As a probate attorney, located in Summerville, South Carolina, I know that understanding probate words and terms is not easy for non-legal professionals (and even for some legal professionals). Most forms are written in legalese, making the process frustrating. In this article, I will review common probate terms that will help you navigate the probate process in South Carolina.
What are Common Probate Terms in South Carolina?
Administrator – A probate administrator is appointed by a court to probate an estate when the will does not name an executor. However, family members and other interested parties may petition the court to be appointed as an administrator.
Beneficiary – A beneficiary is a person, business, institution, trustee, or an estate which receives benefits under a will. A person who inherits under a will is commonly called the beneficiary. This probate word can also be found in living trusts, transfer on death deeds and pay-on-death instruments.
Bond – A probate bond is essentially the same as an estate bond, executor bond, or fiduciary bond. When a person dies, usually a will is left. The probate bond, purchased by the will executor, ensures that the wishes of the deceased as expressed in the will are carried out ethically and honestly. In cases of fraud, the probate bond will reimburse those affected. This may also be required of those taking care of someone who is disabled and cannot care for his or her own assets. A probate bond makes sure that the wishes of the deceased as reflected in his/her will are carried out ethically and honestly.
Decedent – The decedent refers to a person who has passed away in which his/her will (or estate) is to be probated.
Devise – A devise refers to a gift of real property (also include personal property) by the last will and testament of the decedent.
Executor – An executor is the legal personal representative of the deceased person’s estate. The executor is responsible for winding up the deceased financial affairs. The executor must act with the highest degree of honesty, impartiality, and diligence. The executor has the opportunity to decline his/her role. This probate word is often referenced in a person’s Will or estate planning documents.
Gift & Estate Tax – A gift and estate tax is a tax imposed on the transference of property. The estate’s executor or administrator must pay the tax using assets from the estate. Estate and gift taxes are imposed by the federal government on the transfer of property from a person to another, either at death (estate tax) or while the giver of the property is still alive (gift tax).
Heir – An heir refers to a person who receives an interest in the ownership of personal or real property upon the decedent’s death. An heir is determined through intestate succession. An heir only receives property from the decedent’s estate if there is no valid will. This probate word is different from a “beneficiary,” although both receive property of a decedent’s estate.
Letters – This probate word is one of the most confusing in that its meaning is nothing similar with the common understanding of the word. First, it is not pertaining to a letter of any type. The term “Letters” refers to the legal authority granted by a court in a probate proceeding. When “Letters” are issued, the court has granted a person permission to officially act as the personal representative of the probate estate. “Letters” refers to a document that serves as proof of your authority which can be presented to banks or other agencies as needed. Letters are only issued in a full probate proceeding. Keep in mind that banks will often tell a beneficiary or heir that they need “Letters” when, in fact, there may be other less expensive options to settle an estate.
Personal Property – Personal property refers to tangible and the intangible assets of the decedent which is passed on to his/her beneficiaries or heirs. Personal property is “movable” property such as cars, furniture, and bank accounts. Real estate is not personal property but rather real property.
Probate Referee – This is another one of those strange words in probate law. The probate referee’s job is nothing like a referee in sports, in fact, they actually do not “referee” anything. Rather, the role of the probate referee is to appraise the property of an estate when a South Carolina probate is required. The probate referee is provided detailed information about the decedent’s assets and debts in a document called “Inventory and Appraisal.” They then officially value all non-cash assets, entering these values on the Inventory which is later filed with the probate court.
Real Property – Real property refers to real estate. This includes all land and structures which are firmly attached and integrated on the land.
Simplified Probate – South Carolina offers some probate shortcuts for “small estates.” These procedures make it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using simplified probate procedures or without any probate court proceedings at all — by using an affidavit. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.
You can use the simplified small estate process in South Carolina if the value of property passing by will or under state law, less liens and encumbrances, is $10,000 or less (not counting exempt property, funeral expenses, and medical expenses of last illness). S.C. Code Ann. § 62-3-1203.
Testamentary – Testamentary instrument refers to a last testament and will. This probate word can often be found in estate planning documents. A Letter of Testamentary—sometimes called a “Letter of Administration” or “Letter of Representation”—is a document granted by a local court. The document simply states that you are the legal executor of a particular estate and that you have the ability to act as such.
Admittedly, the probate process can be rather intimidating. Aside from unfamiliar terminology, there is myriad forms and procedures that must be followed. Contact the Watts Law Firm and allow me to walk you through probate the procedures and terms of your case.