South Carolina Probate Lawyer » Probate Code

So how long is this going to take?

Tiffany Provence — Tue, 19 Jan 2010 04:34:57 +0000

Perhaps one of the most common questions when people start the probate process is, “Exactly how long is this going to take?” Unfortunately, the answer to this question is very specific to your case and often beyond the control of your attorney. And perhaps the biggest factor in determining when the estate can close is how soon you begin. Yes, it’s a well known fact that in order to complete the process, you first must actually begin the process. Here are a few considerations:

1) There are a variety of reasons why people delay the opening of an estate, the most common of which is grief. It is absolutely understandable that when a loved one passes away, the last thing on your mind is hiring an attorney or locating your local probate court. And while that is perfectly understandable, failure to start the probate process quickly can cause problems. Take a week or two to deal with the most pressing issues and if you still don’t feel you a re ready to begin, ask a trusted friend or family member to help you.

2) In South Carolina, it is actually a misdemeanor to withhold a decedent’s last will from the court for more than thirty (30) days. This means that if you have the original will in your possession, you need to get it to the court promptly. Hiding a will is never a good idea as it leads to speculation, confusion and chaos amongst those who feel they might be inheriting from the decedent.

3) Failure to open an estate in a timely fashion may lead to another party getting priority to serve as Personal Representative. In fact, if you have not opened the estate within forty-five (45) days, a creditor can open it on your behalf. Again, if you are grieving and unable to deal with these issues, find someone to help you as having a creditor handle the affairs of the estate is never in anyone’s best interest (except theirs).

Once you have opened the estate, you can expect it to remain open for a minimum of eight (8) months, most likely it will take closer to a year or longer from start to finish. Even the best attorney can’t complete it in less time as the law requires the estate be open that long in order for creditors to have time to make claims for any money they are owed by the decedent. Here are a few more things to consider:

1) The eight (8) months begins from the date that you publish the court approved creditor’s notice in the local paper. So, just picking up the paperwork from the court is not enough, you must ensure the Personal Representative quickly gets that notice in the paper (some courts do this for you, others require you to do it on your own).

2) Attempting to convince the court that you already know everyone your loved one owed will never work, although just about every family has hoped to shorten the process by making this argument. The time set by law can not be waived, shortened, or changed for any estate.

3) Once you have opened the estate, your attorney should provide you with a general guideline of what you need to do and when in order to satisfy the courts. If you are attempting to handle the estate without legal guidance, make sure to ask the court for a list of their deadlines so that you are clear on what documents need to be submitted and when so that you don’t further delay the estate.

In closing, know that while good estate planning can eliminate many of the hassles of probate, nothing can change the court’s requirements for probating an estate. Only those who have no real property, no titles assets (cars, boats, mobile homes) and no personal property or assets that total above ten thousand ($10,000) can skip the formalities by using a process called a small estate, which will be the topic of a future post.

Pick Me, Pick Me! Who gets to be the Personal Representative of the estate? (Part I)

Tiffany Provence — Sat, 12 Dec 2009 19:06:23 +0000

For an estate to be opened, there must be someone named as the Personal Representative (formerly called an Executor or Administrator). This person is responsible to the court, creditors of the estate and the heirs to ensure that the estate is properly managed and distributed.

Luckily, there are many estates where the court does not have to get involved in choosing the appropriate person. For example, when you write your will, it should always state whom you wish to serve as the Personal Representative. It’s also wise to name an alternate in case your first choice is not available.

However, when you die without a will (this is called “intestacy”), the court will have to determine who should be in charge. South Carolina Code Section 62-3-203 determines who has the priority to serve, but the Judge may use his/her discretion to determine if someone with priority is not suitable (or disqualified) for the appointment. Some examples will help explain who gets to serve but remember again that these only apply if you don’t name someone in your will.

The Spouse – Your spouse will be the top pick to serve as Personal Representative (P.R.) if you are lawfully married at the time of your death. This can seem clear but a lot of confusion can arise when couples are separated, estranged, or allegedly common law married. S. C. Probate Code Section 62-2-802 outlines what actions will terminate a spouse’s rights to serve. A spouse serving can also cause problems when the children involved are from a previous marriage. Despite the possibility for future conflicts, the spouse is entitled to serve and will be appointed by the court unless it can be shown that he/she is unfit to serve. A person may be unfit to serve if they are incarcerated, have serious financial problems (check fraud, bankruptcy, history of financial wrongdoings), or are incapacitated. Even if the spouse can’t serve, they are entitled to nominate someone to serve on their behalf.

The Children – If there is no spouse, or the spouse is unable to serve (or chooses not to and doesn’t name a nominee to serve in their place) then the children are the next in line. If there is only one child, the court will appoint that child. The debate usually begins when there are multiple children. Since all children have equal priority to be the P.R., the court will choose unless all of the children can agree. When left to the court, the Judge will consider many factors including the opinions and nominations of the heirs, financial stability, criminal history, proximity to the court and many others.

While these two rules will address the majority of cases, there are more complicated issues that arise with minor children, divorced spouses, and those with no children or spouse that will be discussed in Pick Me, Pick Me Part II.

What exactly is probate?

Tiffany Provence — Mon, 07 Dec 2009 17:31:36 +0000

Technically, the word Probate means “to obtain the official approval of, as of an instrument purporting to be the last will and testament.” (Thanks Webster!) However, in the common sense, probate describes the process by which the Probate Court oversees the transfer of assets from someone who has passed away (the “decedent”) to those entitled to receive them. The word probate has become tainted by all the “avoid probate” propaganda used when financial planners or others are trying to sell trusts. In reality, what you are really trying to avoid is taxes and creditors, not “probate,” so don’t fear the court. In fact, as Probate Court Judges are the only elected members of the judiciary in the state, they generally strive to be as helpful as possible.

A review of assets belonging to the decedent at their time of death is required in order to know whether or not you will need to go through probate. For example, if the decedent owned any real property (real estate) or titled assets (cars, vehicles, boats, mobile homes) in their name alone, you will definitely be required to go through the probate process. Additionally, if the decedent held bank accounts, investment accounts, CD’s or other assets in their names alone, probate is the only way to get access to this property. Even if the decedent didn’t own any assets, probate may still be required as only a Personal Representative appointed by the Probate Court may act on behalf of the decedent to bring a lawsuit. So, now that you realize your probably can’t “avoid probate”, what do you need to know?

A decedent’s estate must be probate in the county where they are domiciled. In most cases, this is their place of residence. However, it is possible to have more than one residence but you can only have one domicile. If your loved one lived in multiple places, a probate attorney or the court may be able to assist you in determining which court is appropriate. Each county in South Carolina has a Probate Court which is almost always located in the county courthouse. Once you have determined which court you must file in, it is wise to contact that court for specific office hours and to determine if you must have an appointment to open an estate. In some cases, if you are particularly internet savy or have an attorney assisting you, you may not have to appear in the court at all.

To open the estate in South Carolina, you must have proof of death. This is generally accomplished with a death certificate but in unusual circumstances proof from another government agency can be provided. If the decedent had a will, you will also need to deliver the original to the court (where it will remain). The minimum fee to open the estate is $25, made payable directly to the probate court. Additional court costs will be due once the court determines the extent of the decedent’s assets.

Last, but not least, the person who appears at the court should be the person who intends to serve as the Personal Representative (a general term in South Carolina which includes Executors and Administrators). The will should name the Personal Representative. If there is not a will, S.C. Code determines who has priority to handle the decedent’s affairs. In general, priority when no will exists is as follows:

Spouse of the decedent
If there is no spouse, children of the decedent (minor children present unique issues)
If no spouse or children, other heirs of the decedent
After 45 days, a creditor of the estate may ask to be appointed

People often wonder how quickly they should go to the court to begin the process and there isn’t a perfect answer to that question. The law requires that any person holding the original will of another who has passed away should present it to the court within 30 days; therefore, waiting beyond that period isn’t recommended. Meanwhile, heading to the court before you have the death certificate is premature. In some cases, the only assets available to bury the decedent may be held solely in the decedent’s name which means moving quickly is required. In general, how quickly you go is likely determined by the unique circumstances in your case.