When a cherished family member dies, it is difficult to think about what to do about their estate. However, there are legal matters that must be cared for to ensure the orderly transfer of the decedent’s property to those they named in their will. In fact, South Carolina law details the tasks that are required before a decedent’s estate can be settled and its assets distributed.
In South Carolina, the Probate Court is responsible for case related to the administration of estates. There is a Probate Court in each county. To initiate a probate case, a petition for formal testacy and the decedent’s will must be filed with the Probate Court in the South Carolina county in which the decedent resided at the time of their death.
If the deceased person died with a will, the person named in it to serve as personal representative or executor has the responsibility of managing the administration process. The steps that the must be completed during the formal administration process include:
- Identifying, securing, and appraising probate assets
- Notifying beneficiaries, heirs, and creditors
- Paying estate debt and expenses
- Filing tax forms and paying taxes owed
Distributing assets that remain in the estate after all other obligations are resolved
In South Carolina, the administration process takes at least 8 months. This is because the law requires the estate to give creditors time to submit their claims. By law the personal representative is responsible for publishing a notice to creditors once a week for 3 consecutive weeks notifying creditors the deadline for submitting claims. SC Code § 62-3-801. The personal representative generally will not commence asset distribution until after the end of the 8-month period.
Administration can take significantly longer than 8 months if there are complications such probate disputes, missing heirs, or lack of liquidity. On the other hand, if the estate qualifies for special expedited procedures, asset distribution can begin a lot more quickly. For example, if the estate has assets with a value of no more than $25,000, assets can be distributed using the Collection of personal property by affidavit. SC Code § 62-3-1201. Similarly, if the estate’s assets do not exceed $25,000, it may be able to take advantage of South Carolina’s summary administrative procedures. SC Code § 62-3-1203.
The combination of losing someone you care about, complicated family history, and the details of managing the estate often results in disagreements among the parties involved. When disagreements during probate cannot be settled outside of court, probate litigation is inevitable. Probate litigation will not only delay the process, it will also add additional expenses to the estate.
The stakes in probate litigation can be high. For example, probate litigation can determine who is legally entitled to receive property from the decedent and who is not. It can also determine how to interpret terms of the will and whether the personal representative has handled the estate appropriately.
Will contest. The court will only probate a will that is valid. If a family member has questions about whether a will is fraudulent or believes that the deceased person was mentally incompetent when they executed the will, they can file a will contest. The court will determine if the will is indeed valid.
Will construction. If there is confusion about how to interpret provisions in a will, the parties can ask the judge to sort it out and determine how to interpret the unclear provisions.
Fiduciary disputes. The personal representative is a fiduciary with respect to the estate. They are required by law to perform their duties in an honest, responsible manner. They are required to look out for the best interest of the estate and not themselves. If a beneficiary or heir suspects that the personal representative is not doing their job properly, they can initiate probate litigation to challenge the personal representative’s actions.
Part of the probate process is the review and validate the decedent’s will. However, even estates of decedents who did not leave wills must go through a court process. Upon a petition, the court will open an administration case and appoint a personal representative to settle the decedent’s estate. After completing essentially the same steps as a personal representative would complete for a testate estate, the personal representative of an intestate estate would distribute estate assets according to South Carolina’s intestate succession law. The law requires that the decedent’s next of kin inherit. A decedent’s primary heirs are their surviving spouse and children. If the decedent has neither, then their parents would inherit followed by their siblings. Otherwise, other blood relatives of the decedent would be entitled to inherit. If there are questions about relatedness, the court may require any claimant to prove kinship.