GLOSSARY OF COMMON TERMS IN PROBATE
Beneficiary– a person who has any present or future interest, vested or contingent in a trust. Also includes any person entitled to enforce a charitable trust.
Ceremonial marriage– also known as statutory marriages; those marriages entered in compliance with S.C. Code Ann. § 20-1-10 et seq. Ceremonial marriage requires an application for a license, a 24 hour waiting period between the application and issuance of the license, performance of a marriage ceremony by an authorized official, a lack of impediments, and consummation by cohabitation.
Child– any individual entitled to take as a child by intestate succession from a parent but excludes individuals who are only stepchildren, foster children, grandchildren or any other more remote descendant
Common-law marriage– a form of marriage where the parties did not engage in a ceremonial (or statutory) marriage, but which meets certain requirements. The existence of a common law marriage must be determined by either the Family Court or Probate Court. A common law marriage has the same rights and obligations as a ceremonial or statutory marriage. The requirements for a common law marriage are an intention evidencing an actual and mutual agreement to live publicly together as husband and wife, consummation by cohabitation, and a lack of impediments.
Conservator– a person appointed by a court to manage the estate of a protected person. A conservator is appointed after a formal proceeding to determine if a person is an incapacitated person, or to secure the administration of the estates of an incapacitated person or minor.
Devise– noun- a testamentary disposition of real or personal property; verb- to dispose of real or personal property by will
Devisee– any person designated to receive property in a will.
Elective share– the right of a surviving spouse to elect to take one third of the decedent’s probate estate, to be satisfied from all benefits provided to the spouse whether under or outside the will.
Executor– also known as Personal Representative.
Guardian ad litem– literally, “guardian for litigation”; an attorney appointed to represent the alleged incapacitated in a proceeding for appointment of incapacity and be the eyes and ears of the court.
Guardian– a person who has qualified as a guardian of an incapacitated person pursuant to a testamentary or court appointment. A guardian is appointed after a formal proceeding to determine if a person is an incapacitated person.
Heir– a person entitled under the laws of intestate succession to receive the property of the decedent.
Incapacitated person– a person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property.
Intestate– someone who died without a valid will.
Issue– all of a person’s lineal descendants whether natural or adopted where a parent child relationship is determined at each generation.
Parent– any person who is entitled to take or would be entitled to take as a parent under the laws of intestate succession.
Per stirpes– a different word for the term “by representation”. By representation is a way of counting heads to find heirs. Under South Carolina’s version of by representation shares are determined at the first degree of kinship where a living person is found. One share is set aside for each living person, and one for each predeceased person who was survived by issue.
Personal representative- includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.
Power of attorney– a writing by a principal designating another person to act as his attorney in fact to act on their behalf. The authority of the attorney in fact to act on behalf of the principal must be set forth in the power and may relate to any act, power, duty, right or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary.
Special administrator– a personal representative appointed by the court when necessary:
Spouse– the surviving spouse under a valid ceremonial or common-law marriage.
Testate– dying with a valid Will.
Trust– a form of property ownership where legal and equitable title is split. In a trust, a trustee holds the legal title to the property for the use and enjoyment of the trust beneficiaries. A trust under the South Carolina Probate Code refers to an express trust, but not a constructive trust, resulting trust or other special types of trust specifically excluded by statute.
Similar to a small estate, summary administration is another abbreviated process available in the probate court under certain limited situations.
For a variety of reasons, the same person wears may be both the Personal Representative as well as the only heir at law or devisee under the Will. Often this arises when a person dies with little family remaining (think only child), or, more commonly, when the first spouse dies giving the survivor everything in their Will. After a point in the probate process, this individual may be the person both sending and receiving all notices regarding the estate. That seems a little silly—sending a notice to yourself.
Fortunately, the Probate Code allows for a shortcut: summary administration. In summary administration, after certain requirements are met (generally notice to creditors), the Personal Representative files a document with the Court called a “closing statement” instead of the traditional closing documents. The court then waits one year and, if no claims or proceedings are pending, the Personal Representative’s appointment will terminate. This streamlined process reduces paperwork and expedites the process for sole heirs who also serve as the Personal Representative.
To qualify for summary administration, certain requirements must be met. An experienced probate attorney can help determine if this is an option for your loved one’s estate. Please contact us with any questions or to schedule a consultation!
Personal Representatives or heirs are often anxious to sell the real property due to the expense of holding the property if it’s vacant. Here’s what you need to know before signing a listing agreement or liquidating that real estate.
If the Will gives the Personal Representative the power to sell property of the estate, the P.R. can simply market and sell the property on behalf of the estate. This is a standard power granted in most documents and should be easy to identify. When selling the property, the P.R. should simply make sure they are entering in to an arm length’s transaction and acting in the best interest of the estate. For example, if the P.R. wished to purchase the property, it would be prudent to contact an attorney so as not to be accused of self-dealing. The P.R. should also take caution to make sure they are getting the fair market value for the property through the use of a CMA (cost market analysis) or appraisal or the employment of a qualified real estate agent.
If the decedent died without a Will (intestate) or the Will does not give the P.R. the power to sell property, then the Court’s permission must be obtained prior to seeing the property. Seeking Court permission to sell real estate involves filing a Petition which will inform the Court about the property the P.R. is seeking to sell, provide its estimated value, and explain the reason the P.R. desires to sell the property. The Personal Representative will also need to provide the Court with a copy of the deed and documentation to support the estimated value. A hearing will be set and all parties interested in the estate will be required to be given notice to attend. After a hearing, the Court will decide whether or not the P.R has permission to market the property.
If granted, the Probate Court will authorize the property to be marketed for sale on the terms set by the Court. An Order detailing the terms will be issued which should be provided to any professionals involved in the process (agents, closing attorneys, etc.) The P.R. can then accept an offer on the property for at least the minimum sale price approved by the Court.
If you are unsure if you have the power to sell, wish to sell to a party (including yourself) who has an interest in the estate, or need to file a Petition to approve a sale it’s wise to contact an attorney to handle these issues for you. Many of them will hold their expenses and can be paid from the proceeds of the sale in estates where there is no cash to cover these expenses.
Lastly, please remember that this post does not apply to property held jointly with rights of survivorship as explained in our previous posts as upon death that property belongs to the remaining owners and is no longer an asset of the estate.
Many times people contact our office because a Will has been found among their deceased loved one’s belongings. A common question is what the next step is. The movie depiction of the family attorney reading the Will seldom occurs these days. Instead, the process of administering and distributing the Estate occurs through the process of probate.
Probate of a Will in South Carolina may be either an informal or a formal proceeding. Formal proceedings are subject to more court scrutiny and may be useful in certain circumstances. However, in this post, we will look at the more common informal probate process.
Probate begins by filing the Will along with an Application and certified copy of the Death Certificate with the Probate Court. The Application is a state-approved form, the 300ES. This filing is done in the county where the decedent resided prior to their death (if you are unsure, see our earlier post on this topic). In some cases, the decedent may have property in more than one county or state. In those instances, probate still begins in the county of residence, but may also be conducted where the other property is located.
The Application provides the Probate Court information regarding the decedent, the Will, and the Personal Representative. Once the application is received and processed by the Court, the probate process has officially begun and a Personal Representative is appointed to administer the Estate. We have discussed some of the duties of the Personal Representative in prior posts here and here.
If you have been nominated as Personal Representative in a loved one’s Will, an experienced probate attorney can help you navigate the process and ensure you perform your duties properly.
The South Carolina Bar Association has a wonderful publication that we use regularly for our clients called the South Carolina Senior Citizens Handbook. This free publication is a great resource for anyone 55+. It addresses topics ranging from Medicare to Reverse Mortgages to Age Discrimination. Parts III and IV of the publication specifically address our practice areas and include valuable information on Guardianships and Conservatorships as well as Estate Planning. We encourage our clients to review this publication to learn about valuable rights, benefits and issues that may effect them as seniors. Should you have any questions regarding these issues, please contact our firm so that we can schedule a consult.
Evan Guthrie says:
December 19, 2014 at 7:52 PMGreat resource. I know of many seniors that would benefit from sharing it.
It’s more common than most people realize to have spouses, relatives or other beneficiaries die at the same time or in close proximity to the decedent. Sometimes this occurs due to a common accident (car, plane, etc.) while other times we see spouses simply loose the will to live upon the death of their husband or wife. In these circumstances, Personal Representatives and attorneys must refer to the Uniform Simultaneous Death Act to determine whether or not party passing after the decedent will qualify as a survivor.
January 2014 brought about substantial changes to the S. C. Probate Code. Included in these changes were significant amendments to the Uniform Simultaneous Death Act as found in §62-1-500 through §62-1-508. In order to be qualified as a survivor after January 2014, you must be able to show that the individual outlived the decedent by at least one hundred twenty (120) hours.
A certified copy of a death certificate is considered proof of the fact, place, date and time of death, and the identity of the decedent. If a death certificate has not been issued because the party is missing or presumed dead, a certified or authenticated copy of any record or report of a governmental agency is considered evidence of the status and of the dates, circumstances, and places disclosed by the record or report. If neither of these is available, the fact of death may be established by clear and convincing evidence, including circumstantial evidence. For example, a person who is absent for a continuous period of five years, during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
The time of death can become a highly contested matter when it might substantially change the beneficiaries of the estate. A party litigating this issue should understand that although a death certificate may be considered proof of death, another party may contest its accuracy. In order to successfully do so, they too would have to meet the clear and convincing evidence standard to dispute the document.
Now that you’re armed with a better understanding of how to establish time of death, our next post will explain how the January 2014 changes have expanded its relevance to include both intestate (no last will exists) and testate (the decedent left a will) estates.
Exempt property is property that a surviving spouse can protect from creditors of the estate. By allowing exempt property, the S.C. Code essentially guarantees a spouse that he/she will be able to maintain certain household furniture, automobiles, furnishings, appliances, and personal effects despite the amount of debt owed by the estate. The South Carolina Probate Code §62-2-401 was amended in January of this year to increase the personal property exemption from $5,000 to $25,000 making this a much greater protection. If there is no surviving spouse, minor or dependent children of the decedent are entitled jointly to the same value; however, adult children do not get the same benefit.
There are a few important points to remember if you wish to claim this exemption as a spouse or on behalf of your client.
Many of our elderly clients come in asking for a Power of Attorney. A doctor, family member or friend may have mentioned that they need one, but aren’t able to explain why or what type. This post will provide some basic information on the different types of Power of Attorney and what they allow others to do.
A Power of Attorney authorizes someone else to act on your behalf in a legal or business matter. There are different types of Power of Attorney including General, Special, Health Care and Durable.
A General Power of Attorney authorizes your chosen individual (called an “agent”) to act on your behalf in a variety of situations. These can be very broad in nature and allow the agent to perform many duties including but not limited to handling banking, buying and selling property, taking out a loan, entering into contracts, filing tax returns, applying for and handling government benefits (Social Security, Disability, etc.), making gifts and more. After consulting an attorney, these powers can be narrowed or expanded to suit the client’s needs or concerns.
A Special Power or Limited of Attorney authorizes your agent to act on your behalf only in a specific circumstance. We frequently draft these documents to authorize an agent to sell a piece of real estate, care for and authorize medical care for a child (usually when the parent is out of the country), or handle government benefits on behalf of our client.
A Health Care Power of Attorney authorizes your agent to make health care decisions on your behalf if you are not able to do so. The agent’s decisions would not supersede your own decisions and only apply if you are unconscious, incompetent, or otherwise unable to make your own decisions. This is different from a Living Will, which simply allows you to express your wishes related to life-sustaining procedures.
A Durable Power of Attorney: This is not a unique type of Power of Attorney but instead refers to a language in a General, Special, or Health Care Power of Attorney that allows them to remain in effect even if you become incompetent. With the exception of a Special Power of Attorney, we strongly recommend that you include the appropriate language in your Power of Attorney documents to ensure they remain effective during any period of incompetency. In fact, for many of our clients the fear of future incapacity is the sole reason to have these documents.
The ability to download and create a Power of Attorney online has lead to serious issues and litigation. Often, people don’t understand that the POA becomes valid as soon as you sign it unless it’s specifically drafted not to do so. This means that your agent can immediately start making decisions and exercising the powers you have granted them. This is often not the intent. Similarly, if a POA is being executed after a diagnosis of dementia, Alzheimer’s or related illnesses, it’s important to have an attorney prepare the documents so that he or she can attest to your competency to do so. Many attorneys offer consultations at reduced rates to discuss these documents and others that might be a part of your estate planning. It’s wise to share your specific situation and get advice about exactly what you need to have in place to protect yourself, your assets and your heirs.
Many people are surprised to learn that South Carolina law actually prohibits your from disinheriting your spouse absent their consent (i.e. a prenuptial agreement). The rights of the spouse to take from the estate will be determined by whether the will was written BEFORE or AFTER the marriage. Here are the two different scenarios.
In the first scenario, the Last Will was executed BEFORE the marriage took place. In this scenario, the law considers you an omitted spouse and presumes that your spouse simply failed to update their will to include you. S.C. Code Section 62-2-301 applies and explains that you are entitled to receive your intestate share in the estate despite what the will might say. Refer to our previous post on intestacy to see what that share would be. It’s important to know that just like most rules, there are exceptions. The omitted spouse rule may not apply if the will appears to have intentionally omitted you or your spouse has otherwise provided for you through other assets.
In the second scenario, the Last Will was executed AFTER the marriage. In this situation, the presumption is that the spouse intentionally left you out of the Last Will. Even if the spouse fully intended to leave their spouse absolutely nothing, S. C. Code Section 62-2-201provides the spouse the ability to claim a one third share of the estate. This share is called an “elective share” as it’s not automatically given to the disinherited spouse, the spouse must elect to receive it.
Here’s an example of how these statutes might both apply to a case. Husband drafts a will prior to his marriage but while engaged to future Wife. In the will he names her as his fiancé and only provides her with a small portion of his estate, leaving the remainder to his children from his first marriage. In this scenario, the Wife should file both an Omitted Spouse Claim (which would entitle her to ½ of the estate) and an Elective Share Claim (which would entitle her to 1/3 of the estate). Should the court hold that Omitted Spouse does not apply because Husband contemplated the marriage at the time the Will was executed, then at the very least she has the right to the Elective Share.
If you are a spouse that has been disinherited, it’s crucial that you contact an attorney immediately. The attorney can give you information on how to file your claim with the court to guarantee you are protected. For example, to secure your elective share, a spouse must file a Petition with the Probate Court and the personal representative within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. Miss the deadline or fail to file with both parties and you could miss out on your inheritance. Similar time limits apply to omitted spouses. Not understanding how to value the estate’s assets when making your claim, what outside assets may or may not factor in to the estate, and how to properly file your claim could all be costly mistakes!
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.
Olga Decker says:
July 28, 2015 at 10:59 PM
My husband died two years ago and he signed a will in favor of his half sister leaving half of everything to her (I did not know until a month before his death) now she wants me to sell the house so I can give her the money, the house is in my name and my husband but she has the title, can the judge force me to sell the house? I can have a mortgage from the bank and that’s what I want, please advise me what to do, thanks (we did not have children and I am a senior).
Tiffany Provence says:
July 28, 2015 at 11:14 PM
Olga – thanks for commenting. I am unclear how she has the “title.” You can email me privately at Tiffany@ProvenceMesservy.com and provide me with additional information including how the home was titled at the time he passed, if his will left you the remaining 50% of the assets, and how much equity was in the home at the time of his death.
Linda brown says:
December 25, 2016 at 5:19 PM
After the 2014 probate laws can my husband leave me $100.00 and I cannot get my elective share
Tiffany Provence says:
December 27, 2016 at 9:24 PM
Although there were significant changes in the S.C. Probate Code in 2014, this was not one of them. A spouse is still entitled to 1/3 of the estate with an elective share claim. This claim can be reduced (or offset) by certain outside transfers. The only way a $100 devise would stop an elective share claim is if the entire value of the husband’s estate were only $300.
Probate Courts deal daily with the issue of “capacity.” When handling Conservatorship and Guardianship cases, they determine whether or not people have the capacity to manage their own affairs. When handling disputes over someone’s last will, they are often asked to determine whether or not someone had the legal capacity to make a will in the first place. So, what exactly is capacity?
Capacity is someone’s ability or power to do, experience or understand something. That being said, this ability changes based on the question at hand. For example, the level of capacity necessary to enter into a contract is higher than the capacity to make a will. In any capacity question, it’s not enough just to ensure the person is of legal age and sound mind; you must have more information.
In South Carolina, the capacity needed to write a will is a lower standard than the capacity to enter into other agreements such as a contract. A Testator (the person making the will) must be of “sound mind” and age 18 (although some exceptions apply to that requirement when executing the will).
Further, in order to prove someone has the capacity to make a will, they only have to show the following:
In general, this is a rather low standard. It’s also important to remember that having dementia, Alzheimer’s or another know mental illness does not preclude someone from meeting this standard. A drug addict can be of sound mind and have capacity so long as they are not under the influence at the time of signing the will. Similarly, people who are eccentric do not necessarily lack capacity. For example, in certain situations leaving your entire estate to your dog may be sane, even if unusual.
If you or a loved one wishes to make a will but is unsure if you have the capacity to do so, it’s always best to consult an attorney. Qualified estate attorneys are trained to interview a client for capacity before drafting the documents and at the time of the execution. Having an attorney involved provides an extra layer of protection down the road should an non-inheriting family member wish to contest the document.
Olga decker says:
July 28, 2015 at 11:09 PM
When my husband made a will in favor of his half sister (we were married for 23 years) he was a bipolar, alcoholic and smoke marijuana everyday, depress seeing a mental doctor for years, does it makes his will right?
Tiffany Provence says:
July 28, 2015 at 11:11 PM
Thanks for the comment. In order to determine if someone had the mental capacity to make a will, you will need more details including who the witnesses were, whether or not he was under the influence of drugs or alcohol at the time of the execution of the will and related information. Someone can use drugs or be diagnosed as mentally ill but still be competent to make a will.