7th ANNUAL HORRY COUNTY PROBATE COURT CONTINUING LEGAL EDUCATION PROGRAM Sponsored by the Horry County Probate Court Advisory Committee

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1 7th ANNUAL HORRY COUNTY PROBATE COURT CONTINUING LEGAL EDUCATION PROGRAM Sponsored by the Horry County Probate Court Advisory Committee Friday, November 1, 2013 UPDATE ON PROBATE CODE, PROBATE COURT AND TIPS FROM THE BENCH By Deirdre W. Edmonds, Horry County Probate Judge I. S.C. PROBATE CODE (AND TRUST CODE) OVERHAUL UPDATE. A. S.143 PASSED, SIGNED BY GOVERNOR AND EFFECTIVE 1/1/2014. B. REVISED PROBATE FORMS AND NEW FORMS FOR CODE CHANGES: All probate forms have been reviewed by SC Association of Probate Judges and a committee of Bar members. The forms have been approved by each group and are currently before the SC Supreme Court for final review and approval. Anticipated to be approved and available on SC Judicial Department website and Horry County Probate Court website before January 1, C. STATEWIDE CLOSING OF ALL PROBATE COURTS FOR STAFF TRAINING: December 11 th and 12 th, 2013 Statewide staff training in Columbia on 12/11/13 and in local courts on 12/12/13 Anticipate Order from Chief Justice; hearings for these dates will be rescheduled. D. Website for Act S.143 act with insertions and deletions to Code: RevisionsSubcommittee/ProbateCodeRevisions.php 1

2 II. NEW GUN REPORTING LAW. ACT 22. Effective August 1, A. LOSS OF GUN RIGHTS. Persons (i) committed by a court to a mental institution/hospital or (ii) adjudicated as a danger to himself or others or adjudicated as lacking the mental capacity to contract or manage their affairs, are prohibited from shipping, transporting, possessing or receiving a firearm or ammunition. B. PROBATE COURT REPORTING TO SLED. Probate court required to notify SLED within 5 days of commitment order or the order of adjudication that the person has been committed or adjudicated. SLED enters person s name & personal identifying information (DOB, age, hair color, height, social security number, address, etc.) into NICS federal database system (National Criminal Background Checks System) so person cannot purchase firearms or ammunition. C. INCLUDES: INVOLUNTARY MENTAL HEALTH COMMITMENTS INVOLUNTARY ALCOHOL AND DRUG ABUSE COMMITMENTS GUARDIANSHIP AND CONSERVATORSHIP APPOINTMENTS D. EFFECTIVE AUGUST 1, Commencing 8/1/13: All new commitments and GC appointments reported by the probate court to SLED within 5 days of order. 2. Commencing 8/1/13: All probate courts have one year to report to SLED all persons committed by the court in the last ten years (from August 2003 until July 2013) and all persons adjudicated as mentally incapacitated. 3. Approximately 7400 commitment files and 1000 to 1200 GC files E. NOTICE TO PERSON. Court is required to notify the person of the loss of their gun rights (at the hearing); and we also are attaching written notice to the order. Encourage attorneys to review this new law with clients and family members in commitment and GC cases to advise and prepare the person and family for the loss of gun rights and the notice and reporting required by the court. F. PROCEDUE TO REINSTATE GUN RIGHTS. Petition procedure to reinstate gun rights after commitment order expires. 2

3 File in court that issue order leading to loss of gun rights. If filed in the probate court, matter can be removed to the circuit court. III. UAGPPJA FORMS: UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS JURISDICITON ACT A. CHANGES TO MANDATORY GC FORMS: 1. Form 530GC, Petition for Finding of Incapacity and/or Appointment of Guardian 2. Form 540GC, Petition for Protective Order and/or Appointment of Conservator Must now select proper basis for SC probate court s personal jurisdiction over the proceeding: SC is the alleged incapacitated person s home state (a defined term) or, if SC is not the home state, person resides in SC within a period of time prior to the filing of the petition to allow the SC court to exercise jurisdiction. B. NEW FORMS FOR UAGPPJA TRANSFERS BETWEEN STATES: UADPPJA includes procedures to transfer an existing guardianship and/or conservatorship into SC and to transfer an existing GC from SC to another state. Each court is to handle the transfer by provisional and then final orders. 1. Form 575GC, Petition for Acceptance of Guardianship and/or Adult Conservatorship (MANDATORY FORM) 2. Form 576GC, Provisional Order for Acceptance of Guardianship and/or Adult Conservatorship. 3. Form 577GC, Final Order for Acceptance of Guardianship and/or Adult Conservatorship 4. Form 578GC, Petition for Transfer of Guardianship and/or Adult Conservatorship (MANDATORY FORM) 5. Form 579GC, Provisional Order for Transfer of Guardianship and/or Adult Conservatorship 6. Form 580GC, Final Order for Transfer of Guardianship and/or Adult Conservatorship C. FORMS ON COURT WEBSITE AND SC JUDICIAL DEPARTMENT WEBSITE IV. NEW PROBATE COURT CASE MANAGEMENT SYSTEM (Eff. October 2012) and NEW SCANNING OF ALL FILED DOCUMENTS (Eff. January 1, 2013). A. All documents, correspondence, pleadings, etc. filed with the Court on or after January 1, 2013 are being scanned by the staff before they are filed in case/estate files. 3

4 B. Access to 2013 and later estates via computer in Probate Court vault room and also in Register of Deeds and Clerk of Court s office. HELPFUL TIP FOR COURT: If you do not need to file something with the court, such as duplicate pleadings, exhibits or other attachments attached to pleadings/orders, etc., then the HC Probate Court would appreciate you not filing the attachments or other documents because of the new policy of scanning all filings with the Court. SECOND TIP: If you don t need to the filing to the court or judge, please don t do so unless it is an important matter that requires immediate attention. C. Bulk Scanning of older estates (currently 1996 estates forward are being scanned by Horry County Records Retention). V. REMINDERS OF COURT PROCEDURES. A. PROCEDURES FOR HCPC STAFF WORK: Effective October 2012, new procedures were instituted by the HCPC regarding the following: 1. Review, retrieve, copy, mail and/or fax; 2. Review files & advise of procedures, requirements, draft docs, etc; 3. Returning clocked copies of filed documents: not without stamped return envelope; otherwise, place in pickup baskets in back hallway of court; 4. Currently, ing most signed, clocked orders to counsel; 5. Receipts issued by court; 6. New fiduciary appointment and issuance of certificates of appt; 7. Motions for extension; 8. Scanned documents sent to court via . New procedures are working well for the staff, and the procedures have alleviated requests from attorneys and their staff that we can no longer perform. B. MEDIATION IN PROBATE COURT, Probate Court Rule All contested litigation is eligible for referral to mediation. By motion of a party, by written stipulation of all parties or by the court on its own motion with notice to all parties. 2. Includes time-frames and deadlines once referred to mediation. 3. Encourage mediation (with or without order from the court). C. AMENDED OR SUPPLEMENTAL INVENTORY. 4

5 1. Values as of date of death. 2. Cannot file a supplemental inventory to reduce the value of real property sold after death for less than date of death value. D. COURT APPOINTMENT OF EXAMINERS IN ADULT GC CASES. 1. Guardianship proceeding: Statute requires 2 examiners, one of whom shall be a physician. Two examiners: One physician and 2 nd examiner may be a physician s assistant, nurse practitioner, nurse, therapist, geriatric care manager, social worker, or psychologists. 2. Conservatorship proceeding: Statute requires that person be examined by one or more physicians. If conservatorship action only, then HCPC appointing one physician examiner. 3. Appoint 2 nd examiners and/or require a 2 nd physician on a case by case basis or upon request by interested person. VI. ENCOURAGE USE OF NEW DOLLAR AMOUNT FOR PROBATE ESTATES 1. Affidavit of Collection of Personal Property: Up to $25,000 with no probate real estate. 2. Exempt Property: Increases the amount exempt from creditors and others from $5000 to $25,000. Must timely file a claim for exempt property. 3. Summary Administration with Verified Statement to Close Estate: Increases from $10,000 to $25,000 the closing of an estate, which may include real estate, by use of a Verified Statement to Close Estate. No accounting to the court is required. No closing documents other than Verified Statement and proof of same to interested persons. NOTE: The $25,000 amount is the amount of probate property passing by the will or intestacy less liens and encumbrances, exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses. 4. Sale of Personal Property Without Court Approval: Increases from $5000 to $10,000 the aggregate value of personal property that a personal representative can sell without authorization in a will or by the court. 5

6 VII. PROBATE AND ADMINISTRATIONS MADE EASIER. 1. Probate of Will Only: Makes clear that the probate court can probate a will (formally or informally) without appointing a personal representative. 2. Probate of Out-of-State Will: Allows for simpler informal probate of a copy of a decedent s will the original of which has been filed in another state but not probated in the other state (provided that the will is not ineligible for probate in the other state). 3. Notice of Informal Appointment to Those Equally Situated: Allows the court to appoint a person informally rather than formally if 30 days notice is given to all persons having equal right to appointment as applicant. A formal petition and filing fee are no longer required under these circumstances. 4. Demands for Notice: A demand for notice now expires one year from the date the demand is filed with the probate court. 5. Fiduciary Bonds: Upon application of the personal representative or another interested person or, upon the court s own motion, the court can relieve a personal representative of having to post a fiduciary bond. 6. Publication of Notice to Creditors: A personal representative is no longer required to publish a notice to creditors in the local newspaper if the personal representative is appointed more than one year after the decedent s death. A separate check to the HCPC for publication. 7. Presentation of Creditor Claims: Creditor claims are presented by filing the claim with the probate court. Previously, two methods of presenting a claim. Now, claim is presented on the date it is filed with the court. 8. Creditor Claims Only Presented/Filed After Personal Representative Appointed: Clarifies that a creditor can only file a claim against a decedent s estate after the appointment of a personal representative. BUT ALSO: Allows a creditor to file for appointment as personal representative and file their creditor s claim with the court along with the creditor s application or petition for appointment as personal representative of the estate. 9. Inventory and Appraisement of Probate Assets Only: A personal representative is now required to list only probate assets on the estate inventory filed with the probate court; no non-probate assets are required to be listed on the Inventory and Appraisement. Increases privacy of nonprobate assets. 6

7 BUT NOTE: A person interested in the estate may file a written demand for an inventory of nonprobate property and the personal representative is then required to prepare a list of nonprobate property known to the personal representative that was owned by the decedent at the time of his/her death (which may include the value of the decedent s interest) and mail the list to the person demanding same and file a proof with the court. 10. Summary Administration Available for Fiduciary as Sole Devisee: Summary administration when sole devisee(s) of the estate is/are also the sole personal representative(s) of the estate. Summary administration is now available when the sole devisee is a fiduciary such as a trustee and the person serving as the devisee fiduciary is also the personal serving as personal representative of the estate. 11. Summary Administration Closings Shortened: Currently, estate is formally closed and a personal representative s appointment terminated under the summary administration closing procedures one year after the filing of the Verified Statement to Close Estate. With the revised SCPC, estate is closed and personal representative is discharged and terminated one year from the date of the decedent s death. 12. Waiver of Final Accounting, Proposal for Distribution, etc.: If all interested persons waive the filing of a Final Accounting, Proposal for Distribution and/or Notice of Right to Demand Hearing, a personal representative is not required to file these closing documents with the court. Greatly, simplifies the closing of estates if the persons interested in the estate waive these filings. 13. Unclaimed Assets and Missing Heirs/Devisees: Increases from $100 to $5000 the amount of unclaimed assets that a personal representative can pay over to the South Carolina State Treasurer for a missing heir or missing devisee (rather than publishing the required notice in newspapers for missing heir/devisee). 14. Access to Digital Property: The revision to the SCPC clarifies that a personal representative has the authority to access the decedent s digital assets and electronic records, including digital files and accounts, and has the authority to obtain on-line passwords and user identification numbers in order to access digital assets and electronic records. 7

8 VIII. SOME SIGNIFICANT SUBSTANTIVE CHANGES TO CODE. 1. Elective Share Calculation: Most nonprobate assets received as a result of the decedent s death now offset the surviving spouse s 1/3 elective share of probate assets. Includes beneficiary designated life insurance policies, beneficiary designated IRAs, qualified retirement plans and annuities, revocable or testamentary trusts created by the decedent, homestead property and exempt property. 2. Husband and Wife Survivorship Presumption: A multiple-party account between a husband and wife is presumed to be joint with right of survivorship unless there is clear and convincing evidence that survivorship was not intended Hour Survivorship Requirement Expanded: Expands 120 hour survivorship requirement for intestacy to testate estate as well as nonprobate transfers unless clear and convincing evidence of decedent s contrary intent. Dramatic impact on non-probate transfers. Numerous exceptions to the 120 hour rule. 4. Uniform Single or Multiple-Party Account Form: Adopts a statutory bank form for the establishment of single or multiple-party bank accounts that permits greater flexibility than traditional account forms and account designations. Example: (i) Single party account to person s estate or POD designation (ii) Multiple-party account with or without right of survivorship or with POD designation (iii) Appointment of agent to handle account upon disability 5. Award of Attorney s Fees and Costs: In formal proceedings, the probate court, as justice and equity may require, may award costs and expenses, including reasonable attorney s fees, to any party to be paid by another party or from the estate. 6. Subject Matter Jurisdiction of Probate Court: Expanded to include a determination of property in which the estate of a decedent has an interest. 7. Probate Court Appeals: Shifts the burdens of preparing the record for the appellate court to the person appealing the probate court order and relieves the probate courts of this responsibility. More in line with appellate court rules for appeals. 8

9 8. Decanting of Trust Assets: Allows a trustee to pour over assets from an old trust to a new trust even if the old, original trust is irrevocable and did not expressly authorize the distribution to the new trust. 9. Numerous Trustee Powers: Related to conversion to a unitrust IX. PROBATE VIDEOS ON WEBSITE OF PROCEDURES: REMINDER. A. SC Supreme Court and the SC Access to Justice Commission and the SC Bar. B. The videos on the web: 1. Procedures of opening an estate (approximately 20 minutes in length) 2. Procedures for closing an estate (approximately 14 minutes) 3. Preparing the Inventory and Appraisement form (approximately 26 minutes). 4. Also a video for guardianship and conservatorships. On Horry County Probate Court website: X. VOLUNTEERS WORKING IN THE PROBATE COURT. A. In 2010, the Horry County Probate Court began using volunteers in the Court to assist the public, title searches, and attorneys with files, looking up estate and marriage license records, making copies, etc. B. The volunteers are doing a great deal of clerical work for the staff and assisting in the Court's work on a voluntary basis and helping the public with the public records. TIPS FROM THE BENCH (and Helpful Reminders from the Court) XI. PREPARATION OF WILLS. WORTH REPEATING. A. Be careful of staff preparation of wills and other estate planning documents without attorney s knowledge and approval for friends, family members, neighbors, etc. B. Court has received several wills from law office staff, paralegals, etc. Constitutes unauthorized practice of law when you prepare a will for another if not licensed attorney and often leads to will contest because of problems. C. Also: General caution to attorneys to also be careful with preparation of wills. Seeing more will construction cases. Ambiguities, intent not clear, closing of class gifts, more than one residuary clause, description of property, scrivener's errors, etc. 9

10 XII. THE FINANCIAL IDENTITY FRAUD AND IDENTITY THEFT PROTECTION ACT: A. Reminder to redact personal identifying information on your documents/forms before you file them with the Court. B. Heard several Motions to Redact/Seal this year. Look over your pleadings/forms for personal information that you should redact before filing. XIII. SAMPLE FORMS & EXCEL FORMS ON COURT'S WEBSITE. A. Sample Form includes explanations and sample answers to assist in completing the Forms. 1. Sample Form 300PC, Application/Petition for Probate and/or Appointment. 2. Sample Form 350PC, Inventory and Appraisement. B. Excel Forms to be used in preparing the Inventory and Appraisement and the Final Accounting: 1. Excel Inventory Form 350PC - totals figures in each schedule on Inventory and includes the totals from the schedules in appropriate column on the Recapitulation Schedule. 2. Excel Final Accounting Form 361PC totals the figures in the receipts and disbursements columns and includes totals on the first page of the Accounting. 3. Excel Forms: Compliments of Bret H. Davis, Esquire XIV. DELINQUENCY NOTICES and REQUESTS FROM THE PROBATE COURT. A. Procedure for delinquency notices: (i) Notice of Delinquency, (ii) Citation, and (iii) Rule to Show Cause. Usually sent at 30-day intervals. B. If you fail to response to court notices, you will be personally served by a sheriff s deputy with a summons from the Court. C. If you fail to appear at the hearing on the summons: Can you say orange jumpsuit and flip flops? XV. XVI. FOR THE LIGHTHEARTED. THANKS FROM THE COURT AND STAFF. 10