A loved one may have recently passed away, and now their estate is going through probate. Or maybe you were named the personal representative for the decedent in their will. What is the process of probate in South Carolina, why is it necessary, and what does a personal representative do?
These are all good questions, and if you’re facing the process of probate in the Greenville area, or throughout Upstate South Carolina, contact us at Morris Law. We will answer your questions and help you take control of a difficult process that can come at an extremely difficult time.
A common fear, or misconception, about probate is that it’s a legal vehicle to strip away a dead person’s property and award the assets to the state, almost like confiscation. The only truthful part of this view is that, if the decedent owes back taxes or fines, they will be collected, but the rest is just unfounded fear. In simple terms, probate is the process of administering and transferring a person’s estate after their death, with or without a will.
South Carolina has adopted the Uniform Probate Code (UPC), a set of laws penned by national experts to expedite and simplify the process. Seventeen other states also follow the UPC, though some states do make their own modifications.
Under the UPC, three types of probate are offered: Informal Probate, Unsupervised Formal Probate, and Supervised Formal Probate. Let’s examine the differences:
Informal Probate: Most probates proceed under this category, which means there are no court hearings. Informal probates can be held whether or not the decedent left a will, but if someone challenges the proceedings, then another form of probate must be utilized.
Unsupervised Informal Probate: This format does involve court hearings. It usually comes into play when family members argue, creditors disagree with the distribution of assets, or beneficiaries complain.
Supervised Formal Probate: This comes into play only if the court deems it necessary, often to protect one beneficiary who can’t look after his or her own interests, or at the request of dueling family members who don’t trust the personal representative to look after their interests. In this type of probate, the judge assumes the primary role.
The personal representative — also called the executor or administrator — is often named in the decedent’s will. If not, a family member in South Carolina can apply to the probate court to assume the role. In more supervised proceedings, the judge will name the personal representative.
The personal representative’s primary role is to protect the decedent’s property until all debts and taxes have been paid, and then to transfer what’s left to those who are entitled to it. An uncontested will establishes those who are entitled. If there is no will, or if the will is challenged, then transfer rights will have to be settled in probate court.
Specifically, the function of the personal representative is to:
Submit the necessary documents, including the will (if one exists), to open probate
Survey decedent’s assets, locate them, and secure them
Notify creditors either personally or by publishing a newspaper notice
Establish the value of assets with the assistance of appraisers and other professionals
Review and approve or deny creditor claims
Manage and safeguard estate assets, including physical upkeep to real property
Sell estate assets as necessary to satisfy creditors and, ultimately, beneficiaries
Defend the estate against litigation
Prepare and pay taxes
Transfer assets to the beneficiaries
As you can see, some of these tasks are quite demanding and require knowledge and expertise usually well beyond the scope of a normal person’s experience. This is where the help of a probate attorney can provide a much-needed bridge to successfully completing the probate process.
By law in South Carolina, a probate matter must last eight months following the filing of the original documents. How long it takes after that depends on a variety of factors, including the size of the estate, claims by creditors, and disputes among family members and other beneficiaries. As the proceedings escalate from informal to formal formats to deal with disagreements, the need for — and cost of — involving attorneys is likely to escalate as well. It’s a good idea to get attorneys involved from the beginning to help prevent potential disputes.
All real and personal property owned jointly with the right of survivorship passes to the co-owner(s) without the need for probate. Likewise, life insurance policies, annuities, and retirement accounts like IRAs, Keoghs, and 401(k)s transfer outside of probate to the named beneficiaries. In this light and if there are no other assets, sometimes probate can be avoided.
Another vehicle to avoid the lengthy probate process is known as the small estate affidavit, but it applies only if the value of the decedent’s estate, minus liens and encumbrances, is $25,000 or less. An inheritor merely needs to file an affidavit with the probate court to get the asset, or assets, transferred (after a 30-day waiting period).
From the above, you can sense that the task of a personal representative can be immense. Going it alone without the assistance of a qualified, experienced probate attorney is not generally advisable.
Even if you’re not the executor of the estate, you may have questions and concerns that aren’t being adequately addressed, and again this is where a probate attorney can prove invaluable. You want to know your rights and exercise them fully.
You don’t have to worry about going through the probate process alone. Let a knowledgeable law firm help you make informed decisions. To learn more about what we can do for you in Greenville, Anderson, Pickens, Laurens, Spartanburg, and other surrounding areas of Upstate South Carolina, please contact us at Morris Law for an initial consultation.