-303. 7-303 "c"
7-304. 7-304 "c"
7-305. 7-305 "c"
7-306. 7-306 "c"
7-307. 7-307 "c"
PART 4
REVISED UNIFORM PRINCIPAL AND INCOME ACT
7-401. Sections 21-35-10 to 21-35-210 of the 1976 Code adopted as SCPC Sections 7-401
to 7-421; no UPC provision exists.
7-402.
7-403.
7-404.
7-405.
7-406.
7-407.
7-408.
7-409.
7-410.
7-411.
7-412.
7-413.
7-414.
7-415.
7-416.
7-417.
7-418.
7-419.
7-420.
7-421.
PART 5
CHARITABLE TRUSTS
7-501. Sections 21-31-10 to 21-31-60 of the 1976 Code adopted as SCPC Sections 7-501 to
7-506; no UPC provision exists.
7-502.
7-503.
7-504.
7-505.
7-506.
PART 6SECTION 2. The Reconciliation Table contained in this Section 2 shows the provisions of the Code of Laws of South Carolina, 1976, which shall be repealed upon the enactment of the South Carolina Probate Code or which shall be redesignated as a part of the 1976 Code with different section numbers. Where the Reconciliation Table reflects a particular section of the 1976 Code as being "retained" by the South Carolina Probate Code, this is set out for the purpose of showing where the 1976 Code of Laws provision is contained in the Probate Code and on the effective date of this act this 1976 Code provision is repealed. Likewise, where the Reconciliation Table reflects a particular section of the 1976 Code as being "repealed" by the South Carolina Probate Code, this is set out for the purpose of showing what provision of the Probate Code has superseded the provision of the 1976 Code and on the effective date of this act this 1976 Code provision is repealed. Where the Reconciliation Table reflects a particular section of the 1976 Code as being "redesignated" as a part of the 1976 Code with a new section number, on the effective date of this act this section shall continue to be a part of the 1976 Code but with the new section number so assigned.
RECONCILIATION TABLE
Reconciliation of Provisions of the 1976 Code and the South Carolina Probate Code:
Title 21 - Estates, Trusts, Guardians, and Fiduciaries
Chapter 1 - Decedents' Estates Generally
Section Analysis Line Disposition SCPC
21-1-10 Writing shall include
typewriting;confirmation
of typewritten wills and
testaments Repealed 2-502
21-1-20 Estates of felons shall
not escheat Redesignated as 27-19-120 of the 1976 Code
21-1-30 Posthumous child shall
take under will or settlement Redesignated as 27-5-120 of the 1976 Code
21-1-40 Alien widows Repealed 2-112
21-1-50 Person convicted of unlawful
killing shall not benefit
thereby Repealed 2-603
2-803
Chapter 3 - Descent and Distribution
21-3-10 Primogeniture abolished Repealed 2-101
21-3-20 Intestate distribution;
presumptions as to missing
persons 21-3-20(1)-(10) Repealed 2-101
2-102
2-103
2-104
2-105
21-3-20(11) Repealed 1-107
21-3-30 Inheritance by or from
illegitimates Repealed 2-109
(2)
21-3-40 Inheritance by or from
illegitimates prior to passage
of Sec. 21-3-30 Repealed 2-109
(2)
21-3-50 Distribution of joint
tenancy Retained as 2-804
21-3-60 Effect of advance on
distribution Repealed 2-110
21-3-70 Effect of provision for
widows on dower Repealed 2-102
2-201
2-802
Chapter 5 - Dower, Curtesy, and Jointure
Article 1
General Provisions
21-5-10 Tenancy by curtesy abolished Repealed
Article 3
Renunciation of Dower
21-5-110 Renunciation of dower Repealed
21-5-120 Renunciation to successors
to husband in title Repealed
21-5-130 Renunciation in deed of
release Repealed
21-5-140 Certificate shall be
endorsed on release;
form; recordation Repealed
21-5-150 Renunciation in power
of attorney Repealed
21-5-160 Certificate shall be
endorsed on power of
attorney; form; recordation Repealed
21-5-170. Sections 21-5-150 and
21-5-160 are additional
methods Repealed
21-5-180 Dower rights when widow
of mortgagor did not legally
renounce are not affected Repealed
21-5-190 Validation of certain
renunciations of
dower Repealed
Article 5
Forfeiture of Dower
21-5-310 Forfeiture by elopement,
divorce, and adultery Repealed
21-5-320 Forfeiture by marriage
of wife during lifetime
of husband Repealed
21-5-330 Forfeiture by desertion
for one year Repealed
21-5-340 Action for adjudication
of forfeiture on grounds
of desertion Repealed
21-5-350 Summons and lis pendens
in action for adjudication
of forfeiture on grounds of
desertion Repealed
21-5-360 Decree of forfeiture Repealed
21-5-370 Copy of decree shall be
filed in other counties
where husband owns land Repealed
21-5-380 Vacation of decree in
event of reconciliation;
limitations Repealed
21-5-390 Dower rights barred in
property sold for taxes Repealed
Article 7
Barring Dower of Mentally Incompetent Wife
21-5-510 Petition to divest dower
right of insane married woman Repealed
21-5-520 Adjudication that dower right
be barred; conditions on
husband Repealed
21-5-530 Endorsement on deed
or mortgage Repealed
21-5-540 Effect of endorsement on
deed or mortgage; recordation Repealed
21-5-550 Endorsement when unsoundness
exists but has not
been adjudged Repealed
21-5-560 Proceedings to bar dower as
to certain old deeds Repealed
Article 9
Acceptance of Distributive Share; Jointure
21-5-710 Acceptance of distributive
share bars dower Repealed
21-5-720 Jointure shall bar dower Repealed
21-5-730 Wife without jointure shall
have dower in order of the
common law Repealed
21-5-740 Jointure may be refused after
husband's death; exception if
assured by General Assembly Repealed
21-7-750 Wife may demand dower after
refusing jointure Repealed
21-7-760 Wife shall get dower if
evicted from jointure Repealed
Article 11
Allotment of Dower
21-5-910 Petition to probate court
for writ of admeasurement Repealed
21-5-920 Issuance of summons to
show cause; upon whom served Repealed
21-5-930 Writ of admeasurement to
commissioners; proceedings,
return, and certificate Repealed
21-5-940 Appointment of commissioners
on failure of party to nominate Repealed
21-5-950 Surveyor; payment of expenses
of admeasurement Repealed
21-5-960 Commissioners shall have regard
for real value of land; money
in lieu of dower Repealed
21-5-970 Manner in which value of
dower shall be assessed
against purchaser Repealed
21-5-980 Manner in which value
shall be assessed when
husband died seized Repealed
21-5-990 Allotment in circuit court
shall conform to regulations
of probate court Repealed
Chapter 7 - Wills
Article 1
General Provisions
21-7-10 Testamentary capacity Repealed 2-501
21-7-20 Estates pur autre vie
shall be devisable Repealed 2-501
2-502
21-7-30 Bequest of crops by widow Repealed 2-501
21-7-40 Will of a femme covert made
in execution of a power Repealed 2-501
21-7-50 Wills shall be in writing
and attested by three or
more witnesses Repealed 2-502
2-504
6-104
21-7-60 Soldier's and mariner's or
seamen's wills Repealed 2-502
21-7-70 Will legally executed out of
State shall be deemed legally
executed Repealed 2-505
Article 3
Revocation
21-7-210 Revocation of wills generally Repealed 2-506
21-7-220 Revocation by marriage Repealed 2-301
2-302
2-507
2-802
21-7-230 Revocation by divorce a vinculo Repealed 2-507
2-802
Article 5
Construction and Effect
21-7-410 Property acquired after
execution of will passes
by will Repealed 2-602
21-7-420 Words of limitation shall
be unnecessary to devise a fee Retained as 2-611
21-7-430 Power of appointment shall be
executed by general gift Repealed 2-608
21-7-440 Wills fraudulent as against
creditors Repealed 3-101
3-104
3-804
3-1004
3-1005
2-401
21-7-450 Posthumous children shall
receive equal share Repealed 2-302
21-7-460 Children born after will
is executed shall receive
equal share Repealed 2-302
21-7-470 Share of child dying in
lifetime of testator Repealed 2-603
2-610
21-7-480 Excessive legacies to bastards
or women living in adultery Repealed 2-109
2-609
Article 7
Probate
21-7-610 Manner in which wills shall
be proved Repealed 3-101
3-102
3-301
3-302
3-303
3-401
3-402
3-405
3-406
3-409
21-7-615 Attestation and Self-Proving Repealed 2-503
21-7-620 Admission to probate in common
form Repealed 3-102
3-301
3-302
3-303
21-7-630 Validation of probate in common
form of certain wills Repealed 3-102
3-301
3-302
3-303
21-7-640 Requirement of proof in due
form of law Repealed 3-401
3-402
3-405
3-406
3-409
21-7-650 Proceedings in cases of
nonresidents Repealed 3-202
3-403
21-7-660 Admission of wills of military
personnel in wartime Repealed 3-303
21-7-670 Description of certificate
required by Sec. 21-7-660 Repealed 3-303
21-7-680 Definition of military service
within Sec. 21-7-660 Repealed 3-303
21-7-690 Subscribing witnesses shall
not be incompetent because of
interest; effect on gifts to
them Retained as 2-504
21-7-700 Creditor may be witness Retained as 2-504
21-7-710 Proof of signatures of
subscribing witnesses who
are dead or insane
and testator Repealed 3-405
21-7-720 Executor shall have affirmative
of issue Repealed 3-407
21-7-730 Delivery of will to judge of
probate; filing Retained as 2-901
21-7-740 Filing copy of will in every
county where testator owned
real estate Repealed 3-301
3-402
21-7-750 Filing final discharge of
representative in every
county where deceased owned
real estate Repealed 3-301
3-402
21-7-760 Institution of probate
proceedings where devisee
or legatee is under disability Repealed 3-301
3-402
21-7-770 Effect of failure to file will
for probate within six months Repealed 3-909
3-910
21-7-780 Penalty for failure to deliver
will to probate judge Retained as 2-901
21-7-790 Penalty for destroying or
suppressing will Retained as 2-901
Article 9
Admission to Probate of Will Probated Out of State
21-7-910 Wills probated in other states
shall be admitted to probate in
this State Repealed 3-303
3-408
3-409
21-7-920 Effect of out-of-state will
being probated in South
Carolina Repealed 3-303
3-408
3-409
21-7-930 Foregoing sections are not
applicable when testator died
prior to Nov. 1, 1929 Repealed 3-303
3-408
3-409
21-7-940 Wills probated in Dominion of
Canada may be admitted to probate
in this State Repealed 3-303
3-408
3-409
21-7-950 Effect of admitting Canadian
will to probate Repealed 3-303
3-408
3-409
21-7-960 Will probated in foreign
country may be admitted to
probate in this State upon
exemplification Repealed 3-303
3-408
3-409
Article 11
Nuncupative Wills
21-7-1110 Manner in which nuncupative
wills exceeding fifty dollars
shall be proved Repealed 2-502
21-7-1120 Time within which nuncupative
wills must be proved Repealed 2-502
21-7-1130 Competency of witnesses to
nuncupative will Repealed 2-502
21-7-1140 Notification to widow or next
of kin Repealed 2-502
Chapter 9 - Uniform Simultaneous Death Act
21-9-10 Short title Retained as 1-501
21-9-20 Disposition of property when
persons die simultaneously Retained as 1-502
21-9-30 Successive beneficiaries of
disposition of property Retained as 1-503
21-9-40 Joint tenants or tenants by
the entirety Retained as 1-504
21-9-50 Insured and beneficiary Retained as 1-505
21-9-60 Chapter shall not be
retroactive Retained as 1-506
21-9-70 Chapter shall not be
applicable if instrument
provides otherwise Retained as 1-507
21-9-80 Construction Retained as 1-508
Chapter 11 - Fiduciaries Generally
21-11-10 Investments and management
of property by fiduciaries
generally Retained as 7-302
21-11-20 Investment in bonds issued
pursuant to certain acts of
Congress Repealed 7-302
21-11-30 Departure from express terms
of trust instrument is not
authorized; meaning of "legal
investment" and "authorized
investment"; fiduciaries
authorized to retain certain
property Retained as 7-302
21-11-40 Power of court is not
restricted by Secs. 21-11-10,
21-11-30, and 21-11-50 Retained as 7-302
See 7-305
21-11-50 Application of Secs. 21-11-10,
21-11-30, and 21-11-40 Retained as 7-302
21-11-60 Sale of notes and other
evidences of indebtedness Retained as 7-601
21-11-70 Deposit of securities in
clearing corporation by
fiduciary or custodian Retained as 7-602
21-11-80 Fiduciary not accountable
for interest Retained as 7-302
21-11-90 Trustee's liability for
loss resulting from investment
shall be limited in certain
circumstances Retained as 7-302
21-11-100 Premium for bond may be
included in fiduciary's
expenses Repealed 7-304
3-603
3-604
3-605
3-606
5-411
5-412
21-11-110 Bonds of certain fiduciaries
may be reduced Repealed 7-304
3-603
3-604
3-605
3-606
5-411
5-412
21-11-120 Payment of income tax must
be made prior to settlement
of fiduciary's count Redesignated as
12-7-2600 of the
1976 Code
21-11-130 Agreement by Tax Commission
upon income taxes due Redesignated as
12-7-2610 of the
1976 Code
21-11-140 Applications by certain
fiduciaries for adjudication
of accounts; notice shall
be given Repealed 7-201
7-206
7-303
5-419
3-1001
21-11-150 Court approval of account
shall relieve fiduciary
of liability; surcharge on
fiduciary for certain losses Repealed 7-201
7-206
7-303
5-419
3-1001
21-11-160 Appeal from approval or
disapproval of account Repealed 7-201
7-206
7-303
5-419
3-1001
21-11-170 Reopening of account Repealed 7-201
7-206
7-303
5-419
3-1001
Chapter 13 - Executors, Administrators, and
Personal Representatives Generally
Article 1
Oath and Bond
21-13-10 Oath of administrator Repealed 3-601
to 3-606
21-13-20 Oath of executor or
administrator with the
will annexed Repealed 3-601
to 3-606
21-13-30 Amount and condition of
administrator's bond Repealed 3-601
to 3-606
21-13-40 Amount of bond when corporate
surety is given Repealed 3-601
to 3-606
21-13-50 Bond shall be payable to
judge of probate; recovery
thereon Repealed 3-601
to 3-606
21-13-60 Liability of judge for
failure to require proper
bond Repealed 3-601
to 3-606
21-13-70 Sureties on bond may petition
for relief; costs Repealed 3-601
to 3-606
21-13-80 Amount of bond of administrator
with the will annexed Repealed 3-601
to 3-606
21-13-90 Condition of bond of
administrator with the will
annexed Repealed 3-601
to 3-606
21-13-100 Bond shall be payable to
judge of probate; recovery
thereon Repealed 3-601
to 3-606
21-13-110 Premium on bond may be
charged to estate Repealed 3-601
to 3-606
21-13-120 No bond shall be required
until it appears that
property will be received Repealed 3-601
to 3-606
21-13-130 Infirm or distant executors
may be qualified by commission Repealed 3-601
to 3-606
Article 3
Nonresidents as Representatives; Foreign Representatives
21-13-310 Conditions under which
nonresident may act as
representative Repealed 3-203
3-603
21-13-320 No foreign corporation, agent,
or person controlled by such
corporation shall act as
representative Repealed 3-203
21-13-330 Release of surety on foreign
executor's bond Repealed 3-603
3-604
21-13-340 Foregoing provisions
inapplicable to estates
in administration on
May 11, 1935 Repealed 3-203
3-603
21-13-350 Powers of nonresident executor Repealed 3-203
21-13-360 Renunciation by failure of
nonresident executor to qualify Repealed 3-203
21-13-370 Change of domicile or absence
from State of executor or
administrator Repealed 3-105
3-106
3-602
3-607
3-611
21-13-380 Service of citation on absent
executor or administrator by
publication Repealed 3-105
3-106
3-602
3-607
3-611
21-13-390 Revocation of authority for
failure to account or
disprove allegations Repealed 3-105
3-106
3-602
3-607
3-611
21-13-400 Powers of foreign
representatives of
nonresident decedents Repealed 4-201
4-202
4-203
Article 5
Executors de Son Tort
21-13-510 "Executor de son tort" defined Retained as 3-619
21-13-520 Executor de son tort shall
account for deceased's
property; decree
for damages Retained as 3-620
21-13-530 Liability Retained as 3-621
Chapter 15 - Administration of Decedent's Estate
Article 1
Probate and Granting of Letters
Testamentary or of Administration
21-15-10 Venue of administration
and of probate of wills Repealed 1-301
1-303
3-201
21-15-20 Issuance of temporary
letters of administration
or letters testamentary Repealed 3-614
3-603
21-15-30 Persons to whom letters of
administration shall be
granted Repealed 3-203
21-15-40 Appointment of administrator
and notification of Tax
Commission if no action is
taken within four months
after death Redesignated as 12-15-1620 of the 1976
Code
21-15-50 Prerequisites to probate of
will and issue of letters Repealed 3-107
3-601
21-15-60 Letters of administration
when will has been lost or
destroyed Repealed 3-614
21-15-70 Time of issuance of letters
testamentary or probate of
nuncupative will Repealed 2-502
21-15-80 Probate in due form of law
of will of real or mixed
property shall be sufficient Repealed 3-101
3-102
21-15-90 Manner of granting
administration Repealed 3-306
3-403
21-15-100 Administration on death of
sole or surviving executor Repealed 3-609
21-15-110 Granting of letters of
administration with the will
annexed Repealed 3-203
21-15-120 Appointment of administrator
with the will annexed upon
resignation of executors Repealed 3-610
21-15-130 Letters de bonis non or
de bonis non with the will
annexed Repealed 3-609
21-15-140 Persons under twenty-one
shall not be executors Repealed 3-203
21-15-150 Filing copy of petition
for letters of administration,
appointment, and final
discharge of representative
in every county where intestate
owned real estate Repealed 3-301
3-402
Article 3
List of Heirs, Inventory, and Appraisal
21-15-310 Preparation of list of heirs,
legatee, or devisees Repealed 3-301
3-402
21-15-320 Inventory Repealed 3-706
21-15-330 Failure or refusal to
exhibit property of an estate Repealed 3-105
3-106
1-106
21-15-340 Appointment of appraisers Repealed 3-706
3-707
21-15-350 Appraisal Repealed 3-706
3-707
21-15-360 Appraisement shall be made
in each county goods are
located Repealed 3-706
3-707
21-15-370 Appraiser shall be sworn Repealed 3-706
3-707
21-15-380 Surviving partner shall file
statement with probate judge Repealed 3-301
3-402
21-15-390 Obstruction of appraiser Repealed 3-105
3-106
1-106
21-15-400 Compensation of appraisers Repealed 3-715
(16)
3-715
(19)
3-721
21-15-410 Penalty against executor Redesignated as 12-15-1360
of the 1976 Code
21-15-420 Penalty against probate
judge Redesignated as 12-15-1370
of the 1976 Code
21-15-430 Extension of filing period Repealed 3-706
3-707
Article 5
Payment or Compromise of Debts
21-15-610 Letters of administration to
creditor shall be for benefit
of all creditors Repealed 3-203
3-703
21-15-620 Appointment of debtor as
executor does not
extinguish debt Repealed 3-703
3-709
3-712
3-713
21-15-630 Notice to creditors; time
allowed for ascertainment
of debts Repealed 3-801
21-15-640 Claims not filed within
five months shall be barred Repealed 3-803
21-15-650 No liability if creditor
neglects to give statement Repealed 3-803
21-15-660 Order of payment of debts Repealed 3-805
21-15-670 Payment of debts of annual
nature shall be in proportion
to assets Repealed 3-805
21-15-680 Situation in which crops shall
be assets Repealed 3-805
21-15-690 Situations in which emblements
shall be assets Repealed 3-805
21-15-700 Federal veteran payments shall be
exempt from creditors' claims Retained as 2-403
21-15-710 Assets of deceased residents
shall be liable for debts
to citizens Repealed 3-815
3-816
21-15-720 Administrators and executors
may compromise demands Repealed 3-715
(15)
Article 7
Sale of Real Estate by Probate Court to Pay Debts
21-15-910 Only procedure for sale of
lands by probate court Retained as 3-1301
21-15-920 Sale of real estate to pay
deceased's debts when
personal estate is insufficient Retained as 3-1302
21-15-930 Issuance of summons upon
application for sale Retained as 3-1303
21-15-940 Form of summons Retained as 3-1304
21-15-950 Service of summons and
petition Retained as 3-1305
21-15-960 Execution of process shall
be by sheriff; fees Retained as 3-1306
21-15-970 Publication as to nonresidents
and parties with unknown
residences Retained as 3-1307
21-15-980 Filing notice of pendency of
action Retained as 3-1308
21-15-990 Time for return; sale of real
estate after hearing and notice Retained as 3-1309
21-15-1000 Bond for handling of proceeds
by executor or administrator Retained as 3-1310
21-15-1010 Filing of papers; requirement
of returns Retained as 3-1311
21-15-1020 Entry of releases of liens on
property sold Retained as 3-1312
21-15-1030 General fee of probate judge Repealed 3-1301
21-15-1040 Fees for releases and
cancellations Repealed 3-1301
Article 9
Sales by Executors and Administrators
21-15-1210 Situations in which executors
may sell land Repealed 3-711
3-715
(6)
3-715
(21)
21-15-1220 Administrators with the will
annexed may exercise powers
of sale in will Repealed 3-716
21-15-1230 Certain sales by administrators
with the will annexed under
powers in will validated Repealed 3-716
21-15-1240 Liability for taking
insufficient security Repealed 3-703
3-712
3-713
21-15-1250 Court order required for sales
of personal property Repealed 3-711
3-715
(6)
3-715
(21)
21-15-1260 Sales of worthless evidences
of indebtedness Repealed 3-715
3-715
(15)
3-715
(21)
21-15-1265 Lease of peanut or tobacco
allotment Repealed 3-715
21-15-1270 Order for sale on intestate
estates Repealed 3-704
(6)
3-715
(21)
3-711
3-105
21-15-1280 Order for sale of personal
estate left by testator Repealed 3-704
(6)
3-715
(21)
3-711
3-105
21-15-1290 Executor or administrator may
purchase at sale of actual
value Repealed 3-713
21-15-1300 Executor purchasing property
shall give security for
purchase money Repealed 3-713
Article 11
Returns and Commissions
21-15-1410 Filing of accounts Repealed 3-1003
3-1005
3-1007
21-15-1420 Extension of accounting periods Repealed 3-1003
3-1005
3-1007
21-15-1430 Default in making returns Repealed 3-1003
3-1005
3-1007
21-15-1440 No account shall be necessary
beyond inventories except
to certain persons Repealed 3-1003
3-1005
3-1007
21-15-1450 Commissions Repealed 3-715
(16)
3-719
3-721
7-204
21-15-1460 Action by representatives for
additional compensation Repealed 3-715
3-719
3-721
7-204
21-15-1470 Commissions shall be divided
according to service Repealed 3-715
3-719
3-721
7-204
21-15-1480 Deceased executor or
administrator's estate entitled
to his commission Repealed 3-715
3-719
3-721
7-204
Article 13
Settlement and Distribution
21-15-1610 Venue for proceedings in
relation to settlement of
estate Repealed 3-201
21-15-1620 Liability for waste or
conversion Repealed 3-609
3-712
3-713
21-15-1630 Time for distribution of goods Repealed 3-906
(b)
3-801
3-803
21-15-1640 Time when actions may be
commenced against executors or
administrators; time when claims
shall be barred; notice of
disallowance Repealed 3-802
3-803
3-806
21-15-1650 Small estates Repealed 3-1201
3-1202
3-1203
3-1204
5-103
21-15-1660 Assets of small estate shall
be paid to probate judge
on demand Repealed 3-1201
3-1202
3-1203
3-1204
5-103
21-15-1670 Commissions on small estates;
report to Tax Commission Repealed 3-1201
3-1202
3-1203
3-1204
5-103
21-15-1680 Issuance of citation when
distributee cannot be found
or may be dead Repealed 3-914
21-15-1690 Publication of citation Repealed 3-914
21-15-1700 Proof of publication shall be
filed Repealed 3-914
21-15-1710 Decree of distribution when
parties do not appear Repealed 3-914
21-15-1720 Dismissal of proceedings if
absentee appears Repealed 3-914
21-15-1730 Procedure if identity shall
be disputed Repealed 3-914
21-15-1740 Claim by heir or beneficiary
of unfound or possibly dead
distributee Repealed 3-914
21-15-1750 Right to distribution shall
not be barred for three years Repealed 3-914
21-15-1760 Duties of fiduciary with
respect to power in will or
trust to distribute assets
in kind Redesignated as 12-15-1630 of the 1976
Code see 3-906
21-15-1770 Sections 21-15-1760 to
21-15-1780 are declaratory
of fiduciary principles Redesignated as 12-15-1640 of the 1976 Code
see 3-906
21-15-1780 Agreements with beneficiaries,
their representatives, and
governmental officials Redesignated as 12-15-1650 of the 1976 Code
see 3-906
Article 15
Derelict Estates
21-15-1910 Letters to clerk of court
for administration of
derelict estates Repealed 3-301
3-402
21-15-1920 Successors to clerks of court
shall succeed to administration
of derelict estates Repealed 3-301
3-402
21-15-1930 Acts of successors of clerks
validated Repealed 3-301
3-402
21-15-1940 Clerks shall turn over to
successors all money and
property Repealed 3-301
Chapter 17 - Liability of Heirs and Devisees
21-17-10 Debt upon bond or specialty
shall be suable against the
heirs and devisees jointly Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-20 Devisee shall be chargeable
for false answer Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-30 Heirs or devisees selling
before action shall be liable
for debt of ancestor Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-40 Preferred creditors Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-50 Time when heir may plead
nothing by descent;
determination of value by jury Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-60 Recovery against heir when
judgment is by confession,
demurrer or default Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-70 Trust shall be assets in the
hands of heirs Retained as 7-110
21-17-80 Liability of life estate
pur autre vie Repealed 2-101
3-101
3-104
3-804
3-1004
3-1005
21-17-90 Devisee made liable shall be
chargeable as heir Repealed 3-101
3-104
3-804
3-1004
3-1005
21-17-100 Heir shall not be chargeable
out of his own estate for
debts of his ancestor Retained as 7-111
21-17-110 Devise for raising funds
pursuant to a marriage contract
is valid Repealed 2-401
Chapter 19 - Guardians and Wards Generally
21-19-10 Jurisdiction of probate judge Repealed 5-102
21-19-20 Venue of proceedings relative
to guardianship estates Repealed 5-402
5-403
21-19-30 Venue for appointments of
guardians; ascertaining
sufficiency of bond in
certain cases Repealed 5-204
5-411
21-19-40 Bond of guardians Repealed 5-411
21-19-50 Temporary letters of
guardianship; bond Repealed 5-206
5-310
5-409
5-411
21-19-60 Prerequisites for appointment
of nonresident guardian or
committee Repealed 5-411
5-207
5-305
5-413
21-19-70 Full recognition of nonresident
guardianship proceedings for
distribution of personal estate Repealed 4-204
5-431
5-432
21-19-80 Citation of guardian or
committee removed from State Repealed 5-202
5-301
5-410
21-19-90 Revocation of appointment of
absent guardian or committee Repealed 5-202
5-301
5-410
21-19-100 Petition for change of
guardianship when ward moves
from county Repealed 5-201
21-19-110 Account and delivery of personal
estate when ward moves
from county Repealed 5-201
21-19-120 Guardians may invest in
endowment insurance or
educational insurance policies Repealed 5-424
(b)
7-302
21-19-130 Inventory and annual return by
guardian or committee Repealed 5-418
5-419
21-19-140 Annual accounts Repealed 5-419
21-19-150 Account in case of death of
guardian not represented by
executor or administrator Repealed 5-419
21-19-160 Situations in which guardian
shall apply for partition Repealed 5-424
(d)(3)
21-19-170 Proceedings against sureties
for recovery of decree against
guardian Repealed 5-412
21-19-180 Commissions Repealed 5-312
5-414
5-208
21-19-190 Commissions of deceased
guardians Repealed 5-312
5-414
5-208
21-19-200 Guardians for mentally retarded
persons Repealed 5-303
5-408
21-19-210 Appointment of and situation
for limited guardians of
property of mentally retarded
persons Repealed 5-408
21-19-220 Termination of guardianship
for mentally retarded person;
hearing Repealed 5-430
21-19-230 Stand by and alternate
guardians for mentally retarded
persons Repealed 5-301
5-303
5-401
5-408
5-409
21-19-240 Corporations as guardians of
mentally retarded persons Repealed 5-311
5-410
21-19-250 Application of general guardian
laws to guardianships for
mentally retarded persons Repealed Art. V Parts 3 & 4
21-19-260 Appeals by mentally retarded
persons Repealed 1-308
Chapter 21 - Natural and Parentally Appointed
21-21-10 Rights and duties of parents
in regard to their minor
children generally (20-7-100) Redesignated as 20-7-100 of the 1976 Code
21-21-15 Appointment of guardian for
protection of estate of minor
or incompetent Repealed 5-401
21-21-20 Manner in which custody of
minors may be disposed of
(20-7-1530) Repealed 5-202
5-203
5-408
21-21-30 Persons against whom disposition
of custody shall be valid
(20-7-1540) Repealed 5-202
5-203
5-408
21-21-40 Custodian may maintain action
for recovery of children and
damages (20-7-1550) Repealed 5-202
5-203
5-408
21-21-50 Custodian shall have rights
of guardian (20-7-120) Repealed 5-202
5-203
5-408
21-21-60 Returns and accounts shall
be made to probate judge
(20-7-130) Repealed 5-202
5-203
5-408
Chapter 23 - Public Guardians
21-23-10 Situation in which judge of
probate shall be appointed
guardian Repealed 5-408
5-409
5-410
21-23-20 Application for appointment of
judge as guardian Repealed 5-408
5-409
5-410
21-23-30 Order of appointment Repealed 5-408
5-409
5-410
21-23-40 Powers, liabilities, and
compensation of judge as
guardian Repealed 5-408
5-409
5-410
21-23-50 Transfer of estate on retirement
or death of judge Repealed 5-408
5-409
5-410
21-23-60 Transfer of estates on formation
of new counties Repealed 5-408
5-409
5-410
21-23-70 Investments shall be approved;
petition and record Repealed 5-408
5-409
5-410
21-23-80 Reports of public guardian Repealed 5-408
5-409
5-410
21-23-90 Discharge of public guardian Repealed 5-408
5-409
5-410
21-23-100 Records shall be kept by clerk
of court Repealed 5-408
5-409
5-410
21-23-110 Costs Repealed 5-408
5-409
5-410
Chapter 25 - Uniform Veterans' Guardianship Act
21-25-10 Short title Repealed 5-601
21-25-20 Definitions Repealed 5-401
5-409
21-25-30 Appointment of guardians Repealed 5-603
21-25-40 Persons who may file petition
for appointment Repealed 5-604
21-25-50 Contents of petition for
appointment for guardian Repealed 5-605
21-25-60 Facts which constitute prima
facie evidence of need for
guardian of a minor ward Repealed 5-606
21-25-70 Facts which constitute prima
facie evidence of need for
guardian of a mentally
incompetent ward Repealed 5-607
21-25-80 Notice of petition Repealed 5-608
21-25-90 Fitness of guardian; bond Repealed 5-609
21-25-100 Limitation on number of wards
of one guardian Repealed 5-610
21-25-110 Annual account of guardians
receiving funds from Veterans
Administration Repealed 5-611
21-25-120 Exhibit of securities at
time of filing account Repealed 5-612
21-25-130 Effect of failure to account Repealed 5-613
21-25-140 Accountability for funds not
received from Administration Repealed 5-614
21-25-150 Investments which guardians
may make Repealed 5-615
21-25-160 Use of estate for support of
persons other than ward Repealed 5-616
21-25-170 Copies of public records shall
be furnished without charge Repealed 5-617
21-25-180 Compensation of guardians Repealed 5-618
21-25-190 Final discharge of guardian;
paying out funds less than one
thousand dollars Repealed 5-619
21-25-200 Proceedings in which
Administrator shall be a party
in interest Repealed 5-620
21-25-210 Copies of accounts, certificates
or pleadings shall be sent to
Veterans Administration Repealed 5-621
21-25-220 Time, place, and notice of
hearing on account, petition,
or other pleading Repealed 5-622
21-25-230 Notice of hearings shall be
given to guardian; orders Repealed 5-623
21-25-240 Construction Repealed 5-624
Chapter 27 - Trust Estates
21-27-10 All declarations or creations
of trusts in land shall be in
writing Retained as 7-101
21-27-20 Grants and assignments of
trusts shall be in writing Retained as 7-102
21-27-30 Trusts of land arising,
transferred or extinguished by
implication of law Retained as 7-103
21-27-40 Word "writing" shall include
typewriting Retained as 7-104
21-27-50 Religious, educational,
charitable, or benevolent
trusts shall not be void
because of discretion vested
in trustee or establishment
of perpetuities Retained as 7-105
21-27-60 Religious, educational, or
charitable trusts created by
nonresidents shall be valid Retained as 7-106
21-27-70 Estate and possession of trust
estates shall be in
beneficiaries thereof Retained as 7-107
21-27-80 Several seized jointly to use
of one or more of them Retained as 7-108
21-27-90 Beneficiaries title to rent
out of trust shall be same
as conveyed by grant Retained as 7-109
Chapter 29 - Trustees
21-29-10 Jurisdiction of judge
of probate Repealed 7-201
7-204
1-302
21-29-20 Trustee under religious,
educational, charitable, or
benevolent trust shall have
legal title to property
appointment when no trustee is
named Repealed 7-201
7-305
21-29-30 Substitution of trustees Repealed 7-201
7-305
21-29-40 Situations in which a foreign
corporation or nonresident may
act as trustee Retained as 7-207, see 7-304
21-29-50 Citation of trustee absent or
moved from State Repealed 7-201
7-305
21-29-60 Revocation of office of
nonresident trustee Repealed 7-201
7-305
21-29-70 Commissions of trustees Repealed 7-205
21-29-80 Trustees shall make
annual returns Repealed 7-201
7-303
Chapter 31 - Charitable Trusts
21-31-10 Trustees shall file copy of
trust instrument with
Attorney General Retained as 7-501
21-31-20 Trustees shall file annual
reports with Attorney General Retained as 7-502
21-31-30 Action by Attorney General to
compel compliance Retained as 7-503
21-31-40 Rules and regulations of
Attorney General Retained as 7-504
21-31-50 Exemptions Retained as 7-505
21-31-60 Trustees shall not subject
trust to certain Federal
taxes on private foundations Retained as 7-506
Chapter 33 - Addition to Trusts
21-33-10 Short title Repealed 2-510
21-33-20 Testamentary additions to
trusts authorized; lapse Retained as 2-510
21-33-30 Payment of death benefits under
insurance policies, employees'
trusts and the like to trustees
authorized Retained as 2-510
21-33-40 Application of chapter Repealed 2-510
Chapter 35 - Revised Uniform Principal and Income Act
21-35-10 Short title Retained as 7-401
21-35-20 Definitions Retained as 7-402
21-35-30 Application of chapter Retained as 7-403
21-35-40 Allocation of receipts and
expenditures of trust between
income and principal Retained as 7-404
21-35-50 Income generally Retained as 7-405
21-35-60 Principal generally Retained as 7-406
21-35-70 Time when income beneficiary
becomes entitled to income;
allocation of income receipts;
termination of income interest Retained as 7-407
21-35-80 Determination and distribution
of income after testator's
death Retained as 7-408
21-35-90 Allocation of distributions
by corporations; regulated
investment company and
certain trusts Retained as 7-409
21-35-100 Bonds and other obligations
for payment of money Retained as 7-410
21-35-110 Allocation of profits and
losses from settlor's
business continued accounting
principles applicable to
agricultural operations Retained as 7-411
21-35-120 Allocation of receipts from
royalties, production payments,
or the taking of natural
resources Retained as 7-412
21-35-130 Allocation of receipts from
timber Retained as 7-413
21-35-140 Allocation of receipts from
property subject to depletion Retained as 7-414
21-35-150 Allocation of receipts from
sale of underproductive
property; delayed income Retained as 7-415
21-35-160 Expenses and other charges
which shall be charged to
income or principal Retained as 7-416
21-35-170 Charges which shall be made
against income Retained as 7-417
21-35-180 Charges which shall be made
against principal Retained as 7-418
21-35-190 Expenses incurred in settlement
of decedent's estate shall be
charged against principal Retained as 7-419
21-35-200 Apportionment of regularly
recurring charges Retained as 7-420
21-35-210 Construction Retained as 7-421
Chapter 37 - Disclaimer of Property Interests
21-37-10 Legislative intent;
construction of chapter Repealed 2-801
21-37-20 Definitions Repealed 2-801
21-37-30 Effect of disclaimer Repealed 2-801
21-37-40 Persons who may make
disclaimer; extent of
disclaimer Repealed 2-801
21-37-50 Passage of property interest
which has been disclaimed Repealed 2-801
21-37-60 Acts barring right to disclaim
property interest Repealed 2-801
21-37-70 Chapter not to affect rights
under other provisions of law Repealed 2-801
21-37-80 Effect of spendthrift and
similar provisions Repealed 2-801
Outside Title 21 Disposition SCPC
14-23-350 Repealed 3-1001
3-1003
5-419
7-303
15-3-70 Repealed 3-109
3-802
15-71-10 Repealed 5-409
5-103
5-105
15-71-20 Repealed 5-409
5-425
15-71-30 Repealed 5-424
5-428
15-71-110 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-120 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-130 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-140 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-150 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-160 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-170 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-180 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-190 Repealed 5-102
5-401
5-402
5-424
5-409
5-411
15-71-310 Retained as 7-208
15-71-320 Retained as 7-209
15-71-330 Retained as 7-210
18-5-10 Repealed 1-308
18-5-20 Repealed 1-308
18-5-30 Repealed 1-308
18-5-40 Repealed 1-308
18-5-50 Repealed 1-308
18-5-60 Retained as 1-308
18-5-70 Repealed 1-308
18-5-80 Repealed 1-308
27-23-100 Repealed 2-109
32-13-10 Repealed 5-501
34-11-10 Repealed 6-101
6-103
6-104
6-109
6-201
34-25-80 Repealed 6-101
6-103
6-104
6-109
6-201
44-23-710 Repealed 5-401
5-404
5-405
5-406
44-23-720 Repealed 5-407
44-23-730 Repealed 5-408
5-409
44-23-740 Repealed 5-401
44-23-750 Repealed 1-308
44-23-760 Repealed 5-409
44-23-770 Retained as 5-105
(amended per 44-23-790)
44-23-780 Repealed 5-419
44-23-790 Repealed 5-401
44-23-800 Repealed 5-430
44-23-810 Repealed 5-430
44-23-820 Repealed 1-308
SECTION 3. (1) The following provisions of the 1976 Code are amended as follows:
(A) Section 12-15-270 of the 1976 Code is amended to read:
"Section 12-15-270. When real or personal estate within this State or any interest therein belonging to a person who is not a resident of this State shall pass by will or otherwise so that it may be subject to tax under the provisions of this chapter and an executor or administrator of the estate of the decedent is appointed by a probate court of this State upon ancillary proceedings or otherwise, or is appointed by a court of another jurisdiction, such executor or administrator shall, for the purpose of this chapter, have the same powers and be subject to the same duties and liabilities with reference to such estate as though the decedent had been a resident of this State."
(B) Section 15, Article V of Act 690 of 1976, designated Section 14-23-1150 of the 1976 Code is amended to read:
"Section 14-23-1150. Every judge of probate, in his county, shall have jurisdiction:
(a) as provided in Sections 1-301 and 1-302, and other applicable sections of the South Carolina Probate Code;
(b) to issue 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 to issue certified copies of such licenses and certificates;
(c) to perform the duties of the clerk of the court of common pleas in proceedings in eminent domain for the acquisition of rights-of-way by railway or canal companies when such clerk is disqualified by reason of ownership of or interest in any lands over which it is sought to obtain such right-of-way;
(d) to inquire into and adjudge, in such proceedings as may be authorized by law, the involuntary commitment of persons suffering from mental illness, mental retardation, alcoholism
drug addiction, and active pulmonary tuberculosis."
(C) Section 15-9-450 of the 1976 Code is amended to read:
"Section 15-9-450. Service, upon any individual nonresident executor, administrator, guardian, conservator, or trustee, of any claim, demand, debt, dues, summons, or any other process, or pleading in suits or actions relating to the administration of the estate in his charge may be made upon the resident of this State appointed by such fiduciary as his agent for such purpose pursuant to the provisions of the South Carolina Probate Code or, in the event of the death, removal, resignation or absence from the State of such agent, or the inability of the person desiring to serve such agent so to do for any other reason, then upon the probate judge or the clerk of the court of common pleas of the county wherein the application of such fiduciary for appointment was made."
(D) Section 15-51-30 of the 1976 Code is amended to read:
"Section 15-51-30. In the event of the death of an illegitimate child or the mother of an illegitimate child by the wrongful or negligent act of another, such illegitimate child or the mother or father or the heirs at law or the distributees of such illegitimate child shall have the same rights and remedies in regard to such wrongful or negligent act as though such illegitimate child had been born in lawful wedlock."
(E) Section 20-7-1770 of the 1976 Code, as last amended by Act 71 of 1981, is amended to read:
"Section 20-7-1770. After a final decree of adoption is entered, the natural parents of the adopted child, unless they are the adoptive parents, shall be relieved of all parental responsibilities for the child and have no rights over such adopted child."
(F) Section 20-7-1820 of the 1976 Code, as last amended by Act 71 of 1981, is amended to read:
"Section 20-7-1820. An adult person may be adopted by any other adult person with the consent of the person to be adopted or his guardian, and with the consent of the spouse, if any, of a sole adoptive parent, filed in writing with the court. The provisions of Sections 20-7-1650 through 20-7-1770 and of Section 2-109 of the South Carolina Probate Code shall not apply to the adoption of an adult person. A petition therefor shall be filed with the court of common pleas, or a court having concurrent jurisdiction, in the county where the adoptive parents reside. After a hearing on the petition, and after such investigations as the court deems advisable, if the court finds that it is to the best interests of the persons involved, a decree of adoption may be entered which shall have the legal consequences stated in Section 2-109."
(G) Item (23) of Section 44-23-10 of the 1976 Code is amended to read:
"(23) "Conservator' means a person who legally has the care and management of the estate of one who is incapable of managing his own estate, whether or not he has been declared legally incompetent;".
(H) Section of 1 of Article V of Act 690 of 1976 is amended to read:
"Section 1. There is established in each of the counties of this State a probate court, which must be located at the county seat and must be open for the transaction of its business at all reasonable hours. The probate court of each county is part of the unified judicial system of this State."
(2) The following is a cross-reference index which shows which provision of the South Carolina Probate Code necessitated or suggested changes in the provisions of the 1976 Code which were amended in subsection (1) of this section.
1976 Code Section South Carolina Probate Code Sections
12-15-270 4-201
4-203
14-23-1150 1-302
5-102
7-201
7-204
15-9-450 3-203
3-206
5-207
5-305
5-411
5-413
7-201
7-206
7-207
7-304
15-51-30 2-109
2-609
20-7-1770 2-109
20-7-1820 2-109
44-23-10 5-401
SECTION 4. Neither the analysis lines after the respective articles, parts, and sections of the South Carolina Probate Code as contained in Section 1 of this act, nor the comments nor the tables so contained in Section 1 shall be considered to be a part of the Probate Code itself but rather are provided for explanatory and informational purposes only.
SECTION 5. (a) This act shall take effect July 1, 1987.
(b) Except as provided elsewhere in this code, on the effective date of this code:
(1) The code applies to any wills of decedents dying thereafter.
(2) The code applies to any proceedings in court then pending or thereafter commenced regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this code.
(3) Every personal representative including a person administering an estate of a minor or incompetent holding an appointment on that date, continues to hold the appointment but has only the powers conferred by this code and is subject to the duties imposed with respect to any act occurring or done thereafter.
(4) An act done before the effective date in any proceeding and any accrued right is not impaired by this code. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before the effective date, the provisions shall remain in force with respect to that right.
(5) Any 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.