Trusts and Estates Outline

FIDUCIARY ADMINISTRATION – FALL ‘07
PROF. MEDLIN

Intro – Timing of the SCPC

SCPC effective July 1, 1987; SC Trust Code effective January 1, 2006
White v. Wilbanks I

i. Will 1 created in 1980. Will 2 created in 1982 – revokes will 1. Original of will 2 cannot be found, but a copy is probated. Original of will 1 was probated. Decedent passes in 1985. New SCPC goes into effect in 1987. SCPC § 61-1-100(2) states the code applies to all proceedings then pending in court except in the interests of justice as determined by the court.
ii. Trial court held for Δ – says new code applies and the presumption is that the destruction of will 2 does not revive will 1, so estate passes through intestate succession.
iii. Ct. App held cant apply parts of common law to some issues in case and SCPC to others. Court determined common law should apply bc common law favors revival of old will as opposed to intestate succession – interests of justice.

White v. Wilbanks II

i. S. Ct. reverses Ct. of App. Cites to SCPC 62-1-100(b)(5): any presumption in this Code applies to instruments executed before the effective date unless there is a clear indication of a contrary intent.
ii. S. Ct. held there was no evidence showing decedent’s intent to revive will 1, and therefore, the SCPC presumption should apply.

Van Sant v. Smith

i. Will admitted into probate in 1984. It’s contested by remaining heirs-at-law on grounds of undue influence and lack of mental capacity. Will set aside for those reasons in 1986. Executrix appeals and requested jury trial de novo. Heirs move to dismiss appeal on grounds of failed to file grounds of appeal w/i 15 days after notice. Motion denied. Heirs then moved to strike demand for jury trial and hear appeal in accordance w/ SCPC. Motion heard and denied.

McDaniel v. Gregory
Pinckney v. Warren

Class 2

Impermissible conflict of interest

a. Ex. when you represent the beneficiary and the personal representative or trustee of the estate
b. Some states create a duty for the beneficiaries if you represent the fiduciary
i. Medlin doesn’t agree w/ this

§ 62-1-109: Duties and obligations of lawyer arising out of relationship bw lawyer and fiduciary

i. as a representative of the fiduciary, you are protected from an impermissible conflict of interest, unless you agree to also represent the beneficiary
1. You do not represent the beneficiary unless you agree to
ii. This doesn’t protect you from malpractice against the fiduciary, this only protects you from beneficiaries

When is there a need/not a need to probate an estate

§ 62-3-102: Necessity of order of probate for will

i. for a transfer of property, a will must be declared valid by an order of probate by the court

§ 62-2-901: Delivery of will to judge of probate; filing

i. If you are in possession of another’s will, and upon their death, you are required to turn the will over to the probate court w/I 30 days. Failure to do so is a misdemeanor.
ii. The court will file it, but the will still isn’t probated
2. That must be done separately

§ 62-3-103: Necessity of appointment of administration

i. to become a personal rep of an estate, that person must have been appointed by order of the court

§ 62-3-104: Claims against decedent; necessity of administration

i. no claim can be made against an estate before a personal rep has been appointed

§ 62-3-901: Successors’ rights if no administration

i. Devisees take under intestacy
ii. Heirs take under testacy

§ 62-3-910: Purchasers from distributes or personal representative protected

i. If we have a deed from personal rep to 3rd party purchaser, the 3rd party steps into the owners shoes and acquires rights of owner
ii. If 3rd party wishes to purchase from devisee, must get a deed of dedication from devisee – the devisee steps into shoes of owner, then sells to 3rd party

§ 62-3-912: Private agreements among successors to decedent binding on personal representative

i. w/o court approval, beneficiaries of an estate can agree to swap their interests
ii. still constituted as a gift, and likely there will be a gift tax

§ 62-3-1101: Effect of approval of agreements involving trusts, inalienable interests, or interests of 3rd parties

i. Family settlement agreement bw heirs or devisees, filed w/ the court for approval to change the intention of a will – even to not probate the will
ii. Some parties to the agreement may not be born or may not be found, but still make them parties to the agreement for approval

§ 62-3-1102: Procedure for securing court approval of compromise

Jurisdiction

§ 62-1-302: Subject matter jurisdiction; concurrent jurisdiction w/ family court

a. Starts in probate court and only probate court can hear it
i. (a)(1): includes estates of decedents, contest of will, etc.
ii. (a)(2): protects minors and incapacitated persons
iii. (a)(3): trusts, inter vivos or testamentary, and appointment of successor trustee
iv. (a)(4): marriage licenses
v. (a)(6): involuntary commitment of persons w/ mental illness, retardation, alcoholism, and drug addiction
vi. (b): matters involving wrongful death run concurrent w/ that of circuit court
vii. (c): issues relating to paternity, com