Years ago, there was a booth at a local festival with a banner that said “Ask me how to avoid probate!” At the time, I was elected as a Probate Judge so naturally I approached the booth and asked “So, how do I avoid probate?” The salesman (who turned out to be part of a pre-paid legal services business) immediately started his sales pitch about creating trusts and family partnerships to avoid probate. In reality it wasn’t probate he was trying to avoid, it was the IRS. I didn’t interrupt but realized that even this man, whose job it was to sell estate-planning tools, didn’t really understand what “probate” actually is.
Probate is not taxes, it’s not intestacy, it’s not the process by which the government takes your assets. Most simply put, the term “probate” is used to describe all aspects of administering the estate of someone who has passed away. A deceased person can’t own assets. I know . . . shocking, but true. You literally can’t take it with you. Because of this there must be a process of determining what assets the deceased owned and transferring them to the appropriate person. That process is “probate.” Therefore, at the end of the day there is only one way to avoid “probate” at death – die owning absolutely nothing.
Since most of us will (hopefully) own something after spending the bulk of our life working, the process of probate becomes a necessity. This necessity is handled by the Probate Court. This court is not responsible for collecting taxes nor is it something to be avoided. In fact, the entire purpose of this court is to ensure that a deceased person’s assets are properly managed for the protection of both the creditors and the heirs of the deceased. They do this by providing two functions.
First, the Probate Court handles the legal process of administering the estate. They ensure a Personal Representative (also often called a PR, Executor or Administrator) is properly appointed, they assist this person in understanding the rules and requirements of serving in this capacity, and they manage the files of the deceased to make sure that all interested parties are treated fairly. They do not actually hold the assets, collect taxes or distribute the property; they simply ensure it’s done correctly. The file they maintain serves as the last public record of the affairs of the decedent’s finances, property and heirs.
The second function performed by this court is the judicial function. Many, if not most, estates never come before the Probate Judge. However, in those estates where a dispute arises, the Probate Court provides the opportunity for the interested parties to be heard and the matter to be resolved. This might occur early in the estate (such as a dispute over who should serve as the Personal Representative), during the administration of the estate (a dispute between a creditor and the estate), or at the end of the estate (an heir upset about the items they did or didn’t receive).
The jurisdiction of the Probate Court (which includes disputes that arise in trusts as well) is beyond the scope of this post, but it’s important to know (as the salesman clearly did not) that no matter how you decide to transfer your assets at your death, it’s likely that “probate” will be involved. Now avoiding the IRS, that’s an entirely different topic!
Technically, the word Probate means “to obtain the official approval of, as of an instrument purporting to be the last will and testament.” (Thanks Webster!) However, in the common sense, probate describes the process by which the Probate Court oversees the transfer of assets from someone who has passed away (the “decedent”) to those entitled to receive them. The word probate has become tainted by all the “avoid probate” propaganda used when financial planners or others are trying to sell trusts, annuities or other products. In reality, what you are really trying to avoid in this process is taxes and creditors, not “probate,” so don’t fear the court. In fact, Probate Court Judges are the only elected members of the judiciary in the state and generally strive to be as helpful as possible.
A review of assets belonging to the decedent at their time of death is required in order to know whether or not you will need to go through probate. For example, if the decedent owned any real property (real estate) or titled assets (cars, vehicles, boats, mobile homes) in their name alone, you will definitely be required to go through the probate process. Additionally, if the decedent held bank accounts, investment accounts, CD’s or other assets in their names alone, probate is the only way to get access to this property (although some estates may qualify for an abbreviated procedure called a small estate). Even if the decedent didn’t own any assets, probate may still be required as only a Personal Representative appointed by the Probate Court may act on behalf of the decedent to bring a lawsuit. So, now that you realize your probably can’t “avoid probate”, what do you need to know?
A decedent’s estate must be probate in the county where they are domiciled. In most cases, this is their place of residence. However, it is possible to have more than one residence but you can only have one domicile. If your loved one lived in multiple places, a probate attorney or the court may be able to assist you in determining which court is appropriate. Each county in South Carolina has a Probate Court which is almost always located in the county courthouse. Once you have determined which court you must file in, it is wise to contact that court for specific office hours and to determine if you must have an appointment to open an estate. In some cases, if you are particularly internet savy or have an attorney assisting you, you may not have to appear in the court at all.
To open the estate in South Carolina, you must have proof of death. This is generally accomplished with a death certificate but in unusual circumstances proof from another government agency can be provided. If the decedent had a will, you will also need to deliver the original to the court (where it will remain). The minimum fee to open the estate is $25, made payable directly to the probate court. Additional court costs will be due once the court determines the extent of the decedent’s assets.
Last, but not least, the person who appears at the court should be the person who intends to serve as the Personal Representative (a general term in South Carolina which includes Executors and Administrators). The will should name the Personal Representative. If there is not a will, South Carolina law determines who has priority to handle the decedent’s affairs. In general, when no will exists, priority of appointment is as follows:
People often wonder how quickly they should go to the court to begin the process and there isn’t a perfect answer to that question. The law requires that any person holding the original will of another who has passed away should present it to the court within 30 days; therefore, waiting beyond that period isn’t recommended. Meanwhile, heading to the court before you have the death certificate is premature. In some cases, the only assets available to bury the decedent may be held solely in the decedent’s name which means moving quickly is required. In general, how quickly you go is likely determined by the unique circumstances in your case.
Unrelated to the other functions of the Probate Courts in South Carolina, this court is responsible for issuing marriage licenses. Therefore, if you want to (or just have to) get married in the state of South Carolina, you need to be aware of the following requirements.
First, the bride and groom must appear together at the Probate Court and file a written application. You do not have to be a resident of South Carolina to apply, nor do you have to apply in the county where you plan to marry. Cost vary per county but average around $40 – $70 (often required in cash). The application will ask for the full name, social security number, age, and place of residence of the bride and the groom. The application is a sworn statement that must be signed by the bride and the groom and then notarized in the office of the probate judge. It’s important to bring proper identification (passport or a driver’s license is best) with you to the court. And, if you are under 18, you will have to drag a parent and birth certificate along as well.
Once the application is filed, you must wait 24 hours before picking up your license. So, plan ahead and don’t wait until the Friday prior to the wedding to apply. Judges in South Carolina can not waive the waiting period regardless of how much money you have spent on your upcoming nuptials.
In South Carolina, marriage licenses do not expire so there is no harm in getting yours early. However, just like a driver’s license – just because you have it doesn’t mean you MUST use it. Marry with caution.
Other interesting tidbits about marriage in South Carolina:
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.
I’ll address the question of WHY you have to go through probate when someone passes away in a future post. For today, I would just like to introduce myself and explain why I’ve chosen to blog about an otherwise uninteresting and often annoying area of the law.
My name is Tiffany Provence, an attorney living and practicing in the counties surrounding Charleston, SC. And, while I would love to blog about fashion, technology or exotic travel, I have little experience or knowledge in anything that exciting. However, after more than 10 years as a Probate Judge for Dorchester County, S.C., I have learned that there is a severe shortage of information on this topic for both the public and attorneys who need a primer on this area of the law. Our firm handles probate litigation, estate administration, estate planning, wrongful death cases and more. Essentially, if it involves death, we can help you through it.
So, why would you need to know anything about South Carolina probate law and the Probate Court? Perhaps a family member has recently passed away – this is your court. Are you caring for a loved one and needing more information about making decisions on their behalf? Again, this is your court.
Wanting to get married in South Carolina? Yep, they do that too! Want to get divorced? Well, that’s another court entirely (but see our website for information on divorce in South Carolina).
In this blog, I hope to provide you with basic information on the myriad of issues that are raised in this area of the law and ensure you know when you need to seek legal assistance. Thanks for reading.
Brian Yeager says:
February 12, 2017 at 1:18 PM
Is a personal representative (or even probate) needed if there are no assets? My mom recently passed and had only a house (left to me in the will and I am already on the deed as JTWROS). She has a trust holding stock. No probate? Summary?
Tiffany Provence says:
February 12, 2017 at 6:06 PM
The quick response is no; however, we generally find that most people have assets that have been overlooked such as vehicles, bank accounts or retirement accounts that require attention (resulting in either a personal representative or the easier small estate). It’s also a good idea to pay the small filing fee and file the will for the record in the Probate Court.