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May 28, 2016

Probate in the Palmetto State

greenville South Carolina probate law attorney

The most well thought-out and carefully executed wills are only pieces of paper before they are probated, a term which simply refers to the process of making wills and other estate planning documents legally enforceable and empowering the executors to carry out their intended functions. Probate law is a rather specialized area that combines the features of family law and civil law; furthermore, in our world, the word “probate” is sometimes synonymous with “red tape.”

But probate can be a rather straightforward affair for attorneys who routinely handle cases in this area, and while no one can speed up the clock or bypass necessary procedures, probate is far from the expensive and time-consuming process that many people believe it to be, at least in most cases.

Single Asset Affidavit

All that being said, it is probably best to avoid probate if possible. This goal is often accomplished by a comprehensive set of estate planning documents which includes trusts and other instruments. There may also be other shortcuts available.

If the estate contains less than $25,000, heirs may claim property by affidavit. According to Section 62-3-1201 of the South Carolina Probate Code, an inheritor may file such an affidavit after the decedent has been dead at least 30 days and before any probate application is filed. The affidavit must be approved by the probate judge in the county where the decedent was last domiciled.

Once this affidavit is filed, according to the law, the person currently in possession of the property or in control of the financial account must “make payment of the indebtedness or deliver the tangible personal property or the instrument evidencing the debt, obligation, stock, or chose in action.”

Only a small number of estates are eligible for this shortcut, because most people have a house or other rather large asset. The affidavit shortcut most often comes into play when the decedent died relatively young as the result of an accident or other sudden event.

Small Estate Probate

The affidavit shortcut is also primarily designed for in-state inheritors of a non-South Carolina estate. Small estates inside the Palmetto State may be eligible for the accelerated procedure laid out beginning in Section 62-3-1203. The estate must contain less than $25,000 of exempt property.

Under this model, creditors require no further notice than a 62-3-801 publication, which is discussed more fully below. If no outstanding creditors respond to the written notice, and they almost never do, the executor “may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.”

The executor must file an affidavit that conforms with 62-3-1204 which states, inter alia:

  • The value of the estate is less than $25,000;
  • The executor personally knows of no other creditors; and
  • All distributees received a copy of the closing statement.

The case technically remains open for another year, although the estate is closed for all practical matters.

Large Estate Probate

In 2013, the legislature made a number of changes to the probate code. Many of the modifications were little more than cosmetic. Some of the more significant ones include:

  • Dramatically increasing the amount of money exempt from creditors ($5,000 to $25,000);
  • Changing the way the estate’s value is calculated;
  • Removing the need for a Personal Representative in some cases; and
  • Changing the law regarding will codicils and revocations.

On the whole, however, probate in South Carolina is still basically the same endeavor, and it lasts a minimum of eight months.

Immediately after the decedent’s death, the Personal Representative or other estate representative must handle all funeral and burial arrangements, or at least personally make sure that these items are handled, and secure all real and personal property to the greatest extent possible.

Next, the PR must initiate the formal probate process. In most cases, Form #300PC is sufficient. This form is basically an extensive questionnaire that also requires supporting documentation, like a death certificate. Typically, a probate court staffer holds a conference with the PR applicant before the judge sees the applicant to take care of any lingering concerns and fill in any informational gaps.

All known heirs must receive a copy of the notice within 30 days. Creditors must receive an indirect published notice, and most all counties have their own procedures. In addition to a published notice, it is a good idea to send all known creditors a personal notice. Claims are barred if not brought within eight months.

The inventory is the next big step, and it must be filed within 90 days of the PR’s appointment. Each interested party, along with the court and the Department of Revenue & Taxation, must receive a copy. Subsequently, most PRs open estate checking accounts to begin paying creditors and taxes; the estate may be liable for both inheritance and income taxes. There is a flurry of additional paperwork, including a Petition for Settlement and Termination of Appointment, when the matter is closed.

South Carolina probate does not have to be complicated and expensive. For a free consultation with an experienced Greenville probate lawyer, contact the Anderson Law Firm. Convenient payment plans are available.