Probate, Estate Planning & Trust Section - South Carolina Bar ...

Friday, January 20, 2012 

2:15 p.m. – 5:30 p.m. 

Probate, Estate Planning & Trust Section 

3.0 MCLE Credit Hours; 3.0 Estate Planning & Probate Specialty Credit Hours, 3.0 Taxation 

Specialty Credit Hours 

A Few of Our Favorite Things 

Come see what others in the probate and estate planning field are doing! Starting off our seminar is 

Bill Reynolds presenting the results of his survey of all 520 members of the section on their practices 

and on their estate planning techniques. 

Next we will hear some tried and true tips from experts in the field. Retirement accounts and asset 

protection are increasingly considerations in our clients’ plans. Gene Parrs, a Beaufort tax attorney 

with more then 30 years of experience with qualified retirement plans, provides sage advice on 

designating beneficiaries for qualified plans and IRAs. Estate planning and tax specialist Shawn 

Flanagan will then suggest practical strategies for asset protection. 

Turning to the probate side, Catherine Kennedy, former probate judge and now an estate planning 

and probate specialist, provides food for thought after a death but before opening an estate. Family 

settlement agreements under the probate code can resolve many disputes among heirs and 

devisees. Carole Gunter, another certified estate planning and probate specialist will offer her 

suggestions for private agreements considering tax and real estate ramifications. Topping off the 

seminar is Carolyn Rogers, probate judge for York County, presenting a new probate judge’s 

perspective on issues that arise in the probate court. 

Join us for an informative and enlightening afternoon among your peers in the estate planning and 

probate field. 

Agenda 

2:15 p.m. – 2:55 p.m. Survey of South Carolina Estate Planners 

William M. Reynolds III, Columbia 

2:55 p.m. – 3:25 p.m. Beneficiary Designations for Qualified Plans & IRAs 

Eugene Parrs, Beaufort 

3:25 p.m. – 3:55 p.m. Asset Protection Techniques 

Shawn M. Flanagan, Charleston 

3:55 p.m. – 4:10 p.m. Break 

4:10 p.m. – 4:40 p.m. Considerations Before Opening an Estate 

Catherine H. Kennedy, Columbia 

4:40 p.m. – 5:05 p.m. Family Settlement Agreements in the Probate Court 

Carole H. Gunter, Columbia 

5:05 p.m. – 5:30 p.m. Probate Court Revelations 

The Hon. Carolyn W. Rogers, York 

Course Planner/Moderator: Catherine H. Kennedy, Columbia

Beneficiary Designations 

for 

Qualified Plans and IRAs* 

*Or, Ten Things Every Attorney Should Know About Beneficiary 

Designations 

Eugene Parrs 

Harvey & Battey, P.A. 

1001 Craven Street 

Beaufort, SC 29902 

Tel: 843-524-3109 

E-Mail: eparrs@gmail.com 

I. Introduction 

A. A client’s beneficiary designation for a qualified plan (i.e., 401(k) plans, pension 

plans, and 403(b) plans) or an individual retirement account (IRA) are the 

“weakest link” in chain of estate planning documents. It is the most likely place 

a mistake will occur. 

B. With beneficiary designations there is generally no “construction proceeding” 

that can be brought after the client’s death to fix a mistake. The decedent’s 

“intent” does not change the effect of the designation. 

C. Errors with plan and IRA payouts are magnified because distributions can be 

large and they are subject to full estate tax and income tax. 

D. There are several reasons why so many errors occur with beneficiary 

designations. 

1. Clients do not realize how much of their estate is controlled by 

beneficiary designations, not their wills. Clients simply do not review 

or update designations after death of a spouse, divorce, or remarriage. 

Eugene Parrs 

Plan and IRA Distributions 

Page 1

2. The estate planning attorney is rarely asked to actually prepare or 

review the designation form. 

3. The beneficiary designation forms are confusing, even for attorneys. 

4. Many excellent financial consultants and investment advisors know 

very little about the correct choices for the client. 

5. The tax laws for qualified plan and IRA distributions are complex. 

II. 

Income Tax Overview 

A. Qualified plan and IRA distributions are controlled by IRC §401(a)(9), which 

impose the “required minimum distribution” (“RMD”) rules. 

B. Qualified plans, as opposed to IRAs, may have limited choices for payouts at 

death. Most qualified plans require the spouse to be the beneficiary. You 

must check the plan to see if it offers the payout option that suits the client’s 

needs. 

III. 

Ten Things to Know About Beneficiary Designations 

#1. The “Bible” for qualified plan and IRA distributions is Life and Death 

Planning 2011 7 th Edition, by Natalie Choate. (www.ataxplan.com) 

#2. If the client maintains his/her 401(k) account after retirement, it is almost 

always advantageous to transfer the account to an IRA. The 401(k) plan 

most likely has very limited payment options. Most IRAs offer a wide range 

of options. 

#3. The beneficiary designation in a qualified plan must be implemented 

notwithstanding evidence of a client’s mistake or misunderstanding. 

Kennedy v. The DuPont SIP, 129 S.Ct. 865 (2009). See Attachment A. 

#4. Look to qualified plan and IRA distributions to fulfill charitable bequests. 

#5. Take advantage of “look-through” trusts. See Attachment B. 

Eugene Parrs 


Page 2

#6. Take advantage of the “separate account” opportunity in cases of multiple 

beneficiaries. This will allow each beneficiary to use his/her own life 

expectancy for RMD purposes rather that the age of the oldest beneficiary. 

See IRS Reg. §1.401(a)(9)-8. 

#7. Provide your client with a “beneficiary designation letter” instructing them 

how to make their designations. See Attachment C. 

#8 Always have the client name a contingent, or secondary, beneficiary. This 

will (i) protect the family in case the primary beneficiary predeceases, (ii) 

provide a planning option to disclaim after the client’s death, and (iii) 

preclude the estate from becoming the beneficiary by default. 

#9. It is almost always a mistake to make “the estate” the beneficiary of a 

qualified plan or IRA. 

#10. It is almost always a good idea to name the spouse as the beneficiary of the 

qualified plan or IRA. 

Eugene Parrs 


Page 3

Attachment A

The U.S. Supreme Court Rules on Beneficiary Disputes 

Eugene Parrs 




Tel: 843-524-3109 


The U.S. Supreme Court decided a case in 2009 that adds certainty to the law of 

beneficiary designations in qualified retirement plans. The case is Kennedy v. The DuPont SIP, 

129 S.Ct. 865 (2009). 

Clients are surprised by how much of their wealth is controlled at their death by 

beneficiary designations, not a will. Life insurance, annuities, IRAs, 401(k)’s and almost all 

other retirement plans, both qualified and nonqualified, pass at death according to beneficiary 

designations. For many clients those assets are a large portion of their wealth. Incorrect, 

outdated, and unmade beneficiary designations are the most likely source of a mistake in a 

client’s estate plan. 

ERISA, the federal pension law, has been on the books since 1974. Since then, plan 

administrators have faced problems when disappointed relatives of a deceased participant 

challenge a payout because they believe the beneficiary designation was “wrong.” Plan 

administrators are liable if the “wrong” person is paid. Must a plan administrator evaluate 

challenges to the beneficiary designation to determine if it was “right”? The Supreme Court 

recently answered that question. Administrators are obligated to pay the person designated on 

the beneficiary form and look no further. 

Background This takes us to the story of William Kennedy. He was employed by 

DuPont and married Liv Kennedy in 1971. Mr. Kennedy was a participant in two DuPont plans: 

the DuPont Savings and Investment Plan (SIP) and the DuPont Pension and Retirement Plan. 

The SIP was a 401(k) plan and the pension plan was a defined benefit plan. Mr. Kennedy and 

Liv were divorced in 1994. In the divorce decree, Liv received a portion of Mr. Kennedy’s 

pension benefits, but she waived her rights to the SIP. In 1997 a qualified domestic relations 

order, or “QDRO,” was entered transferring the pension benefits to Liv. (A “QDRO” is a special 

court order that transfers retirement benefits to an ex-spouse as part of a divorce.) There was no 

QDRO for the SIP. 

Mr. Kennedy died in 2001. It was then discovered that he had never changed his SIP 

beneficiary designation naming Liv, although he had been free to do so after the 1994 divorce. 

Over the objections of Mr. Kennedy’s estate, the SIP plan administrator honored the beneficiary 

designation and paid Liv the SIP balance of $402,000. Mr. Kennedy’s estate sued, claiming the 

SIP beneficiary designation naming Liv was void because she had waived her rights in the 

divorce decree. The administrators of the SIP said they were obligated by ERISA to follow the 

Eugene Parrs 

Page 1

plan documents, which included the beneficiary designation naming Liv, and disregard the 

divorce decree. If Mr. Kennedy had not wanted Liv to receive the SIP death benefits, he should 

have filed a new SIP beneficiary designation form after the divorce. 

The US Supreme Court held that Liv’s waiver in the divorce proceeding was not effective 

under ERISA and that the SIP had to pay Liv under the beneficiary designation. The Court said 

“there is no exception to the plan administrator’s duty to act in accordance with the plan 

documents.” 

ERISA sets out four principal responsibilities for plan fiduciaries: They must (i) operate 

the plan for the exclusive benefit of participants, (ii) invest assets prudently, (iii) diversify 

investments, and (iv) administer the plan according to it documents. It is the last one that came 

into play here. 

Before we conclude that William was inattentive or foolish in not filing a new SIP 

beneficiary designation, there’s an interesting fact noted in his estate’s brief filed with the 

Supreme Court. 

Four days after the divorce, on June 7, 1994, William Kennedy 

designated his only child, Kari Kennedy, as his only beneficiary on a 

DuPont beneficiary designation form. Its title was “COMPANY 

PAID SURVIVOR BENEFITS (PRE-RETIREMENT) SECTION 

XVI OF THE PENSION AND RETIREMENT PLAN.” 

That’s odd. The ink was not even dry on the divorce decree before Mr. Kennedy updated his 

beneficiary designation for the pension plan but not the SIP. Yet, in the seven years from his 

divorce until his death, he ignored a $400,000 SIP benefit he certainly wanted to pass to his only 

child. Perhaps he thought the form he signed four days after his divorce covered the SIP. The 

title to that beneficiary designation form might mislead anyone. Or, as was pointed out in the 

oral argument, Mr. Kennedy may have thought the divorce decree nullified the SIP beneficiary 

designation naming Liv. The Supreme Court opinion said a QDRO could have been entered 

terminating Liv’s rights under the SIP. However, under the divorce decree no SIP benefits were 

to be paid to her. What divorce lawyer obtains a QDRO for a retirement plan when the exspouse 

is getting nothing from it? (Note: QDROs are complicated. It took three years in this 

case for the pension QDRO to be entered). 

Nonetheless, the Supreme Court has spoken, and it did so unanimously. At the death of a 

plan participant, the plan administrator of a qualified plan must pay the person named on the 

beneficiary designation form filed by the participant (or the person named in a QDRO). There 

are no exceptions. 

Significance of This Case 

take from this case. 

Everyone who deals with qualified plans has something to 

First, plan administrators now have an unambiguous “bright line” rule on whom 

to pay death benefits: the person named in a beneficiary designation or a QDRO. Plan 

Eugene Parrs 

Page 2

administrators need not, and must not, consider extrinsic documents, non-QDRO court decrees, 

and whining relatives. This assures that named beneficiaries are paid quickly and plan 

administrators are protected in doing so. As the Court said, “ERISA forecloses any justification 

for enquiries into nice expressions of intent…” Employers and plan administrators should 

remind participants that beneficiary designations are critical and should be reviewed regularly. 

Second, plan participants are responsible for updating beneficiary designations. 

Participants must also know what they are signing. Employers maintain many benefit plans, 

such as life insurance, 401(k) plans, pension plans, ESOPs, 403(b) plans, 457 plans, and nonqualified 

plans, each requiring a “beneficiary.” In some companies, a single form may be used 

for all plans. In other companies, there may be a separate form for each plan. Beneficiary forms 

use fancy words and legalese that can easily confuse the participant. Many employees do not 

understand English. Look what happened to Mr. Williams. Four days after his divorce he 

signed a form which changed his pension beneficiary, and my guess is that he thought it covered 

his SIP too. It didn’t. 

Third, estate planners -- lawyers, CPAs, and financial and investment advisors --- 

must be especially vigilant in making sure clients have the proper beneficiary designations in 

place. 

Other Considerations There are three additional aspects of this case worth noting. 

First, some may be troubled by the windfall enjoyed by the ex-wife, Liv. She gets 

divorced, ex-hubby dies years later, and $400,000 that she had bargained away in the divorce 

falls in her lap. What’s more, the U.S. Supreme Court says she gets it! Where’s the justice? 

Well, not so fast. In a footnote in the decision, the Court goes out of its way to suggest that the 

estate can sue the ex-wife under state law after the benefits are distributed to her. When a 

beneficiary designation is contested the dynamics will be (i) an immediate payout to the named 

beneficiary followed by (ii) a negotiated settlement or litigation among the disputing claimants in 

state courts. For the plan administrator, it’s a beautiful thing. A distribution to the named 

beneficiary gets it out of the picture with full immunity. 

Second, many states have laws which automatically terminate a spouse’s right to 

inherit property upon the entry of a divorce decree. This case says that those automatic 

terminations will not apply in the case of beneficiary designations under qualified retirement 

plans. 

Third, this case does not apply to IRAs. 

Eugene Parrs 

Page 3

Attachment B

Revisiting IRA “Look-Through” Trusts 

Eugene Parrs 




Tel: 843-524-3109 


Using a trust as an IRA beneficiary offers planning opportunities. Rather than the 

IRA owner naming a spouse, child, or grandchild as the direct IRA beneficiary, the owner 

instead names a trust for that person as the beneficiary. The trust may protect the beneficiary, 

achieve a tax result, or both. 

In 2001 the IRS updated its regulations on how trusts could be used as IRA 

beneficiaries. Those regulations made IRA trusts a legitimate estate planning device. The recent 

combination of market turmoil, recession, and aging baby-boomers has made the IRA trust 

particularly attractive. In fact, several financial services companies have developed 

comprehensive programs for IRA trusts. These programs make IRA trusts more user friendly to 

both clients and their advisors. 

Qualified plan distributions, like IRA distributions, can also be made to trusts. 

However, with qualified plans there are complexities that should be avoided. I will address only 

IRA trusts here. 

Background IRAs must satisfy the minimum distribution rules when the IRA 

owner reaches age 70-1/2. Payments are spread over the owner’s life expectancy. At the 

owner’s death, distributions can be made over the life expectancy of the IRA’s “designated 

beneficiary.” These are referred to as “stretch IRAs.” 

If a trust is named as the IRA beneficiary, there can be a problem because a trust, 

unlike an individual, has no life expectancy over which post-death distributions can be 

calculated. However, if the trust meets IRS requirements, we can “look through” the trust and 

treat the trust beneficiary as the designated beneficiary of the IRA. We then use that 

beneficiary’s life expectancy to calculate minimum distributions to the trust. Were it not for this 

“look through” rule, the IRA would have to be paid out over a much shorter period after the 

owner’s death, thereby losing long term tax deferral. 

Eugene Parrs 

Page 1

Note: Here’s how to understand the concept. The IRA is tax exempt. The IRA trust 

is not. The trust will have money from the IRA only briefly each year. The trustee 

withdraws the annual minimum distribution (or more, if desired) from the IRA and 

deposits the funds in the trust. The trustee then distributes the funds from the trust to 

the trust beneficiary. The balance stays in the IRA for continued tax deferred growth. 

The IRA trust may be empty until next’s years minimum distribution is received. 

Requirements for “Look Through” Trusts There are five simple requirements 

for a trust to qualify for “look through” status. 

1. The trust must be valid under state law. 

2. The trust must be irrevocable, or will, by its terms, become irrevocable 

at the death of the IRA owner. 

3. The trust beneficiaries must be identifiable from the trust instrument. 

4. Certain documents must be provided to the IRA custodian or 

administrator. 

5. The trust beneficiary must be an individual. 

Four Scenarios for IRA Trusts There are at least four instances when you 

should consider a trust for an IRA. 

1. Intended Beneficiary is a Child If the intended IRA beneficiary is a 

minor, using a trust is obvious. As long as the trust qualifies under the “look through” rules, the 

life expectancy of the child can be used for post-death minimum distributions. 

For example, at grandfather’s death he names an IRA trust as beneficiary 

of a $100,000 IRA. The grandson is the sole beneficiary of the trust. Under the IRS annuity 

tables the life expectancy of a 5 year old is 77.7 years. So, in the first year after the grandfather’s 

death, the IRA must distribute only 1/77.7 to the trust (that’s 1.287%, or $1,287). The balance of 

the fund remains in the IRA for continued tax deferred growth. In each subsequent year, the 

minimum distribution divisor is reduced by 1. The tax deferral opportunity is enormous. Of 

course, more than the minimum distribution can be withdrawn from the IRA at any time, such as 

when the grandson is in college. 

2. Intended Beneficiary Is an Adult Who Needs Protection In this case the 

intended IRA beneficiary is an adult, but the adult has problems, is in a bad marriage, or does not 

have the financial self-discipline to take only the minimum distribution every year. The IRA 

Eugene Parrs 

Page 2

trust, with an independent trustee, may protect the beneficiary from some of his creditors or 

himself. 

3. Using a Credit Shelter Trust A married client has a large estate, much of 

it in IRAs. The client has no other “non-IRA” assets with which to fund the credit shelter trust 

for his wife in his will. The client could name his wife as the direct IRA beneficiary, but that 

would squander his otherwise available estate tax exemption (currently $3.5 million). 

The client should establish a “look through” IRA trust naming his wife as 

beneficiary of the trust. IRA assets earmarked for the trust will not qualify for the estate tax 

marital deduction, but they will be covered by up to $3.5 million of the exemption. Minimum 

distributions calculated on the wife’s life expectancy (and more, if necessary) will be taken from 

the IRA, put into the “look through” trust, and then paid to the wife each year. The rest stays in 

the IRA for continued tax deferred growth. 

4. QTIP Trust for Wife in a Second Marriage In this example the IRA 

owner is married for the second time. He has substantial IRA assets. If his wife survives, he will 

need the estate tax marital deduction, but he does not want to name his current wife as outright 

IRA beneficiary. He needs to protect his wife during her lifetime, but after her death he wants 

the remaining IRA balance paid to his children from a previous marriage. 

In this case the husband should use an IRA “look through” trust as beneficiary of 

his IRA. His wife would be the sole beneficiary of the trust. The trust can be drafted to qualify 

for the estate tax marital deduction if a “QTIP” election is made. The wife then lives off the IRA 

distributions made to the trust and paid out to her. At her death the remaining IRA assets pass to 

the husband’s children. 

Practical Considerations 

through” trust. 

Here are some housekeeping tips when using a “look 

• Roll qualified plan assets into an IRA. Many qualified plans do not permit payout 

options that would be needed for a “look through” trust to work. By contrast, IRAs 

offer every permissible payout arrangement. 

• Use a separate IRA trust for each intended designated beneficiary. If there is more 

than one trust beneficiary, you must use the life expectancy of the eldest. 

• I prefer to not co-mingle IRA distributions into a “look through” trust that is expected 

to receive non-IRA assets. When I use an IRA “look through” trust in a will, I 

segregate it from all other trusts in that will. There is no legal requirement for this, 

but I believe it minimizes the likelihood of mistakes when distributions are made 

from year to year. 

• Verify that the IRA beneficiary designation naming the IRA trust is properly filed 

with the IRA custodian and accurately identifies the intended IRA trust. 

Eugene Parrs 

Page 3

• Do not confuse the client’s general revocable “living trust” for a “look-through” trust. 

Many living trusts do not have the special provisions to qualify them as a “look 

through” trust after the client’s death. 

• Finally, a word of caution. This memo is a general overview intended to illustrate the 

basics of “look through” trusts. There are many complexities I have not discussed, 

and the examples in this memo are simplistic. 

Conclusion IRA “look through” trusts are an important estate planning tool. While 

certainly not for everyone, IRA trusts afford solutions to many clients’ special circumstances. 

Setting up a “look through” trust requires careful planning, draftsmanship, and monitoring. It 

also requires close coordination with the client, his financial advisor, his CPA, and his estate 

planning attorney. 

Eugene Parrs 

Page 4

Attachment C

Mr. and Mrs. Elvis Presley 

Graceland Mansion 

Memphis, TN 

[Date] 

Dear Elvis and Madonna: 

I would like to explain how you should title your assets and update your beneficiary 

designations to conform to the provisions of your new wills. 

The objective is to minimize estate settlement costs. If this is done properly, there 

should be virtually no settlement costs (i.e., legal fees and “probate expenses”) at the first death. 

After the first death, we would make further adjustments to reduce expenses in anticipation of 

the second death. 

Title to Assets You should title your real estate, bank accounts, and investment 

accounts as “joint tenants with right of survivorship.” At the first death, these assets will pass to 

the survivor of you automatically, making the probate of the will unnecessary. 

Beneficiary Designations Life insurance, annuities, and retirement plans are controlled 

by beneficiary designations, not your wills. There is a separate form for each insurance policy, 

IRA, and retirement plan. 

Life Insurance and Annuities: The primary beneficiary should be the spouse, and 

the contingent beneficiaries should be your children, Larry, Moe, and Curly. 

IRAs and 401(k) Plans The primary beneficiary should be the spouse, and the 

contingent beneficiaries should be your children, Larry, Moe, and Curly. 

I caution that beneficiary designation forms are sometimes confusing and filled with legal 

jargon. Mistakes can cause serious financial or tax problems after your death. If you have any 

question whatsoever about updating your forms, fax them to me and I will walk you through 

them. If you bring them in I will help you fill them out. 

If you have any questions please call me at any time. 

Very truly yours, 

Eugene Parrs 

Initials: ________ 

_________

Asset Protection Techniques 

January 20, 2012 

presented by Shawn M. Flanagan, Esq. 

Womble Carlyle Sandridge & Rice, LLP 

5 Exchange Street 

Charleston, SC 29401 

(843) 722-3400 

1. This outline relies on the following recommended reading material. Jacob 

Stein, “Practical Primer and Radical Approach to Asset Protection,” 38 Estate Planning 6, pages 

21 – 29 (June 2011) (sometimes referred to herein as “Stein”). Barry S. Engel’s book, Asset 

Protection Planning Guide 2 nd Edition (CCH 2005) (sometimes referred to herein as “Engel”). 

2. Goal. According to Engel, the goal to asset protection planning is to have the 

client weather a claim at least moderately better than the client otherwise would have. This is 

achieved by removing the client’s name from the legal title to assets while allowing the client to 

retain some benefit and control of the assets. In general, the greater the protection, the less the 

flexibility. The greater the flexibility, the less the protection. 

3. Analysis. Asset protection planning is generally asset specific. Analyze — how 

does a structure work from a theoretical standpoint and how does a structure work from a 

practical standpoint. See Stein. 

4. Taxes. Asset protection planning will not aid a client in evading the payment of 

taxes. Most plans are drafted to be tax neutral (as much as possible) with regard to income, gift, 

and estate tax considerations. For example, an irrevocable trust would usually be a “grantor 

trust” for income tax purposes and an incomplete transfer for gift and estate tax purposes. 

5. Fraudulent Conveyance Laws. Each state has a fraudulent transfer statute. A 

creditor who succeeds in challenging a transfer under the statute can unwind the transfer. 

“Planning early is always the best defense against a fraudulent transfer challenge.” Stein at page 

23. 

S.C. Code Ann. §27-23-10 (commonly referred to as the Statute of Elizabeth) 

renders void any transfer of property made with intent or purpose to delay, hinder or defraud 

creditors. Carr v. Guerard, 365 S.C. 151, 616 S.E.2d 429 (2005). In South Carolina, fraudulent 

transfers may be set aside by “existing creditors” and “subsequent creditors.” An existing 

creditor means a person with respect to whom the claim occurred before the transfer was made. 

A subsequent creditor is “a creditor to whom Debtor becomes indebted after the transfer but 

whose claim was foreseen by Debtor prior to the alleged fraudulent transfer.” In re J.R. Deans 

Co., Inc., 249 B.R. 121, 130-132 (Bkrtcy.D.S.C. 2000). 

“Proving a fraudulent transfer … is not an easy task… [T]he existence of an asset 

protection structure, whether or not it is susceptible to a fraudulent transfer attack, will almost 

WCSR 7084580v1 1

always result in a better settlement for the debtor.” Stein at page 22. “The exercise of [the 

fraudulent transfer law] remedy will place [the clients] in exactly the same position as if they had 

chosen to do nothing. Consequently, clients can only improve their position by trying to protect 

their assets. For them, the risk of a fraudulent transfer challenge carries no downside. Even the 

transaction costs incurred in implementing the asset protection structure are not a consideration, 

as that money would have been lost to the lender in any case.” Stein at page 23. 

6. Qualified retirement plans. A “qualified retirement plan” includes 401(k) plans, 

profit sharing plans, and pension plans. Qualified retirement plans are very highly protected 

from creditors under a federal statute known as ERISA (Employee Retirement Income Security 

Act). 29 U.S.C. section 1001 et seq. See Patterson v. Shumate, 112 S.Ct. 2242 (1992) and 

Guidry v. Sheetmetal Pension Fund, 493 U.S. 365 (1990). The federal statute trumps a state 

fraudulent transfer law. 

For a qualified retirement plan to qualify for federal protection under ERISA, it 

needs to have at least one participant in who is not an owner of the business or owner’s spouse. 

See for example In the Matter of Robert L. Branch, 16 F.3d 1225 (7 th Cir. 1994) and In re 

Lowenschuss, 170 F.3d 923 (9 th Cir. 1999), cert. denied, 528 U.S. 877. 

7. IRAs. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 

P.L. 109-8, §224 (effective October 17, 2005) extended some federal creditor protection to IRAs. 

Pursuant to Section 244 of the 2005 Bankruptcy Act, all tax-qualified retirement plan benefits 

and any such benefits rolled into an IRA are excluded from the bankruptcy estate. 11 USC 

§522(b)(3)(C); §522(b)(4); and §522(d)(12). Plus up to an additional $1,000,000 of other IRA 

contributions are also excluded from the bankruptcy estate. 11 USC §522(n). 

The federal protection added in 2005 is in addition to the state protection that 

IRAs have enjoyed for years. See S.C. Code Ann. §15-41-30(A)(13). 

8. Residential real estate. A traditional way of protecting the home (and any other 

assets for that matter), is to title the asset in the name of the non-risk or lower-risk spouse. 

One alternative is to title the home in both names as tenants-in-common with right 

of survivorship (TICWROS). TICWROS was meant to replace “tenancy by entirety” when that 

latter form of owning real estate was abolished in South Carolina. Real estate (particularly a 

residence) owned by a married couple as TICWROS is arguably protected from creditors. 

“Tenancy by the entirety” is real estate owned by a husband and wife. About 

one-third (⅓) of the states (including North Carolina) recognize tenancy by the entirety. Most 

states that allow tenancy by the entireties will not allow a creditor to force a partition or attach a 

debtor spouse’s interest in a personal residence. Note: A client should consider tenancy by the 

entirety for the couple’s mountain home in North Carolina. 

A TICWROS “cannot be destroyed by the unilateral act of one tenant through an 

act such as partition.” In one case, the language in the deed that the South Carolina Supreme 

Court recognized as establishing a TICWROS is as follows: “for and during their joint lives and 

WCSR 7084580v1 2

upon the death of either of them, then to the survivor of them, his or her heirs and assigns forever 

in fee simple…” Smith v.Cutler, 366 S.C. 546, 623 S.E.2d 644 (2005). 

Remember the homestead exemption. Pursuant to S.C. Code Ann. §15-41- 

30(A)(1), a debtor’s interest in his/her “residence” (real property and personal property) up to a 

maximum of $50,000 in value (as indexed for inflation) is exempt from attachment by any court 

or bankruptcy proceeding. If a house is owned by a husband and wife and a claim is made 

against both of them, then the maximum exemption is $100,000. Encumbering real estate lowers 

the equity in the real estate. Steps must be taken to protect the loan proceeds. 

9. Section 529 Plans. A Section 529 college savings tuition plan allows you to own 

an account under the plan for the benefit of your child’s post-secondary school education needs. 

States that provide a statutory creditor protection for Section 529 Plans include Alaska, 

Colorado, Maine, Ohio, Pennsylvania, Virginia and Wisconsin. You can frontload a Section 

529 Plan with five years worth of annual exclusion gifts. This allows a person to contribute 

$65,000 in one year ($13,000 times five) without any gift tax consequences. Note: If a client 

takes advantage of the frontloading, the client cannot make any other annual exclusion annual 

gifts to or on behalf of the same beneficiary for five (5) years. 

10. Life insurance. Any unmatured life insurance contract owned by a debtor (other 

than a credit life insurance contract) is exempt from attachment by a court or bankruptcy 

proceeding. S.C. Code Ann. §15-41-30(A)(8). 

There are two other statutes which protect life insurance. Proceeds of group life 

insurance contracts and benefits of accident and disability contracts are exempt from claims of 

the creditors of the insured. S.C. Code Ann. §§38-63-40(B) and (C). Also generally exempt 

from the creditors of the insured are proceeds and cash surrender values of life insurance payable 

to a beneficiary (other than the insured’s estate) in which such proceeds and cash surrender 

values are expressed to be for the primary benefit of the insured’s spouse, children or 

dependents. Amounts over $50,000 must meet more conditions. S.C. Code Ann. §38-63-40(A) 

and §38-65-90. 

Foreign Life Insurance. Several foreign jurisdictions have laws which expressly 

protect that jurisdiction’s insurance and annuity products from seizure by a client’s creditors. 

Two of the more well known of these foreign jurisdictions are Switzerland and the Bahamas. 

Chapter 6 of the Asset Protection Planning Guide, by Barry S. Engel (CCH 2005) focuses on the 

insurance and annuity statutes of Switzerland as a model. “The judgment of a court outside the 

insurance company’s resident jurisdiction will generally not be honored to the extent in conflict 

with these statutory protections.” Engel at 601.01. Independent proceedings to reach a Swiss 

policy have to be instituted in Switzerland and adjudicated under Swiss debt collection and 

bankruptcy laws—this is a sizeable impediment to a creditor. Engel at 625. 

11. Corporations. Consider electing to be a “statutory close corporation” under our 

corporate code and an S corporation for tax purposes. It is arguably harder to “pierce the veil” of 

a statutory close corporation and an S corporation. See Hunting v. Elders, 359 S.C. 217, 597 

WCSR 7084580v1 3

S.E.2d 803 (Ct.App. 2004). Also, if the business qualifies, consider electing to be a professional 

corporation since SC Code Ann. §43-19-200 limits who can be a shareholder in a PA. 

12. Limited Liabilities Companies. About the only asset that you should resist 

placing in an LLC is a personal residence. Liquid assets (for example, bank and brokerage 

accounts) as well as real estate can be titled in the name of an LLC. 

A client owning a distributional interest in an LLC is in a better position vis-à-vis 

a creditor than a client owning assets in the client’s individual name. The creditor’s exclusive 

remedy is limited to a charging order or a foreclosure of the LLC interest. S.C. Code Ann. §33- 

44-504(e). 

A charging order constitutes a lien on the judgment debtor’s distributional 

interest. S.C. Code Ann. §33-44-504(b). A charging order entitles the judgment creditor to 

whatever distributions would otherwise be due to the debtor whose interest is subject to the 

order. A charging order or foreclosure does not grant the creditor any management or 

voting rights. The creditor has no say in the timing or amount of those distributions. The 

charging order does not entitle the creditor to accelerate any distributions or to otherwise 

interfere with the management and activities of the legal entity. See Uniform Limited 

Partnership Act section 703, Comments. Although a debtor can not receive distributions, 

“debtors can frequently pull assets out of the entity using loans and guaranteed payments.” 

Uniform Limited Liability Company Act section 101(5) and Stein at page 25. 

“The foreclosure remedy is rarely useful to a creditor…the purchaser at the 

foreclosure sale has the rights of only a transferee.” Stein at page 25. S.C. Code Ann. §33-44- 

504(b). A creditor does not want allocations of tax items with no corresponding distributions of 

cash. 

Recommended provisions for the LLC operating agreement: 

• Establish a multi-member LLC. 

• If you have any concern about making sure a creditor has no voting rights, 

use a manager run LLC making the potential debtor a non-manager 

member. 

• Make interests non-assignable, or assignable only with the consent of the 

other members. 

• Consider including a trigger that requires redemption of a member’s 

interest at a predetermined price in the event of a collection action. See 

S.C. Code Ann. §33-44-504( c)(3). 

• Eliminate a transferee’s right to request a judicial dissolution of the 

LLC pursuant to S.C. Code Ann. §33-44-801(5). 

• Rather than being forced to make distributions to members in accordance 

with their percentage interests, you can insert a clause directing the 

manager to withhold distributions from a debtor-member in the event of a 

charging order while continuing distributions to the other members. 

WCSR 7084580v1 4

13. IRREVOCABLE TRUSTS. A trust used for asset protection purposes must be 

irrevocable and include a spendthrift provision, and should be discretionary. Under the best 

circumstances, someone other than the settlor would serve as the trustee and family members 

other than the settlor would be the beneficiaries. 

In general, a court may authorize a creditor or assignee of a trust beneficiary to 

reach the beneficiary’s interest by attachment of present or future distributions to or for the 

benefit of the beneficiary. S.C. Code Ann. §§62-7-501(a). However, spendthrift trusts and 

discretionary trusts are generally exempt from creditor attachment. See S.C. Code Ann. §62-7- 

501(b), as well as §§62-7-502, 62-7-503, and 62-7-504. 

If the debtor is the trustee, appoint a third party trust protector with authority to 

remove and replace the trustee and/or veto distributions. 

A problem arises whenever the debtor wants to include himself as a beneficiary. 

If a debtor establishes a trust in which the debtor is also a beneficiary, the trust is considered 

“self-settled” and the debtor is not afforded the protection that usually applies when an 

irrevocable trust includes a spendthrift provision. “[A] creditor or assignee of the settlor may 

reach the maximum amount that can be distributed to or for the settlor’s benefit.” S.C. Code 

Ann. §§62-7-505(a)(2). 

A settlor can generally select the law that will govern the trust. S.C. Code Ann. 

§§62-7-107(1). As discussed in the next paragraph, some states now allow creditor protection to 

self-settled trusts. It is not clear whether another state’s law will be respected given (1) the full 

faith and credit clause of the U.S. Constitution and (2) the fact that a state does not have to 

recognize the law of another state that violates its public policy. See Restatement 2d Conflict of 

Laws section 280. Still, it is worth considering. 

Domestic asset protection trust (DAPT). There are at least twelve (12) states 

where a self-settled spendthrift trust is protected from a settlor’s creditors. Such a trust is known 

as a “domestic asset protection trust”. If a client is not willing to incur the expense and 

complexity of a foreign asset protection trust (FAPT), then the client might want to take a look at 

a DAPT. Caveat: It has yet to be tested whether a DAPT state must recognize a judgment from 

another state under the Full Faith and Credit Clause of the U.S. Constitution. The following 

states have enacted asset protection trust law: Alaska, Colorado (to a limited extent), Delaware, 

Missouri, Nevada, New Hampshire, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah 

and Wyoming. To get the benefit of the laws in a DAPT state, a client must have some 

connection with the state. For example, Alaskan law requires that some assets of the DAPT be 

located in Alaska. It may be enough of a connection if one of the co-trustees is domiciled in 

Alaska. As with their corporate law, Delaware strives to keep on the cutting edge of this form of 

legislation. Bank of America has a trust department in Delaware set up specifically to serve as a 

trustee of a DAPT. There is a law firm in Delaware the presenter is aware of that will serve as a 

co-trustee of a DAPT. 

Jacob Stein suggests coupling a DAPT with an LLC: “If the debtor does not have 

any family members who may be appointed as the beneficiaries of the trust (to get around the 

WCSR 7084580v1 5

self-settled trust issue), designate the governing law of the state that affords protection to a selfsettled 

trust, and then create a limited liability company owned by the debtor and designate it as 

the beneficiary of the trust.” Stein at page 27. Mr. Stein’s article does not explain the reason for 

his recommendation. The benefit may be two-fold: First, the settlor is not a trust beneficiary 

under this arrangement. Second, distributions are made to the LLC, rather than to or for the 

direct benefit of the settlor. 

A transfer of a client’s assets into an irrevocable trust may be challenged as a 

fraudulent transfer. If this is a concern, consider making the trust governed by Nevada law. 

“Nevada has a two-year statute of limitations for challenging the transfer of assets into an 

irrevocable, spendthrift trust governed by Nevada law.” Nev. Rev. Stat. § 166.170 and Stein at 

page 27. 

Do not give the debtor or potential debtor a general power of appointment since 

that may allow a creditor to reach the trust assets. The debtor or potential debtor should not be a 

remainder beneficiary. Also, if the settlor is a beneficiary, draft the trust agreement so as to not 

allow a reversion of trust assets to the settlor’s estate. 

Qualified Personal Residence Trust (QPRT). A QPRT involves a transfer of a 

personal residence to an irrevocable trust. The settlor retains the right to live there for a term (for 

example, 12 years). At the end of the term, the home is either deeded outright to the remainder 

beneficiaries (e.g., the settlor’s spouse or children) or continues in trust for the benefit of the 

remainder beneficiaries. The settlor might retain the right to lease the home from the 

remainderman or the trustee at the end of the term. A QPRT is a self-settled spendthrift trust. 

As stated earlier, in South Carolina, a settlor who is also a beneficiary of a trust may not use the 

trust as a shield against the settlor’s creditors. S.C. Code Ann. §62-7-505(a)(2). A creditor can 

go after the settlor’s interest in the QPRT (but not the residence) during the term of the QPRT. A 

creditor faced with a QPRT is likely to either not pursue the matter or settle for something less 

than what he normally would. 

14. Foreign asset protection trust (FAPT). Some countries have legislation that 

protect the assets of a self-settled spendthrift trust. A “creditor’s job is made much more difficult 

and a lot more expensive when assets are placed offshore. When the assets are offshore, in many 

instances litigation to reach the assets will take place offshore. Forcing the creditor to engage in 

an economic analysis of the case may produce a more favorable result for the debtor.” Stein at 

page 28. 

A FAPT is one of the most protective planning vehicles that a planner can design 

and implement for a client. Engel at Chapter 10, 1001, page 175. The trust law of some foreign 

jurisdictions is simply more thorough and more protective than domestic trust law, including 

specifically those states that have enacted DAPT legislation. Engel at Chapter 10, 1175, page 

240. 

The biggest downsides to a FAPT are the complexity (clients like to keep things 

as simple as possible) and the cost. 

WCSR 7084580v1 6

184. 

The following diagram is reproduced from Engel, Chapter 10, 1025.04, on page 

Costs. The issue becomes whether the set-up and maintenance costs associated 

with a FAPT are worth it to an individual, based on the individual’s own weighing of cost versus 

benefit. The fees and costs associated with FAPT planning do not generally vary with the size of 

an estate. Net worth alone is not typically a factor in fees and costs; rather, the factors include 

whether multiple trusts will be used in any given plan, and the number of related or underlying 

WCSR 7084580v1 7

entities that are to be utilized. Another variable in fees will be whether there are any major 

complexities associated with a client’s particular situation or planning goals. Engel in Chapter 

10, 1035.01, on page 194. 

Robert Lowes’ article in the February 21, 2003 issue of Medical Economics 

(“Protect your assets before you’re sued”) indicates that it takes “$20,000 or more” to create 

offshore trusts and cites an author on the subject who recommends going offshore only if you 

have $500,000 or more in liquid assets (meaning stocks, bonds, and such, as opposed to real 

estate and retirement plans). 

An October 14, 2003 Wall Street Journal article by Rachel Emma Silverman 

(“Litigation Boom Spurs Efforts to Shield Assets–Doctors, Executives Turn to Trusts That Are 

Off-Limits to Creditors”) states that “offshore asset-protection trusts can cost anywhere from 

$20,000 to $50,000 to set up, plus annual administrative fees of $2,000 to $5,000 and assetmanagement 

fees of about 1% on the assets placed in trust.” Ms. Silverman’s article also states 

that “because of the high fees, asset-protection trusts generally don’t make sense unless you’re 

willing to put at least $1 million in them.” 

WCSR 7084580v1 8

January 20, 2012 

A Few of Our Favorite Things 

CONSIDERATIONS BEFORE 

OPENING AN ESTATE 

Catherine H. Kennedy. Esq. 

Cer$fied Specialist in Estate Planning and Probate Law 

ckennedy@turnerpadget.com 

TURNER PADGET GRAHAM & LANEY, PA

Considera6ons Prior to Administra6on 

I. Alterna6ves to Full Administra6on 

1. Will Filed only (Form 306) 

• No assets 

• Will placed on record


2. Will Probated only (Form 300) 

• No assets 

• Will actually declared valid 

• Informa6on provided to heirs and devisees 

(Form 305)


3. Small Estate Affidavit (Form 420) 

• Net value of assets less than $10,000 (If 

vehicle, include VIN, make and model, year 

of the vehicle to be transferred) 

• 30 days from death 

• No applica6on/pe66on for appointment of 

PR 

• Assets delivered by possessor to successors 

• Successors liable to PR or creditors


4. Transfer of Vehicle with SCDMV 

• Cer6ficate of 6tle with alterna6ve owners-‐-‐ 

i.e. , names are separated by “or” 

• Applica6on for Cer6ficate of Title 

(SCDMV Form 400) 

• Proper Iden6fica6on 

• Cer6fied copy of the death cer6ficate not 

required


5. Appointment of Special Administrator 

• Obtain medical records 

• Enter safety deposit box 

• Accept service 

enforce lien 

establish liability covered by insurance 

• Protect and preserve assets 

See Sec6on 62-‐3-‐614


II. 

Sec6on 62-‐3-‐108-‐-‐Ten year 

limita6on on commencement of 

administra6on or probate 

Summons and Pe66on to determine heirs 

See Sec6ons 62-‐3-‐105 and 106


III. Summary Administra6on-‐-‐ 

Sole Heir(s)/Devisee(s) = PR(s) 

• Consider renuncia6on of right to administer 

• Consider nomina6on as PR 

• Consider Disclaimers 

• Consider private agreements under Sec6on 

62-‐3-‐912


IV. Formal Probate 

• Summons and Pe66on Required 

• Responsive pleading by party opposing probate 

required 

See Sec6on 62-‐3-‐404


V. Creditor Claims 

• Ul6mate 6me limit for filing pre-‐death claims is 

1 year from date of death 

See Sec6on 62-‐3-‐803 

• Consider wai6ng to open the estate


VI. Proof of Death 

• See Sec6on 62-‐1-‐107 for presump6on of death 

• Consider what date you want person to be 

declared deceased—at the end of 5 years or 

earlier


VII. Domicile of Decedent 

• Consider Intestacy laws 

• Consider Proof of Will 

• Consider rights of surviving spouse 

• Consider rights of dependents 

• Consider ease of administra6on


Final Advice 

Think before opening an estate. There may be 

strategic advantages to be gained in planning

Family Settlement Agreements in the Probate Court 

Statutes authorizing private agreements. 

1. §62-3-912-Private agreements among successors to decedent binding on personal 

representative. 

(Allows successors to vary estate distribution, whether testate or intestate, without court 

approval.) 

Subject to the rights of creditors and taxing authorities, competent successors may agree among 

themselves to alter the interests, shares, or amounts to which they are entitled under the will of 

the decedent, or under the laws of intestacy, in any way that they provide in a written contract 

executed by all who are affected by its provisions. The personal representative shall abide by the 

terms of the agreement subject to his obligation to administer the estate for the benefit of 

creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his 

office for the benefit of any successors of the decedent who are not parties. Personal 

representatives of decedents' estates are not required to see to the performance of trusts if the 

trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a 

testamentary trust are successors for the purposes of this section. Nothing herein relieves trustees 

of any duties owed to beneficiaries of trusts. 

2. § 62-3-1101. Effect of approval of agreements involving trusts, inalienable interests, 

or interests of third persons. 

A compromise of a controversy as to admission to probate of an instrument offered for formal 

probate as the will of a decedent, the construction, validity, or effect of a probated will, the rights 

or interests in the estate of the decedent, of a successor, or the administration of the estate, if 

approved by the court after hearing, is binding on all the parties including those unborn, 

unascertained, or who could not be located. An approved compromise is binding even though it 

may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors 

or of taxing authorities who are not parties to it. A compromise approved pursuant to this section 

is not a settlement of a claim subject to the provisions of Section 62-5-433. 

See Univ. of S. California v. Moran, 365 S.C. 270, 283, 617 S.E.2d 135, 142 (Ct. App. 2005) 

Page 1 of 19

We hold the Anderson Trust is the beneficiary of Mrs. Anderson's estate, and Moran, as 

trustee, is the person required to execute the compromise agreement. Because only the 

trust, as holder of the beneficial interest, must sign the compromise agreement, the circuit 

court did not err in concluding the requirements of section 62-3-1102 were met. Section 

62-3-1102(3) mandates that an interested person receive notice of a proposed 

compromise, and allows the interested person to participate in the proceedings, including 

objecting to any compromise agreement. Accordingly, the order of the circuit court is 

AFFIRMED. 

3. South Carolina Code § 62-3-1102. Procedure for securing court approval of 

compromise. 

The procedure for securing court approval of a compromise is as follows: 

(1) The terms of the compromise shall be set forth in an agreement in writing which shall be 

executed by all competent persons and parents acting for any minor child having beneficial 

interests or having claims which will or may be affected by the compromise. Execution is not 

required by any person whose identity cannot be ascertained or whose whereabouts is unknown 

and cannot reasonably be ascertained. 

(2) Any interested person, including the personal representative or a trustee, then may submit 

the agreement to the court for its approval and for execution by the personal representative, the 

trustee of every affected testamentary trust, and other fiduciaries and representatives. 

(3) Upon application to the court and after notice to all interested persons or their 

representatives, including the personal representative of the estate and all affected trustees of 

trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the 

agreement upon the interests of persons represented by fiduciaries or other representatives is 

just and reasonable, shall make an order approving the agreement and directing all fiduciaries 

subject to its jurisdiction to execute the agreement. Minor children represented only by their 

parents may be bound only if their parents join with other competent persons in execution of the 

compromise. Upon the making of the order and the execution of the agreement, all further 

disposition of the estate is in accordance with the terms of the agreement. 

Page 2 of 19

4. South Carolina Code § 62-7-111. Nonjudicial settlement agreements. 

(a) For purposes of this section, “interested persons” means persons whose consent would be 

required in order to achieve a binding settlement were the settlement to be approved by the court. 

(b) Interested persons may enter into a binding nonjudicial settlement agreement with respect to 

only the following trust matters: 

(1) The approval of a trustee's report or accounting; 

(2) Direction to a trustee to perform or refrain from performing a particular 

administrative act or the grant to a trustee of any necessary or desirable administrative power; 

(3) The resignation or appointment of a trustee and the determination of a trustee's 

compensation; 

(4) Transfer of a trust's principal place of administration; and 

(5) Liability of a trustee for an action relating to the trust. 

(c) Any interested person may request the court to approve a nonjudicial settlement agreement, 

to determine whether the representation as provided in Part 3 was adequate, and to determine 

whether the agreement contains terms and conditions the court could have properly approved. 

Remember: The resolution that the beneficiaries reach may have gift or estate tax 

ramifications. 

The Private Agreement that went bad!!! 

Examples of Private Agreements 

Parker v. Shecut, 340 S.C. 460, 497, 531 S.E.2d 546, 566 (Ct. App. 2000) rev'd, 349 S.C. 226, 

562 S.E.2d 620 (2002) 

Mary Shecut died October 30, 1992. Her will left all of her assets in equal shares to her three 

children, Ann, Bo and Win. Her sons, Bo and Win, were the personal representatives. Mary 

Shecut owned a lot of real estate. The three beneficiaries decided among themselves as to how 

they wanted the estate to be distributed. Win wanted farm land, while Bo and Ann wanted the 

Page 3 of 19

estate’s commercial property and a beach house at Edisto. On April 6, 1993, all three 

beneficiaries presented themselves in the office of the attorney representing the Personal 

Representatives. All three beneficiaries told the attorney representing the Personal 

Representatives that they had reached a mutual decision as to the distribution of the estate. They 

were in a hurry to put their agreement in writing. The attorney drafted the agreement that same 

day. The three beneficiaries were from out of town and stayed in town until the agreement was 

complete and fully executed. The attorney who prepared the agreement went to a meeting 

outside of the office, and left the draft with another attorney in the firm for the beneficiaries to 

review. When the attorney returned to the office, she was informed that the beneficiaries had 

executed the agreement. Win almost immediately upon executing the agreement wanted to 

rescind it. When the attorney representing the beneficiaries could not immediately prepare the 

deeds, the beneficiaries hired another attorney to draft them. The newly-hired attorney prepared 

deeds of distribution giving all of the properties to the three beneficiaries as tenants in common 

and partition deeds, which deeded the property as set forth in the agreement. Ann not only 

refused to sign the partition deeds, she sued claiming that the agreement was void. The court 

upheld and ordered specific performance of the agreement. 

Anne challenged both the validity of the agreement and whether the lower court should have 

ordered specific performance. Challenge of the Private Agreement was based on: 

1. Ann argued that her brothers abandoned the agreement because deeds of distribution 

were prepared. The attorney who drafted the deeds testified that he was retained to 

transfer the real estate pursuant to the agreement. 

2. Ann argued that her brother (Win) repudiated the agreement and then failed to timely 

execute an addendum that reaffirmed it. 

Agreement to admit lost will to probate 

Some probate courts will admit to informal probate a will that is lost if all beneficiaries of 

the will and all heirs at law agree to admit the will to probate. 

Sample document: 

Page 4 of 19

STATE OF SOUTH CAROLINA ) IN THE PROBATE COURT 

) 

COUNTY OF RICHLAND ) 

) 

IN THE MATTER OF SAMUEL FRICK 

) CASE NUMBER 2007ES40______ 

PRIVATE AGREEMENT 

This private agreement has been entered into between Janice F. Smith and Stan Frick, the only heirs at 

law of Samuel Frick. Janice F. Smith and Stan Frick are hereinafter referred to as “the heirs.” 

WHEREAS, Samuel Frick died on October 14, 2007. At the time of his death, he owned his home 

located at 5210 Hamrick Court, Columbia, South Carolina 29209. 

WHEREAS, Samuel Frick executed a Last Will and Testament on March 20, 2003, a copy of which is 

attached hereto as Exhibit A. 

WHEREAS, the only beneficiaries of said will are the heirs. 

WHEREAS, although the original will cannot be located, the heirs believe that the decedent intended for 

the will dated March 20, 2003 be his Last Will and Testament. 

NOW THEREFORE, the heirs agree to have the will dated March 20, 2003 admitted to probate. After all 

of the debts and administrative expenses of the decedent have been paid, the parties agree to the 

distribution of the estate pursuant to the terms of said will. 

The parties request that the Richland County Probate Court admit the will dated March 20, 2003 to 

probate. 

IN WITNESS THEREOFF, the parties have executed this agreement on the date indicated. 

Witnesses as to Janice F. Smith: 

___________________________________________ 

___________________________________________ 

Witnesses as to Stan Frick: 

__________________________________________ 

__________________________________________ 

Warning—some courts still require formal probate. 

__________________________________ 

Janice F. Smith 

Date: ____________________________ 

_________________________________ 

Stan Frick 

Date: ____________________________ 

Page 5 of 19

Agreement used to Open Estate 

Several years ago, another attorney asked me to help get an estate opened. He was going on 

vacation, and it needed to be opened. These were the facts: 

1. A bank trust department was named as personal representative in will of decedent 

2. The bank trust department renounced its right to serve as personal representative 

3. The will poured over to a grantor trust 

4. The grantor (decedent) had removed the bank trust department as trustee of his trust and 

at his death he was serving as trustee 

5. The trust indicated that the trustee would be a corporation 

6. Since the trust was to be distributed outright at the grantor’s death, the beneficiaries saw 

no reason to have a corporate trustee 

7. All beneficiaries were competent adults 

8. There was no family conflict!! 

The solution I found was as follows: 

1. All beneficiaries of Trust signed an Agreement to name a successor Trustee 

2. All devisees under the will nominated another devisee—(Chris Jones in the Agreement) 

to serve as personal representative (Used Form 302PC) 

3. The court opened the estate—informal—no hearing was required. 

Agreement used: 

Page 6 of 19

STATE OF SOUTH CAROLINA ) 

) AGREEMENT TO NAME SUCCESSOR TRUSTEE 


Agreement made between Jack Smith, John Smith, James Smith, Bryce Smith, Chris Jones, 

Audrey Jones, Jimmy Jones, Katherine Jones, Lee Jones, Joe Smith, Sara S. Dodge, and Tanya Brown. 

WHEREAS, on August 9, 1996, George Smith, as Settlor, entered into a Trust agreement with 

Original Bank of South Carolina, as Trustee. Said trust is known as the George Smith Trust. 

trust. 

WHEREAS, by merger Original Bank of South Carolina became Successor Bank, N.A. 

WHEREAS, Article III of said trust agreement gave the Settlor the right to amend or change the 

WHEREAS, Settlor’s wife, Ruth Jones Smith, died January 1, 2000. Her estate was probated 

in Richland County, Case 2000-ES-40-04987. 

WHEREAS, on October 31, 2007, George Smith completed a Living Trust Account Form with 

Edward Jones. This form showed “G. Smith as the trustee of the George Smith Trust dated August 9, 

1996”. 

WHEREAS, the Trust Agreement had a typing error in Article VII (b)(ii) in that Tanya Brown 

was called Tanya Broon. 

WHEREAS, on December 3, 2007, George Smith removed Successor Bank, N.A. as trustee. He 

moved the trust assets to Edward Jones and began serving as trustee of said trust. 

WHEREAS, in December of 2007, assets with a value of $358,750.67 were moved to Edward 

Jones and titled in the George Smith Trust dated August 9, 1996. 

WHEREAS, George Smith died on December 31, 2009, leaving the trust with no trustee. 

WHEREAS, at the death of George Smith, this account was still in existence and held securities 

in the name of the George Smith Trust. 

WHEREAS, Article VIII (3) of said trust reads, “If any successor trustee as herein defined shall fail 

to qualify as trustee hereunder, or for any reason should cease to act in such capacity, the successor or 

substitute trustee shall be some other bank or trust company qualified to do business in the state of the 

Settlor’s domicile at the time of the Settlor’s death, which successor substitute trustee shall be designated 

in a written instrument filed with the court having jurisdiction over the probate of the Settlor’s estate and 

signed by the majority of adult beneficiaries.” 

WHEREAS, South Carolina Code 1976 §62-7-704, as Amended, indicates that a vacancy in a 

trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of 

priority: (1) by a person designated in the terms of the trust to act as success trustee; (2) by a person 

appointed by unanimous agreement of the qualified beneficiaries. 

WHEREAS, South Carolina Code 1976 §62-7-103 (12) defines a “qualified beneficiary” as the 

living persons who will take the trust income or principal. 

WHEREAS, pursuant to Article VII (4) of the Trust Agreement because both Settlor and his wife 

are deceased, the trust is to terminate and be distributed as follows: 

Page 7 of 19

a) All interest in any real property held by the Trustee when this Paragraph (4) becomes 

operative shall be distributed to such of Jack Smith, John Smith, James Smith, and Bryce 

Smith, who are then living; and 

b) All the rest, residue and remainder of the trust estate in the percentages set forth below: 

a. 75% to Chris Jones, Audrey Jones, Jimmy Jones; Katherine Jones, Lee Jones, 

or such of them as shall be living when this Paragraph (4) becomes operative; 

and 

b. 25% to Joe Smith, Sara S. Dodge and Tanya Broon (should be Brown), or such 

of them as shall be living when this Paragraph (4) becomes operative. 

WHEREAS, the parties to this agreement are all of the “qualified beneficiaries” of the George 

Smith Trust. 

NOW THEREFORE, the qualified beneficiaries of this trust believe that Chris Jones is a proper 

person to serve as Trustee of the George Smith Trust and they agree as follows: 

1. The vacant trustee of the George Smith Trust shall be filled by Chris Jones. 

2. Chris Jones shall serve without bond. 

3. Chris Jones shall immediately become trustee of the George Smith Trust. He shall 

receive the assets from the estate of George Smith, and administer and distribute those 

assets as well as the assets which are already in the trust pursuant to the terms of said 

trust. 

4. By signing this agreement, Chris Jones agrees to serve as trustee and to faithfully carry 

out the terms of said trust. 

This agreement may be executed in any number of counterparts and by different parties in 

separate counterparts. Each counterpart when so executed shall be deemed to be an original and all of 

which together shall constitute one and the same agreement. 

This agreement has been executed by all of the qualified beneficiaries of the George Smith Trust 

dated August 9, 1996. 

Witness as to Jack Smith 

__________________________ 

__________________________________ 

Jack Smith 

Date: _____________________________ 

Remainder of signatures were omitted--- 

ALL PARTIES MUST SIGN THE AGREEMENT IN THE SAME MANNER 

Page 8 of 19

AGREEMENT TO CONVEY REAL ESTATE 

Facts. 

1. Client’s mother died in 2002. Her estate was not probated. 

2. Client’s mother had 4 children, 2 of whom were children of decedent. 

3. Deceased and client’s mother divorced in 2009. Divorce decree indicated that the 

deceased would pay her $40,000 for her interest in the house and she would convey title 

to Deceased. 

4. Client’s mother never conveyed property to deceased. 

Solution: 

1. Opened estates of client’s mother and the deceased. 

2. Private Agreement—Children of client’s mother agreed to quit claim their interest in 

house to children of deceased. 

Agreement used: 


) 

) 

) 


PRIVATE AGREEMENT REGARDING THE ESTATE 

OF PATSY FRASER 

Agreement made the 29 th day of August, 2011, between the heirs-at-law of Patsy Fraser, who 

are: Jeff Smith, Pat Pool, Evan Smith, Sally Fraser and Karen Fraser, regarding the distribution of the real 

estate owned by the Estate of Patsy Fraser. 

WHEREAS, Patsy Fraser died intestate on April 14, 2002. She was a resident of Richland 

County, South Carolina, and her estate is being administered in the Richland County Probate Court as 

Case Number 2011 ES 40 00728. 

WHEREAS, Harry Fraser died intestate on November 4, 2010. He was a resident of Richland 

County, South Carolina, and his estate is being administered in the Richland County Probate Court as 

Case Number 2011 ES 40 00824. 

WHEREAS, the heirs at law of Harry Fraser are Sally Fraser and Karen Fraser. 

WHEREAS, at the time of their deaths, Patsy Fraser and Harry Fraser were divorced. 

Page 9 of 19

WHEREAS, the Final Divorce Decree and Amended Final Divorce Decree, Judgment Roll 

Number 24987, indicated that Patsy Fraser would sell her interest in the marital residence located at 6112 

Rutledge Hill Road (Richland County TMS No. R168708-07-10) to Harry Fraser for $40,000. 

WHEREAS, during their lifetimes Harry Fraser paid Patsy Fraser $40,000 for her interest in the 

marital residence. 

WHEREAS, Patsy Fraser’s interest in the marital residence was never conveyed to Harry Fraser 

during her lifetime. 

WHEREAS, South Carolina Code § 62-3-912 allows competent successors, subject to the rights 

of creditors and taxing authorities, to agree among themselves to alter the interests, shares, or amounts 

to which they are entitled under the will of the decedent, or under the laws of intestacy. 

WHEREAS, Patsy Fraser had legal title to a one-half (½) undivided interest in the marital 

residence located at 6112 Rutledge Hill Road and Harry Fraser had equitable title to all of said property 

and the parties to this agreement agree to the distribution of the real property located at 6112 Rutledge 

Hill Road as follows: 

1. The Personal Representative of the estate of Patsy Fraser will execute a Deed of 

Distribution of said property conveying it to Jeff Smith, Pat Pool, Evan Smith, Sally Fraser 

and Karen Fraser. 

2. Jeff Smith, Pat Pool, Evan Smith will execute a quit-claim deed conveying their interest in 

said property to Sally Fraser and Karen Fraser. 

3. Any other assets of the estate of Patsy Fraser will be distributed equally to her heirs-atlaw 

after the payment of her debts and administrative expenses. 

IN WITNESS WHEREOF, I have executed this Private Agreement this the _____ day of 

_____________________, 2011, and I have directed that photographic copies of this Agreement be 

made which shall have the same force and effect as an original. 

Page 10 of 19

Witness: 

________________________ 

________________________ 

________________________________ 

Jeff Smith 

Date: 


) P R O B A T E 

COUNTY OF LEXINGTON ) 

PERSONALLY appeared the undersigned witness and made oath that _he saw the within named Jeff 

Smith sign, seal and as his act and deed deliver the within Private Agreement and that deponent with the 

other witness whose name is subscribed above witnessed the execution thereof. 

SWORN to before me this 

____ day of ______________, 2011 

_______________________________ 

Witness 

_________________________________ 

Notary Public for South Carolina 

My Commission expires: __________________ 

Note: This agreement probably had no gift tax ramifications. Patsy Fraser had been paid for the 

real estate. Although she had legal title, equitable title was in the name of her former spouse. 

This agreement did avoid a court hearing and cleared titled to the real property in questions. 

Page 11 of 19

Agreement as to terms of poorly drafted will 

The court refused to admit a will to probate because it was so poorly drafted (self drafted will.). 

The beneficiaries entered into an agreement which they believed carried out the intent of the 

deceased. 


) 

) 


AGREEMENT REGARDING ESTATE OF GEORGE 

SMITH 

Agreement made the day of , 2009, between Guy Smith, Harry 

Smith, Jane Brown, Larry Smith, Horace Smith, Joe Smith, and Kathy Mann. 

WHEREAS, George Smith died on February 11, 2009, a resident of Richland County, South 

Carolina. 

WHEREAS, the parties to this agreement are all of the heirs at law of George Smith. 

WHEREAS, George Smith left a will dated January 1, 2009 which was witnessed by her sons 

and which is not clear regarding the distribution of her estate. 




WHEREAS, the parties to this agreement agree that the estate of George Smith will be 

administered, held and distributed as follows: 

(1) Guy Smith will serve as Personal Representative of the estate of George Smith. 

(2) Guy Smith will pay the enforceable debts, funeral expenses, and administrative expenses for the 

estate of George Smith. 

(3) Guy Smith will distribute the personal and household effects of George Smith in equal shares to 

Jane Brown, Horace Smith, and Larry Smith. 

(4) The rest and residue of the estate, including the house located at 1400 Hampton Drive, 

Columbia, South Carolina will be held in trust for the benefit of Joe Smith. The trust will be held, 

administered, and distributed as follows: 

a. Joe Smith will be able to live in the house rent free as long as he is able to take care of 

himself. He shall be responsible for maintaining the residence in suitable repair and 

condition, keeping it neat and clean, including the yard which he will maintain and keep 

free of trash and debris. 

b. The Trustee may pay to or apply for the benefit Joe Smith during his lifetime, such sums 

from the income and/or the principal of trust as in his sole discretion shall be necessary 

or advisable from time to time for the medical care, education, support and maintenance 

in reasonable comfort of Joe Smith taking into consideration to the extent the Trustee 

deems advisable, any other income or resources of Joe Smith. 

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c. Upon the death of Joe Smith, the Trustee shall distribute the balance of the trust in equal 

separate shares to Jane Brown, Horace Smith and Larry Smith, or to the survivor of 

them. 

d. If neither Jane Brown, Horace Smith nor Larry Smith is living at the death of Joe Smith, 

the trustee shall distribute the trust to the children of George Smith in equal shares, the 

issue of a deceased child taking his or her parent’s share per stirpes. 

(5) Guy Smith shall serve as trustee of said trust. If Guy Smith is unable to serve or continue to 

serve then the successor trustee shall be Harry Smith, or a person appointed by Guy Smith 

and/or Harry Smith. 

(6) The Personal Representative and Trustee shall have all statutory powers granted to Personal 

Representatives and Trustees under South Carolina law. The Personal Representative and 

Trustee are specifically authorized and empowered with respect to any property, real or personal: 

to allot, allocate between principal and income, assign, borrow, buy, care for, collect, compromise 

claims, contract with respect to, convey, convert, deal with, dispose of, invest, lease, manage, 

mortgage, grant and exercise options with respect to, take possession of, pledge, receive, 

release, repair, sell, sue for, make distributions or divisions in cash or in kind or partly in each 

without regard to the income tax basis of such asset, and in general, to exercise all the powers in 

the management of my Estate which any individual could exercise in the management of similar 

property owned in his or her own right, upon such terms and conditions as the Personal 

Representative and Trustee may deem best, and to execute and deliver any and all instruments 

and to do all acts which the Personal Representative and Trustee may deem proper or necessary 

to carry out the settlement of the estate of the Trust for Joe Smith, without being limited in any 

way by the specific grants of power made, and without the necessity of a court order. 

(7) Joe Smith shall not be authorized to assign, pledge, encumber, sell or transfer in any manner the 

house or other assets of the trust. The trustee shall not be liable for, or subject to, the debts, 

contracts, obligations, liabilities or torts of Joe Smith because he has served as trustee of said 

trust. 

This private Agreement has been executed the ____ day of __________, 2009. 

Witnesses: 

_____________________________ 

______________________________ 

Guy Smith 

_____________________________ 

The State of South Carolina 

County of Richland 

Subscribed, sworn to, and acknowledged before me by Guy Smith, an heir of George Smith, and 

subscribed and sworn to before me by ________________________________, witness, this the _____ 

day of ___________, 2009. 

_____________________________(Seal) 

Notary Public for South Carolina 

My Commission Expires: __________ 

Page 13 of 19

Remaining Signatures omitted 

This agreement probably had not gift tax implications. The testator tried to draft a complex will 

and did such a poor job that the court would not accept it. The beneficiaries did know what the 

testator intended, and reached an agreement that carried out that intent. 

Page 14 of 19

Agreement regarding distribution of estate 

The decedent left a wife (Second Wife—not mother of his children) and two children. He named 

his step-daughter as Personal representative in his will. The will left the wife a life estate in the 

house which terminated at her remarriage. The will left the balance of the estate to the wife, but 

the house was the only probate assets. The wife filed the elective share. The house needed to be 

sold to pay the debts and the spousal share. The house was old, had a bad floor plan and would 

not sell. The widow decided to purchase the house herself and entered into an agreement with 

the children regarding the distribution of the estate. 


) 

) 


AGREEMENT REGARDING DISTRIBUTION OF 

ESTATE 

Agreement made regarding the distribution of the estate of James E. Murray between James 

George Murray, Linda M. Smith, Jane T. Murray, and Martha C. Montgomery, as Personal Representative 

of the estate of James E. Murray. 

WHEREAS, James E. Murray (The Decedent) died on July 17, 2007. He was a resident of 

Richland County, South Carolina, and his estate is being administered in the Richland County Probate 

Court, Case 2007 ES 40 01037. 

WHEREAS, the Decedent left a will dated September November 20, 1997, which has been 

admitted to probate. 

WHEREAS, the will had the following provisions: 

1. Decedent’s real estate was devised to his wife, Jane T. Murray, for life, with a remainder 

interest to his children, James George Murray and Linda M. Smith. 

2. Decedent’s personal property, including his bank accounts, cash, and certificates of 

deposit were bequeathed to his wife, Jane T. Murray. 

WHEREAS, the parties to this agreement are all of the beneficiaries under the Decedent’s will 

and the Personal Representative of the Decedent’s estate. 

WHEREAS, at the time of his death, the Decedent’s only probate assets were his home at 1217 

Western (W) Avenue, Cayce, South Carolina (Lexington TMS 007450-04-003) which had a tax 

assessment at that time of $91,120, personal effects worth approximately $500, and a cemetery plot at 

Greenlawn Memorial Park. 

WHEREAS, the Decedent’s estate has no liquidity to pay his debts, funeral, and administrative 

expenses. 

estate. 

WHEREAS, Decedent’s widow, Jane T. Murray, filed an elective share proceeding against his 

WHEREAS, Martha C. Montgomery, as Personal Representative of the decedent’s estate, filed a 

petition to sell Decedent’s real estate in order to provide the funds for the funeral expenses, court costs, 

and administrative expenses. 

Page 15 of 19

WHEREAS, a hearing was held on August 29, 2008, regarding the petition to sell the real 

property. 

WHEREAS, Jacqueline D. Belton, Associate Probate Judge for Richland County, issued an order 

that the property at 1217 Western (W) Avenue, Cayce, South Carolina be sold by the Personal 

Representative as long as the net proceeds are at least $77,000. 

WHEREAS, a hearing was held on December 15, 2008, regarding the petition for Elective Share 

which was filed by Jane T. Murray. 

WHEREAS, Amy W. McCullough, Probate Judge for Richland County issued an order dated 

December 29, 2008, that Jane T. Murray is entitled to an elective share equal to one-third (1/3) of 

decedent’s probate estate, reduced by the cost of decedent’s funeral and administrative expenses. 

WHEREAS, the property at 1217 Western (W) Avenue, Cayce, South Carolina has been 

continuously listed by James Sheldon, a real estate agent with Sheldon Homes and Prop, LLC which is a 

member of the Multiple Listing Service. However, no offer has been received which will net $77,000. 

WHEREAS, James Sheldon, because of his difficulty in locating a purchaser, consulted with 

Sylvester Twitty, real estate agent with Cartoon Realty, regarding the price at which to market the 

property. Ms. Twitty recommended that the sales prices be reduced to $73,000 for a personal residence 

sale or $63,000 for an investment sale. 




WHEREAS, the parties to this agree to the distribution of the estate of James E. Murray as 

follows: 

4. James George Murray will be distributed $20,000 from the estate. 

5. Linda M. Smith will be distributed $20,000 from the estate as well as the cemetery lot at 

Greenlawn Cemetery. 

6. Jane T. Murray will provide the funds for the distributions to James George Murray and 

Linda K. Smith, the funds for the funeral and all valid debts of the Decedent, and the 

funds for the administrative expenses of the decedent. 

7. Jane T. Murray will be distributed the property located at 1217 Western “W” Avenue 

Cayce, South Carolina, and any remaining probate assets in return for providing the 

funds for the other heirs, the funeral expenses and the administrative expenses. In 

addition, she will drop her demand for the elective share against the estate. 

IN WITNESS WHEREOF, I have executed this Private Agreement this the _____ day of 

_____________________, 2009, and I have directed that photographic copies of this Agreement be 

made which shall have the same force and effect as an original. 

Witness: 

_________________________ 

_________________________ 

________________________________ 

James George Murray 

Date: 

Note: Although SC law allows all beneficiaries to vary distribution of estate, these agreements have 

potential gift tax ramifications. Beware if a lot of value is involved, and some beneficiaries are receiving 

more that than are entitled to under state law. 

Page 16 of 19

STATE OF TENNESSEE ) 

) P R O B A T E 

COUNTY OF SULLIVAN ) 

PERSONALLY appeared the undersigned witness and made oath that _he saw the within named 

James George Murray sign, seal and as his act and deed deliver the within Private Agreement and that 

deponent with the other witness whose name is subscribed above witnessed the execution thereof. 

SWORN to before me this 

____ day of ______________, 2009 

_______________________________ 

Witness 

_________________________________ 

Notary Public for Tennessee 

My Commission expires: __________________ 

Seal of Notary 

Remaining signatures omitted 

Page 17 of 19

TAX CONSEQUENCES OF FAMILY AGREEMENTS 

Family Agreements often have gift and/or estate tax consequences. It may be prudent, if a lot of 

money is concerned to make the agreement conditional on being able to obtain a Private Letter 

Ruling from the Internal Revenue Service. In addition, a private agreement can have income tax 

ramifications. 

Remember: 

1. State law determines the nature and extent of property interests 

2. Federal tax law determines how transfers are taxed 

3. Federal Courts and IRS are bound only by highest court of the state. Comr. v. Est. of 

Bosch, 387 U.S. 456 (1967). Determining factors: 

a. Was there a bona fide adversarial dispute? This is no longer controlling. Look at 

whether the person had a bona fide claim to the property. 

b. Did the person receive the property pursuant to state law (Ahmanson Foundation v. U.S., 

674 F.2d 761 (9th Cir. 1981). Is there an enforceable right under state law? 

4. A transfer in trust can be a gift 

5. Test for a gift 

a. Bona fide 

b. Arm’s length 

c. No donative intent 

Test: Is it a bona fide compromise of legitimate, enforceable claims that to the extent possible, 

produces an economically fair result—Is it a legitimate claim that the party could win 

under state law? 

6. A claim for a spousal share under state law would qualify for marital deduction as long as 

spouse receives no more than entitled under the statute. 

Estate of Palumbo, 107 AFTR 2d 2011-1274 (DC Pa., 2011). 

In this case, the district court allowed a charitable deduction of $11.7 million gift made pursuant 

to a settlement agreement. 

1. Mr. Palumbo died in 2002. For years he had wills that left his residual estate to charity. 

2. When he died, he had a will executed in 1999. Due to a scrivener’s error, that will had no 

residual clause. 

3. Mr. Palumbo’s attorney admitted the error in a malpractice case brought against him. 

4. The son claimed he was entitled to the residual estate since he was the sole heir. 

5. The son, the son’s wife, the charitable trust, and the state attorney general reached a 

settlement agreement. 

a. Charity received $11.7 million 

Page 18 of 19

. Son received $5.6 million and certain real property 

6. The agreement was approved by state court 

7. District court: 

a. Reviewed §2055—found it was to encourage charitable gifts 

b. The testator had repeated told people he was going to leave his estate to charity 

c. Earlier versions of will left estate to charity 

d. The drafting attorney admitted he made the mistake 

e. Court found a good faith adversarial dispute. 

f. State law allowed a look beyond the 4 corners of a will if there was a latent 

ambiguity in the document. 

What we can learn from case: Proof your wills!!! Save old wills. 

Page 19 of 19

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