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SOUTH CAROLINA PROBATE

S C Probate Estate Settlement Issues:

South Carolina Probate is the legal court process of settling the estate of the deceased. Probating a decedent's estate involves a number of steps to ensure that the decedent's wishes are carried out and the title of property passes to the intended heirs. First, it is important to determine if a S C probate is required. A formal probate action is required when the decedent owns individually-held property without a beneficiary designation that exceeds a certain dollar amount. (For estates below that amount without real property, a simplified estate administration process can be completed).

If the decedent's assets are all non-probate, meaning that he or she has a fully-funded revocable trust (commonly referred to as a "living trust"), or assets that are held in survivorship or have a beneficiary designated, no South Carolina probate administration is required.

If probate administration is required, it can occur with a Will (the legal term is testate) or without a Will (the legal term is intestate). If the decedent died testate (meaning he or she signed a valid Will), the executor designated in the Will must request that the Will be admitted for probate and that he or she be appointed as the Personal Representative (Executor) of the estate. For there to be a legal executor of the estate, the court must issue an order for the probate process to commence. If the decedent died intestate (meaning he or she died without a valid Will), the process is not remarkably different, a family member or other interested party will petition the court to be appointed as Personal Representative of the decedent's estate and the estate will pass in accordance with what South Carolina law provides (the laws of intestacy) instead of in accordance with the decedent's wishes.

Probate court has exclusive original jurisdiction over all matters pertaining to Estates of decedents (probate); protection of minors and incapacitated adults; Trusts; issuance of marriage licenses, involuntary commitment for mental illness, alcoholism, drug addiction, and active pulmonary tuberculosis; and wrongful death and survival action settlements.

HOW DO I START THE SC PROBATE PROCESS

In order to start the South Carolina probate process, the party that wishes to be named the executor of the estate can either retain a South Carolina probate lawyer or call the s c probate court in the county where the decadent resided and make an appointment with the clerk of the probate court. You will need to provide the original of the will (if there is one) and the death certificate along with the contact information of all of the blood relatives or other heirs.

Once the executor or personal representative is appointed by the S C Probate Court, the estate administration process begins. There are a number of steps required of the Executor. The first step is to marshal the assets to ensure that all assets have been accounted for and have been sufficiently safeguarded. The next step is to inventory the assets for the court. The Executor must then make decisions regarding liquidating or selling assets and determine the appropriate course of action. The Executor's primary role is to protect and conserve the assets for the beneficiaries of the estate. Creditor claims must also be ascertained and disposed of before beneficiaries receive any payments; otherwise the Executor may be personally liable to the extent such payments are made. Tax filings must also be made on a timely basis. This includes not only the decedent's final income tax returns but also income and death tax returns for the estate. Finally, the Executor is responsible for filing an accounting with the Court showing all of the activity for the estate including income, proceeds from the sale of assets, payments for debts and expenses, and finally distributions to beneficiaries. Such an accounting is subject to Court approval. For the most part, the probate process can take up to a year for a simple and modest estate and can take more than a year for a more complex and substantial estate. Of course, family and beneficiary issues can impact the time necessary to settle a probate estate. As always, it is prudent to obtain competent South Carolina probate attorney even for a more modest estate.



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HOW DO I AVOID SC PROBATE

The probate process is a public proceeding meaning both the contents of the estate plan and the assets are a matter of public record. It can be more costly and time-consuming than other methods of settlement. In the case of a fully-funded revocable trust (commonly known as a living trust), the probate process is avoided. A revocable living trust is known as a Will substitute meaning that like a Will, it provides for the disposition of the client's property upon death. However, instead of the Trustee being subject to probate court supervision such as is the case with an Executor of an estate; the Trustee is able to complete the administration process in an expedited matter. This does not mean that the Trustee can immediately distribute assets to the trust beneficiaries, but the living trust does offer certain advantages over a probate estate settlement. The administration of a living trust after the decedent's death first results in lesser costs associated with estate settlement; second, it provides immediate access to the decedent's assets upon death unlike a probate which could take weeks to gain access; third, it is a private document meaning that is not filed in the court or anywhere else, thus both the estate plan as well as the nature and amount of the decedent's assets are private. Even in the case of a fully-funded living trust and no S C probate estate, it is prudent to retain a South Carolina probate attorney to both expedite the process and protect the Trustee who is responsible for completing the trust administration and distributing assets to the beneficiaries of the trust.

Many times clients are inclined to achieve probate avoidance not by establishing a living trust, but by establishing joint bank accounts, payable on death bank accounts, or transfer on death brokerage accounts. While all of these effectively avoid probate, they do not adequately protect the client as a living trust does. There is a greater risk with these other forms of ownership of assets passing in a manner that is not entirely consistent with the client's wishes than with a living trust.

The Personal Representative

You should think carefully before agreeing to be the Personal Representative (Executor) of someone's estate. Normally it is a thankless job and you can be held personally responsible if you do not properly handle the funds and assets of the estate. While a person who is not a resident of South Carolina can be the personal representative, there has to be an agent residing in the state for service of legal papers.

If there is not a will, then the probate court will determine who has priority to be named the personal representative of the estate. Usually the surviving spouse has the first priority to be appointed. If there is no spouse, then one of the children of the deceased would be next in line. If there are no children, then any other blood heir can apply. If no one opens the estate, then a creditor of the deceased can file to be named the personal representative.

One common problem is when someone dies without a will, leave minor children, but they are divorced or possibly never married. This means that the minor child may have precedence to be named as the personal representative of your estate. However, since they are not yet 18, your ex may end up being the one entirely in charge of your estate.

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