South Carolina Trust Code

S. Alan Medlin (David W. Robinson Professor of Law, University of South Carolina) has recently published his article entitled The Impact of Significant Substantive Provisions of the South Carolina Trust Code, 57 S.C. L. Rev. 137 (2005).

Here is the introduction to Prof. Medlin’s article:

For centuries, the substantive law of wills and trusts evolved slowly and resisted change. However, over approximately the last quarter century, a trend to codify substantial parts of the law of trusts and estates has developed, prompting a plethora of proposed 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 Uniform Probate Code (UPC), the Uniform Statutory Rule Against Perpetuities, the Uniform Principal and Income Act of 1997, the Uniform Prudent Investor Act, and the Uniform Transfers to Minors Act.

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, the Uniform Statutory Rule Against Perpetuities, the Uniform Principal and Income Act of 1997, the Uniform Prudent Investor Act, and the Uniform Transfers to Minors Act.

Until now, the most significant adoption was the General Assembly’s enactment of South Carolina’s version of the UPC – the South Carolina Probate Code (SCPC). Before the SCPC, South Carolina’s law of wills and trusts originated from common law. Thus, the enactment of the SCPC changed the study and practice of South Carolina wills and trusts law from a common law endeavor to one governed substantially by statute. The SCPC 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.

The South Carolina General Assembly recently enacted a version of another uniform act, the Uniform Trust Code (UTC). The UTC may rival the SCPC in the significance of its impact on the law of donative transfers. The UTC marks the first attempt to comprehensively codify the substantive and procedural law of trusts.  The South Carolina Trust Code (SCTC) modifies the UTC by creating its own rules in a number of instances.  Some parts of the SCTC compile only portions of existing statutory law and common law into one location, without changing either, and are thus relatively unremarkable. However, some parts do make substantial changes to pre-SCTC South Carolina law. Overall, the SCTC codifies (or recodifies) some existing South Carolina statutory law and common law, clarifies several issues previously not legislatively or judicially addressed in South Carolina, and changes some existing South Carolina law. This Article focuses on the SCTC changes to the pre-SCTC law.