In South Carolina, the party appointed by the Probate Court to manage the estate of a decedent is called a personal representative. They can be an individual such as a spouse or a sibling, they can be an attorney, or they can be a company. If they were named in the decedent’s will, they are often called an “executor.” If they were not named in the decedent’s will, they are often referred to as an “administrator.” SC Code § 62-1-201(33). The personal representative is a fiduciary. SC Code § 62-3-801. This means that they must perform their duties with the utmost honesty and care and with the best interests of the estate in mind. Note that whether the personal representative was named in the decedent’s will or not, their duties and responsibilities are the same.
Personal Representative Appointment in South Carolina
Even if the personal representative is named in the decedent’s will, the personal representative does not have the authority to act on behalf of the estate until the Probate Court has issued an order appointed them and issued “letters.” The personal representative named in the decedent’s will has first priority for appointment, followed by the surviving spouse, then beneficiaries, then creditors. The personal representative may be required to post a bond.
Duties and Responsibilities
Once appointed, the tasks that the personal representative is responsible for completing in order to settle the estate include:
- Notify beneficiaries and heirs. Within 30 days of appointment the personal representative is required to alert both beneficiaries named in the will and the decedent’s intestate heirs by mailing them a notice.
- Notify creditors. Because part of settling the decedent’s estate is paying estate debt, the personal representative must also notify creditors of the probate case by publishing a notice in a newspaper once a week for three consecutive weeks. SC Code § 62-3-801. Creditors have 8 months of the date of first publication to file claims.
- Inventory the assets. The personal representative must identify probate estate assets and secure them. Within 90 days of being appointed, the personal representative must file an Inventory and Appraisement form with the Probate Court. It must include the fair market value of all property owned by the decedent as of the date of death. SC Code § 62-3-706.
- Pay estate debts. One of the goals of the administration process is to make sure that the debts that the decedent left behind are paid. The first step is to give notice to those who have claims against the estate. To do this, the personal representative must publish a notice to creditors once a week for 3 consecutive weeks notifying creditors of the process for filing claims and the deadline. SC Code § 62-3-801. Creditors must file their claims within 8 months of the date of first publication. The personal representative must pay all claims filed within the claims periods that are determined to be valid must be paid out of estate assets. If there are not enough assets to pay the debt, then the personal representative must pay debts based on the prescribed order of priority as follows:
- Funeral expenses and expenses of administration
- Federal debts and taxes
- Medical expenses of decedent’s last illness
- State debts and taxes
- All other claims
- Asset distribution. Once the 8-month creditor claim period has passed and debts have been paid, the personal representative can seek permission from the Probate Court to distribute assets by filing an accounting and submitting a Proposal for Distribution that details how the assets will be distributed. If the decedent left a will, the proposed scheme of distribution should be consistent with the instructions the decedent included in their will. If the decedent did not leave a valid will, the proposed distribution should be consistent with South Carolina’s rules of intestate succession.
- Closing the estate. After debt has been paid and assets distributed, the personal representative can request to be discharged.
Compensation of Personal Representative
Under South Carolina law, personal representatives are entitled to receive compensation of at least $50 and not more than 5% of the value of the personal property of the estate plus the sales proceeds of real property of the probate estate received on sales directed or authorized by will or by proper court order. SC Code § 62-3-719.