2009-2010 Bill 3803: Probate Court - South Carolina Legislature Online

South Carolina General Assembly

118th Session, 2009-2010

A244, R274, H3803

STATUS INFORMATION

General Bill

Sponsors: Reps. Bannister, Harrison and Weeks

Document Path: l:\council\bills\agm\19352mm09.docx

Introduced in the House on March 26, 2009

Introduced in the Senate on January 27, 2010

Passed by the General Assembly on May 20, 2010

Governor's Action: June 7, 2010, Signed

Summary: Probate court

HISTORY OF LEGISLATIVE ACTIONS

DateBodyAction Description with journal page number

3/26/2009HouseIntroduced and read first time HJ46

3/26/2009HouseReferred to Committee on JudiciaryHJ47

4/30/2009HouseMember(s) request name added as sponsor: Weeks

1/20/2010HouseCommittee report: Favorable JudiciaryHJ1

1/21/2010HouseDebate adjourned until Tuesday, January 26, 2010 HJ26

1/26/2010HouseRead second time HJ8

1/27/2010HouseRead third time and sent to Senate HJ21

1/27/2010SenateIntroduced and read first time SJ8

1/27/2010SenateReferred to Committee on JudiciarySJ8

2/1/2010SenateReferred to Subcommittee: Malloy (ch), Ford, Massey, S.Martin, Mulvaney

5/5/2010SenateCommittee report: Favorable with amendment JudiciarySJ13

5/6/2010SenateCommittee Amendment Adopted SJ23

5/6/2010SenateRead second time SJ23

5/11/2010SenateRead third time and returned to House with amendments SJ16

5/20/2010HouseConcurred in Senate amendment and enrolled HJ33

5/20/2010HouseRoll call Yeas90 Nays0 HJ33

6/1/2010Ratified R 274

6/7/2010Signed By Governor

7/1/2010Effective date 06/07/10

7/8/2010Act No.244

VERSIONS OF THIS BILL

3/26/2009

1/20/2010

5/5/2010

5/6/2010

(A244, R274, H3803)

AN ACT TO AMEND SECTIONS 621201, 621304, 621401, 621403, 622205, 622402, 623203, 623401, 623403, 623409, 623414, 623502, 623503, 623604, 623607, 623611, 623806, 623911, 6231001, 6231008, 6231101, 6231102, 6231309, 625101, 625303, 625305, 625307, 625309, 625310, 625401, 625402, 625405, 625407, 625411, 625412, 625416, 625419, 625428, 625430, 625501, 625504, AS AMENDED, 625604, AND 625608, CODE OF LAWS OF SOUTH CAROLINA, 1976, ALL RELATING TO THE VARIOUS ACTIONS AND PROCEEDINGS CONCERNING THE AFFAIRS OF DECEDENTS, PROTECTED PERSONS, MINORS, AND INCAPACITATED PERSONS FALLING UNDER THE SUBJECT MATTER JURISDICTION OF THE PROBATE COURT, SO AS TO DIFFERENTIATE BETWEEN A FORMAL PROCEEDING AND AN APPLICATION TO THE COURT AND THE PROCEDURAL RULES GOVERNING EACH, TO REQUIRE THE FILING AND SERVICE OF A SUMMONS AND PETITION TO COMMENCE A FORMAL PROCEEDING, AND TO DISTINGUISH THAT REQUIREMENT OF SUMMONS AND PETITION FROM THE NOTICE REQUIREMENTS FOR A HEARING ON A PETITION; AND TO AMEND SECTIONS 621403, 623703, 627105, 627201, 627303, 627305, 627414, 627505, 627604, 627709, 627814, 627902, 627903, 627904, 627933, AND 6271013, ALL RELATING TO THE SOUTH CAROLINA TRUST CODE, SO AS TO SUBSTITUTE “PERSON” FOR “PARENT” AND “ISSUE” FOR “CHILD”, DELETE THE REQUIREMENT OF A TAXPAYER IDENTIFICATION NUMBER ON A CERTIFICATE OF TRUST, ALLOW CERTAIN REIMBURSEMENTS TO A PROSPECTIVE TRUSTEE, AND MAKE TECHNICAL CHANGES.

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

Definitions

SECTION1.Section 621201(1), (15), (19), (31), and (43) of the 1976 Code is amended to read:

“(1)‘Application’ means a written request to the probate court for an order. An application does not require a summons and is not governed by or subject to the rules of civil procedure adopted for the circuit court.

(15)‘Formal proceedings’ means actions commenced by the filing of a summons and petition with the probate court and service of the summons and petition upon the interested persons. Formal proceedings are governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.

(19)‘Informal proceedings’ means those commenced by application and conducted without notice to interested persons by the court for probate of a will or appointment of a personal representative. Informal proceedings are not governed by or subject to the rules of civil procedure adopted for the circuit court.

(31)‘Petition’ means a complaint as defined in the rules of civil procedure adopted for the circuit court. A petition requires a summons and is governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.

(43)‘Testacy proceeding’ means a formal proceeding to establish a will or determine intestacy.”

Rules govern proceedings

SECTION2.Section 621304 of the 1976 Code is amended to read:

“Section 621304. The South Carolina Rules of Civil Procedure (SCRCP) adopted for the circuit court and other rules of procedure in this title govern formal proceedings pursuant to this title. A formal proceeding is a ‘civil action’ as defined in Rule 2, SCRCP, and must be commenced as provided in Rule 3, SCRCP.”

Notice provisions

SECTION3.Section 621401 of the 1976 Code is amended by adding at the end:

“(d)Notwithstanding a provision to the contrary, the notice provisions in this section do not, and are not intended to, constitute a summons that is required for a petition.”

Applicability

SECTION4.Section 621403 of the 1976 Code is amended to read:

“Section 621403.In formal proceedings involving trusts or estates of decedents, minors, protected persons, or incapacitated persons and in judicially supervised settlements the following apply:

(1)Interests to be affected must be described in pleadings that give reasonable information to owners by name or class by reference to the instrument creating the interests or in other appropriate manner.

(2)Persons are bound by orders binding others in the following cases:

(i)Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment, bind other persons to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.

(ii)To the extent there is no conflict of interest between them or among persons represented, orders binding a conservator bind the person whose estate he controls; orders binding a guardian bind the ward if no conservator of his estate has been appointed; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent’s estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a person may represent his minor or unborn issue.

(iii)A minor or unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding.

(3) Service of summons, petition, and notice is required as follows:

(i) Service of summons, petition, and notice must be given to every interested person or to one who can bind an interested person as described in (2)(i) or (2)(ii) above. Service of summons and petition upon, as well as notice, may be given both to a person and to another who may bind him.

(ii) Service upon and notice is given to unborn or unascertained persons who are not represented under (2)(i) or (2)(ii) above by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.

(4)At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, unborn, or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests, a guardian ad litem may be appointed to represent several persons or interests. The court shall set out its reasons for appointing a guardian ad litem as a part of the record of the proceeding.”

Surviving spouse may elect

SECTION5.Section 622205(a) of the 1976 Code is amended to read:

“(a)The surviving spouse may elect to take his elective share in the probate estate by filing in the court and serving upon the personal representative, if any, a summons and petition for the elective 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.”

Selections

SECTION6.Section 622402(a) 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 make application to the court for appropriate relief.”

Appointment

SECTION7.Section 623203(d) of the 1976 Code is amended to read:

“(d)Appointment of one who does not have priority may be made in formal or informal 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.”

Formal testacy proceeding

SECTION8.The first undesignated paragraph in Section 623401 of the 1976 Code is amended to read:

“A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding must be commenced by an interested person filing and serving a summons and a petition as described in Section 623402(a) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with Section 623402(b) for an order that the decedent died intestate.”

Time and place of hearing fixed by court

SECTION9.Section 623403 of the 1976 Code is amended to read:

“Section 623403.(a)Upon commencement of a formal testacy proceeding or at any time after that, the court shall fix a time and place of hearing. Notice must be given in the manner prescribed by Section 621401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 623204. The following persons must be properly served with summons and petition: 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.

(b)If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the summons, petition, and notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:

(1)by inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;

(2)by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;

(3)by engaging the services of an investigator.

The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.”

Proof of service of summons and petition

SECTION10.Section 623409 of the 1976 Code is amended to read:

“Section 623409.Upon proof of service of the summons and petition, and after any hearing and notice 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 623108, 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 623612. 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.”

Service of summons and petition

SECTION11.Section 623414(b) of the 1976 Code is amended to read:

“(b)After service of the summons and petition to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as a personal representative, the court shall determine who is entitled to appointment under Section 623203, make a proper appointment, and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 623611.”

Petition for administration

SECTION12.Section 623502 of the 1976 Code is amended to read:

“Section 623502.A petition for administration under Part 5 [Sections 623501 et seq.] may be filed by any interested person or by a personal representative at any time, a prayer for administration under Part 5 [Sections 623501 et seq.] may be joined with a petition in a testacy or appointment proceeding, or the court may order administration under Part 5 [Sections 623501 et seq.] on its own motion. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for administration under Part 5 [Sections 623501 et seq.] shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for administration under Part 5 [Sections 623501 et seq.], even though the request for administration under Part 5 [Sections 623501 et seq.] may be denied. After service of the summons and petition and upon notice to interested persons, the court shall order administration under Part 5 [Sections 623501 et seq.] of a decedent’s estate: (1) if the decedent’s will directs administration under Part 5 [Sections 623501 et seq.], it shall be ordered unless the court finds that circumstances bearing on the need for administration under Part 5 [Sections 623501 et seq.] have changed since the execution of the will and that there is no necessity for administration under Part 5 [Sections 623501 et seq.]; (2) if the decedent’s will directs no administration under Part 5 [Sections 623501 et seq.], then administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate; or (3) in other cases if the court finds that administration under Part 5 [Sections 623501 et seq.] is necessary under the circumstances.”

Personal representative not to exercise power

SECTION13.Section 623503(c) of the 1976 is amended to read:

“(c)After service of the summons and petition upon the personal representative and notice of the filing of a petition for administration under Part 5 [Sections 623501 et seq.], a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.”

Bond

SECTION14.Section 623604 of the 1976 Code is amended to read:

“Section 623604. If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the court indicating his best estimate of the value of the personal estate of the decedent and of the income expected from the personal estate during the next year, and he shall execute and file a bond with the court, or give other suitable security, in an amount not less than the estimate. The court shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The court may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in Section 626101) in a manner that prevents their unauthorized disposition. Upon application by the personal representative or another interested person or upon the court’s own motion, the court may increase or reduce the amount of the bond, release sureties, dispense with security or securities, or permit the substitution of another bond with the same or different sureties.”

Court may restrain personal representative

SECTION15.Section 623607(a) of the 1976 Code is amended to read:

“(a) Upon application of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.”

Person may petition for removal of personal representative

SECTION16.Section 623611(a) of the 1976 Code is amended to read:

“(a)A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative, and to other persons as the court may order. Except as otherwise ordered as provided in Section 623607, after service of the summons and petition upon the personal representative and receipt of notice of removal proceedings, the personal representative shall not act except to account, to correct maladministration, or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.”