South Carolina Probate Lawyer » family court

Who will be the Personal Representative? (Part II)

Tiffany Provence — Mon, 14 Dec 2009 14:44:49 +0000

When people pass away without wills, the determination of who can be appointed as their Personal Representative (P.R. for short) can get sticky. Here are some of the most common issues that arise.

Minor Children – If the decedent is not legally married at death (whether by divorce, death or perhaps they had the common sense never to get married in the first place), their children have the right to serve as P.R. But, what if their children are minors? Obviously, a minor is not “fit” to serve (minimum age is 18) and therefore the S.C. Probate Code determines who is next in line. Often times in these situations, people assume that it would be the decedent’s parents; however, that is not the case.

In South Carolina, if you leave behind no will and have minor children, before YOUR parents are entitled to serve, the appointment will go to THEIR other parent or guardian. That’s right, your ex-spouse (or baby mama as the case may be) will suddenly be in charge of everything you own. And, it doesn’t matter that they have told 100 people they hate you or that they took you to the cleaners in family court, unless it can be shown that they are unfit to serve due to a criminal history, incarceration, incapacity, etc. then they get the job. The bottom line is that since you didn’t choose someone in your will, the law assumes that the best person to serve is the legal guardian of your primary heir. This scenario gets even more entertaining when you have children with more than one person so that the court must now referee between the two. Enter Jerry Springer . . .

Separation – Because South Carolina does not have “no fault” divorce, many couples have to lived separated for 1 year in order to qualify for a divorce. To avoid expenses and complications, many of them don’t part ways through legal documentation and instead simply “split up.” While this may save you money in family court, the consequences can be disastrous in probate court. The S.C. Probate Code is clear in Section 62-2-802 what is required before a spouse will loose their entitlement to be considered a “spouse.” Essentially, one of the following has to have occurred:

A divorce or annulment. And, it isn’t even enough for a couple to “think” they are divorced. The Judge has to actually have signed the decree. In a landmark case titled Hatchell-Freeman v. Freeman a wife was actually entitled to serve as P.R. and entitled to receive a share of the estate even though they had attended the final hearing on their divorce (simply because the Judge had not signed the decree).

A decree of separate maintenance or property settlement agreement acknowledged by the court which which terminates these rights.

Adultery, abandonment or other acts of the spouse are not relevant to the Probate Court under these sections. So, the bottom line is that if you find yourself in this situation you need legal help and a properly drafted will to ensure your ex isn’t in control against your wishes.

Common Law Marriage – We will discuss common law marriage in greater detail in a future post but for purposes of this discussion, just know that common law marriage must be affirmatively proven in the court and until that time the question of who has priority to serve as the Personal Representative may be difficult to answer. Because a spouse has priority to serve, the question is – who serves while it is determined whether or not someone is the spouse? In this case, the court may rely on a Special Administrator to handle the estate until the marriage issue can be resolved. Or, in a perfect world, the potential spouse and other heirs would agree by consent as to who will serve in the interim.

There is no shortage of court hearing to determine who will serve as Personal Representative. And, even after the appropriate person is appointed, parties may find themselves litigating whether or not that person is doing the job properly. In the end, the only way to protect your assets from these disputes is to make these choices before you go!

Probate Court’s role in marriage

Tiffany Provence — Thu, 03 Dec 2009 17:10:40 +0000

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!

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Introduction

Tiffany Provence — Mon, 30 Nov 2009 08:00:28 +0000

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 outside of Charleston, S.C. in Summerville. 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.

And so, why would you need to know anything about probate law? 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.

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.

Dorchester County's New Courthouse

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