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Fiduciary Administration
University of South Carolina School of Law
Medlin, S. Alan

Fiduciary Administration               Prof. Medlin       Fall 2013
Effective date of the probate code is July 1, 1987. Obviously applies prospectively, and can apply retroactively so long as it doesn’t cut off any divested rights.
White v. Wilbanks cases- Decedent made a will in 1980. Later, made a will in 1982. Subsequently dies. Former statute presumes the revival of the 1st will; new probate code presumes the opposite. Court of Appeals held that the former law should apply, using 62-1-100 (b)(2) and the idea that justice would demand the use of the old code(as it was in effect when decedent died). SC (mis)uses (b)(5) to hold that the new probate code should apply, and a vested right was subsequently divested. Thus: For a few years, our appellate courts were screwing up which code applied and divesting vested rights.
It is not uncommon to have multiple clients. No bright line rules
PR of an estate will have duties to the beneficiaries of that estate. That is, a fiduciary duty to each beneficiary. Often times, a person that we trust enough to be a PR for our estate is also a person that we love enough to make a beneficiary.
§1-109 If you represent a PR, you do not owe duties to the beneficiary UNLESS you enter into an agreement that says so. For the love of God don’t do that.
§1-110 Beneficiaries are not privy to confidential conversations between PR and Attorney.
Primary Considerations
Always remember that if a person is coming to you as a PR, they more than likely just lost somebody that they love. Be as comforting as possible. Walk them through the process as best as possible.  No matter how prepared they were for the situation, there is an inevitable fog from losing a spouse, parent, or child.
Probate (strict) transfers occur through a valid will or intestacy. For something to be a valid non-probate transfer, something of some significance must have happened during the decedent’s lifetime.
Probate (broad) can mean to administer an estate. In SC, we don’t really care about avoiding probate because our costs are so low (1/4 of 1% of the probate estate).
First question: What property does the decedent own that will require us to probate the estate? Real property requires a showing of title, but there is no such requirement for much of an estate’s assets (jewelry, furniture, even cars sometimes). At this step, you might have to send a PR away with homework to figure out what the decedent owned.
If there ends up being no need to probate the will, all you have to do is file the will (§2-901). If you have custody of the will, you either have 30 days to get the will to the probate court or to the nominated PR. At that point, if the judge has it for 30 days and no one is trying to probate the will, the judge will give notice by publication. **Note**- Filing a will does not necessitate probate of the estate.  Penalty for not filing the will is that you are liable for any damages that may result.
A will must be probated in order to be effective to prove the transfer of any property or to nominate a personal representative. (§3-102) In order to have a person to administer the estate, a PR must be appointed by a court (§3-103). Also, for a creditor’s claim to be filed against an estate, a PR must be appointed.
§3-912- Private Binding Settlement Agreement. Those who would take at probate can agree to a division of assets (subject to the rights of creditors and taxing authorities).  Does not require court approval.
§3-1101 & §3-1102- Settlement agreements. Require court approval, though courts do like these.
§1-302- Probate Court Original Jurisdiction. Probate courts of are of the “inferior courts” in SC, along with family courts. Probate court has exclusive original jurisdiction matter related to: estates of decedents and protected persons, property of minors, almost all trusts, involuntary commitment of persons suffering from mental illness. Court also has the jurisdiction to hear and determine issues relating to paternity, common law marriage, and interpretation of marital agreements in connection with that of the family court. Certain matters may be removed to the circuit court by petition by either party or the court; formal proceedings for the probate of wills, construction of wills, actions to try title, trusts, . This creates an opportunity for forum shopping. Probate judges are the only popularly elected judges in SC. Do not have to be judges. Careful with this, as you can easily piss off a probate judge.  Only the particular action removed to the circuit court goes, the rest stays in probate court.  Informal probate, declaratory judgments, etc. cannot be removed.
§1-306- Jury Trial in Probate Court. 
§1-308- Procedure for when case is removed to Circuit Court.
§1-303- Venue If a proceeding could be maintained in more than one county, the court where the proceedings commenced has the exclusive right to proceed.
§3-108- Time Limits- No appointment or probate can be commenced more than 10 years after decedent’s death. It is incontestable that a decedent dies intestate if no will is probated after 10 years. Limitations do not apply to proceedings to construe probates wills or determine heirs of an intestate.
Exceptions: If there is a question about whether someone is dead or not and a case is dismissed,  court can proceed if it is found that the decedent dies before dismissal. 
Also: Proceeding to conte

cretion if there is no attestation clause.
§3-305 Judge can deny the application for any reason.
§3-310- Applicant must give notice of his intention to seek an appointment informally to any person having equal right to appointment not waived in writing and filed with the court.
Formal Testacy Proceeding
Uses of a formal testacy proceeding: 1) original proceeding to secure probate of a will 2) proceeding to corroborate a previous informal probate 3) a proceeding to block a pending application for informal probate or to prevent informal application for informal probate or to prevent informal application from occurring thereafter 4) a proceeding to contradict a previous order of probate 5) a proceeding to secure a declaratory judgment of intestacy or partial intestacy 6) proceeding to probate a will that had been lost, destroyed or is otherwise unavailable.
§3-401 Petition and Summons. May, but does not have to, include appointment of a personal representative. Previously appointed PR must refrain from exercising their distribution power after receipt of notice of the commencement of a formal probate proceeding.
§3-402 What to put in the petition. Order as to the testacy of the will, the same requirements as informal applications, state whether the court has the will or not.
Adjudication of intestacy- requesting that the court say that the decedent left no will.
§3-403- Notice must be given to the people that would take under intestacy, devisees under the will, surviving spouse, children, other heirs.
§3-405- If no one contests the validity of the will, the court can decide that it is valid or not. Judge can ask for additional proof if he wants to.
§3-411 If it determined that a decedent left a will or is intestate, the court must enter an order to that effect.
§3-408- If probate is begun in another state and has determined testacy, as long as that state has essentially the same rules about opportunity to be heard, we will recognize that as valid and follow it.
§3-412- Once testacy or intestacy has been determined, it is final to all parties except for those that did not know about the will or the earlier proceeding.