Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or parts, and unless the context otherwise requires, in this Code:
(1) "Application" means a written request to the probate court for an order. An application does not require a summons and is not governed by or subject to the rules of civil procedure adopted for the circuit court.
(2) "Beneficiary", as it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and, as it relates to a charitable trust, includes any person entitled to enforce the trust.
(3) "Child" includes any individual entitled to take as a child under this Code by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
(4) "Claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
(5) "Court" means the court or branch having jurisdiction in matters as provided in this Code.
(6) "Conservator" means a person who is appointed by a court to manage the estate of a protected person.
(7) "Devise", when used as a noun, means a testamentary disposition of real or personal property, including both devise and bequest as formerly used, and when used as a verb, means to dispose of real or personal property by will.
(8) "Devisee" means any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
(9) "Disability" means cause for a protective order as described by Section 62-5-401.
(10) "Distributee" means any person who has received property of a decedent from his personal representative other than as creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(11) "Estate" includes the property of the decedent, trust, or other person whose affairs are subject to this Code as originally constituted and as it exists from time to time during administration.
(12) "Exempt property" means that property of a decedent's estate which is described in Section 62-2-401.
(13) "Expense of administration" includes commissions of personal representatives, fees and disbursements of attorneys, fees of appraisers, and such other expenses that are reasonably incurred in the administration of the estate.
(14) "Fair market value" is the price that property would sell for on the open market that would be agreed on between a willing buyer and a willing seller, with neither being required to act, and both having reasonable knowledge of the relevant facts.
(15) "Fiduciary" includes personal representative, guardian, conservator, and trustee.
(16) "Foreign personal representative" means a personal representative of another jurisdiction.
(17) "Formal proceedings" means actions commenced by the filing of a summons and petition with the probate court and service of the summons and petition upon the interested persons. Formal proceedings are governed by and subject to the rules of civil procedure adopted for circuit courts and other rules of procedure in this title.
(18) "Guardian" means a person appointed by the court as guardian, but excludes one who is a guardian ad litem.
(19) "General power of appointment" means any power that would cause income to be taxed to the fiduciary in his individual capacity under Section 678 of the Internal Revenue Code and any power that would be a general power of appointment, in whole or in part, under Section 2041(a)(2) or 2514(c) of the Internal Revenue Code.
(20) "Heirs" means those persons, including the surviving spouse, who are entitled under the statute of intestate succession to the property of a decedent.
(21) "Incapacitated person" is as defined in Section 62-5-101.
(22) "Informal proceedings" means those commenced by application and conducted without notice to interested persons by the court for probate of a will or appointment of a personal representative. Informal proceedings are not governed by or subject to the rules of civil procedure adopted for the circuit court.
(23) "Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person which may be affected by the proceeding. It also includes persons having priority for appointment as personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(24) "Issue" of a person means all his lineal descendants whether natural or adoptive of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this Code.
(25) "Lease" includes an oil, gas, or other mineral lease.
(26) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(27) "Minor" means a person who is under eighteen years of age, excluding a person under the age of eighteen who is married or emancipated as decreed by the family court.
(28) "Mortgage" means any conveyance, agreement, or arrangement in which real property is used as security.
(29) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of his death.
(30) "Organization" includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal entity.
(31) "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
(32) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
(33) "Personal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.
(34) "Petition" means a complaint as defined in the rules of civil procedure adopted for the circuit court. A petition requires a summons and is governed by and subject to the rules of civil procedure adopted for the circuit court and other rules of procedure in this title.
(35) "Probate estate" means the decedent's property passing under the decedent's will plus the decedent's property passing by intestacy.
(36) "Proceeding" includes action at law and suit in equity.
(37) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(38) "Protected person" is as defined in Section 62-5-101.
(39) "Protective proceeding" is as defined in Section 62-5-101.
(40) "SCACR" means the South Carolina Appellate Court Rules.
(41) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
(42) "Security interest" means any conveyance, agreement, or arrangement in which personal property is used as security.
(43) "Settlement" in reference to a decedent's estate includes the full process of administration, distribution, and closing.
(44) "Special administrator" means a personal representative as described by Sections 62-3-614 through 62-3-618.
(45) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(46) "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
(47) "Successors" means those persons, other than creditors, who are entitled to property of a decedent under his will or this Code.
(48) "Testacy proceeding" means a formal proceeding to establish a will or determine intestacy.
(49) "Trust" includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article 6 (Sections 62-6-101 et seq.), custodial arrangements pursuant to the South Carolina Uniform Gifts to Minors Act, Article 5, Chapter 5, Title 63, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
(50) "Trustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
(51) "VA" means the United States Department of Veterans Affairs or its successor.
(52) "Ward" is as defined in Section 62-5-101.
(53) "Will" includes codicil and any testamentary instrument that merely appoints an executor or revokes or revises another will.
HISTORY: 1986 Act No. 539, Section 1; 1987 Act No. 171, Sections 1, 2; 1990 Act No. 521, Sections 2-7; 1997 Act No. 152, Section 2; 2010 Act No. 244, Section 1, eff June 7, 2010; 2013 Act No. 100, Section 1, eff January 1, 2014; 2016 Act No. 278 (S.777), Section 2, eff June 9, 2016.
Editor's Note
ARTICLE 5 of Title 62 was rewritten by 2017 Act No. 87, Section 5.A, effective January 1, 2019. For Section 62-5-401, referenced in (9), see now, Sections 62-5-402 and 62-5-403.
Effect of Amendment
The 2010 amendment rewrote the definitions of "Application", "Formal proceedings", "Informal proceedings", and "Petition", and added "formal" preceding "proceeding" in the definition of "Testacy proceeding".
The 2013 amendment added subsection (14), definition of "Fair market value"; rewrote subsection (18), definition of "Guardian"; rewrote subsection (32), definition of "Person"; added subsection (35), definition of "Probate estate"; added subsection (40), definition of "SCACR"; rewrote subsection (45), definition of "State"; deleted former subsection (40), definition of "Stepchild"; and renumbered the subsections accordingly.
The 2016 amendment added a definition of "VA" as (51); renumbered "Ward" as (52) and "Will" as (53); and made a nonsubstantive change.