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What Happens if a Will is Not Filed in South Carolina?

Family members usually need to file a loved one’s will within 30 days of their death in probate court. Probate is the process for settling a person’s estate. It can be complex or simple, depending on the estate and the surrounding circumstances. Filing a will in court kicks off the probate process.

Some people, however, never create a will. When they die, their estate still goes through probate, even if no will is filed. Below, our Aiken, SC will and probate attorney reviews what happens when someone dies without a will. Contact us today if you need help.

Why Does South Carolina Require that You File a Person’s Will?

A will must be probated. This includes a judge determining if the will is valid. A document might say “will” on the top, but it must be drafted and signed according to the law’s formalities. If a will is invalid, a judge will not admit it to probate.

Sometimes a will meets the formalities, but someone contests it. For example, a will cannot be the result of coercion. Likewise, the testator who created the will must have been of sound mind. Family members might bring a “will contest” to challenge the will’s validity, and the probate court holds hearings on these issues.

Why Do People Die without a Will?

There are some common reasons:

Procrastination. Some people know they should create a will, but they never get around to it. They, unfortunately, die before they have a chance to create one.

Other estate planning vehicles. A person might create a trust instead of will. They then title all assets in the trust so these assets do not pass through probate. Other assets go to the beneficiary listed, such as life insurance and retirement accounts.

Invalid will. Someone might have created a will but lacked capacity, or the will did not satisfy the formalities of execution. In that case, no will is admitted to probate. In effect, the person dies without a valid will.

Understanding Probate Rules for Intestate Estates in South Carolina

An estate is still probated, even if there is no will. This is called dying “intestate.” Even without a will, the personal representative will still have to perform all the typical duties required of the role. These include identifying and collecting estate assets and paying creditor claims. The probate court will approve someone to serve in this capacity.

South Carolina has created rules for distributing the estate assets when a person dies intestate. These rules are complicated, but let’s look at a few.

  • If a spouse and children survive the deceased, then the spouse will get half of the estate, and any children will split the other half.

  • If only a spouse survives, then he or she inherits everything.

  • If the deceased had no children or spouse, then their parents will inherit the estate.

  • If there are no surviving parents, children, or spouses, then surviving siblings can inherit the estate.

Small Estates: Avoiding or Simplifying Probate

Some estates do not need to go through the full probate process. This is true whether the deceased had a will or not. Family members might choose one of the following procedures.

First, you can collect property with a small estate affidavit, which allows you to skip probate entirely if the following is true:

  • The estate contains no real estate.

  • The net value of the estate is not more than $25,000.

  • At least 30 days have passed since the death.

  • No application/petition to serve as personal representative is pending or been approved in any jurisdiction.

The person inheriting the property will sign an affidavit and submit it to the probate court for the judge’s signature. You then take the certified affidavit and show it to whoever is holding the property, such as a bank, which should release the asset to you.

Second, summary administration is an option for small estates. You can’t skip probate altogether, but you can save time and money. You can petition the probate court for summary administration only if the estate is no more than $25,000 after making multiple subtractions, such as the cost of administration, funeral expense, and medical care for the last illness, as well as exempt property. The personal representative can publish notices to creditors and can immediately distribute estate assets.

What if There Actually is a Hidden Will?

Sometimes, no will is filed with the probate court because the family does not like how the deceased left their assets. Here is an example:

Imagine that an elderly woman is being cared for by her eldest daughter. When the mother dies, the daughter finds a will in her mother’s papers. Reading the document, she is shocked to see her mother has cut her out of the will entirely. The daughter then hides the will so that it won’t get filed in probate court. She figures she will inherit more if the probate court thinks her mother died intestate.

In this example, there is a valid will, but it wasn’t filed. What happens in this case?

Probate judges do not go through someone’s house and filing cabinets to find if a will exists. They simply don’t have the time. Instead, judges rely on representations made to them about whether a will exists or not.

The person named as the personal representative should undertake a diligent search to find a will. If the hidden will surfaces, then whoever tried to hide it could face legal repercussions. It really doesn’t pay to hide a will in the hopes of inheriting more property.

Where is the Probate Court?

Each county in South Carolina has its own probate judge, and you file the will in the county where the deceased was living at the time of death. You can find the location of the county probate court by viewing this map at the South Carolina Courts website.

Call Surasky Law with Questions on Probates and Wills

Are you hoping to use the affidavit procedure to avoid probate altogether? Or are you worried that a family member has hidden your loved one’s will? We can help. Our probate experience is broad, and we will gladly review whether you have a legal issue we can help with. Our Aiken, SC will and probate attorney is ready to help contact us today if you need help.


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