CONSIDERATIONS ABOUT PROBATING ESTATES

CONSIDERATIONS ABOUT PROBATING ESTATES


 

        When a family member dies, the experience is one fraught with emotion.  The passing of an immediate family member like a spouse, parent, or child, brings sadness and sometimes depression to those involved. Despite all these feelings, it is also a time when someone in the family must take the initiative and lead on settling the estate of the dearly departed.  The first decision is whether or not to formally probate the estate.  I hope to explain some considerations that help with that decision making.

 

        First, in South Carolina (as in many other estates) an estate valued at or under a small amount can be handled without the formal probate process.  The number can change by Legislative action, so check at the time, but currently if an Estate is valued at $25,000 or less it can be handled by small estate probate procedures. In this event, and assuming there are no titling issues (real estate or vehicles in the decedent’s name), a personal representative does not need to be appointed. Any creditors can file an affidavit after waiting a certain period of time and assuming no appointment of personal representative.  It’s important to keep in mind that regardless of the amount of the estate, if real estate or another titling or account issues are involved the estate may require formal appointment of a personal representative.  Normally, for small estate procedures it’s not necessary to retain an attorney beyond a consultation for information.

 

         Second, in some cases the decedent may have transferred all the estate outside of probate.  For example, the bank accounts may be “payment on death” to another, and with real estate they may have transferred title but kept a life estate.  They may have even transferred ownership of any vehicles.  In this event, there may be nothing left in the estate at the time of death.  This would clearly be a situation in which it would not be necessary to retain an attorney.

 

       If the estate is beyond $25,000, or involves titles with the decedent, it is normally best to retain an attorney to assist with the formal probate process.  That attorney would file the application for Personal Representative (PR) for the person designated PR in the will. If no Will exists, then the closest relative will normally apply as PR.  After the PR is appointed, then the estate attorney will work with the PR to produce the “inventory and appraisement” of the estate, which must be filed within 90 days of the appointment as PR.  Around the time of the PR appointment, a notice will be published for any potential creditors to the estate, and that begins an eight month waiting period until the estate can be closed. At the end of the eight months, the attorney can go through the process of closing the estate with the accounting that must be sent to interested parties (heir and devisees) in this estate. If any parties decide to contest the accounting, they can ask for a hearing. 

 

        The key takeaway is that loved ones of the departed must think about the practical realities of probating the estate even during the grieving process.  Find an attorney to help if it involves a formal probate, and then settle the estate properly.

 

Last modified on Tuesday, 15 December 2020 07:10

Bill Connor Orangeburg Attorney Bill Connor received his Bachelor of Arts from The Citadel in 1990, and after serving for over a decade as an Infantry Officer in the U.S. Army, including three deployments to the Middle East, he received his Juris Doctorate from The University of South Carolina in 2005. In 2012, Bill was honored to receive an AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the top peer rating for American lawyers. Receiving this rating at such an early point in his career is unheard of among lawyers.

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