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How Does the South Carolina Probate Court Work?

The South Carolina Probate Court is a trial court with original jurisdiction over cases involving wills, estates, and trusts. It is established by the South Carolina Code of Laws Unannotated. The court supervises the estates of incapacitated people and decides on the citizens’ involuntary commitments to supervision (mental incapacity and alcohol dependency).

The word probate is used to describe the legal procedure that manages the liabilities and assets left behind by a recently deceased individual. The Probate Court generally functions to ensure that a dead person’s debts are fully paid and the assets allocated to the proper beneficiaries.

When an individual dies, the South Carolina probate court determines if that individual left behind a will. If so, the probate court checks into the validity of the will by itself. Where the will is valid, the court appoints an executor to allocate the deceased’s assets to the correct beneficiaries.

On the other hand, if the will is not valid or it is contested, the probate court reviews the case and decides the matter. However, when a person dies without a will, the probate court allocates the person’s assets to the next of kin. This is according to the State’s law of intestate succession.

The South Carolina Probate court has exclusive original jurisdiction over all cases relating to Estates of decedents; Trusts; protection of incapacitated minors and adults; issuance of marriage licenses; involuntary commitment for mental illness, drug addiction, alcoholism, and active pulmonary tuberculosis; as well as wrongful death and survival action settlements. Probate Courts share some jurisdiction over some types of cases with the South Carolina Circuit and Family Courts.

With the Circuit Court, the Probate Court shares jurisdiction over cases such as those involving a power of attorney and cases asking for the approval of settlements in wrongful death cases. Both courts also share jurisdiction over cases requesting approval of claims settlements below $10,000 involving an incapacitated person or minor.

In certain circumstances, the Circuit Court exercises jurisdiction over some types of probate cases. These cases include formal proceedings for the appointment of personal representatives and probate of wills, the construction of wills, trusts, disputes over title to real estate, jury trials when the amount in dispute is more than $5,000, and cases connected to the South Carolina Uniform Gifts to Minors Act.

Nonetheless, if part of a probate case is moved to Circuit Court, the Probate Court still generally has jurisdiction over the remaining parts of the case. The Probate Court and the Family Court also share jurisdiction over specific types of cases. This includes paternity cases, common-law marriage, and certain marital agreements. However, the shared jurisdiction is only to the extent that the cases are associated with pending Probate Court cases involving trusts, estates, guardianships, or conservatorships.

The judges of the South Carolina probate court are elected by the qualified electors of each respective county for a term of four years. According to the South Carolina Code of Laws Unannotated, to be eligible to serve as a judge in the South Carolina Probate Court, a person must:

  • Be a US citizen
  • Be a qualified elector of the relevant county.
  • Have either a Bachelor’s degree or four years of experience working in the office of a probate judge
  • Be older than 21 years of age.

In addition to the South Carolina judge of probate, every county has one or more associate judges of probate appointed by the judge of probate to serve the same term. The associate probate judges have jurisdiction over cases assigned by the South Carolina probate court judge within the jurisdiction of the court.

Where a probate judge cannot complete a term, the vacancy may be filled by the Governor on the senate’s advice and consent. The appointment is to last only for the unexpired term. However, if the unexpired term exceeds three years, the appointment lasts until the next general election.

In the event of such vacancy, the Circuit Court Clerk of that county is to take charge of the probate judge’s office. Note, the Clerk here is subject to the same liabilities as a Probate Judge until the vacancy is occupied by the Governor’s appointment or an election.

A judge of the South Carolina Probate Court, while in office, may administer oaths and take depositions, the probate of deeds, affidavits, and other instruments as fully and effectively as the clerks and notaries public do. Also, the fees for doing so are the same as those authorized by law to carry out such services.

A South Carolina Probate judge may be replaced or removed in any of these ways:

  • Dismissal, retirement, transfer to inactive status, or removal by the South Carolina supreme court, on the recommendation of the commission on judicial conduct.
  • Impeachment by a two-thirds vote of the house of representatives followed by a conviction by two-thirds of the senate
  • Removal by the Governor, after an address by two-thirds of each house of the General Assembly.

Interested persons may find South Carolina probate court records by visiting the Clerk of the Probate Court’s Office in the county where the case was handled. Some counties also have an online database on the official website where users may search for probate cases. An example of such a county is Greenville with its Probate Records System.

Other counties like York County and Colleton County redirect interested persons to the South Carolina probate search website.

Each South Carolina county has a probate court with a judge presiding over it. To find the location of a South Carolina probate court, visit the South Carolina Judicial Branch site. Click on the highlighted website of the relevant county beside the name of the probate judge. Each county’s website provides information on the location and contact information of the probate court.

A case at a South Carolina probate court begins with a petition or complaint to the probate judge, briefly stating the facts or grounds of the application. A summons is then issued to the defendants in such proceedings. It takes a minimum of eight months to probate in South Carolina as the law mandates the case to remain open to enable creditors to file claims. However, other factors may determine how long a probate case may last beyond a minimum of eight months. These are:

  • Intestate estate: The deceased did not leave behind a will. In such cases, the probate court must appoint a personal representative to administer the deceased’s estate. Also, when the personal representative is unfamiliar with the estate, it may delay locating assets.
  • Finding the heirs: The legal heirs of the estate must be determined and located.
  • Liquidity: The assets of the deceased may need to be sold to pay the creditors. The sale of assets may delay the probate case by months, even years. Creditors who litigate to receive payment also cause delays in the process.
  • Litigation: If the will is contested, the probate process may be delayed. Also, creditor disputes that lead to litigation may prolong the probate process.
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