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. In reality, what you are really trying to avoid is taxes and creditors, not “probate,” so don’t fear the court. In fact, as Probate Court Judges are the only elected members of the judiciary in the state, they 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. 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, S.C. Code determines who has priority to handle the decedent’s affairs. In general, priority when no will exists is as follows:

• Spouse of the decedent
• If there is no spouse, children of the decedent (minor children present unique issues)
• If no spouse or children, other heirs of the decedent
• After 45 days, a creditor of the estate may ask to be appointed

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. It 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 your 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:

• Despite rumors to the contrary, common law marriage does still exist in South Carolina.
• Yes, it’s true. You can marry your cousin in South Carolina.
• There is no minimum time between a divorce and remarriage; however, some counties will ask for a copy of the divorce decree if it’s been less than 1 year.
• Blood test are not required.
• You can be married by a notary or clergy member.
• While the Probate Court may issue you the license to get married, it is the Family Court’s responsibility to help you get a divorce!