Estate Planning in South Carolina, Second Edition Volume I - The Law of Wills and Trusts

S. Alan Medlin, Esquire

This book focuses on the substantive law of wills and trusts in South Carolina, which underwent a substantial change with the enactment of a version of the Uniform Probate Code (UPC), the South Carolina Probate Code (SCPC), effective July 1, 1987.

For centuries, the substantive law of wills and trusts evolved slowly and resisted change. However, since 1969, a trend to codify substantial parts of the law of trusts and estates has developed, prompting a plethora of uniform laws. During that time, the National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated such estate planning related uniform statutory codes as the UPC, the Uniform Statutory Rule Against Perpetuities (USRAP), the Uniform Principal and Income Act of 1997 (UPAIA), the Uniform Prudent Investor Act (UPIA), the Uniform Trust Code (UTC), and the Uniform Transfers to Minors Act (UTMA).

South Carolina has followed the national trend, adopting versions of uniform codes to shape the substantive and procedural laws governing donative transfers. Since 1986, the South Carolina General Assembly enacted state versions of the UPC (SCPC), the USRAP (SCRAP), the UPAIA (SCPAIA), the UPIA (SCPIA), the UTMA, and the UTC (SCTC).

Before the SCPC, South Carolina’s wills and trusts law originated from common law. Thus, the enactment of the SCPC and subsequently the other state versions of the uniform acts changed the study and practice of South Carolina from a common law endeavor to one governed substantially by statute.  The SCPC, which now also includes the SCTC, the SCPAIA, and the SCPIA, currently contains many of the substantive rules of wills and trusts law.

To the extent that the SCPC does not supplant or replace the common law, “the principles of law and equity supplement its provisions.” Consequently, the study of South Carolina’s substantive wills and trusts law has evolved into the examination of statutes augmented by principles of common law.

For this reason, this book generally looks first to the SCPC for an explanation of the current law of wills and trusts, with resort to the pre-SCPC law whenever necessary or appropriate to explain the current law. When significant from a historical or contextual perspective, this book also discusses the pre-SCPC law, even if replaced or supplanted by the SCPC. This book does not focus, however, on much of the pre-SCPC law rendered obsolete by the SCPC. Moreover, in addition to the incorporation into the SCPC of the SCTC, the SCPAIA, and the SCPIA, the General Assembly has amended the SCPC on numerous occasions, with the most substantial amendments enacted in 1987, 1990, 1997, 2010, and 2013.  This book focuses on the most current version of the SCPC as to any particular substantive law issue. However, whenever relevant, this book also discusses the earlier versions of the SCPC before amendment, and refers to them by year of amendment.

Because of the impact of the SCPC on South Carolina wills and trusts law, when appropriate the book focuses more on the appellate court opinions since the effective date of the SCPC construing its provisions as opposed to any appellate opinions before the SCPC’s effective date.

This book is intended to serve as one volume in the Estate Planning in South Carolina series;* therefore, it focuses on the substantive law of wills and trusts and contains minimal practical estate planning advice, which instead can be found in depth elsewhere in Estate Planning in South Carolina.

Summary of Contents

Chapter 1: Introduction

Chapter 2: Intestacy

Chapter 3: Wills

Chapter 4: Will Substitutes: Nonprobate Transfers

Chapter 5: Trusts

Chapter 6: Powers of Appointment

Chapter 7: The Rule Against Perpetuities

Chapter 8: Powers of Attorney

Index

Table of Authorities

*Note: Upon completion the Estate Planning in South Carolina, Second Edition series will be a comprehensive six-volume set authoritative to this complex, challenging, and rewarding area of practice. Each Volume was written as a stand-alone resource; therefore, each Volume will be released and sold as it becomes available. This means that Volumes will not be released sequentially. Currently Volumes I, II, III, IV and VI are available for purchase.