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Indicates Matter Stricken
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AMENDED
April 4, 2002
H. 4154
S. Printed 4/4/02--H.
Read the first time May 17, 2001.
TO ENACT THE SOUTH CAROLINA ESTATES AND PROBATE REFORM ACT; TO AMEND SUBARTICLE 5, ARTICLE 3, CHAPTER 7, TITLE 20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE UNIFORM GIFTS TO MINORS ACT, SO AS TO DESIGNATE SUBARTICLE 5 AS THE "UNIFORM TRANSFERS TO MINORS ACT", TO CHANGE THE AGE OF DISTRIBUTION TO TWENTY-ONE YEARS, INCLUDE BOTH GRATUITOUS TRANSFERS AND TRANSFERS FOR CONSIDERATION TRANSFERS AND BOTH LIFETIME TRANSFERS AND TRANSFERS FROM TRUSTS, ESTATES, AND GUARDIANSHIPS, AND LIMIT THE MINOR'S LIABILITY TO THIRD PARTIES TO CASES OF PERSONAL FAULT; TO AMEND SECTION 62-5-501, AS AMENDED, RELATING TO THE DURABLE POWER OF ATTORNEY, SO AS TO PROVIDE FOR REASONABLE COMPENSATION FOR AN ATTORNEY-IN-FACT ACTING PURSUANT TO A DURABLE POWER OF ATTORNEY, AND TO PROVIDE FOR PROTECTION OF THIRD PARTIES RELYING ON THE ACTS OF AN INDIVIDUAL ACTING PURSUANT TO A DURABLE POWER OF ATTORNEY; TO AMEND ARTICLE 2, CHAPTER 2, TITLE 62, RELATING TO INTESTACY, SUCCESSION AND WILLS, SO AS TO CHANGE THE TITLE OF THE ARTICLE TO "INTESTACY, WILLS, AND DONATIVE TRANSFERS; TO AMEND PART 7, ARTICLE 2, CHAPTER 2, TITLE 62, RELATING TO CONTRACTUAL ARRANGEMENTS RELATING TO DEATH, SO AS TO REPLACE PART 7 WITH RULES FOR CONSTRUCTION OF WILLS AND OTHER INSTRUMENTS GOVERNING TRANSFERS; TO AMEND SECTION 62-2-803, RELATING TO THE EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, JOINT ASSETS, LIFE INSURANCE, AND BENEFICIARY DESIGNATIONS, SO AS TO PROVIDE FOR A JUDICIAL DETERMINATION OF CRIMINAL ACCOUNTABILITY, USING THE PREPONDERANCE OF THE EVIDENCE STANDARD, IN THE ABSENCE OF A CRIMINAL CONVICTION; TO AMEND PART 8, ARTICLE 2, CHAPTER 2, TITLE 62, RELATING TO GENERAL PROVISIONS AS TO INTESTATE SUCCESSION, BY ADDING SECTION 62-2-805 SO AS TO PROVIDE FOR REVOCATION OF PROBATE AND NONPROBATE TRANSFERS BY DIVORCE AND ANNULMENT; TO AMEND SECTION 34-19-120, RELATING TO ACCESS TO A LOCKBOX TO OBTAIN A POWER OF ATTORNEY, SO AS TO FACILITATE ACCESS CONDITIONED ON A VERIFIED DOCUMENT; AND TO AMEND SECTION 27-7-40, RELATING TO THE CREATION AND SEVERANCE OF A JOINT TENANCY, SO AS TO CLARIFY THAT A JOINT TENANCY WITH A RIGHT OF SURVIVORSHIP IN REAL ESTATE MAY TRANSFER HIS INTEREST WITHOUT JOINDER OF THE OTHER JOINT TENANTS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the South Carolina Estates and Probate Reform Act.
SECTION 2. Section 20-7-150(1) and (11) of the 1976 Code, as last amended by Act 152 of 1997, is further amended to read:
"(1) 'Adult' is a person who has attained the age of eighteen twenty-one years.
(11) 'Minor' is a person who has not attained the age of eighteen twenty-one years, excluding a person under the age of eighteen twenty-one who is married or emancipated as decreed by the family court."
SECTION 3. Section 20-7-180(4) of the 1976 Code is amended to read:
"(4) To the extent that the custodial property is not so expended, the custodian shall deliver or pay it over to the minor on his attaining the age of eighteen twenty-one years or, if the minor dies before attaining the age of eighteen twenty-one years, he the custodian shall thereupon then deliver or pay it over to the estate of the minor. Notwithstanding the requirements of this section, the custodian, in his discretion, may deliver or pay over the custodial property to the payee when the payee attains the age of eighteen."
SECTION 4. Section 20-7-190(3)(c) of the 1976 Code is amended to read:
"(c) The statute of this State applicable to guardians and conservators;"
SECTION 5. Section 20-7-210(4) of the 1976 Code is amended to read:
"(4) If a person designated as custodian or as a successor custodian by the custodian as provided in subsection (1) is not eligible, dies, or becomes legally incapacitated before the minor attains the age of eighteen years and if the minor has a guardian, the guardian of the minor shall be is successor custodian. If the minor has no guardian and if no successor custodian who is eligible and has not died or became legally incapacitated has been designated as provided in subsection (1), a donor, his representative, the legal representative of the custodian, or an adult members member of the minor's family may petition the court for the designation of a successor custodian. The provisions of this subsection shall do not affect the power of a personal representative or trustee to appoint a custodian pursuant to items (g) and (h) of subsection (1) of Section 20-7-160, or the power of an owner of a life insurance policy or annuity contract to appoint a successor custodian pursuant to subsection (4) of Section 20-7-160."
SECTION 6. Section 62-5-501 of the 1976 Code, as last amended by Act 152 of 1997, is further amended by adding at the end:
"(F)(1) A third person in this State who receives or is presented with a valid power of attorney executed pursuant to this section, and has not received actual written notice of its revocation or termination, shall not refuse to honor the power of attorney if:
(a) it contains the following provision or a substantially similar provision:
'No person who may act in reliance upon the representations of my attorney-in-fact for the scope of authority granted to the attorney-in-fact shall incur any liability to me or to my estate as a result of permitting the attorney-in-fact to exercise any such authority, nor shall any such person who deals with my attorney-in-fact be responsible to determine or insure the proper application of funds or property.'; or
(b) the attorney-in-fact gives him an affidavit under oath and subject to perjury, stating that the powers of the attorney-in-fact are then in effect, the action the attorney-in-fact desires to take is within the scope of his authority granted pursuant to the power of attorney, and the power of attorney has not been revoked or terminated by the principal.
(2) Unless the third person actually has received written notice of the revocation or termination of a valid power of attorney executed in accordance with this section, a third person in this State who receives or is presented with a power of attorney:
(a) does not incur liability to the principal or the principal's estate by reason of acting upon the authority of it or permitting the attorney-in-fact to exercise authority;
(b) is not required to inquire whether the attorney-in-fact has power to act or is properly exercising the power; or
(c) is not responsible to determine or ensure the proper application of assets, funds, or property belonging to the principal.
(3) A 'third person' means an individual, a corporation, an organization, or other legal entity for purposes of this subsection.
(G)(1) An attorney-in-fact is entitled to reimbursement for expenses and compensation for services as provided in the power of attorney. In the absence of a provision in the power of attorney regarding reimbursement or compensation, or both:
(a) an attorney-in-fact is entitled to reimbursement for all reasonable costs and expenses actually incurred and paid by the attorney-in-fact on the principal's behalf;
(b) an attorney-in-fact, upon the approval of the probate court, is entitled to reasonable compensation based upon the responsibilities he assumed and the effort he expended; and
(c) if two or more attorneys-in-fact are serving together, the compensation paid must be divided by them in a manner as they agree or as determined by a court of competent jurisdiction if they fail to agree.
(2) An interested person may petition a court of competent jurisdiction to review the propriety and reasonableness of payment for reimbursement or compensation to the attorney-in-fact, and an attorney-in-fact who has received excessive payment may be ordered to make appropriate refunds to the principal."
SECTION 7. Section 62-2-701 of the 1976 Code as added by Act 521 of 1990, is amended to read:
"Section 62-2-701. A contract to make a will or devise, or to revoke 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. In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a governing instrument. The rules of construction in this part apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument."
SECTION 8. The 1976 Code is amended by adding:
"Section 62-2-702. (A) The issue of a deceased transferee who survive the transferor take in place of a deceased transferee, who is a great-grandparent or a lineal descendant of a great-grandparent of the transferor, if the deceased transferee:
(1) is dead as the time of execution of the governing instrument;
(2) fails to survive the transferor; or
(3) is treated as if he predeceased the transferor.
(B) If they are all of the same degree of kinship to the transferee, they take equally. If they are of unequal degree, then those of more remote degree take by representation. One who would have been a transferee under a class gift if he had survived the transferor is treated as a transferee for purposes of this section whether his death occurred before or after the execution of the governing instrument."
SECTION 9. The 1976 Code is amended by adding:
"Section 62-2-805. (A) As used in this section:
(1) 'Disposition or appointment of property' includes a transfer of an item of property or other benefit to a beneficiary designated in a governing instrument.
(2) 'Divorce or annulment' means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that excludes the spouse as a surviving spouse within the meaning of Section 62-2-802. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(3) 'Divorced individual' includes an individual whose marriage has been either dissolved or declared invalid.
(4) 'Governing instrument' means a governing instrument executed by the divorced individual before the divorce or annulment of his marriage to his former spouse.
(5) 'Relative of the divorced individual's former spouse' means an individual who is related to the divorced individual's former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.
(6) 'Revocable', with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered by law or under the governing instrument to cancel the designation in favor of his former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate himself in place of his former spouse or in place of his former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power.
(B) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
(1) revokes a revocable:
(a) disposition or appointment of property made by a divorced individual to his former spouse in a governing instrument and a disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;
(b) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse; and
(c) nomination in a governing instrument nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in a fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and
(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, or as community property with the right of survivorship, in a community property jurisdiction, transforming the interests of the former spouses into tenancies in common.
(C) A severance pursuant to subsection (B)(2) does not affect a third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
(D) Provisions of a governing instrument that are not revoked by this section are given effect as if the former spouse and relatives of the former spouse disclaimed the revoked provisions or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.
(E) Provisions revoked only by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.
(F) A change of circumstances other than as provided in this section and in Section 62-2-803 does not result in a revocation.
(G)(1) A payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage or for having taken other action in good faith reliance on the validity of the governing instrument before the payor or other third party received written notice of the divorce, annulment, or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation pursuant to this section.
(2) Written notice of the divorce, annulment, or remarriage must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination pursuant to this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(H)(1) A person who purchases property from a former spouse, relative of a former spouse, or other person for value and without notice of the divorce, annulment, or remarriage, or who receives from a former spouse, relative of a former spouse, or another person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated to return the payment, item of property, or benefit, nor liable for the amount of the payment or the value of the item of property or benefit. A former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property, or other benefit to which that person is not entitled pursuant to this section is obligated to return the payment, item of property, or benefit, or is liable personally for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it pursuant to this section.
(2) If this section or part of this section is preempted by federal law with respect to a payment, an item of property, or another benefit provided in this section, a former spouse, relative of the former spouse, or other person who, not for value, received a payment, item of property, or another benefit to which that person is not entitled pursuant to this section is obligated to return that payment, item of property, or benefit, or is liable personally for the amount of the payment or the value of the item of property or benefit, to the person entitled to it if this section or part of this section were not preempted."
SECTION 10. Section 34-19-120 of the 1976 Code, as added by Act 499 of 1988, is amended to read:
"Section 34-19-120. In cases where a person has been given a durable power of attorney by a lessee of a safe deposit box who has become mentally incompetent, and the original copy of the power is put in the box, the lessor may permit the person given the power to open the box to obtain the original copy of the power. The lessor may request the person purporting to have been given the durable power of attorney to produce a certified copy of the power or an affidavit declaring that he has been given the power before opening the box. No other contents may be removed from the box pursuant to this section.
The durable power of attorney provided for in this section means a power made durable under the provisions of Section 62-5-501. (A)(1) The person who has been given a durable power of attorney by a lessee of a safe deposit box may open, or direct the lessor to open, the safe deposit box of the lessee and obtain the original copy of the durable power of attorney; provided that a statement in the form of item (3), or in a similar form showing the same intent, is:
(a) incorporated in the body of the original durable power of attorney contained in the safe deposit box; or
(b) contained in a separate statement in the form provided in subsection (B), or in a similar form showing the same intent as that attached or annexed to the original durable power of attorney contained in the safe deposit box.
(2) If the statement is contained in a separate writing, the execution of the separate statement is not an amendment, modification, or revision of the original power of attorney.
(3) The statement must be substantially in the following form:
'I__________________, the Principal, do hereby authorize and direct my appointee or appointees as my Attorney-in-Fact in my durable power of attorney, to have access at any time or times to any safe deposit box rented by me, wherever located, in order to remove my original durable power of attorney, and any institution in which any such safe deposit box may be located shall not be required to make any inquiry and shall not incur any liability to me or my estate as a result of permitting my appointee or appointees in my original durable power of attorney to exercise this power. This power shall be exercisable without: (i) any contact with, or notice to, me, my spouse, and/or any interested persons to my estate; (ii) any prior court order or authorization; (iii) any knowledge of, or any prior determination as to, my mental or physical capacity or incapacity; (iv) any knowledge as to my whereabouts regardless whether my whereabouts are known or unknown; or (v) any inquiry.'
(B) The lessee, at any time after the execution of his durable power of attorney, may execute a separate statement authorizing the removal of his original durable power of attorney from his safe deposit box pursuant to subsection (A), provided that the separate statement is executed by the Principal with the same formalities as the execution and recording of a deed in the State of South Carolina pursuant to Section 30-5-30, and the separate statement is attached or annexed to the original durable power of attorney in the following form, or in a similar form showing the same intent, with the acknowledgement for recorded deeds pursuant to Section 30-5-30(B) or (C).
'STATE OF _____________ )
COUNTY OF ____________________ )
I, _______ the Principal, do hereby authorize and direct my appointee or appointees as my Attorney-in-Fact in my durable power of attorney dated the __day of __, in the year __, to have access at any time or times to any safe deposit box rented by me, wherever located, in order to remove my original durable power of attorney, and any institution in which any such safe deposit box may be located shall not be required to make any inquiry and shall not incur any liability to me or my estate as a result of permitting my appointee or appointees in my original durable power of attorney to exercise this power. This power shall be exercisable without: (i) any contact with, or notice to, me, my spouse, and/or any interested persons to my estate; (ii) any prior court order or authorization; (iii) any knowledge of, or any prior determination as to, my mental or physical capacity or incapacity; (iv) any knowledge as to my whereabouts regardless whether my whereabouts are known or unknown; or (v) any inquiry.'
IN WITNESSETH WHEREOF, I have executed this statement on the ______ day of _________, in the year, ___________.
_______________ ______________
(Witness) Principal
_______________________(Witness)'
(C) If the original durable power of attorney does not contain a statement in the form provided in subsection (A) or in a similar form showing the same intent, or a separate statement in the form provided in subsection (B) or in a similar form showing the same intent is not attached or annexed to the original durable power of attorney, then to allow removal of the lessee's durable power of attorney from the lessee's safe deposit box the financial institution must have:
(1) contact with or notice to the lessee, the lessee's spouse, or an interested person in the lessee's estate;
(2) a prior court order or court authorization;
(3) knowledge of, or a prior determination as to, the mental or physical capacity or incapacity of the lessee;
(4) knowledge as to the lessee's whereabouts, whether the lessee's whereabouts are known or unknown; or
(5) other inquiry.
(D) A witness to a statement provided for in subsection (B), who also is an officer authorized to administer oaths pursuant to the laws of this State may notarize the signature of the other witness of the statement in the manner provided by this section.
(E) A financial institution that authorizes a person who has been given a durable power of attorney by a lessee of a safe deposit box, to remove the original durable power of attorney from the safe deposit box of the lessee, pursuant to subsection (A) or (B), or a financial institution that removes the original durable power of attorney from the safe deposit box of the lessee pursuant to the direction of the person who has been given a durable power of attorney by the lessee, is not required to make further inquiry, and is not liable to the lessee or the lessee's estate as a result of permitting removal of the original power of attorney. The financial institution may request the person purporting to have been given the durable power of attorney to produce a certified copy of the power or an affidavit declaring that he has been given the power before opening the box. No other contents may be removed from the box pursuant to this section.
(F) The provisions of this section enable the person who has been given a durable power of attorney by a lessee of a safe deposit box to remove or obtain the original durable power of attorney from the safe deposit box of the lessee, and enable the financial institution to allow the removal of the durable power of attorney from the safe deposit box without court action or findings of incapacity of the lessee. This section supplements and does not supplant the current procedures for obtaining the power of attorney of the lessee from the safe deposit box, and is not the exclusive method."
SECTION 11. Section 27-7-40(a)(iv) of the 1976 Code, as added by Act 398 of 2000, is amended to read:
"(iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance or deed of conveyance, the interest in the real estate shall be is effectively encumbered or conveyed to a third party or parties."
SECTION 12. Section 62-7-405(3) of the 1976 Code, as last amended by Act 80 of 2001, is further amended to read:
"(3) shall distribute to a beneficiary who receives a pecuniary amount outright the rate of interest or other amount provided by the will, or the terms of the trust, or applicable law from net income as determined by item (2) or from principal to the extent that net income is insufficient. If the will or the terms of the trust provide no interest amount, then the beneficiary of a pecuniary amount outright may not receive interest or other income on the bequest for one year after the first appointment of a personal representative. Beginning one year after the first appointment of a personal representative, and notwithstanding another provision of this chapter to the contrary, the beneficiary of a pecuniary amount outright must be treated like any other beneficiary pursuant to item (4). If a beneficiary is to receive a pecuniary amount outright from a trust after an income interest ends and no interest or other amount is provided for by the terms of the trust or applicable law, the fiduciary shall distribute the interest or other amount to which the beneficiary would be entitled under applicable law if treat the pecuniary amount as if it were required to be paid under a will and as if the payment were being made beginning one year after the first appointment of a personal representative;"
SECTION 13. Section 62-7-302(C)(5) of the 1976 Code, as last amended by Act 80 of 2001, is further amended to read:
"(5)(a) A trustee may invest in any kind of property or type of investment consistent with the standards of this section.
(b) Nothing in this section prohibits affiliate investments if they otherwise comply with the standards of this section. For these purposes, 'affiliate' means an entity that owns or is owned by the trustee, in whole or in part, or is owned by the same entity that owns the trustee. Affiliate investments include:
(i) investment and reinvestment in the securities of an open-end or closed-end management investment company or of an investment trust registered under the Investment Company Act of 1940, as amended. A bank or trustee, or both of them, may invest in these securities even if the bank or trustee, or an affiliate of the bank or trustee, provides services to the investment company or investment trust such as that of an investment advisor, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise, and receives reasonable remuneration for those services;
(ii) retention of the securities into which corporate securities owned by the trustee may be converted or which may be derived as a result of merger, consolidation, stock dividends, splits, liquidations, and similar procedures, and the exercise by purchase or otherwise any rights, warrants, or conversion features attaching to the securities;
(iii) purchase or other acquisition and retention of a security underwritten by a syndicate, even if the trustee or its affiliate participates or has participated as a member of the syndicate, provided the trustee does not purchase the security from itself, its affiliate, or from another member of the underwriting syndicate, or its affiliate, pursuant to an implied or express reciprocal agreement between the trustee, or its affiliate, and the other member, or its affiliate, to purchase all or part of each other's underwriting participation commitment within the syndicate."
SECTION 14. Section 15-51-42 of the 1976 Code, as last amended by Act 55 of 1999, is further amended by adding at the end:
"(G) When the administration of an estate is final except for the administration of survival action proceeds because of the pendency of a survival action brought on behalf of the estate the probate court may issue, upon petition by the personal representative, a special order providing that no accountings are required until the survival action is settled or verdict rendered in a trial. The attorney for the personal representative shall notify the probate court immediately upon completion of the survival action and furnish the court with a copy of the order approving settlement or a copy of the judgment, whichever is appropriate."
SECTION 15. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 16. This act takes effect upon approval by the Governor. Section 62-7-302 of the 1976 Code as contained in Section 13 applies to affiliate investments and reinvestments made on or after July 18, 2001, the effective date of the South Carolina Prudent Investor Act.
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