Vol. 3, No. 4, Pg. 32. Removal From Trusts and Estates: Which Court Will You Play In?.

• Author: By Kenneth B. Wingate

South Carolina Lawyer

1992.

Vol. 3, No. 4, Pg. 32.

Removal From Trusts and Estates: Which Court Will You Play In?

32Removal From Trusts and Estates: Which Court Will You Play In?By Kenneth B. WingateYou may know of the poor lawyer who filed a lawsuit, only to be told by the judge that he lacked subject matter jurisdiction over the case. His reply: "That's okay, Your Honor, I'm willing to waive that."

The basic principles governing jurisdiction over the subject matter of a proceeding are clear: jurisdiction is determined by the constitution and laws of the state; it is fundamental (i.e., it can be raised at any time); and it cannotbe waived, even by consent of the parties. Anderson v. Anderson. 299 S.C. 110, 382 S.E.2d 897 (1989).

Probate courts are courts of limited jurisdiction. The South Carolina Probate Code ("SCPC") vests South Carolina's probate court with exclusive original jurisdiction over all subject matters concerning trusts (both inter vivos and testamentary) and decedents' estates (including the contest of wills, constructionof wills and determination of heirs and successors of decedents). Section 62-1-302(a). For estates, this means what it says: exclusive, not concurrent, jurisdiction. For trusts, there is a distinction between "internal affairs" and "external affairs." Internal trust affairs fall within the exclusive jurisdiction of the probate court and external affairs fall within the concurrent jurisdiction of the probate and circuit courts. Sections 62-7-201 and -204.

33Internal affairs are matters involving the administration and construction of a trust. Typically, such actions include only the beneficiaries and trustees as parties. External affairs are matters between third parties and the trustees regarding the operation of the trust, such as actions by or against debtors or creditors of the trust.

South Carolina's only reported decision involving subject matter jurisdiction under the new SCPC is Anderson v. Anderson. supra. That case involved an action filed in the circuit court by two brothers against a third brother, seeking partition of real property inherited from their mother and asking for the settlement of various claims arising out of their father's estate. The parties had stipulated that they wanted the circuit court to hear the disputed claims arising from their father's estate. The trial...