South Carolina General Assembly
108th Session, 1989-1990

Bill 1403


                    Current Status

Bill Number:               1403
Ratification Number:       634
Act Number                 521
Introducing Body:          Senate
Subject:                   Relating to the South Carolina Probate
                           Code
View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A521, R634, S1403)

AN ACT TO AMEND SECTIONS 62-1-100, 62-1-201, 62-1-302, 62-2-109, 62-2-207, 62-2-301, 62-2-302, 62-2-402, 62-2-801, 62-3-108, 62-3-203, 62-3-301, 62-3-603, 62-3-605, 62-3-704, 62-3-706, 62-3-715, 62-3-801, 62-3-802, 62-3-803, 62-3-807, 62-3-904, 62-3-1001, 62-3-1003, 62-3-1201, 62-3-1303, 62-3-1304, 62-3-1305, 62-3-1306, 62-3-1307, 62-3-1308, 62-3-1309, 62-3-1310, 62-3-1312, 62-5-103, 62-5-433, 62-5-501, 62-6-104, 62-7-302, 62-7-603, ALL AS AMENDED, AND SECTIONS 62-1-308, 62-2-103, 62-2-104, 62-2-106, 62-2-107, 62-2-108, 62-2-206, 62-2-401, 62-2-502, 62-2-504, 62-2-507, 62-2-512, 62-2-605, 62-2-607, 62-2-701, 62-3-106, 62-3-109, 62-3-302, 62-3-306, 62-3-307, 62-3-403, 62-3-409, 62-3-412, 62-3-610, 62-3-705, 62-3-707, 62-3-719, 62-3-911, 62-3-914, 62-3-916, 62-3-1002, 62-3-1005, 62-3-1006, 62-3-1202A, 62-3-1203, 62-3-1204, 62-4-205, 62-5-101, 62-5-425, 62-5-503, 62-7-201, 62-7-204, 62-7-205, 62-7-408, 15-51-20, 20-1-80, 34-11-10, 34-11-130, AND 34-15-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA PROBATE CODE AND OTHER RELATED PROVISIONS OF LAW, SO AS TO REVISE JURISDICTIONAL, PROCEDURAL, TESTAMENTARY, ADMINISTRATIVE, AND OTHER PROVISIONS OF THE PROBATE CODE AND TO CONFORM RELATED PROVISIONS OR MAKE THEM SUBJECT TO THE REVISED PROVISIONS OF THE PROBATE CODE AND TO REVISE THE REQUIREMENTS FOR THE CONTENT OF THE APPOINTMENT AND PROVIDE FOR THE CIRCUMSTANCES UNDER WHICH A POWER IS TERMINATED; TO AMEND THE 1976 CODE BY ADDING SECTION 62-7-604 SO AS TO PROVIDE FOR A FIDUCIARY'S DIVERSIFICATION OF INVESTMENTS; TO ADD SECTIONS 62-7-701 THROUGH 62-7-709 SO AS TO PROVIDE FOR A UNIFORM TRUSTEES POWERS ACT; AND TO REPEAL SECTIONS 12-7-2600, 12-16-1960, AND SUBSECTION (h) OF SECTION 62-3-914 RELATING TO CERTAIN TAX AND ESTATE PROVISIONS.

Be it enacted by the General Assembly of the State of South Carolina:

PART I

Effective date

SECTION 1. Section 62-1-100 of the 1976 Code is amended to read:

"Section 62-1-100. (a) Except as otherwise provided, this Code takes 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 estates of decedents dying thereafter;

(2) the procedural provisions of the Code apply 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. Unless otherwise provided in the Code, a substantive right in the decedent's estate accrues in accordance with the law in effect on the date of the decedent's death. 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 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.

(c) Section 62-2-502 is effective for all wills executed after June 27, 1984, whether the testator dies before or after July 1, 1987."

Definition

SECTION 2. Section 62-1-201(4) of the 1976 Code is amended to read:

"(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."

Definition

SECTION 3. Section 62-1-201 of the 1976 Code is amended by adding item (12A) to read:

"(12A) 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."

Definition

SECTION 4. Section 62-1-201 of the 1976 Code is amended by adding item (16A) to read:

"(16A) General power of appointment' means any power that would cause income to be taxed to the fiduciary in his individual capacity under Section 678 of the Internal Revenue Code and any power that would be a general power of appointment, in whole or in part, under Section 2041(a)(2) or 2514(c) of the Internal Revenue Code."

Definition

SECTION 5. Section 62-1-201(36) of the 1976 Code is amended to read:

"(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."

Definition

SECTION 6. Section 62-1-201 of the 1976 Code is amended by adding item (36A) to read:

"(36A) Security interest' means any conveyance, agreement, or arrangement in which personal property is used as security."

Definition

SECTION 7. Item (44) of Section 62-1-201 is amended to read:

"(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 6 (Sections 62-6-101, ,et seq.), custodial arrangements pursuant to the South Carolina Uniform Gifts to Minors Act, Section 20-7-140, ,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."

Jurisdiction

SECTION 8. Section 62-1-302 of the 1976 Code is amended to read:

"Section 62-1-302. (a) To the full extent permitted by the Constitution, and except as otherwise specifically provided hereinafter, the probate court has exclusive original jurisdiction over all subject matter related to:

(1) estates of decedents, including the contest of wills, construction of wills, and determination of heirs and successors of decedents and estates of protected persons;

(2) protection of minors (except that jurisdiction over the care, custody, and control of the persons of minors is governed by Section 62-5-201) and incapacitated persons, including the mortgage and sale of personal and real property owned by minors or incapacitated persons, except that jurisdiction for approval of settlement of claims in favor of or against minors or incapacitated persons is governed by Section 62-5-433;

(3) trusts, inter vivos or testamentary, including the appointment of successor trustees;

(4) the issuance of marriage licenses, in form as provided by the Bureau of Vital Statistics of the Department of Health and Environmental Control; to record, index, and dispose of copies of marriage certificates; and the issuance of 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 probate 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 probate court over the foregoing matters, any action or proceeding filed in the probate court and relating to the following subject matters, on motion of any party, or by the court on its own motion, made not later than ten days following the date on which all responsive pleadings must be filed, must be removed to the circuit court and in such cases the circuit court shall proceed upon the matter de novo:

(1) formal proceedings for the probate of wills and for the appointment of personal representatives;

(2) construction of wills;

(3) actions to try title;

(4) trusts; and

(5) actions in which a party has a right to trial by jury and which involve an amount in controversy of at least five thousand dollars in value. The removal to the circuit court of an action or proceeding within the exclusive jurisdiction of the probate court applies only to the particular action or proceeding removed, and the probate court otherwise retains continuing exclusive jurisdiction."

Appeals

SECTION 9. Section 62-1-308(a) of the 1976 Code is amended to read:

"(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. The notice of intention to appeal to the circuit court must be filed in the office of the circuit court and in the office of the probate court and a copy thereof served on all parties within ten days after receipt of written notice of the decision appealed from order, sentence, or decree of the probate court. The grounds of appeal must be filed in the office of the probate court and a copy thereof served on all parties within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court."

Passing of share under certain conditions

SECTION 10. Section 62-2-103(3) of the 1976 Code is amended to read:

"(3) if there is no surviving issue or parent, to the issue of the parents or either of them by representation;"

Survival of heir

SECTION 11. Section 62-2-104 of the 1976 Code is amended to read:

"Section 62-2-104. Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of Section 62-2-401 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 the intestate estate by the State under Section 62-1-105."

Representation

SECTION 12. Section 62-2-106 of the 1976 Code is amended to read:

"Section 62-2-106. 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. If an interest created by intestate succession is disclaimed, the beneficiary is not treated as having predeceased the decedent for purposes of determining the generation at which the division of the estate is to be made."

Relatives of half blood

SECTION 13. Section 62-2-107 of the 1976 Code is amended to read:

"Section 62-2-107. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood."

After born heirs

SECTION 14. Section 62-2-108 of the 1976 Code is amended to read:

"Section 62-2-108. Issue of the decedent (but no other persons) conceived before his death but born within ten months thereafter inherit as if they had been born in the lifetime of the decedent."

Meaning of child

SECTION 15. Section 62-2-109(2) of the 1976 Code is amended to read:

"(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 the death of the father or within the later of eight months after the death of the father or six months after the probate of his estate 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."

Effect of election

SECTION 16. Section 62-2-206 of the 1976 Code is amended to read:

"Section 62-2-206. A surviving spouse is entitled to benefits provided under or outside of the decedent's will, by any homestead allowance, by Section 62-2-401, whether or not he elects to take an elective share, but such amounts as pass under the will or by intestacy, by any homestead allowance, and by Section 62-2-401 are to be charged against the elective share pursuant to Section 62-2-207(a)."

Elective share

SECTION 17. Section 62-2-207 of the 1976 Code is amended to read:

"Section 62-2-207. (a) In the proceeding for an elective share, all property (including beneficial interests) which passes or has passed to the surviving spouse under the decedent's will or by intestacy, by any homestead allowance, and by Section 62-2-401, 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 probate estate. For purposes of this subsection, the value of the electing spouse's beneficial interest in any property which would qualify for the federal estate tax marital deduction pursuant to Section 2056 of the Internal Revenue Code, as amended, 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).

(b) Remaining property of the probate estate is so applied that liability for the balance of the elective share of the surviving spouse shall be satisfied from the probate estate with devises abating in accordance with Section 62-3-902."

Omitted spouse

SECTION 18. Section 62-2-301(a) of the 1976 Code is amended to read:

"(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, upon compliance with the provisions of subsection (c), 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."

Children omitted from will

SECTION 19. Section 62-2-302 of the 1976 Code is amended to read:

"Section 62-2-302. (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, upon compliance with subsection (d), 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 substantially 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, upon compliance with subsection (d), 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 62-3-902.

(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 eight months after the date of death or within six months after the probate of the decedent's will, whichever limitation last expires."

Surviving spouse

SECTION 20. Section 62-2-401 of the 1976 Code is amended to read:

"Section 62-2-401. 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 62-3-805(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, by intestate succession, or by the elective share. Any surviving spouse or minor or dependent children of the decedent who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of this section."

Exempt property

SECTION 21. Section 62-2-402 of the 1976 Code is amended to read:

"(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 or conservators 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 or conservators of the minor children are unable or fail to do so within a reasonable time or if there are no guardians or conservators 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 eight months after the date of death, or within six months after the probate of the decedent's will, whichever limitation last expires."

Execution

SECTION 22. Section 62-2-502 of the 1976 Code is amended to read:

"Section 62-2-502. Except as provided for writings within Section 62-2-512 and wills within Section 62-2-505, every will, 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."

Subscribing witness

SECTION 23. Section 62-2-504 of the 1976 Code is amended to read:

"Section 62-2-504. No subscribing witness to any will, testament, or codicil may 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 is valid and effectual, if otherwise so, but unless there are two other and disinterested witnesses then so far as the property, estate, or interest so devised or bequeathed exceeds 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, such devise, legacy, or bequest is null and void to the extent of such excess. Any such appointment is valid, if otherwise so, and the person so appointed, in such case, is entitled by law to take or receive any commissions or other compensation on account thereof."

Revocation by divorce, etc.

SECTION 24. Section 62-2-507 of the 1976 Code is amended to read:

"Section 62-2-507. 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 including beneficial interests 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 62-2-802. A decree of separate maintenance which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of marital or parental circumstances other than as described in this section revokes a will."

Written statement

SECTION 25. Section 62-2-512 of the 1976 Code is amended to read:

"Section 62-2-512. 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 (as defined in Section 36-1-201(15)), securities (as defined in Section 36-8-102(1)(A)), 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."

Specific devise of securities

SECTION 26. Section 62-2-605 of the 1976 Code is amended to read:

"Section 62-2-605. (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 the 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."

Nonexonoration

SECTION 27. Section 62-2-607 of the 1976 Code is amended to read:

"Section 62-2-607. A specific devise passes subject to any mortgage, pledge, security interest or other lien existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts."

Contracts

SECTION 28. Section 62-2-701 of the 1976 Code 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."

Disclaimer

SECTION 29. Section 62-2-801 of the 1976 Code is amended by adding:

"(g) With the court's approval, a personal representative, trustee, or similar fiduciary may disclaim any one or more of the powers granted to the personal representative, trustee, or similar fiduciary. Any disclaimer must be made by written instrument in the manner provided in subsection (a) and has the same effect as in subsection (d). The disclaimer of a power may be made binding on any successor fiduciary, if the disclaiming fiduciary so declares when making the disclaimer."

Proceedings within jurisdiction of court

SECTION 30. Section 62-3-106 of the 1976 Code is amended to read:

"Section 62-3-106. In proceedings within the 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 62-1-401. An order is binding as to all who are given notice of the proceeding though less than all interested persons are notified."

Probate, etc., proceedings

SECTION 31. Section 62-3-108 of the 1976 Code is amended to read:

"Section 62-3-108. 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 and if that previous proceeding was commenced within the time limits of this section; (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 eight months from the informal probate or one year 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 is 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 is 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."

Statute of limitations

SECTION 32. Section 62-3-109 of the 1976 Code is amended to read:

"Section 62-3-109. 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 eight months following the decedent's death but resumes thereafter unless otherwise tolled."

Priority

SECTION 33. Section 62-3-203(a) of the 1976 Code is amended to read:

"(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 regardless of whether the decedent died intestate and determined as if the decedent died intestate (for the purposes of determining priority under this item, any heirs who could have qualified under items (1), (2), (3), and (4) of subsection (a) are treated as having predeceased the decedent);

(6) forty-five days after the death of the decedent, any creditor;

(7) four months after the death of the decedent, upon application by the South Carolina Tax Commission, any person suitable to the court. Any person with priority may nominate another, who shall have the same priority as the person making the nomination."

Priority

SECTION 34. Section 62-3-203(d) of the 1976 Code is amended to read:

"(d) Appointment of one who does not have priority, including priority resulting from renunciation or waiver, 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."

Informal probate

SECTION 35. Section 62-3-301(a)(1)(ii) of the 1976 Code is amended to read:

"(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 (regardless of whether the decedent died intestate and determined as if the decedent died intestate) and devisees, and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;"

Informal probate

SECTION 36. Section 62-3-302 of the 1976 Code is amended to read:

"Section 62-3-302. Upon receipt of an application requesting informal probate of a will, the court, upon making the findings required by Section 62-3-303, shall issue a written statement of informal probate. 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."

Informal probate

SECTION 37. Section 62-3-306(b) of the 1976 Code is amended to read:

"(b) If an informal probate is granted, within thirty days thereafter the applicant shall give written information of the probate to the heirs (determined as if the decedent died intestate) and devisees. The information must 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 must 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 62-3-705. 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."

Informal appointment proceedings

SECTION 38. Section 62-3-307 of the 1976 Code is amended to read:

"Section 62-3-307. (a) Upon receipt of an application for informal appointment of a personal representative other than a special administrator as provided in Section 62-3-614, the court, after making the findings required by Section 62-3-308, 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 62-3-608 through 62-3-612, but is not subject to retroactive vacation."

Formal testacy proceedings

SECTION 39. Section 62-3-403(a) of the 1976 Code is amended to read:

"(a) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice must be given in the manner prescribed by Section 62-1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 62-3-204. Notice must be given to the following persons: the surviving spouse, children, and other heirs of the decedent, (regardless of whether the decedent died intestate and determined as if the decedent died intestate), the devisees, and personal representatives 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."

Formal testacy proceedings

SECTION 40. Section 62-3-409 of the 1976 Code is amended to read:

"Section 62-3-409. 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 62-3-108, it shall determine the decedent's domicile at death, his heirs, (regardless of whether the decedent died intestate and determined as if the decedent died intestate), and his state of testacy. Any will found to be valid and unrevoked must 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 62-3-612. The petition must 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."

Formal testacy proceedings

SECTION 41. Section 62-3-412 of the 1976 Code is amended to read:

"Section 62-3-412. Subject to appeal and subject to vacation as provided herein and in Section 62-3-413, a formal testacy order under Sections 62-3-409 through 62-3-411, 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 or 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.

(ii) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 62-3-108 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 62-3-403(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."

Bond

SECTION 42. Section 62-3-603 of the 1976 Code is amended to read:

"Section 62-3-603. Except as otherwise provided in this section, no bond is required of a personal representative or successor personal representative who is named in a will or when there is only a single beneficiary named in a will who is also appointed as the personal representative. Bond is required in the following cases:

(1) upon the appointment of a special administrator;

(2) upon the appointment of a personal representative of an intestate estate unless the court has determined at the time of appointment that there is only a single qualified surviving heir pursuant to the provisions of this Probate Code governing intestacy and that the heir is appointed as the personal representative;

(3) upon appointment of a nonresident personal representative unless bond is expressly excused in the will;

(4) when a personal representative is appointed to administer an estate under a will containing an express requirement of bond; or

(5) when bond is required under Section 62-3-605;

(6) upon appointment of a personal representative not named in a will, unless otherwise provided in the will or in this section or unless the personal representative is the sole beneficiary named in the will.

No bond is required of a banking corporation or trust company qualified under Section 34-15-10 when it is appointed to act as a personal representative except under item (4). If, pursuant to Section 62-3-203(a), the court appoints as personal representative a nominee of a personal representative named in a will, or if bond is required under item (6) of this section, the court may in its discretion decide not to require bond."

Demand for bond

SECTION 43. Section 62-3-605 of the 1976 Code is amended to read:

"Section 62-3-605. 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 in an amount determined by the court as sufficient to protect the interest of the person or creditor demanding bond, but the requirement ceases if the person or creditor demanding bond ceases to have an interest in the estate worth in excess of one thousand dollars or a claim in excess of one thousand dollars. 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 or to pay the person or creditor demanding bond. 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."

Termination of appointment

SECTION 44. Section 62-3-610(a) of the 1976 Code is amended to read:

"(a) Unless otherwise provided an order closing an estate as provided in Section 62-3-1001 terminates an appointment of a personal representative."

Representative to proceed expeditiously

SECTION 45. Section 62-3-704 of the 1976 Code is amended to read:

"Section 62-3-704. 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 62-3-801.

(b) Within ninety days after his appointment he shall file with the court the inventory and appraisement required by Section 62-3-706.

(c) Upon the expiration of the relevant period, as set forth in Section 62-3-807, the personal representative shall proceed to pay the claims allowed against the estate, as provided in Section 62-3-807.

(d) Upon the expiration of the relevant period, as set forth in Section 62-3-1001, the personal representative shall file the account, proposal for distribution, petition for settlement of the estate, proofs required by Section 62-3-1001, and proof of publication of notice to creditors.

(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 3 [Section 62-3-101 ,et seq.,] including any of the above requirements, and especially including the requirement to account, under Section 62-3-1001, 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.

(f) If a personal representative or trustee neglects or refuses to comply with any provision of Section 62-3-706 he is liable to a penalty of one thousand dollars for each separate failure or neglect and the official bond of the personal representative or trustee is liable therefor. This penalty must be recovered by the South Carolina Tax Commission for the use of the State and an action for the recovery thereof may be brought by the Tax Commission in any court of competent jurisdiction and, upon collection, must be paid into the state treasury. But the commission, upon good cause shown, may, in its discretion, excuse the penalty or any part thereof. The probate court, after a hearing and any notice the court may require, may remove the personal representative and appoint another personal representative."

Information to heirs

SECTION 46. Section 62-3-705 of the 1976 Code is amended to read:

"Section 62-3-705. Not later than thirty days after his appointment every personal representative, except any special administrator, shall give information of his appointment to the heirs (regardless of whether the decedent died intestate and determined as if the decedent died intestate) 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 must 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 must 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 the 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."

Duty of personal representative

SECTION 47. Section 62-3-706 of the 1976 Code is amended to read:

"Section 62-3-706. Within ninety 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: (1) prepare 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; (2) file the original of the inventory with the court; (3) 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."

Appraisers

SECTION 48. Section 62-3-707 of the 1976 Code is amended to read:

"Section 62-3-707. The personal representative may obtain a qualified and disinterested appraiser 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 must 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 or may approve one or more qualified appraisers."

Authorized transactions

SECTION 49. Section 62-3-715 of the 1976 Code is amended by adding a new item (24) to read:

"(24) with the approval of the probate court or the circuit court, compromise and settle claims and actions for wrongful death, pain and suffering or both, and all claims and actions based on causes of actions surviving, to personal representatives, arising, asserted, or brought under or by virtue of any statute or act of this State, any state of the United States, the United States, or any foreign country."

Compensation of representative

SECTION 50. Section 62-3-719(a) of the 1976 Code is amended to read:

"(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 or authorized by will or by proper court order, except upon sales to the personal representative as purchaser. The minimum commission payable is fifty dollars and no less, regardless of the value of the personal property of the estate."

Notice to creditors

SECTION 51. Section 62-3-801 of the 1976 Code is amended to read:

"Section 62-3-801. (a) Unless notice has already been given under this section, a personal representative upon his appointment shall publish a notice to creditors 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 eight months after the date of the first publication of the notice or be forever barred.

(b) A personal representative may give written notice by mail or other delivery to any creditor, notifying the creditor to present his claim within eight months from the published notice as provided in (a) above, or within sixty days from the mailing or other delivery of such notice, whichever is later, or be forever barred. Written notice is the notice described in (a) above or a similar notice.

(c) The personal representative is not liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section."

Statute of limitations

SECTION 52. Section 62-3-802 of the 1976 Code is amended to read:

"Section 62-3-802. (a) 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.

(b) The running of any statute of limitations measured from some other event than death or the giving of notice to creditors is suspended during the eight months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections which follow.

(c) For purposes of any statute of limitations, the proper presentation of a claim under Section 62-3-804 is equivalent to commencement of a proceeding on the claim."

Limitations on claims

SECTION 53. Section 62-3-803 of the 1976 Code is amended to read:

"Section 62-3-803. (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, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following dates:

(1) one year after the decedent's death; or

(2) within the time provided by Section 62-3-801(b) for creditors who are given actual notice, and within the time provided in Section 62-3-801(a) for all creditors barred by publication; provided, claims barred by the nonclaim statute at the decedent's domicile before the giving of notice to creditors barred in this State are also barred in this State.

(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 eight months after performance by the personal representative is due;

(2) any other claim, within the later of eight months after it arises, or the time specified in subsection (a)(1).

(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; or

(3) collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate."

Payment of claims

SECTION 54. Section 62-3-807(a) of the 1976 Code is amended to read:

"(a) Upon the expiration of the applicable time limitation provided in Section 62-3-803 for the presentation of claims, 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 under Section 62-2-401, 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."

Section deleted

SECTION 55. Section 62-3-904 of the 1976 Code is amended to read:

"Section 62-3-904." (RESERVED)

Partition

SECTION 56. Section 62-3-911 of the 1976 Code is amended to read:

"Section 62-3-911. When two or more heirs or devisees are entitled to distribution of undivided interests in any personal or real property of the estate, the personal representative or one or more of the heirs or devisees may petition the court prior to the 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."

Disposition of unclaimed assets

SECTION 57. Section 62-3-914(a) of the 1976 Code is amended to read:

"(a) If after the expiration of eight months from the appointment of the personal representative of any decedent it appears to the satisfaction of the court by whom the appointment was granted that the personal representative of the estate is unable to ascertain the whereabouts of any person supposed to be entitled as heir or devisee of the estate or whether any person who, if living, would be entitled as heir or devisee of this estate be dead or not, the court may issue a notice addressed to all persons interested in the estate as heirs or devisees calling on the person whose whereabouts or the fact of whose death is unknown, his personal representatives or heirs or devisees, to appear before the court on a certain day and hour to be specified in this notice and to show cause why the personal representative should not be ordered to distribute the estate as if the person whose whereabouts or the fact of whose death is unknown had died before the decedent and notifying all persons entitled to the estate as heir or devisee, or otherwise, to appear on a designated day and time before the court to intervene for their interest in the estate. The day fixed in the notice, on which cause must be shown, must not be less than one month after the date of the first publication of the notice."

Disposition of unclaimed assets

SECTION 58. Section 62-3-914(b) of the 1976 Code is amended to read:

"(b) The notice must be published once a week for three successive weeks in a newspaper published in the county in which the court is held. The first publication of the notice must be made within ten days after the date of the notice and the newspaper must be designated by the court. The court has the right, in its discretion, to order the notice to be published once a week for three successive weeks in one other newspaper published in another place most likely to give notice to interested persons."

Apportionment of taxes

SECTION 59. Section 62-3-916(c) of the 1976 Code is amended to read:

"(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.

(5) The expenses reasonably incurred by the fiduciary and by any other person interested in the estate in connection with the determination of the amount and apportionment of the tax shall be apportioned as provided in subsection (b) and charged and collected as a part of the tax apportioned. If the court finds it is inequitable to apportion the expenses as provided in subsection (b), it may direct apportionment thereof equitably."

Apportionment of taxes

SECTION 60. Section 62-3-916(d)(1) is amended to read:

"(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 section."

Petition for settlement, etc.

SECTION 61. Section 62-3-1001 of the 1976 Code is amended to read:

"Section 62-3-1001. (a) Within one year after the date of the first publication of notice to creditors (or if a state or federal estate tax return was filed, within thirty days after the receipt of a state or federal estate tax closing letter, whichever is later), a personal representative must file with the court the following:

(1) A full account in writing of his administration;

(2) A proposal for distribution;

(3) A petition for settlement of the estate, which may request the court to determine testacy, if not previously determined, to consider the final account or approve an accounting and distribution, to construe any will or determine heirs, and adjudicate the final settlement and distribution of the estate; and

(4) Proof that a notice of right to demand hearing and copies of the account, the proposal for distribution, and the petition for settlement of the estate have been sent to all interested persons including all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred.

(b) If the personal representative does not timely perform his duties under subsection (a), any interested person may petition for an order compelling the personal representative to perform his duties under subsection (a). The court may issue an order requiring the personal representative to perform his duties under subsection (a).

(c) After thirty days from the filing by the personal representative of proof that a notice of right to demand hearing has been sent to all persons entitled to such notice under subsection (a), the court may enter an order or orders, on appropriate conditions, determining testacy, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate, terminating the appointment of the personal representative, and discharging the personal representative from further claim or demand of any interested person. However, if any interested person files with the court a written demand for hearing within thirty days after the personal representative files proof that a notice of right to demand hearing has been sent to all persons entitled to such notice under subsection (a), the court may enter its order or orders only after notice to all interested persons and hearing.

(d) 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. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding constitutes 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."

Final account of fiduciary

SECTION 62. Section 62-3-1002 of the 1976 Code is amended to read:

"Section 62-3-1002. No final account of a fiduciary shall be allowed by the probate court unless such account shows, and the judge of such court finds, that all taxes imposed by the provisions of Chapter 7 of Title 12 upon such fiduciary, which have become payable, have been paid, and that all taxes which may become due are secured by bond, deposit, or otherwise. The certificate of the South Carolina Tax Commission and the receipt for the amount of the tax therein certified shall be conclusive as to the payment of the tax to the extent of such certificate."

Final account of fiduciary

SECTION 63. Section 62-3-1003 of the 1976 Code is amended to read:

"Section 62-3-1003. No final account of a personal representative in any probate proceeding who is required to file a federal estate tax return may be allowed and approved by the court before whom the proceeding is pending unless the court finds that the tax imposed on the property by Chapter 16 of Title 12, including applicable interest, has been paid in full or that no such tax is due."

Rights of successors and creditors

SECTION 64. Section 62-3-1005 of the 1976 Code is amended to read:

"Section 62-3-1005. 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, proposal for distribution of the estate, petition for settlement of the estate, and proofs required by Section 62-3-1001. 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."

Limitations on actions

SECTION 65. Section 62-3-1006 of the 1976 Code is amended to read:

"Section 62-3-1006. 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 (i) if a claim by a creditor of the decedent, at one year after the decedent's death, and (ii) any other claimant and any heir or devisee, at the later of three years after the decedent's death or 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."

Value of estate

SECTION 66. Section 62-3-1201(a)(1) of the 1976 Code is amended to read:

"(1) state that the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), wherever located, less liens and encumbrances, does not exceed ten thousand dollars;"

Successor entitled to payment or delivery

SECTION 67. Section 62-3-1201(a)(5) of the 1976 Code is amended to read:

"(5) be approved and countersigned by the probate judge of the county of the decedent's residence at the time of his death and only upon the judge's satisfaction that the successor is entitled to payment or delivery of the property; and".

Administration of small estates

SECTION 68. Section 62-3-1202A of the 1976 Code is amended to read:

"Section 62-3-1202A. When any person in this State dies leaving a probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy) with a value, less liens and encumbrances, not exceeding ten thousand dollars and exempt property, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the probate judge may receive such estate and pay these creditors as may present their duly attested claims in the priority set forth in Section 62-3-805 and the residue, if any, to the distributee or distributees of the estate without the requirement of an administration."

Small estates, administration

SECTION 69. Section 62-3-1203 of the 1976 Code is amended to read:

"Section 62-3-1203. (a) If it appears from the inventory and appraisal that the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), 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, after giving notice to creditors required by Section 62-3-801, but without giving additional notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.

(b) If it appears from an appointment proceeding that (1) the appointed personal representative is either the sole devisee under the probated will of a testate decedent or the sole heir of an intestate decedent, or (2) the appointed personal representatives are the sole devisees under the probated will of a testate decedent or the sole heirs of an intestate decedent, the personal representative, after giving notice to creditors as required by Section 62-3-801, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204."

Small estates; closing

SECTION 70. Section 62-3-1204 of the 1976 Code is amended to read:

"Section 62-3-1204. (a) Unless prohibited by order of the court and except for estates being administered under Part 5 (Sections 62-3-501 et seq.,) a personal representative may close an estate administered under the summary procedures of Section 62-3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:

(1) either

(i) to the best knowledge of the personal representative, the value of the entire probate estate (the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy), 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; or

(ii) the estate qualifies for summary administration according to the provisions of subsection (b) of Section 62-3-1203;

(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."

Summons

SECTION 71. Section 62-3-1303 of the 1976 Code is amended to read:

"Section 62-3-1303. At any time after the qualification of the personal representative, on application to the court by an interested person requesting the sale of real estate of the deceased, a summons shall be issued to the personal representative (if not the petitioner), the heirs or devisees of the estate, and any other person as required by the court in its discretion."

Form of summons

SECTION 72. Section 62-3-1304 of the 1976 Code is amended to read:

"Section 62-3-1304. The form of such summons must be in like form as summonses for civil actions in the circuit courts."

Service of summons

SECTION 73. Section 62-3-1305 of the 1976 Code is amended to read:

"Section 62-3-1305. To such summons a copy of the petition must be attached and copies of the summons and petition served on the personal representative (if not the petitioner), the heirs or devisees, and any other person as required by the court in its discretion, in like manner as summonses and complaints are served in civil actions in the circuit courts. If there are minors the court shall appoint guardians ad litem who must be served with copies of the summons and petition and the appointment and acceptance of such guardian endorsed on the petition. Nothing herein contained precludes any of the parties from accepting service of the summons and petition or from consenting to the sale as prayed for in the petition."

Service of process

SECTION 74. Section 62-3-1306 of the 1976 Code is amended to read:

"Section 62-3-1306. The sheriffs of the several counties in this State are required to serve all processes which may be issued, if so ordered by the court under the provisions of this Part, for which they shall receive the same fees as are allowed them by law for similar services, which must be paid from the proceeds of sale or by the petitioner."

Publication

SECTION 75. Section 62-3-1307 of the 1976 Code is amended to read:

"Section 62-3-1307. If there is 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 court may authorize publication of the summons as provided by this Code and if such party does not appear and show sufficient cause within the time named in the summons the court shall enter of record his consent as confessed and proceed with the sale."

Notice of pendency

SECTION 76. Section 62-3-1308 of the 1976 Code is amended to read:

"Section 62-3-1308. Upon the filing of the petition, the petitioner 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 has the same force and effect as notice of pendency of action filed in an action in the circuit court."

Time for return

SECTION 77. Section 62-3-1309 of the 1976 Code is amended to read:

"Section 62-3-1309. The time for return is at least thirty days from the date of service. Should the personal representative (if not the petitioner) or any of the heirs or devisees, or other parties, if any, desire to make a return it must be in writing and the court shall in regular order, as in the case of other litigated cases, proceed to determine the issues made by petition and return and if the court decides that the real estate should be sold it shall then, in its discretion, either (a) order the personal representative to sell the same at private sale upon such terms and conditions as the court 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 the county. Upon the sale being made, after the payment of the costs and expenses thereof, the court 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 may be construed to abridge homestead exemptions."

Bond

SECTION 78. Section 62-3-1310 of the 1976 Code is amended to read:

"Section 62-3-1310. The regular bond of the personal representative must protect the creditors, heirs, devisees, or other interested persons, if any, in the handling of the proceeds of sale by the personal representative, but in case no such bond has been given, the court shall require the giving of a bond by such personal representative as provided in Sections 62-3-603, 62-3-604, and 62-3-605."

Release

SECTION 79. Section 62-3-1312 of the 1976 Code is amended to read:

"Section 62-3-1312. In case any lands of the deceased subject to the lien of any judgment, mortgage, or other lien is sold under the provisions of this Part the court may 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 the county from the lien of such judgment, mortgage, or other lien and in case such mortgage, judgment, or other lien debt has been paid in full out of the proceeds of the sale of such lands the court may have cancellation of the same entered on the record thereof. The foregoing does not relieve any judgment, mortgage, or other lien creditor of the duty, as provided otherwise by law, of releasing or canceling such liens. Each release satisfaction or cancellation provided for herein must refer by proper notation to the file number of such estate in the court. The provisions of this section do not apply when the order of sale directs the sale of any lands which must 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."

Powers

SECTION 80. Section 62-4-205 of the 1976 Code is amended to read:

"Section 62-4-205. A domiciliary foreign personal representative who has complied with Section 62-4-204 may exercise as to assets (including real and personal property) 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."

Definitions

SECTION 81. Section 62-5-101 of the 1976 Code is amended to read:

"Section 62-5-101. 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 62-5-401 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;

(5) A guardianship proceeding' is a proceeding under the provisions of Part 3 of Article 5 (Section 62-5-301, et seq.) to determine if a person is an incapacitated person, or to appoint a guardian for an incapacitated person."

Payment of monies to minors, etc.

SECTION 82. Section 62-5-103 of the 1976 Code is amended to read:

"Section 62-5-103. Any person under a duty to pay or deliver money or personal property to a minor or incapacitated person may perform this duty in amounts not exceeding ten thousand dollars per annum, 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 or incapacitated person with whom the minor or incapacitated person resides;

(3) a guardian of the minor or incapacitated person; or

(4) a financial institution incident to a deposit in a federally insured savings account in the sole name of the minor or for the minor under the Uniform Gifts to Minors Act and giving notice of the deposit to the minor. This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor or incapacitated person are pending. The persons, other than the minor or incapacitated person or any financial institution under (4) above, receiving money or property for a minor or incapacitated person, are obligated to apply the money to the support and education of the minor or incapacitated person, but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's or incapacitated person's support. Any excess sums must be preserved for future support of the minor or incapacitated person, and any balance not so used and any property received for the minor or incapacitated person must be turned over to the minor when he attains majority or to the incapacitated person when he is no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof."

Duties and powers of conservator

SECTION 83. Section 62-5-425(c) of the 1976 Code is amended to read:

"(c) (1) 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 62-5-430, 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.

(2) When the conservator is satisfied that a protected person's estate has a value of less than five thousand dollars, then he may petition the court, and after determination by the court that the protected person's estate has a value of less than five thousand dollars, the court in its discretion may terminate the conservatorship and order the conservator, after meeting all prior claims and expenses of administration, to pay over and distribute all funds and properties to or for the protected person as soon as possible and in accordance with Section 62-5-103."

Procedure for settlement

SECTION 84. Section 62-5-433(B) of the 1976 Code is amended to read:

"(B) The settlement of any claim over ten thousand dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property must be effected on his behalf in the following manner:

(1) The petitioner shall file with the court a verified petition setting forth all of the pertinent facts concerning the claim, payment, attorney's fees, and expenses, if any, and the reasons why, in the opinion of the petitioner, the proposed settlement should be approved. For all claims that exceed ten thousand dollars, the verified petition must include a statement by the petitioner that, in his opinion, the proposed settlement is in the best interests of the minor or incapacitated person.

(2) If, upon consideration of the petition and after hearing the testimony as it may require concerning the matter, the court concludes that the proposed settlement is proper and in the best interests of the minor or incapacitated person, the court shall issue its order approving the settlement and authorizing the petitioner to consummate it and, if the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, to receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person.

(3) The order authorizing the settlement must require that payment or delivery of the money or personal property be made through the conservator. If a conservator has not been appointed, the petitioner shall, upon receiving the money or personal property, pay and deliver it to the court pending the appointment and qualification of a duly appointed conservator. If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement."

Settlement of certain claims

SECTION 85. Section 62-5-433(C) of the 1976 Code is amended to read:

"(C) The settlement of any claim that does not exceed ten thousand dollars in favor of or against a minor or incapacitated person for the payment of money or the possession of personal property may be effected in any of the following manners:

(1) If a conservator has been appointed, he may settle the claim without court authorization or confirmation as provided in Section 62-5-424, or he may petition the court for approval as provided in items (1), (2), and (3) of subsection (B) above. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the conservator shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person.

(2) If a conservator has not been appointed, the guardian or guardian ad litem must petition the court for approval of the settlement as provided in items (1) and (2) of subsection (B) above and without the appointment of a conservator. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103.

If a party subject to the court order fails or refuses to pay the money or deliver the personal property as required by the order and in accordance with Section 62-5-103, he is liable and punishable as for contempt of court, but failure or refusal does not affect the validity or conclusiveness of the settlement."

Settlement of certain claims

SECTION 86. Section 62-5-433(D) of the 1976 Code is amended to read:

"(D) The settlement of any claim that does not exceed two thousand five hundred dollars in favor of or against any minor or incapacitated person for the payment of money or the possession of personal property may be effected by the parent or guardian of the minor or incapacitated person without court approval of the settlement and without the appointment of a conservator. If the settlement requires the payment of money or the delivery of personal property for the benefit of the minor or incapacitated person, the parent or guardian shall receive the money or personal property and execute a proper receipt and release or covenant not to sue therefor, which is binding upon the minor or incapacitated person. The payment or delivery of money or personal property to or for a minor or incapacitated person must be made in accordance with Section 62-5-103."

Jurisdiction

SECTION 87. Section 62-5-503 of the 1976 Code is amended to read:

"Section 62-5-503. The probate court has concurrent jurisdiction with the circuit courts of this State over all subject matter related to the creation, exercise, and termination of powers of attorney governed by the provisions of this Part, including the approval of the sale of real and personal property by an attorney-in-fact."

Right of survivorship

SECTION 88. Section 62-6-104(e) of the 1976 Code is amended to read:

"(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 a joint account under the provisions of Section 62-6-103(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."

Court has exclusive jurisdiction

SECTION 89. Section 62-7-201(a) of the 1976 Code is amended to read:

"(a) Subject to the provisions of Section 62-1-302(c), the probate 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."

Court has concurrent jurisdiction

SECTION 90. Section 62-7-204 of the 1976 Code is amended to read:

"Section 62-7-204. The probate 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."

Review of proceedings

SECTION 91. Section 62-7-205 of the 1976 Code is amended to read:

"Section 62-7-205. 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. The provisions of this section do not apply to the extent there is a contract providing for the compensation to be paid for the trustee's services or if the trust directs otherwise."

Standard of care

SECTION 92. Section 62-7-302(a) of the 1976 Code is amended to read:

"(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, that a prudent person acting in a like capacity and familiar with such matters would use to attain the purposes of the fiduciary account. In making investment decisions, a fiduciary may consider the general economic conditions, the anticipated tax consequences of the investment, the anticipated duration of the fiduciary account, the needs and objectives of its beneficiaries, and other prevailing circumstances. Within the limitations of the foregoing standard and considering individual investments as part of an overall investment strategy, a fiduciary is authorized to:

(1) 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 securities of any open-end or closed-end management-type investment company or investment trust registered under the Federal Investment Company Act of 1940, as amended;

(2) retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase;

(3) retain the property received by such fiduciary on the creation of the estate, guardianship, trust, or other fiduciary account (including, in the case of a corporate fiduciary, stock or other securities of its own issue or of its parent corporation's issue) without regard to its suitability for original purchase;

(4) retain the securities into which corporate securities owned by the fiduciary 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); and

(5) purchase or otherwise acquire and retain any security underwritten by a syndicate, even if the fiduciary or its affiliate (defined as any entity which owns or is owned by, in whole or in part, the fiduciary or is owned by the same entity that owns the fiduciary) participates or has participated as a member of the syndicate, provided the fiduciary 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 fiduciary or its affiliate, and such other member or its affiliate, to purchase all or part of each other's underwriting participation commitment within the syndicate. The propriety of an investment decision is to be determined by what the fiduciary knew or should have known at the time of the decision about the inherent nature and expected performance of the investment, the attributes of the portfolio, the general economic conditions, the anticipated tax consequences of the investment, the anticipated duration of the fiduciary account, the needs and objectives of the beneficiaries of the account and other pertinent circumstances as they existed at the time of the decision. Any determination of liability for investment performance shall consider not only the performance of a particular investment but also the performance of the portfolio as a whole. Any fiduciary acting under a governing instrument shall not be liable to anyone whose interests arise from that instrument for the fiduciary's good faith reliance on the express provisions of such instrument. The standards set forth in this section may be expanded, restricted, or eliminated by express provisions in a governing instrument."

Determination and distribution of income

SECTION 93. Section 62-7-408 of the 1976 Code is amended to read:

"Section 62-7-408. Unless the will otherwise provides, income from the assets of a decedent's estate after the death of the testator and before distribution, including income from property used to discharge liabilities, shall be determined in accordance with the rules applicable to a trustee under this Part [Sections 62-7-401 et seq.,] and distributed as follows:

(1) to specific legatees and devisees, the income from the property bequeathed or devised to them respectively, less taxes, ordinary repairs, and other expenses of management and operation of the property, and an appropriate portion of interest accrued since the death of the testator and of taxes imposed on income (excluding taxes on capital gains) which accrue during the period of administration;

(2) (i) for one year after the first appointment of a personal representative, to all other legatees and devisees, except legatees of pecuniary bequests not in trust, the balance of the income, less the balance of taxes, ordinary repairs, and other expenses of management and operation of all property from which the State is entitled to income, interest accrued since the death of the testator, and taxes imposed on income (excluding taxes on capital gains) which accrue during the period of administration, in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value. Income received by a trustee under this section shall be treated as income of the trust.

(ii) beginning one year after the first appointment of a personal representative, to all other legatees and devisees, the balance of the income less the balance of taxes, ordinary repairs, and other expenses of management and operation of all property from which the State is entitled to income, interest accrued since the death of the testator, and taxes imposed on income (excluding taxes on capital gains) which accrue during the period of administration, in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value. Income received by a trustee under this section shall be treated as income of the trust."

Powers of fiduciaries

SECTION 94. Section 62-7-603 of the 1976 Code is amended to read:

"Section 62-7-603. (A) Unless application of this section is clearly and convincingly negated in the will, the trust document or a written instrument appointing a fiduciary, the following provisions apply to any fiduciary, whether acting as a sole fiduciary or as a co-fiduciary:

(1) Any power conferred upon the fiduciary, in his capacity as a fiduciary (and not including any power conferred upon him in his capacity as a beneficiary), which would, except for this section, constitute, in whole or in part, a general power of appointment cannot be exercised by him in favor of himself, his estate, his creditors, or the creditors of his estate.

(a) The fiduciary can, however, exercise the power in favor of someone other than himself, his estate, his creditors and the creditors of his estate.

(b) If a power comes within item (1) and the power is conferred upon two or more fiduciaries, it can be exercised by the fiduciary or the fiduciaries who are not disqualified from exercising the power as if they were the only fiduciary or fiduciaries.

(c) If all of the serving fiduciaries are disqualified from exercising a power, the court that would have jurisdiction to appoint a fiduciary under the instrument, if there were no fiduciary currently serving, shall exercise, or shall appoint a special fiduciary whose only power is to exercise, the power that cannot be exercised by the other fiduciaries by reason of item (1).

(d) For purposes of this section, Internal Revenue Code' has the same meaning as in Section 12-7-20(11).

(2) Any power conferred upon the fiduciary in his capacity as a fiduciary to allocate receipts and expenses as between income and principal in his own favor, must be exercised in accordance with the provisions of the Revised Uniform Principal and Income Act, as contained in this South Carolina Probate Code.

(3) If a person holds legal title to property in a fiduciary capacity and also has an equitable or beneficial title in the same property, either by transfer, by declaration, or by operation of law, no merger of the legal and the equitable titles shall occur unless:

(a) the fiduciary is the sole fiduciary and is also the sole current and future beneficiary; and

(b) the legal title and the equitable title are of the same quality and duration. If either one of these conditions is not met, no merger may occur and the fiduciary relationship does not terminate.

(B) Items (1) and (2) of subsection (A) of this section do not apply to revocable trusts in which the fiduciary of the trust is also the creator of the trust and is living.

(C) This section applies to all fiduciary relationships in existence on the effective date of this section and to all other fiduciary relationships that come into existence after the effective date of this section. The provisions of subsection (A) of this section are declaratory of existing common law and neither modify nor amend existing fiduciary relationships."

Reduction of proportionate value or share of investment

SECTION 95. The 1976 Code is amended by adding:

"Section 62-7-604. No fiduciary is required to reduce the proportionate value or share of any single investment as it relates to the entire value, share, or kind of the estate solely for the purpose of reducing the investment risk that may be associated with the estate, if the value or share of the single investment, considered alone, is of prudent investment quality as provided in Section 62-7-302."

Uniform Trustees' Powers Act

SECTION 96. Article 7 of Title 62 of the 1976 Code is amended by adding:

"PART 7

Uniform Trustees' Powers Act

Section 62-7-701. Citation. This Part may be cited as the Uniform Trustees' Powers Act.

Section 62-7-702. Definitions. As used in this Part:

(1) trust' means an express trust created by a trust instrument, including a will, whereby a trustee has the duty to administer a trust asset for the benefit of a named or otherwise described income or principal beneficiary, or both; trust' does not include a resulting or constructive trust, a business trust which provides for certificates to be issued to the beneficiary, an investment trust, a voting trust, a security instrument, a trust created by the judgment or decree of a court, a liquidation trust, or a trust for the primary purpose of paying dividends, interests, interest coupons, salaries, wages, pensions or profits, or employee benefits of any kind, an instrument wherein a person is nominee or escrowee for another, a trust created in deposits in any financial institutions, or other trust the nature of which does not admit of general trust administration;

(2) prudent man' means a trustee whose exercise of judgment and care complies with the requirements of Section 62-7-302.

Section 62-7-703. Powers of Trustee Conferred by Trust or by Law.

(a) The trustee has all powers conferred upon him by the provisions of this Part unless limited in the trust instrument.

(b) An instrument which is not a trust under Section 62-7-702(1) may incorporate any provision of this Part by reference.

Section 62-7-704. Powers of Trustees Conferred by this Part.

(a) From time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform, without court authorization, every act which a prudent man would perform for the purposes of the trust including, but not limited to, the powers specified in subsection (c).

(b) In the exercise of his powers including the powers granted by this Part, a trustee has a duty to act with due regard to his obligation as a fiduciary and is subject to the standards provided in Section 62-7-302, including a duty to give consideration to available tax exemptions, deductions, or credits for tax purposes. Tax' includes, but is not limited to, any federal, state, or local income, gift, estate, inheritance, generation-skipping transfer, or other wealth transfer tax.

(c) A trustee has the power, subject to subsections (a) and (b):

(1) to collect, hold, and retain trust assets received from a trustor until, in the judgment of the trustee, disposition of the assets should be made; and the assets may be retained even though they include an asset in which the trustee is personally interested;

(2) to receive additions to the assets of the trust;

(3) to continue or participate in the operation of any business or other enterprise, and to effect incorporation, dissolution, or other change in the form of the organization of the business or enterprise;

(4) to acquire an undivided interest in a trust asset in which the trustee, in any trust capacity, or anyone else, holds an undivided interest;

(5) to invest and reinvest trust assets in accordance with the provisions of the trust or as provided by law;

(6) to deposit trust funds in a bank, including a bank operated by the trustee;

(7) to acquire or dispose of an asset, for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon a trust asset or any interest therein; and to encumber, mortgage, or pledge a trust asset for a term within or extending beyond the term of the trust, in connection with the exercise of any power vested in the trustee;

(8) to make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;

(9) to subdivide, develop, or dedicate land to public use; or to make or obtain the vacation of plats and adjust boundaries; or to adjust differences in valuation on exchange or partition by giving or receiving consideration; or to dedicate easements to public use without consideration;

(10) to 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 trust;

(11) to enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(12) to grant an option involving disposition of a trust asset, or to take an option for the acquisition of any asset;

(13) to vote a security, in person or by general or limited proxy;

(14) to pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;

(15) to 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;

(16) to hold a security in the name of a nominee or in other form without disclosure of the trust, so that title to the security may pass by delivery, but the trustee is liable for any act of the nominee in connection with the stock so held;

(17) to insure the assets of the trust against damage or loss, and the trustee against liability with respect to third persons;

(18) to borrow money to be repaid from trust assets or otherwise; to advance money for the protection of the trust, and for all expenses, losses, and liability sustained in the administration of the trust or because of the holding or ownership of any trust assets, for which advances with any interest the trustee has a lien on the trust assets as against the beneficiary;

(19) to pay or contest any claim; to settle a claim by or against the trust by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the trust to the extent that the claim is uncollectible;

(20) to pay taxes, assessments, compensation of the trustee, and other expenses incurred in the collection, care, administration, and protection of the trust;

(21) to allocate items of income or expense to either trust income or principal, as provided in Part 4 of this article [62-7-401 et seq.,] but without regard to how such items are treated for tax purposes;

(22) to pay any sum distributable to a beneficiary under legal disability, without liability to the trustee, by paying the sum to the beneficiary or by paying the sum for the use of the beneficiary either to a legal representative appointed by the court, or if none, to a relative;

(23) to effect distribution of property and money in divided or undivided interests and to adjust resulting differences in valuation;

(24) to employ persons, including attorneys, auditors, investment advisors, or agents, even if they are associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary;

(25) to prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of his duties;

(26) to execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the trustee.

Section 62-7-705. Trustee's Office Not Transferable. Unless otherwise provided in the trust instrument, while continuing to act as a trustee, the trustee may not transfer his office to another or delegate the entire administration of the trust to a co-trustee or another. The trustee may resign upon approval of the court.

Section 62-7-706. Power of Court to Permit Deviation or to Approve Transactions Involving Conflict of Interest.

(a) This Part does not affect the power of the court for cause shown and upon petition of the trustee or affected beneficiary and upon appropriate notice to the affected parties to relieve a trustee from any restrictions on his power that would otherwise be placed upon him by the trust or by this Part.

(b) Subject to the provisions of Section 62-7-603, if the duty of the trustee and his individual interest or his interest as trustee of another trust, conflict in the exercise of a trust power, the power may be exercised only by court authorization (except as provided in items (1), (4), (6), (18), and (24) of subsection (c) of Section 62-7-704) upon petition of the trustee or any other interested person, unless directed otherwise by the trust. Under this section, personal profit or advantage to an affiliated or subsidiary company or association is personal profit to any corporate trustee.

Section 62-7-707. Powers Exercisable by Joint Trustees-Liability.

(a) Any power vested in three or more trustees may be exercised by a majority, but a trustee who has not joined in exercising a power is not liable to the beneficiaries or to others for the consequences of the exercise; and a dissenting trustee is not liable for the consequences of an act in which he joins at the direction of the majority of the trustees, if he expressed his dissent in writing to any of his co-trustees at or before the time of the joinder.

(b) If two or more trustees are appointed to perform a trust, and if any of them is unable or refuses to accept the appointment, or, having accepted, ceases to be a trustee, the surviving or remaining trustees shall perform the trust and succeed to all the powers, duties, and discretionary authority given to the trustees jointly.

(c) Unless directed otherwise by the court or by the trust instrument, a successor trustee appointed by the court or by the trust instrument succeeds to all the powers, duties, and discretionary authority given to the predecessor trustee. Upon reasonable request, a successor trustee is entitled to a statement of the accounts of the trust from a predecessor trustee. A successor trustee may accept the account rendered and shall be under no duty to examine the acts or omissions of the predecessor trustee and shall not be liable for failure to seek redress for any act or omission of the predecessor trustee. The trustee of a testamentary trust may accept the account rendered by a personal representative and shall be under no duty to examine the acts or omissions of the predecessor personal representative and shall not be liable for failure to seek redress for any act or omission of the predecessor personal representative.

(d) This section does not excuse a co-trustee from liability for failure either to participate in the administration of the trust or to attempt to prevent a breach of trust.

Section 62-7-708. Third Persons Protected in Dealing with Trustee. With respect to a third person dealing with a trustee or assisting a trustee in the conduct of a transaction, the existence of trust powers and their proper exercise by the trustee may be assumed without inquiry. The third person is not bound to inquire whether the trustee has power to act or is properly exercising the power; and a third person, without actual knowledge that the trustee is exceeding his powers or improperly exercising them, is fully protected in dealing with the trustee as if the trustee possessed and properly exercised the powers he purports to exercise. A third person is not bound to assure the proper application of trust assets paid or delivered to the trustee.

Section 62-7-709. Application of Part. Except as specifically provided in the trust, the provisions of this Part apply to any trust established before or after the effective date of this Part and to any trust asset acquired by the trustee before or after the effective date of this Part."

PART II

Actions to be brought

SECTION 97. Section 15-51-20 of the 1976 Code is amended to read:

"Section 15-51-20. Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused. Every such action shall be brought by or in the name of the executor or administrator of such person."

Contracts of marriage to be void

SECTION 98. Section 20-1-80 of the 1976 Code is amended to read:

"Section 20-1-80. All marriages contracted while either of the parties has a former wife or husband living shall be void. But this section shall not extend to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, nor to any person who shall be divorced or whose first marriage shall be declared void by the sentence of a competent court."

Deposits

SECTION 99. Section 34-11-10 of the 1976 Code is amended to read:

"Section 34-11-10. Subject to the provisions of Sections 62-6-101, et seq., of the South Carolina Probate Code:

(a) when a deposit has been made in a bank, banking institution, or depository transacting business in this State in the names of two or more persons, payable to any of the depositors or payable to any of the depositors or the survivor or survivors, the deposit or any part thereof may be paid to any of the persons, whether the other or others are living or not and the receipt or acquittance of the person or persons paid is a valid and sufficient release and discharge for any or all payments made.

(b) The pledge or hypothecation to any bank, banking institution, or other depository transacting business in this State of all or part of a deposit account in the names of two or more persons, payable to any of the depositors or payable to any of the depositors or the survivor or survivors, by any depositor or depositors, whether minor or adult, upon whose signature or signatures withdrawals may be made from the account is, unless the terms of the deposit account provide specifically to the contrary, a valid pledge and transfer to the institution of that portion of the account pledged or hypothecated.

For purposes of this section the term deposit' includes a certificate of deposit."

Opening an account

SECTION 100. Section 34-11-130 of the 1976 Code is amended to read:

"Section 34-11-130. Subject to the provisions of Sections 62-6-101, et seq., of the South Carolina Probate Code, when an account, including a certificate of deposit, is opened by a person describing himself in the account title as trustee or custodian for another and no other or further notice of the existence and terms of a legal and valid trust than the description is given in writing to a bank, banking institution, or other depository transacting business in this State, in the event of the death of the person so described as trustee or custodian the withdrawal value of the account or any part thereof together with any earnings thereon may be paid to the person for whom the account title indicates the account was opened. The payment or delivery to any beneficiary, beneficiaries, or designated person, or a receipt or acquittance signed by any beneficiary, beneficiaries, or designated person, is for any payment or delivery a valid and sufficient release and discharge of an institution for the payment or delivery made."

Appointment of corporate executor

SECTION 101. Section 34-15-10 of the 1976 Code is amended to read:

"Section 34-15-10. Subject to the provisions of Sections 62-3-203 and 62-7-207, any banking corporation or trust company with at least two hundred fifty thousand dollars total unimpaired capital may be appointed executor of a will, codicil or writing testamentary, administrator with the will annexed, administrator of the estate of any person, receiver, assignee, guardian or trustee under a will or instrument creating a trust for the care and management of property, under the same circumstances, in the same manner and subject to the same control by the court having jurisdiction of such appointment as a legally qualified person. Any such appointment as guardian shall apply to the estate and not to the person of the ward. Such corporation shall not be required to receive or hold property or money or assume or execute a trust under the provisions of this section without its assent."

Analysis lines

SECTION 102. The analysis lines following each section of the 1976 Code, as contained in Section 96 are for informational purposes only and are not part of the Code.

Repeal

SECTION 103. Sections 12-7-2600, 12-16-1960, and subsection (h) of Section 62-3-914 of the 1976 Code are repealed.

Designation of attorney

SECTION 104. Section 62-5-501 of the 1976 Code, as last amended by an act of 1990 bearing ratification number 576, is further amended to read:

"Section 62-5-501. (A) Whenever a principal designates another his attorney in fact by a power of attorney in writing and the writing contains (1) the words This power of attorney is not affected by physical disability or mental incompetence of the principal which renders the principal incapable of managing his own estate', (2) the words This power of attorney becomes effective upon the physical disability or mental incompetence of the principal', or (3) similar words showing the intent of the principal that the authority conferred is exercisable notwithstanding his physical disability or mental incompetence or either physical disability or mental incompetence, the authority of the attorney in fact is exercisable by him as provided in the power on behalf of the principal notwithstanding later physical disability or mental incompetence of the principal or later uncertainty as to whether the principal is dead or alive. The authority of the attorney in fact to act on behalf of the principal must be set forth in the power and may relate to any act, power, duty, right, or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property, including the power to consent or withhold consent on behalf of the principal to health care. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary. All acts done by the attorney in fact pursuant to the power during a period of physical disability or mental incompetence or uncertainty as to whether the principal is dead or alive have the same effect and inure to the benefit of and bind the principal or his heirs, devisees, legatees, and personal representative as if the principal were alive, mentally competent, and not disabled physically.

(B) An instrument to which this section is applicable also may provide for successor attorneys in fact and provide conditions for their succession, which may include an authorization for the court to appoint a successor, and the succession may occur whether or not the principal then is physically disabled or mentally incompetent. The appointment of an attorney in fact under this section does not prevent a person or his representative from applying to the court and having a guardian or conservator appointed. Unless the power of attorney provides otherwise, appointment of a guardian terminates all or part of the power of attorney that relates to matters within the scope of the guardianship, and appointment of a conservator terminates all or part of the power of attorney that relates to matters within the scope of the conservatorship.

(C) A power of attorney executed under the provisions of this section must be executed and attested with the same formality and with the same requirements as to witnesses as a will. In addition, the instrument must be recorded in the same manner as a deed in the county where the principal resides at the time the instrument is recorded. After the instrument has been recorded, whether recorded before or after the onset of the principal's physical disability or mental incompetence, it is effective notwithstanding the mental incompetence or physical disability. If the authority of the attorney in fact relates solely to the person of the principal, the instrument is effective without being recorded.

(D) The court, in its discretion, and at any time after the onset of physical disability or mental incompetence, on motion of an interested party or on its own motion, may require that an inventory of all deposits, choses in action, and personal property must be filed with the court, and a surety bond must be posted by the attorney in fact in the manner and amount applicable to a protected person's estate."

Time effective

SECTION 105. This act takes effect upon approval by the Governor.

Approved the 5th day of June, 1990.