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

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4. <strong>South</strong> <strong>Carolina</strong> 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
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