What is probate?

When I use the term probate, 90% of the time I am referring to a couple of situations.
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First, probate can mean the system by which people’s affairs get taken care of after they die. Their creditors need to be paid and their stuff needs to get distributed to their heirs or devisees. The personal representative is in charge of making sure this happens.

The personal representative is responsible for things such as collecting assets, protecting assets, paying creditors, and distributing things to the heirs at the end. It involves a number of forms, notices, and disclosures. Sometimes the system is easy, sometimes is complicated. It depends on a lot of things.

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Second, probate can mean the process of establishing guardianships or conservatorships. I will go over those terms in a later post. However, in a nutshell, when someone becomes incapacitated such that they can’t handle their own affairs, and they don’t have a power of attorney or anything like that, someone else may need to take over. That someone else (usually a spouse or a family member)  may petition to make either personal and health care decisions (guardianship) or handle financial affairs (conservatorship) or both for the incapacitated individual. Once again, this involves forms, disclosures, and notices.

In South Carolina, probate matters are found in the probate court. The probate judge is elected by the people in his or her County. He or she has a number of clerks that work for them. The probate court is responsible for a number of other things, including the above. They also handle marriage licenses and other things. But when I talk about probate, I’m usually talking about honoring a deceased person’s wishes and handling their estate, establishing a guardianship, or establishing a conservatorship.

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