Restraint of a Personal Representative Pending Removal

May 2 2011 by Tiffany Provence in Advanced Estate Issues |10 Comments

A recent comment asked a very good question – essentially what happens to the Personal Representative after someone has asked the court that they be removed, but before a hearing has actually been held on the matter? The answer to this question can be found in South Carolina Code §62-3-611 which states in relevant part, “after receipt of notice of removal proceedings, the personal representative shall not act (emphasis added) except to account, to correct maladministration, or preserve the estate.” In reading this statute, it seems clear that upon service of pleadings to remove a Personal Representative, the P.R. really shouldn’t be acting as P.R. except in the specific instances provided. That being said, a large majority of Personal Representatives as not represented by counsel or their counsel is unaware of this language and therefore I always recommend the following:

First, in your Petition to Remove, clearly state that you want the court to restrain the Personal Representative from acting under this section. In many courts, the court itself will send a standard Order Restraining Personal Representative back with your pleadings so that you can serve the Personal Representative with the same.

Second, if you have serious concerns or need to ensure that an act is stopped immediately (for example a closing on a piece of real property or a disbursement that is about to be made), I also suggest you include in your Petition to Remove a specific request under §62-3-607 which asks the court to restrain the Personal Representative and include in parties anyone involved in the transaction of concern. This statute states:

Order restraining personal representative.

(a) Upon application of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.

(b) The matter shall be set for hearing within ten days or at such other times as the parties may agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition.

Including this request in your Petition to Remove Personal Representative not only clearly indicates to the court that you want the Personal Representative fully restrained, but also gets you an appearance before the court quickly (ten days according to statute). The initial hearing will likely only be on the restraint but will give you an opportunity to express to the court your concerns.

If your petitions are not clear in these requests, it is highly likely that the Personal Representative will continue about their daily business. Even worse, they could respond to the request for their removal by believing that if they are going to be removed, they might as well go ahead and do what they want before the formal hearing. A good probate attorney will always use these sections to ensure there is no confusion as to what should and should not occur between the date of the filing of the removal action and the appearance in court.

Removal of the Personal Representative – The Basics

October 1 2010 by Tiffany Provence in Probate 101 |6 Comments

It’s not uncommon for one or more of the heirs or devisees of an estate to be unhappy with the Personal Representative(s). Sometimes, they have a very good reason to be discontent, but on other occasions I find that decades of family disharmony, jealousy and miscommunication are simply rearing their head again after someone passes away.

If you are not satisfied with the Personal Representative of an estate in which you have an interest, there is something you can do about it so long as you have “cause” for your concern – simply disliking the person or thinking they might be unfair in the future is not enough. Under South Carolina law, a Personal Representative can be removed or restrained by a Petition of anyone with an interest in the estate (this generally means you are an heir under the laws of intestacy, a devisee under the will, or a creditor of the decedent). In order to succeed in this action, you must be able to show the Probate Court that there is legal cause for the restraint or removal. A good probate attorney can listen to the facts and determine if cause exists.

The S. C. Probate Code defines cause as follows: “Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.”

This blog contains several posts that discuss the duties of a Personal Representative and more will follow. Reviewing these duties may help you determine if the Personal Representative has violated them in some way. During my years as the Probate Court Judge, I heard hundreds of actions to remove a Personal Representative. Below are examples of scenarios where I found that cause DID exist:

-       Personal Representative commingled funds by putting all of the estate money in his/her bank account with no records to separate the two.

-       In disbursing the personal effects, Personal Representative (also an heir), gave herself first choice of all items and refused to inventory or appraise items to ensure the distribution was fair.

-       After multiple written requests, Personal Representative continued to fail to inventory the assets of the estate or provide information to the heirs.

-       Personal Representative filed paperwork with the court indicating there were only three (3) heirs of the estate. Testimony was presented that proved she was aware of two (2) additional heirs whom she did not get along with.

-       Personal Representative donated all decedent’s personal effects to Goodwill without providing interested parties an opportunity to receive items of sentimental value.

-       Personal Representative hired her own husband as attorney for the estate and paid him fees significantly above the standard and reasonable fees for his services.

-       Personal Representative falsified the Information to Heirs and Devisees form to the court and attempting to keep the administration of the estate a secret from others.

These are obviously just a few examples. Unfortunately, Personal Representatives often misinterpret their “power” to mean that they are the boss of the estate, when in essence they are serving as an employee to all interested parties. Sometimes, a simple written letter from an interested party will get the Personal Representative back on track. Other times, more extreme measures are necessary. If you have an interest in an estate and feel the Personal Representative is not performing his/her duties as required, consider consulting with an attorney on whether he/she might be restrained or removed. To be successful in the courtroom, legal representation is almost always necessary.

The Omitted Spouse

September 27 2010 by Tiffany Provence in Advanced Estate Issues |1 Comment

Many people never create a valid last will and often those that do then forget to update them. Luckily, South Carolina law provides a remedy for spouses who marry and later learn that their husband or wife had a will in place before the marriage that was never updated.

South Carolina Code §62-2-301 states in relevant part that if a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will. This means the omitted spouse will receive a minimum of fifty percent (50%) of the estate if the decedent had children or up to one hundred percent (100%) if the decedent didn’t have children. This right should not be confused with the elective share, which applies when the decedent drafted the will after the marriage and intentionally excluded the spouse in whole or in part.

As with every rule of law, there are some exceptions. An omitted spouse is not entitled to this share if it appears from the will that the omission was intentional. An example may be where the will itself states that the decedent does not intend to provide for any future spouse or acknowledges an intent to leave everything to charity regardless of his marital status at the time of death. The omitted spouse may also have a problem if the testator provided for the spouse by transfer outside the will and it can be proven that the transfer was in lieu of a gift in the will. An example includes the deceased spouse providing for the spouse during life but having a valid prenuptial agreement whereby he/she agrees not to make a claim against the decedent’s estate.

Due to South Carolina’s continued acceptance of common law marriage, it is important to note that this right extends to those who successfully prove a common law marriage that was entered into after to the execution of the decedent’s last will. If the evidence indicates that the common law marriage was entered into before the decedent’s last will, then the spouse will be limited to the elective share. A wise attorney when dealing with a common law marriage will plead both omitted spouse and elective share at the same time.

Similar to the elective share, a spouse who was unintentionally omitted from the last will and was not otherwise provided for by a separate transfer should take immediate action. A petition for such share must be filed within eight months after the date of death or within six months after the probate of the decedent’s will, whichever limitation last expires.

The Elective Share

September 8 2010 by Tiffany Provence in Advanced Estate Issues |1 Comment

In South Carolina, it is perfectly acceptable to disinherit your children. Spouses; however, have certain rights which may make disinheriting them difficult, if not impossible, unless you have planned ahead.

South Carolina Code §62-2-201 grants spouses the right in South Carolina to claim their elective share if a will executed during their marriage leaves them with less than the required share. This right is entirely separate from the omitted spouse claim which is reserved for spouses whose partner wrote the will before they were married and never updated. s a result of this right, the spouse disinherited in the will can make a claim for a share of one-third (1/3) of the estate. This amount is determined by the value of the estate after the enforceable debts and costs of administration have been paid. Keep in mind that this one-third is not on top of (or in addition to) anything they did receive. For example, if decedent’s spouse was left $10,000 in the will but this was not equal to one-third of of the estate, when they file their elective share they will receive the one-third minus the $10,000 gift they already received.

Elective shares generally only apply in situations where there is a will. In estates where no will exists (intestate estates), the law of intestacy apply and the spouse’s share is determined by a separate code (see Am I An Heir – Part I).

A spouse who feels they are entitled to more than they were left under the decedent’s last will should not sit back and wait to see what happens. A petition for the elective share must be filed within eight months after the date of decedent’s death or within six months after the probate of the decedent’s will, whichever limitation expires last. It’s also wise to remember that an elective share can only be filed by a spouse (or his/her agent) during the spouse’s life. This can be important to remember if you represent or are related to a spouse who is also unwell or of advanced age. Elective shares can be tricky and the other devisees in the decedent’s last will are sure to look for any loophole to avoid paying. To make sure that your petition is properly filed, that proper notice is given to all parties, and that your share is fairly calculated, legal representation is essential.

Lastly, it is possible to waive your elective share by agreement. Examples include signing a prenuptial or post-nuptial agreement in which you agree not to make a claim or take a share of the estate. Another common example is seen in Family Court when the parties, prior to their divorce, enter an agreement after full financial disclosure which includes language stating they waive any rights to the other parties estate. Prior to waiving your rights, you should also have an attorney review the document and ensure you understand exactly what rights you may be giving up.

Am I An Heir? Part II – Decedent had no spouse or children. Now what?

August 22 2010 by Tiffany Provence in Probate 101 |No Comments

While the majority of estates where there is no will are handled by the first portion of S.C. Code §62-2-103, there are situations where there are no takers and we must go further to find an heir. A common example is the death of a minor child.

S.C. Code §62-2-103, in relevant part, states the following:

(2) if there is no surviving issue (children or children of children), to his parent or parents equally;

(3) if there is no surviving issue or parent, to the issue of the parents (siblings) or either of them by representation;

(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents (aunts/uncles), half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents(aunts/uncles) if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;

In our example of a child fatality, this means that if the parents are living, they would equally share the estate by each receiving 50%. If; however, only one parent was alive, that parent would take the entire 100% of the estate assets. While this rule seems simple, imagine the heartburn it causes for a single parent when the absentee parent suddenly steps in to take his or her share. Since a minor child can’t write a will, this is a common occurrence. Some people dismiss the example assuming that minors rarely own assets; however, anyone with any experience in Probate Court can assure you that some of the largest jury verdicts in personal injury and product liability cases pass to children (or their estates) who are injured or killed due to the fault of someone else. Single parents in this situation should immediately seek legal counsel to determine what, if anything, might be done to prevent the absentee parent from receiving under S.C. Code §62-2-114.

If there are no surviving parents, then the issue (children) of the surviving parents (which would be the siblings of the decedent), would share equally. Under S.C. Code §62-2-107, this would include half-siblings of the decedent as they are receiving through their respective parent. Again, all the siblings would share equally and if there were a sibling who was deceased, his or her share would pass to his or her children by representation. If the sibling had no children, that share would be re-divided amongst the siblings who were taking under this statute.

The next step is as far as we will go in this example as it’s extremely rare and would again only apply if the decedent had no spouse, no children (including grandchildren, great-grandchildren, etc.), no parents, and no siblings or children of siblings (nieces/nephews). In that situation, the next taker would be the grandparents and the estate would be divided equally between the maternal and paternal sides. Aunts and uncles would step in if the grandparent(s) were deceased. Children of aunts/uncles would also be eligible if their parent was deceased.

Although the statute continues, it’s safe to say that the majority of estates without a will are determined in the first few sections. While the statute can be difficult to read, the law of intestacy is actually very straightforward and easily applied once you understand the basic principles. If you have any question as to whether or not you qualify as an heir or what share you will receive, seek a qualified probate attorney to assist you during a consultation.

Am I An Heir? Part I – Share of spouse and children

July 28 2010 by Tiffany Provence in Probate 101 |1 Comment

It’s human nature after the death of someone to be curious as to whether or not you might be an heir to their estate. But, before you quit your day job and rely on living off of an inheritance, you need to know the actual likelihood of you receiving anything at all.

The first question that must be asked is whether or not the decedent had a valid will? If so, that document will control who receives property from his or her estate. Even if you are the next of kin, a valid will can remove your rights to receive and give the property to someone else instead. The only party that has the right to receive, even if disinherited in a will, is the surviving spouse. We will cover that right in a future post on the elective share. If the will leaves you nothing and you are not the surviving spouse, you will only receive if you or another interested party proves the will to be invalid.

If there is no will, property passes to the intestate heirs through the law as determined by the S.C. Code in  §62-2-102 and §62-2-103. The statues read as follows:

SECTION 62-2-102. Share of the spouse.

The intestate share of the surviving spouse is:

(1) if there is no surviving issue (children) of the decedent, the entire intestate estate;

(2) if there are surviving issue (children), one-half of the intestate estate.

So, this essentially means that if you were married to the decedent and the decedent had NO children, you will receive 100% of his or her estate. Remember, this does not mean that he/she had no children with YOU, this means the decedent had no children at all, with any person, whether biological or adopted. While this statue clearly establishes the rights of the spouse, the following statute, in relevant part, will be of interest to anyone else.

SECTION 62-2-103. Share of heirs other than surviving spouse.

The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:

(1) to the issue (children) of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;

Although only a small portion of the statues, this covers the majority of heirs. By combining §62-2-102 and §62-2-103, you can determine your rights as follows:

SURVIVING SPOUSE AND NO CHILDREN – Surviving spouse will take 100% of the assets of the estate.

SURVIVING SPOUSE WITH CHILDREN – Surviving spouse will take 50% of the assets of the estate. The remaining 50% will be divided equally among the children of the decedent, regardless of whether or not they are also children of the surviving spouse. So, if there are two (2) children, they would each get 25%. If there were five (5) children, they would each get 10%. Remember that to be considered a child for the purposes of this statute, you must be a child of the decedent by birth or adoption. Step-children of the decedent are not treated as children under this section. Furthermore, illegitimate children may have to prove their paternity to receive.

CHILDREN BUT NO SURVIVING SPOUSE – If there is no surviving spouse, the children of the decedent will share equally in the estate such that if there are two (2) children they would each receive 50% for a combined 100% of the estate assets.

An important point to remember is that only the spouse must survive in order to be an heir. If a child of the decedent passes away, their children will stand in their shoes and receive their share by representation. For example, if decedent has a wife and four adult children, one of whom has passed away but left behind a child, the wife will take 50% of the estate assets, each of the living adult children will take their 12.5% and the child of the deceased child (grandchild to the decedent) will take the 12.5% that belonged to his/her parent.

And lastly, before planning how you will spend your share, remember that you only receive after the debts of the estate have been paid or resolved. In today’s economy, there are many estates which are left with very little to pass down.

If the decedent had no surviving spouse, children, or children of children (grandchildren), then move on to Am I An Heir – Part II to see if you might still receive.

Want to be a Probate Judge?

May 19 2010 by Tiffany Provence in Uncategorized |3 Comments

Never in a million years would I have thought this to be a topic of interest; however, I was recently notified by my blog statistics that almost 20 people per month land on this site because they are trying to find out what is required to be a Probate Judge in South Carolina. So, for those random searchers out there . . . this one is for you.

The most common misconception about South Carolina Probate Judges is that they are all lawyers. While many of them are, an equal number of our Probate Judges are not. In South Carolina, Code Section 14-23-1040 detail the requirements to be a Probate Judge as follows:

  1. You must be a U.S. citizen and a resident of South Carolina.
  2. You must be twenty-one (21) years of age.
  3. You must be a “qualified elector” in the County where you intend to be a Judge (in other words, you must be a resident of that county).
  4. You must have a four (4) years bachelor’s degree OR four (4) years experience as an employee in the Probate Court.

The U.S. Department of Justice has not approved the requirement and therefore it’s technically unenforceable. So, reading these qualifications (espececially removing the education component), it would seem that a vast majority of people could become Probate Judges; however, the biggest issue is that Probate Judges in South Carolina are popularly elected. And, despite the fact that our legislators have not seen fit to increase the qualifications required, the general public usually applies some degree of common sense when going to vote (note I said usually). This means that candidates will need public support, campaign funding and plenty of yards signs. The filing fee to run varies by county but in many it’s as much as $3500 just to have your name on the ballet. And, for the most part, the public will vote for someone who is either an attorney or who has experience in the Probate Court, Clerk of Court, or related offices. In fact, some of our best Judges in the state are non-lawyers who worked their way up in the courts.

Probate Judges are county-wide elected positions which means there is one per county (46 in the state as a whole). Currently, Probate Judges do have to “declare” a party (meaning they run as Republicans, Democrats or Independents). Probate Judges are the only elected judiciary position in the state of South Carolina and are bound by very strict ethical rules when running for this position. They run every four (4) years and are allowed unlimited terms.

Besides the minimal qualifications and ability to get elected, there are some traits that are also required to actually perform the function of Probate Judge (and get re-elected). You must be very public service oriented (low pay, lots of constituent service), have incredible patience, and be capable of reading, researching and understanding the law in the areas of probate, guardianships, conservatorships and commitments. This isn’t your “typical” judicial position and a quick look at the biographies and backgrounds of our state’s Judges will show you that while almost anyone technically qualifies to run for Probate Judge, it takes a certain temperament to truly get the job done.

Personal Representative’s Duties: Duty to Inventory Assets

May 9 2010 by Tiffany Provence in Probate 101 |3 Comments

Once serving as the Personal Representative, it will be necessary to take an inventory of all assets owned by the decedent at the time of his or her death. These items have to be recorded on the state approved form 350 PC (located here).

Before attempting the paperwork, it’s essentially that the Personal Representative follow some general guidelines. South Carolina Code Section 62-3-709 explains that “every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration.” In essence, this means it is the responsibility for the Personal Representative to collect the assets UNLESS they are in the possession of the person who will ultimately receive them.

As you might imagine, this duty causes a great deal of friction between Personal Representatives and heirs. Imagine that your husband passes away and that your step-son (his son) is the Personal Representative. You could potentially return home to find ½ of your home furnishings gone because the Personal Representative “took possession” of them to administer the estate. Again, Personal Representatives should walk a fine line between performing their duty and using their powers unwisely. Meanwhile, heirs who are in possession of property belonging to a decedent must cooperate in ensuring that the Personal Representative is aware of the properties location.

Once the Personal Representative has a general grasp on the decedent’s assets, he must list them according to the type of asset and include information about any joint owners. Before attempting the paperwork, a good Personal Representative can prevent a migraine by making a list and collecting the information as follows:

REAL PROPERTY – You will need a copy of the deed to determine who the exact owners are and whether or not the property is held jointly, or jointly with a right of survivorship. You will also need a value for the inventory. This can be the tax assessed value or the fair market value as determined by an appraisal or cost market analysis (available from a real estate agent). Please note that in an effort to reduce estate costs and fees, Personal Representatives will often make the huge mistake of undervaluing the property which can have negative tax consequences on those receiving the property from the estate. Tread carefully in this area, the courts can not and will not give you advice on the value for this reason. If you are unsure how to value, discuss this issue with your attorney or CPA before filing the value with the court.

PERSONAL PROPERTY – The courts don’t expect you to list every piece of stuff owned by the decedent; however, if an heir begins to contest your management of the estate, a more detailed list may be required. Initially, it’s safe to group items in to large categories and give them a resale value (i.e. – what could you get for them if you had to sell them at a garage sale). Common categories include household furnishings, clothing, electronics, collectibles, etc. Sentimental values do not go on an inventory. For example, while your mother’s china may be the prized possession every heir is after, it should only be valued by it’s actual resale value. EBay or other online resources are very helpful in this regard. Kelly Blue Book or Edmunds are great for placing a value on cars (which also fall in this category).

BANK ACCOUNTS – In South Carolina, there are essentially three ways to title a personal bank account. Sole ownership (decedent was the only person with his/her name on this account), joint ownership (account was held by two or more people), and joint ownership with rights of survivorship (more than one person was on account and ownership shifts automatically to other owners upon death). It is essential that you contact each bank where the decedent held an account and determine the form of ownership. The type of ownership determines not only where it goes on the inventory form, but also who has the right to the funds.

IRA’S – The court will need to know if the decedent had any IRA accounts. If so, you are only required to give detailed information on the account if the estate was named as the beneficiary. Otherwise, most courts just want to know that the account existed and that it named a specific beneficiary to receive the proceeds.

DEBTS – The court will need to know any debts held by the decedent. This does not include consumer debts or debts incurred after death (such as funeral expenses). The debt reported to the court is essentially the debt related to other assets. For example, if a car appears in the personal property, this is where the car loan will appear. If a home appears in the real property, this is where the mortgage would go.

List in hand, it’s time to tackle the official inventory form which must be submitted to the court within ninety (90) days. Having your items sorted as stated above will go a long way in getting you prepared for the inventory form. Another tip – the first page should actually be done last so start with page 2.

And, if for some reason, you just can’t get it done in time, you can use the form 352 (located here) to file for an extension. Good luck!

Personal Representative’s Duties: Duty to Inform

March 11 2010 by Tiffany Provence in Probate 101 |2 Comments

Even if there was a contest about who was to serve as Personal Representative, once a party has been appointed by the court they have certain rights and duties that they owe all of the interested parties (even those who did not agree with their appointment). Not understanding, or simply choosing to ignore these duties, often gets Personal Representatives in trouble with the law. This post, and many that will follow, will outline the duties of being a P.R. and how to handle them properly.

Immediately upon appointment, the P.R. agrees to accept certain duties. These duties can be found in Article 3, Part 7 of the S.C. Probate Code for those interested in reading them in depth. The first specific duty you will find is 62-3-705 – the duty to inform heirs and devisees of your appointment.

DUTY TO INFORM – Within 30 days of your appointment, you should have notified all heirs (those who receive if there is not a will) and devisees (those who are named in the will) of your appointment. South Carolina courts provide you with Form 305PC for this purpose which can be downloaded here. Promptly complete the form, send it to everyone who is an heir or devisee. Then, complete the proof of delivery form to notify the court you have complied with this requirement. This seems easy enough, but this simple task is often handled improperly or ignored, which simply sets the stage for future disputes. Be aware of the following mistakes:

1) “I don’t have to inform them, they aren’t in the will.” – The first fatal mistake made by P.R.’s is assuming they only have to send this form to people who will actually be receiving from the estate. This is not true. The purpose of this form is to put everyone on notice, even those who have been disinherited, that the estate has been opened. The opening of the estate triggers numerous deadlines for interested parties to bring an actions including will contests, elective share claims and others. Because of this, everyone who has an interest in this person’s estate is to be notified. In cases where there is no will (intestacy), you will only have one group to notify – all intestate heirs. If; however, there is a will you may have two separate groups. The first group are those listed in the will (whether they are family or not) and the second group are those that would have received it the will was not in place (intestate heirs). Failing to notify someone can cause great delays in the estate. Furthermore, completing the form to say that you have notified someone when in fact you have not is considered perjury.

2) “I am close with my family and they already know I am in charge.” – Despite the fact that everyone may already know of your appointment, you still must follow the court process for giving them “official” notice. People often assume that they don’t need to do this because they have already verbally communicated with everyone to let them know. Keep in mind that this form contains information essential for others to contact the court, including the case number and actual date of your appointment. It’s unlikely that these details are mentioned in casual conversation and even if they are, it’s just easier to follow the rules then to make assumptions that will later get you in trouble.

3) “I’m not sure where this person lives.” – The Probate Courts hear this excuse all the time and unfortunately for the new P.R., they are uninterested in hearing it again. If you have taken on the duty to serve as P.R., it will be essential for you to establish communications with the parties interested in this estate. Very frequently, people who offer this excuse know exactly where the person is, they just hope that this will somehow eliminate the need for keeping them involved. It does not. So, before telling the court that you can’t find an heir or devisee, you must ensure that you have used every available resource to locate them. This includes letters to other interested parties to determine their location, an exhaustive internet search, certified mail sent to their last know address, a public records search, etc. In the end, it is very very rare that an heir actually can not be located. And, if you truly can’t find them you will need an attorney to assist you on their behalf. So, know before you go to court with this excuse that it’s unlikely to work and if it’s in fact true, the court will expect the resources of the estate to be used to resolve the problem.

4) “I didn’t think I had to let them know because they are minors.” – Even children are entitled to be informed. When dealing with heirs or devisees who are minors, it is appropriate to address information to them through their legal guardians. The same is true of adults who may be incapacitated.

5) “I sent it in the mail but they must not have gotten it.” – As much as we love to complain about the U.S. postal service, in reality it is rare that they loose mail. And, it’s not a coincidence that the one piece of mail that gets lost is always the one to the heir or devisee that no one likes. Don’t use this excuse, be a smart P.R. and use certified mail for any heir or devisee who you know is likely to claim that you aren’t doing your job. While the S.C. Code allows for delivery by ordinary mail, most lawyers will always use certified mail in cases where we know we may be asked to prove delivery.

The bottom line is that you can not hide out from the duties you have undertaken, so quickly establishing a line of communication with the heirs and devisees is essential. Having a database or spreadsheet with their current addresses, emails, and phone numbers will make this process easier in the long run. And, if there is someone in this group that you don’t get along with, understand that this means you should communicate with that person more, not less, to ensure you stay out of trouble.

Opening the Estate: Where?

February 12 2010 by Tiffany Provence in Probate 101 |No Comments

As explained in a previous post, an estate must be opened in the county of domicile of the decedent. While people may have many residences, each of us only has one domicile. The court will determine the domicile of the decedent by looking at the following:

1) The address used on government documents such as a drivers license and tax filings with the IRS.

2) The location where the decedent’s important mail was received, where the decedent was most involved in the community, where the decedent called “home.”

In the majority of cases, determining domicile is not a problem. Even those who are fortunate enough to have vacation homes or live in more than one state usually have documentation that establishes where they considered their primary residence, or domicile to be. This does, however become a big issue in two situations that are more common than many might realize:

INCAPACITY – If someone passes away after living in a nursing home, there is often confusion about in which county the estate should be opened. Is it the county where they originally lived or the county where they were in a long term care facility? The answer to that questions is determined by the decedent’s intent when they moved. For example, if someone is diagnosed with early Alzheimer’s and decides, on their own, to move into an assisted living facility where they later pass away then it is likely that they changed their domicile from the county where they originally resided to the county where they passed away at the time of the move. In a second example, if an elderly person becomes incapacitated due to dementia or Alzheimer’s and they are placed in a care facility with participating in the decision, then it is likely that their domicile does not change. The issue her is intent. Someone must have the intent to change their domicile and therefore anyone who becomes incapacitated for any reason is considered to be domiciled in the county where they resided at the time the incapacity occurred. An example of this rule can be found in the ruling of

MILITARY – Military personnel also provide a unique domicile issue. Again, the court will focus on intent. The general rule is that a member of the military, regardless of where they are stationed, is considered domiciled in the county where they resided at the time they enlisted. This rule is easily overcome by actions such as purchasing a home away from the military base or marrying someone in a location where they are stationed and expressing an intent for that location to be their “home.”An example of the military rule regarding domicile can be found at

The issue of where the estate is opened is important to the court because it is their responsibility to ensure that they have jurisdiction over the estate. If an estate is opened in the wrong county, creditor’s could claim they did not have proper notice and interested parties may unknowingly open a second estate in the other county. If everyone applies the rules of domicile correctly, then all parties will know where to look when trying to find someone’s estate.

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