Common Probate Terms | A Helpful Glossary

GLOSSARY OF COMMON TERMS IN PROBATE

 

Beneficiary– a person who has any present or future interest, vested or contingent in a trust. Also includes any person entitled to enforce a charitable trust.

 

Ceremonial marriage– also known as statutory marriages; those marriages entered in compliance with S.C. Code Ann. § 20-1-10 et seq. Ceremonial marriage requires an application for a license, a 24 hour waiting period between the application and issuance of the license, performance of a marriage ceremony by an authorized official, a lack of impediments, and consummation by cohabitation.

 

Child– any individual entitled to take as a child by intestate succession from a parent but excludes individuals who are only stepchildren, foster children, grandchildren or any other more remote descendant

 

Common-law marriage– a form of marriage where the parties did not engage in a ceremonial (or statutory) marriage, but which meets certain requirements. The existence of a common law marriage must be determined by either the Family Court or Probate Court. A common law marriage has the same rights and obligations as a ceremonial or statutory marriage. The requirements for a common law marriage are an intention evidencing an actual and mutual agreement to live publicly together as husband and wife, consummation by cohabitation, and a lack of impediments.

 

Conservator– a person appointed by a court to manage the estate of a protected person. A conservator is appointed after a formal proceeding to determine if a person is an incapacitated person, or to secure the administration of the estates of an incapacitated person or minor.

 

Devise– noun- a testamentary disposition of real or personal property; verb- to dispose of real or personal property by will

 

Devisee– any person designated to receive property in a will.

 

Elective share– the right of a surviving spouse to elect to take one third of the decedent’s probate estate, to be satisfied from all benefits provided to the spouse whether under or outside the will.

 

Executor– also known as Personal Representative.

 

Guardian ad litem– literally, “guardian for litigation”; an attorney appointed to represent the alleged incapacitated in a proceeding for appointment of incapacity and be the eyes and ears of the court.

 

Guardian– a person who has qualified as a guardian of an incapacitated person pursuant to a testamentary or court appointment. A guardian is appointed after a formal proceeding to determine if a person is an incapacitated person.

 

Heir– a person entitled under the laws of intestate succession to receive the property of the decedent.

 

Incapacitated person– a person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property.

 

Intestate– someone who died without a valid will.

 

Issue– all of a person’s lineal descendants whether natural or adopted where a parent child relationship is determined at each generation.

 

Parent– any person who is entitled to take or would be entitled to take as a parent under the laws of intestate succession.

 

Per stirpes– a different word for the term “by representation”. By representation is a way of counting heads to find heirs. Under South Carolina’s version of by representation shares are determined at the first degree of kinship where a living person is found. One share is set aside for each living person, and one for each predeceased person who was survived by issue.

 

Personal representative- includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.

 

Power of attorney– a writing by a principal designating another person to act as his attorney in fact to act on their behalf. The authority of the attorney in fact to act on behalf of the principal must be set forth in the power and may relate to any act, power, duty, right or obligation which the principal has or may acquire relating to the principal or any matter, transaction, or property. The attorney in fact has a fiduciary relationship with the principal and is accountable and responsible as a fiduciary.

 

Special administrator– a personal representative appointed by the court when necessary:

  • to protect the estate prior to the appointment of a general personal representative or successor personal representative after a prior personal representative’s appointment has been terminated;
  • or a creditor of the estate to institute a proceeding regarding a claim against the estate under certain circumstances as provided in 62-3-803;
  • in a formal action, to preserve the estate prior to the appointment of a personal administrator; or
  • in a formal action, to secure proper administration of the estate (or act on behalf of the estate) where the general personal representative cannot or should not act (such as in the case of a conflict of interest).

 

Spouse– the surviving spouse under a valid ceremonial or common-law marriage.

 

Testate– dying with a valid Will.

 

Trust– a form of property ownership where legal and equitable title is split. In a trust, a trustee holds the legal title to the property for the use and enjoyment of the trust beneficiaries. A trust under the South Carolina Probate Code refers to an express trust, but not a constructive trust, resulting trust or other special types of trust specifically excluded by statute.

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