What Are Probate Laws in South Carolina?
Probate is a process for administering a person’s estate when they die. It is regulated by various laws found in Title 62 of the South Carolina Code. The Probate Code has 8 detailed articles which deal with a variety of topics. Anyone serving as the personal representative of an estate might feel intimidated by reading all this legalese. Many of the probate laws might not seem immediately relevant to your situation, so please call Surasky Law today for assistance. We can answer any questions and help guide the estate through the probate process. We are intimately familiar with all probate laws in South Carolina, and we answer some of the most common questions about probate in this article.
1. Opening Probate
Where do we open probate?
You should go to the Probate Court in the county where your loved one lived. You can call them and make an appointment to open the estate.
What information should we take to the probate court?
You need an original death certificate to show that your loved one has died. You should also have an original will, if your loved one created a will before dying. You should also have names and addresses for family members, even those who are not left anything in the will.
Will the probate clerk help me?
The clerk in many counties will help you prepare the petition to open probate. There are other tasks, such as publishing a notice of the death in the newspaper, which alerts potential creditors of the death. You will also need to give notice to family members of the death.
2. Fulfilling the Duties of a Personal Representative
Who will serve as the personal representative?
If your loved one created a will, then the will names someone. Often, people name their spouse or eldest child. If there was no will, then a probate judge will appoint someone and issue letters. According to Section 52-3-103, the issuance of lawyers commences probate.
Who will serve as personal representative if there is no will?
Section 62-3-203 lays out the priority:
Whoever is named in a probated will
Surviving spouse who is a devisee
Other devisees of the deceased
The surviving spouse who is not a devisee
Other heirs
For example, your spouse might not have left a will. However, you are named in the will as a devisee, meaning you will receive something in the will. That would make you, as a surviving spouse, the first choice to serve as personal representative.
What steps must the personal representative take?
A personal representative must file an Inventory and Appraisement with the court. This inventory will list all the assets your loved one owned at death. You also need to identify their value.
The value is easy for some items, e.g., money in a bank account. Other assets are fairly easy to value. You can use Kelley Blue Book to identify the current value of a motor vehicle. Other assets are harder to value. You should never guess. Instead, look to see how much people are paying for similar items. You can always consult an attorney for help with appraisal.
What creditors are paid?
Most people die owing some bills, in particular monthly utility charges. The personal representative should use estate assets to pay those bills off and open an estate checking account to do so.
Sometimes, you might be unsure if a claim is valid. Someone might submit a promissory note allegedly signed by the deceased. As the personal representative, you need to determine if the debt is valid. If it isn’t, you shouldn’t pay it. Contact an attorney if this issue crops up. You’ll want solid legal advice about what steps to take.
How long does probate take?
It depends on the estate. Generally, probate wraps up in 9-12 months. Remember, creditors get up to 8 months from the date a death notice is published to submit a claim to the estate for payment. The estate assets are not distributed to beneficiaries until all creditor claims are paid.
3. Getting Help
Can we avoid probate?
Possibly. South Carolina has options for avoiding full probate.
One is the small estate affidavit procedure, which you can use if the estate meets the following:
The estate is not valued at more than $25,000
There is no real estate in the estate
30 days have passed since death
No petition or application for appointment as personal representative is pending.
You should consult an attorney if you are interested in avoiding probate.
When should the personal representative hire a lawyer?
Reach out to an attorney whenever you have a question. Some issues which can make probate confusing include:
Family members want to challenge the validity of a will. Both the personal representative defending the will and those challenging it should have lawyers.
Fights over the validity of creditor claims. You might not believe a claim is valid, so you should get legal help. You might have to defend the estate in a lawsuit.
Intestacy. Often, probate is much more confusing when there is no will. You should secure a lawyer’s help to untangle some of the factual issues involving heirs and other rights.
Illiquid estates. There might not be enough cash in an estate to pay off all bills, including taxes. That means selling some estate assets to free up cash. Unfortunately, you’ll end up selling an asset someone is expecting to inherit, which can create friction.
Accusations of self-dealing, negligence, or misconduct. The personal representative owes duties to all beneficiaries. If you steal from the estate or are careless, you could be sued. It’s time to talk with an attorney.
Call Our Experienced Probate Attorney
Surasky Law Firm has tackled many probate proceedings. We can work closely with family members or an estate’s personal representative. It is best to develop a close working relationship with an experienced lawyer who can represent your point of view and protect your rights. Few people who represent themselves in probate are happy with the result or successful. Contact Surasky Law today to find out more about your options.
