South Carolina's probate laws establish how a person's property gets handled after death. These laws govern everything from what is required to create a valid last will and testament to who inherits property if you die without a will. Probate laws are often very complicated and require the expertise of an experienced probate attorney, so talk to a lawyer in South Carolina if you need legal advice.
One of the primary concerns of South Carolina's probate code is governing the use of last wills and testaments. South Carolina Code of Laws section 62-2-501 states that anyone who is not a minor and who is of sound mind has the right to make a will. The will must generally be made in writing, signed by the creator and signed by at least two competent adult witnesses.
South Carolina residents have no duty to create a last will and testament to govern their estate property. However, if you do not have a will, the state's laws of intestate succession determine how your property is distributed, even if the distribution is contrary to your wishes. For example, South Carolina Code of Laws section 62-2-102 states that if you die leaving behind only a spouse, your spouse receives your entire estate. If you leave behind a child and a spouse, the child gets half and the spouse gets half.
The probate process starts when a person dies and the estate is submitted to the South Carolina probate court in the county in which the decedent lived. The probate court will then appoint a personal representative, also called an executor, to oversee the estate process. The representative is given letters testamentary, legal documents that give him the power to take all estate property into account, use it to pay estate debts and then give the remaining to any heirs.
Other Probate Issues
South Carolina's probate laws also cover other issues, such as guardianships and trusts. A guardianship is a legal relationship between a person or organization, called a guardian, and an incompetent individual, a ward, in which the guardian is responsible for ensuring the ward's needs are looked after. A probate court must award a guardianship, and can do so whenever a person with a disability needs protection. A trust, on the other hand, is a legal entity that a person can create to perform a number of tasks, such as ensuring certain property is removed from an estate prior to death.
Roger Thorne is an attorney who began freelance writing in 2003. He has written for publications ranging from "MotorHome" magazine to "Cruising World." Thorne specializes in writing for law firms, Web sites, and professionals. He has a Juris Doctor from the University of Kansas.