South Carolina Probate Lawyer » Probate Judge

Removal of the Personal Representative – The Basics

Tiffany Provence — Fri, 01 Oct 2010 19:40:38 +0000

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.

Personal Representative’s Duties: Duty to Inform

Want to be a Probate Judge?

Tiffany Provence — Thu, 20 May 2010 02:51:27 +0000

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:

You must be a U.S. citizen and a resident of South Carolina.
You must be twenty-one (21) years of age.
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).
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.

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Who will be the Personal Representative? (Part II)

Tiffany Provence — Mon, 14 Dec 2009 14:44:49 +0000

When people pass away without wills, the determination of who can be appointed as their Personal Representative (P.R. for short) can get sticky. Here are some of the most common issues that arise.

Minor Children – If the decedent is not legally married at death (whether by divorce, death or perhaps they had the common sense never to get married in the first place), their children have the right to serve as P.R. But, what if their children are minors? Obviously, a minor is not “fit” to serve (minimum age is 18) and therefore the S.C. Probate Code determines who is next in line. Often times in these situations, people assume that it would be the decedent’s parents; however, that is not the case.

In South Carolina, if you leave behind no will and have minor children, before YOUR parents are entitled to serve, the appointment will go to THEIR other parent or guardian. That’s right, your ex-spouse (or baby mama as the case may be) will suddenly be in charge of everything you own. And, it doesn’t matter that they have told 100 people they hate you or that they took you to the cleaners in family court, unless it can be shown that they are unfit to serve due to a criminal history, incarceration, incapacity, etc. then they get the job. The bottom line is that since you didn’t choose someone in your will, the law assumes that the best person to serve is the legal guardian of your primary heir. This scenario gets even more entertaining when you have children with more than one person so that the court must now referee between the two. Enter Jerry Springer . . .

Separation – Because South Carolina does not have “no fault” divorce, many couples have to lived separated for 1 year in order to qualify for a divorce. To avoid expenses and complications, many of them don’t part ways through legal documentation and instead simply “split up.” While this may save you money in family court, the consequences can be disastrous in probate court. The S.C. Probate Code is clear in Section 62-2-802 what is required before a spouse will loose their entitlement to be considered a “spouse.” Essentially, one of the following has to have occurred:

A divorce or annulment. And, it isn’t even enough for a couple to “think” they are divorced. The Judge has to actually have signed the decree. In a landmark case titled Hatchell-Freeman v. Freeman a wife was actually entitled to serve as P.R. and entitled to receive a share of the estate even though they had attended the final hearing on their divorce (simply because the Judge had not signed the decree).

A decree of separate maintenance or property settlement agreement acknowledged by the court which which terminates these rights.

Adultery, abandonment or other acts of the spouse are not relevant to the Probate Court under these sections. So, the bottom line is that if you find yourself in this situation you need legal help and a properly drafted will to ensure your ex isn’t in control against your wishes.

Common Law Marriage – We will discuss common law marriage in greater detail in a future post but for purposes of this discussion, just know that common law marriage must be affirmatively proven in the court and until that time the question of who has priority to serve as the Personal Representative may be difficult to answer. Because a spouse has priority to serve, the question is – who serves while it is determined whether or not someone is the spouse? In this case, the court may rely on a Special Administrator to handle the estate until the marriage issue can be resolved. Or, in a perfect world, the potential spouse and other heirs would agree by consent as to who will serve in the interim.

There is no shortage of court hearing to determine who will serve as Personal Representative. And, even after the appropriate person is appointed, parties may find themselves litigating whether or not that person is doing the job properly. In the end, the only way to protect your assets from these disputes is to make these choices before you go!

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.

Introduction

Tiffany Provence — Mon, 30 Nov 2009 08:00:28 +0000

I’ll address the question of WHY you have to go through probate when someone passes away in a future post. For today, I would just like to introduce myself and explain why I’ve chosen to blog about an otherwise uninteresting and often annoying area of the law.

My name is Tiffany Provence, an attorney living and practicing outside of Charleston, S.C. in Summerville. And, while I would love to blog about fashion, technology or exotic travel, I have little experience or knowledge in anything that exciting. However, after more than 10 years as a Probate Judge for Dorchester County, S.C., I have learned that there is a severe shortage of information on this topic for both the public and attorneys who need a primer on this area of the law.

And so, why would you need to know anything about probate law? Perhaps a family member has recently passed away – this is your court. Are you caring for a loved one and needing more information about making decisions on their behalf? Again, this is your court. Wanting to get married in South Carolina? Yep, they do that too. Want to get divorced? Well, that’s another court entirely.

In this blog, I hope to provide you with basic information on the myriad of issues that are raised in this area of the law and ensure you know when you need to seek legal assistance.

Dorchester County's New Courthouse

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