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September 25, 2016

Making Sense of Probate in South Carolina

Greenville South Carolina estate planning lawyer

The best way to make sense of the concept of probate in South Carolina is to see it as the process of establishing whom should inherit assets under court supervision. If there is a will, then there should be an appointed individual to execute the will, nominated within that will. This person is called the executor, and he or she will act as the personal representative of the deceased person. The executor is legally authorized to address the assets of the estate, to settle debts and other obligations, and to ensure that the heirs and beneficiaries of the deceased receive the assets that they are supposed to receive. If there is not a will, then the court will typically appoint someone, such as the surviving spouse or an adult child of the deceased.

Ultimately, the probate process is designed to ensure that there is no fraud or theft of assets after a person dies. It freezes the estate until the will is determined to be valid by a judge, until all parties are notified of the death, until the assets in the estate have been gathered and valued, and until taxes and debts are paid. This prevents anyone from accessing these assets before they are determined to have a right to them. At the end of the process, there will be an official order to distribute the property and assets and close the estate.

Having said that, there are many situations where the estate of the deceased does not have to go through the probate process. For example, a small estate, which is an estate valued at less than $25,000 (in South Carolina), can be settled without the supervision of the courts. There are also certain assets that don’t need to be included in the probate process, such as those that automatically transfer to a beneficiary (like a life insurance policy). Finally, there are some situations where the person who has passed away created a living trust during their lifetime. As long as there are no assets excluded from the living trust at a value greater than the small estate limit, the estate can avoid the probate process.

If the estate is not associated with a living trust and it exceeds the $25,000 threshold for a small estate in South Carolina, then the probate process will be necessary, and the estate will be frozen until the process is completed and the estate can be transferred to the beneficiaries. The Uniform Probate Code (UPC) is a set of laws in South Carolina and many other states that addresses this process. The three types of probate proceedings under the SC UPC  are informal probate, unsupervised formal probate, and supervised formal probate.

Informal probate proceedings are the most common and are used when everyone involved is on the same page, without conflict, and there are no major issues or concerns with debt or disagreement. To get started, you would file an application to serve as the estate’s personal representative or executor with the probate court, unless this has already been established.  If the application is approved, then you are legally authorized to act on behalf of the estate.

You should receive from the court ‘letters of testamentary.’ You would then formally notify all of the heirs and beneficiaries as well as the creditors associated with the estate. Because you may not know of all creditors and heirs, you will also need to publish a notice in a local newspaper, then provide evidence to the court that these steps have been taken. The next step is to create an inventory of the assets and have them appraised. During this whole process, it is your responsibility to keep the property safe and not to distribute the property until the estate closes. Once the estate is closed, you can then distribute the property to the heirs and close the proceeding with a final accounting and closing statement filed with the court.

Formal probate proceedings can be supervised or unsupervised. What makes it formal, rather than informal, is the fact that it is a court proceeding with a judge appointed to approve the actions of the personal representative or executor of the estate. The judge will settle any disputes that may arise between beneficiaries and heirs, interpret the will, address disputes regarding amounts owed to creditors, and authorize any actions like paying an attorney or distributing assets. The difference between unsupervised and supervised formal probate proceedings is that the court will oversee the entire process of the supervised formal probate proceedings, rather than simply authorizing certain actions. In a supervised formal probate proceeding, no property can be distributed without court approval.

To make the right choice about probate and to answer any questions you might have, contact a dedicated estate planning attorney in Greenville. We routinely handle matters in Greenville County and surrounding jurisdictions.