Probate (8)
One of the tougher duties a person can perform is to act as Personal Representative of the Estate of a loved one. Normally, the Personal Representative, formerly called “Executor” for men and “Executrix” for women, is the closest relative to the deceased person. Closest relative is usually either the living spouse, if still married, or one of the living children. The estate could be quite simple, either due to Estate planning for transfers outside of probate (like “payment on death” provisions on joint bank accounts to another, or real estate transferred with a “life estate” provision to the decedent). The estate can also be very complex, with multiple real estate properties and multiple accounts going through probate and stock transfers. A unique issue in handling an estate as Personal Representative is prosecuting a personal injury survival action claim by the estate against a negligent party. Juggling these duties takes some work, as I will explain. First, if your loved one has a substantial and complex estate, it’s important to Petition for Personal Representative (PR) as soon as possible after death. You will have to have a death certificate (provided by Funeral Home usually), and a copy of the will if a will exists. Until someone is appointed PR, nobody has the same legal powers to conduct business of the estate in the same way as the decedent. For example, to get into the decedent’s bank account to put the money in the estate account, the bank will require Personal Representative Appointment orders by the Probate Judge. Same with handling real estate and investments. A duty of the Personal Representative is to maintain and safeguard the estate until it is distributed, and this can only be done properly with the PR appointment orders. Note: A Power of Attorney is only effective during the life of the person granting the power, so that is no help with the estate. While getting an inventory and appraisement of the estate and other matters associated with the estate in Orangeburg SC, it’s important to begin prosecuting any survival action claims as soon as possible. First, there are statute of limitations on bringing these lawsuits, and normally three years is the maximum time period from the accident/injury. Second, to prosecute the matter requires it be done by the Personal Representative during the processing of the estate. Once the estate is processed and closed, the PR duties and authorities end. The PR is prosecuting the claim on behalf of the decedent for the injury, pain and suffering damages suffered by the decedent before he died. It’s important to retain counsel (who will usually work the case on contingence and not hourly fee), and make the claim against the insurance company of the wrongdoer. In many cases involving death, other parties may have claims and all parties are seeking a limited insurance source of damages. The saying “first come, first serve” can apply in these kinds of cases, as the insurance company will only settle out to what’s available in terms of limits. The key is to get on top of the PR duties as soon as possible, and prosecute claims diligently while processing and distributing the estate. In many ways, it’s the last way to show love through actions to the person who died in carrying out wishes and seeking justice for wrongs done…
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.
Clients ask me when they should start estate planning and I always answer that they cannot start too soon. Due to my many years in the military and various deployments to hostile areas, I was taught to always have my plans together in case something happened. Part of the advice was for my family, but part was for my own peace of mind and the lack of distraction doing a dangerous job. Having spent many years now handling estates, it never ceases to surprise me to learn of the number of people (much older than me when I deployed) who do not have some kind of planning for the event of their death or incapacity. Though you may think your net worth, including property, to be modest, there are simple estate plans to care for your family in the event something happens. This will ensure those loved ones left behind are about to process your estate. Let me explain. Three documents every adult should have executed are a Will, Durable Power of Attorney, and Health Care Power of Attorney. The Will can be simple, and solely name the personal representative (PR) who will administer the estate and the beneficiary or beneficiaries of the estate. It doesn’t need to get specific, and I usually advise clients to consider less specificity. The more specific, the more chance the Will becomes outdated in a short time. Leaving it all to a spouse, or all to children in equal shares is quite acceptable. You should consider identifying a Memorandum that will be left separately from the will to designate specific sentimental type pieces of property and can be done at a much later point than the Will. The Will should probably have a provision allowing the PR to sell real property without receiving an order of the Court. Otherwise, a two-page will can work fine for many people and save conflict and confusion for those left behind. Associated with the Will, a Health Care Power of attorney gives peace of mind and can help the family. This allows another to make end of life decisions in the event you cannot communicate and (to a reasonable degree of medical certainty) will not improve and will eventually succumb. The person given this authority can make the decision to pull a respirator before the cost eats up all the estate that would go to the family. It also allows for ending hydration/nutrition (forced feeding) in the same situation. Additionally, executing a Durable Power of Attorney will allow another to handle financial matters even when you are incapacitated and potentially facing end of life. Along with this planning is the consideration of ensuring as many non-probate transfers of the estate as are possible. Ensure that bank accounts have “transfer (payment) on death” provisions. Ensure that other forms of wealth allow for beneficiaries in the event of death. If possible, consider transferring real estate during life, but keeping a life estate for yourself. All this will help keep the probated estate minimal, avoiding potential probate taxes and the headaches that can go with probate. Lastly, it is important to work in to estate planning substantial wealth accumulation. For example, if one has been involved in a vehicle wreck involving a substantial personal injury settlement or verdict, it is important to plan for the transfer at death in a way that makes the most sense for loved ones. This can also come with other such substantial accumulations. Plan for what happens if you are no longer around, and your loved ones will someday understand that bit of unselfishness for others.
In South Carolina, a problem can arise in the event of loved ones passing away without their estates being probated for over ten years. Up until the ten year point, the courts will allow the regular probating of wills or intestacy probate. After ten years, the only process available to ensure a proper chain of title is with the process of designation of heirs. It doesn’t matter if the person had a will or not, and this process is distinct from the normal probate process. It can be extremely difficult, particularly if the time goes well beyond the ten years. It’s best to consider hiring counsel for this process, and this should be done if the estate involved real estate titled in the deceased person’s name. The process involves multiple steps, and some similar to the regular probate. The person wishing the petition the court to determine heirs must file the Summons, Petition for Determination of Heirs, filing fee, and, if not already filed, a death certificate all with the Probate Court. The Petition should allege all who the heirs were at time of death by alleged facts, which probate law was in effect at time of the loved one’s death (Note that a copy of statute in effect at the time should be attached). The petition should also include allegations as to why probate administration was not done at the time, but being done now. · After the filing of the above documents, the petitioner must then serve pleadings on all interested parties and file proof of service (note: interested parties would include all potential heirs by the law at the time of death). · Respondents/Defendants have 30 days after being served to file their response/answer back to the petitioner. · After the sooner of 30 days having passed, or when the Answers have been filed, a hearing will be set by the court (upon request) 120 days from the initial filing date. Note: If all parties are in agreement to set the hearing earlier, the hearing can be set, keeping in mind that a 20-day notice of the hearing is required. Also note that the hearing cannot be waived even upon agreement. At the said hearing, the petitioner must present testimony from a witness who testifies he knew the decedent most of his life and can testify to there being no other heirs. This is normally more of an issue for male decedents who might have had biological children outside the known family. Following the hearing and the Probate Judge’s determination of heirs, the petitioner or his attorney will prepare an Order for the Probate Judge to sign. Note: If you don’t hire an attorney it is imperative to to record the Order at the Register of Deeds Office if real property was involved. This requires necessary information about the real property, such as property description, derivation, complete. In the end, the determination of heirs ensures that titling of property, particularly real property is not tied up indefinitely, hurting everyone in the decedent’s family. It allows for property to remain with the family or sold with good title.
It is always recommended to begin Estate Planning as early as possible. For some, the emotion of planning for one’s death can be a challenge to overcome. In my personal case as an Army Infantry Officer, it was a natural and required part of our “business” of being ready to deploy to war. The chance of death is ubiquitous, and so certain things had to be put in order to have piece of mind in deploying. One of the most important parts of Estate Planning is in executing a last Will and Testament. The good thing is that it is something that can and should be kept as simple as possible for multiple reasons. When clients come to be to provide counsel for their Wills, they sometimes have every individual piece of real and personal property designated to a specific beneficiary. The problem with attempting to much specificity with a Will is that property and personal changes are certain to occur after executing the Will. For example, property is sold or transferred in the normal course of life. Each time that happens, it can generate the need for new Will. A codicil (amendment to the will) is another solution, but this will actually republish the Will and multiple codicils can make the Will confusing and potentially open to attack in court. The other natural change in life is with those who are beneficiaries. A hard fact of life is that relatives, including even children, sometimes die first. If the Will does not specify “my natural children alive at the time of my death”, then the heirs of a child will split as beneficiaries. Additionally, relationships can change over time. Beyond the one third elective share to a spouse (outside of a prenuptial agreement to the contrary, a spouse is legally entitled to at least 1/3 of their spouse’s estate), you are not legally required to devise or bequeath any part of an estate to a child or other relative. A child or other relative can become a “black sheep” over time, and this could generate the need for another Will. Keeping a Will simple means considering making your spouse the 100% beneficiary, and potentially your children as alternates. In that event, you would likely consider the spouse acting as a primary personal representative (PR, the administrator of the estate) and one or more children as alternate PR. Additionally, to ensure certain keepsakes or family heirlooms go to specific individuals, you can reference a “memorandum” you will leave separate from the Will, and what is written on the Memorandum becomes incorporated into the Will when the estate is probated. On this memo, you can designate the a certain person receives a certain piece of property. For example, a son receiving a specific rifle. With this provision, you would not need to get a new Will for personal property and can change your mind over the years on those items. Always have a Will, but keep it simple. Your loved ones will appreciate it.
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