General

General (22)

 

  After a car accident or slip and fall in Orangeburg South Carolina resulting in serious injuries, it’s important to know what to do about seeking redress. The most important decision after being injured by the negligence of another is which lawyer to choose to represent the matter. In most cases, multiple attorneys will be able to represent based on “contingence” and not payment of a retainer and hourly fee.  On contingency, the lawyer will be paid a percentage of the award or settlement (customarily 1/3rd), and so it requires nothing to retain the attorney.  The Client is responsible for costs involved, but that will normally be paid after an award or settlement. The key is in finding the “right” attorney, and beyond references and other indicators of superior abilities (awards, distinctions, reviews, etc.), the questions you ask the attorney when deciding to retain him are what counts.  What are some of the best questions?

 

     First, it is important to verify the attorney will take the case on contingency.  If not, that tells you that the case is not a “winner” in the mind of the attorney.  He would normally ask for an hourly fee agreement only if he were worried about the likelihood to obtain money from the other side. Potentially, the issue is with proving liability or damages, but normally the issue is with the lack of insurance or means of payment on the other side.  Either way, it’s not a good idea to hire him.  Second, it’s important to verify the competence and ethics of the attorney. One of the best ways is to ask about the attorney’s Martindale Hubbell peer review ranking. Attorneys are peer-reviewed by fellow attorneys and judges, who know more than most non-lawyers about the attorney being rated.  At top rating is “AV Preeminent”, meaning the absolute top in ethics and competency.  The next level down is “BV”.  This can be verified on the Martindale Hubbell website.

 

      After ensuring a contingency agreement with a top attorney, there are other questions that help cement the decision to retain him.  Ask him about the venue the case will be filed if it is not settled, and the expectations for jury verdicts of that venue. You want the attorney to have his eye on potential trial, even though most cases settle prior to even filing.  You also want an attorney who understands how to negotiate, and what numbers should be used in negotiation to obtain the highest settlement possible. You should ask him about his last three to five personal injury cases and how they resolved.  How long did it take to resolve, and how far the cases settled beyond the medical bills involved. Be careful about lawyers who allow “file stagnation”, or allowing cases to linger for over a year before settling or filing suit (outside of unique circumstances or lengthy treatment). Lastly, it’s important to ask him about how his office communicates with clients, and how often you expect to receive communication.

 

      Use your “sixth sense” with the potential attorneys, and always prioritize a reputation for character and ethics.  Once you have the right attorney, let him work the case, but continue to ask questions about the case to ensure he is on top of things.  In the end, you will have the best result possible by the best attorney possible.

 

 

          One of the first things law students learn about in their first year is the basics of contract law.  One of the first discoveries is how easy it is to create a legally enforceable contract. All that is needed is the communication of an offer of some “quid pro quo” (Latin: “this for that”) to another party and that party’s communication of an acceptance of the offer.  Despite what some think, an oral contract is as binding as a written contract (though some types of contracts must be in writing for the evidence of the contract to be recognized by the Courts under the “Statute of Frauds”). The Courts will not ascertain the valuations of the value given by either side, though a legally enforceable contract does require that each side give some “consideration” (basically value). The courts will not normally enforce a promise by one side to provide value without a reciprocation (Exception: Rare cases in which the promise causes detrimental reliance to the other side). 

 

           Despite the theory of contracting by solely an oral offer and acceptance, the reality of enforcing the contract requires evidence of the contract that the Courts recognize and a judge and/or jury would find convincing enough to prove the contract. If two parties make an oral contract without witnesses and one side backs out, the evidence will likely be the testimony of each party which will likely conflict. In that event, and with the burden of the “preponderance of the evidence” on the side seeking to enforce the contract, the contract would likely not be recognized and enforced by the court. Other evidence can help provide enough proof, like witnesses to the oral contract, history of such course of dealing and business, or partial performance of the contract. The problem is that this doesn’t guarantee enforcement, and would likely not bring enforcement to the particulars of the contract. Additionally, certain contracts like those dealing with real estate, marriage, high dollar values, or performance that cannot be completed in one year are required to be in writing (signed by the party against who the case is brought) for the Court to recognize that evidence (again, with particular exceptions like partial performance). Therefore, a written contract is almost always the best method.

 

         When drafting a written contract, it’s important to know that once the contract is put in writing, and parties have signed, a party cannot bring in evidence of a later oral agreement contradicting terms of the written contract.  That’s a Court concept called the Parole Evidence Rule.  Therefore, parties should consider what goes in the contract, and closely read all provisions, prior to signing.  The contract should provide as much specificity as will be needed for the nuances of the type of contract. Parties should consider an alternate dispute resolution provision to help prevent Court costs in the event one party alleges a breach.  That can be a mediation and then mandatory arbitration provision for one judge to consider the evidence and render a binding judgement.  Sometimes, contracts can become too specific in such a way as parties would not be able to orally agree to a minor matter without contradicting a provision of the written contract. Parties should consider confidentiality clauses, to prevent reputational or intellectual property rights damages to both parties. 

 

         It’s important to remember that contracts are for many different situations and areas of the law.  For example, when parties agree to settle a personal injury case, they will sign the settlement agreement with the Quid pro Quo. Normally, that is a contract for one party to pay the other party money in exchange for a signed release of all claims and liability (and potentially dismissal of a lawsuit). The settlement agreement includes release language, and the injured party will normally have to sign the release to receive the money (damages) for the injury.  It’s important in these cases to retain a lawyer.

 

        Whenever it’s within financial means, consider retaining an attorney to draft a contract. The attorney will consider aspects a non-lawyer will not. Additionally, that puts liability on the lawyer in which he is responsible for the legal sufficiency of the contract, and can be held to account if the contract falls short through his negligence. 

 

        Last word on staying out of trouble in contracting, and something your parents probably told you growing up:  Keep your word and try to do business with those who keep their word. 

        Depositions can be the least “fun” part of litigation.  They will normally come will into the litigation, after a complaint is filed and then answered (and potentially filed counterclaims), and after interrogatories and production of documents have been exchanged. With the exception of a potential motion for summary judgment, Depositions are the last part of discovery before mediation. Depositions help determine success in mediation, as the other side has had the opportunity to evaluate a party’s credibility and sympathy to a jury. The deposition can be used at trial for impeachment, and therefore becomes critical for trial. What are the keys to success at Deposition?

 

         On the day of deposition, it's usually best to dress conservatively and show a controlled demeanor, remembering that the opposing counsel is constantly considering how credible you will come off to a jury. It's important to know that once a deposition starts you cannot speak with your attorney until the deposition ends.  At the same time, you have the ability to take time with thinking about and answering questions.  Additionally, any time you need a break you can ask for it.  Remember that when the deposition goes "on the record", everything spoken will be recorded by the court reporter.  You must be prepared to speak clearly and never rely on non-verbal responses (like nodding your head for yes).  Be prepared for insulting questions, like "have you ever been arrested (or seen a psychologist, etc.)", but know that much of what's answered during deposition will not get into trial.  Do not get distracted by your attorney objecting to the form of questions, as you must normally still answer the question even if it cannot be used at trial (sometimes your attorney may say: Don't answer that question as in the case of a question about attorney/client privilege information)  Assume the other side knows the truth when asking the question.  Do not get angry.

 

        A primary reason to depose a party is to evaluate the person. How will the person will look in front of a jury with respect to likeability and credibility? Will that person "lose it" with uncontrolled anger (which would be perceived negatively by the jury)?  Does the person come across as insincere or defensive?  An additional objective is scrutinizing the person for inconsistencies to known facts or prior statements. Contradictions can and will be used for impeachment at trial, and could be the primary determiner at mediation or summary judgment.  A person is evaluated in what is remembered, as a lack of direct knowledge or memory of critical facts becomes critical in litigation.

 

       A person facing deposition in South Carolina should spend time reviewing prior events and statements, including through a review of personal notes and other memorializations.  Telling the truth, including and not being caught with inconsistencies with facts or prior statements, is the top priority. After reviewing every record available, it's important to practice being deposed with the hard potential questions.  Remember that it’s always perfectly acceptable to say "I don't recall". Practicing a deposition will help catch any potential inconsistencies. 

 

      Learn during deposition practice to only answer questions asked during deposition. Let the other attorney do his job in eliciting information.  As I tell clients "don't do the other lawyers job for him be talking beyond the question".  Come across as pleasant with the other attorney before and during the deposition, but remember you are not his friend (this goes for any discussions with the opposing attorney outside of deposition like small talk before and after). He is there to do a job, and has nothing personal against you but has the duty to zealously represent his client.

 

 

       Follow your attorneys advice and demand he spend some time getting you ready by asking hard questions. Depositions will never be fun, but with proper preparation the deposition can be where you win your case.

When a contract dispute, personal injury matter, or anything else that might require legal representation, it’s important to think before seeking counsel. Representing yourself is referred to as “Pro Se” representation under legal (Latin) terminology and is an option to consider. In almost any matter, your are allowed to represent yourself. The license requirement for a Lawyer to represent another in legal matters, so a lawyer is almost never required. There are a number of things to consider about the situation before seeking to retain counsel, and those considerations may lead to Pro Se representation.

 

        First thing to understand is that most lawyers will recommend retaining a lawyer regardless of the type of case.  Part of the reason is with the conservative nature of most lawyers in offering advice that will not come back on them.  If a lawyer recommends acting Pro Se and the case goes “bad”, that could come back on the lawyer.  The other reason is probably obvious, and that being the reality that lawyers generally seek to represent clients.  It is expected you will have a better outcome retaining counsel, as lawyers provide expertise in legal matters.  The problem is in the full range of considerations for the client, including the money potentially spent on litigation versus the money that comes out of the litigation.

 

       A reason to retain counsel can be that the case will be “paid” on “contingency fee”.  Particularly in a personal injury case, the Plaintiff bringing the case is seeking money from the other side to compensate for damages caused to the Plaintiff.  In that kind of case, the lawyer will usually be paid a third of the money that he is able to obtain for the client, whether by settlement or by verdict of the court or jury.  In this kind of case, it makes sense to retain counsel, particularly if the case if complex and involves serious questions of liability the lawyer must prove.  In some cases, for example a rear end collision, liability is not reasonably in question.  Then the lawyer helps with determining damages. If the injuries are severe, the damages will be higher.  The lawyer’s job is to seek the highest potential compensation possible, but making all possible insurance claims.

 

       When determining the need for a lawyer in a non-contingency matter, where you must pay the lawyer an hourly fee, financial considerations become more important. If you are in a contract dispute, and someone is suing for a relatively low amount of money, it might not make financial sense to pay a lawyer an amount exceeding what is being claimed in damages (what you owe the other side).  For example, if you are being sued for $1000 and you will have to pay the lawyer $1400 for representation, you will lose money even if the defense is successful.  In most defense cases, insurance companies provide and pay for attorneys to defend cases.  That is where insurance applies.  In those times insurance doesn’t apply it’s important to think about the return on investment.

 

        In bringing certain suits,  particularly disputes involving relatively small amounts, it can be best to act Pro Se.  For example, in contract or property disputes $7500 or less it may be wise o bring a suit Pro Se in Magistrate Court.  The limit to what Magistrate Court can adjudicate is $7500 in South Carolina, and these court cases don’t involve the usual expenses of discovery like in Circuit Court.  If you retain counsel, you will have to pay $2500 as a contingency to bring the matter, and that might be cost prohibitive.  Then the decision comes down to factors like whether or not the other side has an attorney (likely best to get an attorney in that event), or the complexity of the case.  Other actions in Magistrate Court, like evictions, can be done Pro Se, though it all depends on the various factors involved including the complexity of the case.

 

       Consideration:  Even if acting Pro Se, attorneys can still help with things like document production.  For example, for a small flat fee an attorney can draft an Answer to a Complaint to be signed and filed by the Pro Se litigant.  Also, attorneys can be brought in at any point in the litigation.

 

       Bottom line: If money is not an issue, it is almost always best to retain counsel regardless of the type of case.  As money is normally one of the issues to consider, it’s important to consider going Pro Se.


One of the tougher challenges in any lawsuit is handling the discovery involved.  I have previously written about depositions, which are a distinct part of discovery.  Depositions, which involve asking parties and witnesses questions under oath with answers being recorded, actually follow the written discovery.  This written discovery is the exchange of questions and answers and requests for production of tangible things (primarily documents) and the production.  It is a time when the parties must be involved in assisting lawyers with answers to questions and production. This is in any kind of case: Personal Injury car accident cases, family court cases, contract disputes, etc  Due to the substantial involvement of parties in Discovery, it’s important to understand the dynamics.

 

       The first part of written discovery may (but not always) involve “requests to admit” (RTA) questions of the opposing party.  Important to know about RTA is that they must be answered and served back to the other party (or attorney if represented) within 30 days. If not, and similar to defaulting in not answering a complaint in 30 days, the questions are deemed admitted before the Court. They must be answered in 30 days or the effect will be catastrophic for the case.  In answering the first mandate is to be truthful.  At the same time, the party is not required to go beyond the question asked, but can caveat the answer to leave wiggle room.  This is good to send to the other side as it pins them down on certain issues throughout the litigation.

 

        The “Interrogatories” are questions parties send to each other, in which the other side must answer.  The SC Rules of Civil Procedure offer “standard” interrogatories, which include witnesses, including contact and a summary of testimony to be offered and expert witnesses and associated reports.  Important to note is that if witnesses and/or experts are not named during discovery, they will likely be barred from testifying at trial. Parties are limited in the number of questions they ask, but the questions only have to be likely to lead to relevant information, and therefore can cover a great deal.  Answers can be supplemented if more information becomes available, and parties can ask further questions as more information becomes available.

 

        The “Requests to Produce” (RTP) can be quite labor intensive and frustrating depending upon the case and request.  In a manufacturing defects case, it might involve literally millions of pages of documents.  Most cases aren’t that onerous with production, but you can get they point of the tedious nature of finding and reviewing substantial numbers of documents to produce to the other side.  For both Interrogatories and RTP, the party receiving has 30 days to answer, or be hauled in to court on a motion for the Court to Compel discovery from the side who has not produced it.

 

       Sometimes, parties will withhold information/production due to objections about what was asked or requested.  For example, parties cannot request discovery the includes attorney-client privilege or work-product privilege.  There are other objections, and these usually go before a judge to make a ruling of whether or party must answer. 

 

       It’s important for the client to be intimately involved in the process of discovery, and ensuring his attorney is fulfilling discovery requests properly and diligently. What transpires during discovery sets up the case to win!

 

 

 

        One of the toughest decisions is whether to bring a guardianship and/or conservatorship action over another family member or close friend.  This only comes up when the person needing a guardianship or conservatorship can no longer take care of himself. He is in the category of a “protected person”. In the case of a guardianship, the protected person is no longer able to take care of himself and requires a competent person to make health care and living decisions.  In the case of a conservatorship, the protected person cannot handle his finances and requires a competent person to handle the finances and make those decisions.  Normally, both actions (Conservatorships and Guardianships) are brought together, as the protected person cannot handle either of those issues. Additionally, normally the person petitioning the court will petition to become both guardian and conservator. A number of things to consider before filing this action.

 

      First, the petition for Guardianship/Conservatorship is made with the probate court of the county the protected person resides.  Second, it is similar to bringing other suits in probate court. In the case of a Guardianship/Conservatorship, the party seeking the conservatorship will be the Petitioner and the protected person is the Respondent.  In South Carolina, a requirement for successfully bringing the action is to have a medical evaluation of the protected person, and the physician’s determination that the Guardianship or Conservatorship is necessary due to the condition of the protected person. Even with that determination, the protected person still has the ability in a hearing to argue against the action (including through counsel).  Additionally, notice must be given to all interested parties, which are other family members to the protected person.  Each of them can argue against the action, or that one of them should be the Guardian or Conservator.  Therefore, seeking a Guardianship or Conservatorship should only come after clear evidence the protected person is in true need of the action.  This is an action in which a lawyer is highly recommended.

 

      It’s important to remember that if the potential protected person is not yet at the level of requiring the Conservatorship, and he is competent to sign a Power of Attorney (POA), he can give power to another to handle financial matters.  The only problem is that the potential protected person can still conduct his own business, potentially to his detriment. Additionally, a POA can be revoked at any time.  Sometimes, a potential protected person give POA to someone who may abuse the POA to the detriment of the person, and become incompetent after giving POA.  In that event, a loved one may need to step in with a Petition for Conservatorship and/or Guardianship. That may be the only way to stop the person with POA from abusing that power to the detriment to of the potential protected person.

 

       If possible, it is always best to obtain “buy in” by the potential protected person before filing a Conservatorship and/or Guardianship.  In that event, the process is much more smooth, and the protected person knows and can trust the person petitioning.  The hearing becomes “pro forma”, and other family members may be placated in this circumstance.  I have seen this particularly with elderly come to realize they need the help of a child, for example, and work with them in the Petition. If the protected person fights the process, it can become very difficult and expensive.  Sometimes, the incapacitating issue is some form of dementia.  Sometimes, it may be a psychiatric or mental challenge issue.  Sometimes it comes due to a personal injury, a car wreck for example, in which the person is seriously injured and cannot handle affairs.

 

       This is a process that requires much thought and prayer to handle while keeping peace among relationships.  It is always recommended to obtain counsel to get through this challenging time.

 


 

        When a person or business has been damaged by the negligence or bad dealing (breach of contract, fraud, etc.) of another party, and attempts to settle between parties are unsuccessful, the wronged party will usually begin litigation.  The start point of litigation is the drafting of a Complaint to file with a court.  I write “a court”, because parties usually have choices to make with determining the court to use. First, it could be something involving parties of different states or a Federal law issue which might give the option of Federal court, but we will assume South Carolina state court.  If the wrongful act/incident happens in one place, but the Defendant lives in another, both places offer jurisdiction to litigate.  If the damages are $7500 or less, the case can be brought in Magistrate Court as well as Circuit Court.  Regardless, the SC Rules of Civil Procedure (SCRCP) apply to all state courts.  The Complaint will have to allege the basis of the jurisdiction of the court of filing, and cause of action against the Defendant.  It must allege the elements of the cause the Defendant violated.  After filing the Summons and Complaint, the party filing has 120 days to “serve” the lawsuit on the other side or it is dismissed.

 

        By the SCRCP, the Complaint is served with a “Summons” that was also filed with the Court.  The Summons tells the Defendant he has 30 days to answer the Complaint or will be held to have defaulted to the cause of action.  That means the Defendant can lose the case if he does not answer within that time, which starts after he is served with the Summons and Complaint.  The default provision is why “Service of Process” is such a formal process in ensuring the Defendant actually receives the Summons and Complaint.

 

         By the SCRCP, Service means physically giving a copy of the Summons and Complaint to the Defendant by a competent person over the age of 18 and not a party or party attorney.  In practice, this is normally executed by a professional process server.  Of note, by the SCRCP service of process is conducted for civil suits and at the start of a Family Court action, but is not needed in for most Probate Court actions.  An exception to the rule of handing the papers to the Defendant is handing the papers to “an adult of suitable discretion at the Defendant’s residence”.  Usually, this is the Defendant’s Spouse or any adult children.  For a business, the service is conducted upon an officer of the corporation, or by certified mail through the registered agent for the corporation. After serving the Summons and Complaint, the process server executes an affidavit of service attesting to the service conducted, and that is filed with the Court. The date of service starts the 30 day period to answer and starts the clock for the suit.

 

        Another means of conducting service of process is by mailing a certified letter. “If” the Defendant personally signs for the certified letter, that signature is considered the acceptance of service and it can be filed as such.  If a Defendant’s attorney accepts service on the Defendant’s behalf, that is considered acceptance of service (note: Most attorneys will not accept most service for clients, and that acceptance is usually not in the client’s interest).  Additionally, a party can voluntarily accept service and sign an acceptance of service.  This is sometimes done when parties have reached an agreement before the suit begins and they are settling.

 

        If a party avoids service by avoiding the process server and refusing to sign a certified letter, the party bringing suit can request the court allow for “service by publication”.  This means that it is published in the newspaper of record for a period of time and the person is considered served.  It is not a defense for the Defendant to claim they didn’t actually read the paper, as the rules are specific about what must happen for service to be deemed complete.

 

        It’s important to know about proper service of process, and mistakes will mean the lawsuit can be dismissed for improper service.

 

 


 

        One of the toughest parts of civil litigation, whether as a Plaintiff bringing the case or Defendant, is handling a Deposition.  Depositions are part of “Discovery” between parties, and will come after parties have served their pleadings (Complaint/Answer) and usually after they have exchanged written discovery.  It is the chance for the attorneys to not only obtain information from the opposing party, but evaluate the believability and presentation of the opposing party. Attorneys will usually depose other witnesses beyond the parties to the lawsuit, but the deposition of the Plaintiff or Defendant is critical to litigation. In South Carolina, once the deposition has started, you cannot speak to your attorney until it is over.  That includes not speaking to your attorney during breaks.

 

        The attorney goes into the deposition of a party with a few critical objectives. First, he wants to know how the party will come across to a jury. Will he or she be sympathetic to a jury?  Will he appear credible?  Will he come across as angry?  Will he lie or appear to lie?  These are all things to consider when preparing for a deposition.  It’s why a party should dress conservatively (presentation/likeability).  It’s why a party should be prepared to stay calm if the other attorney tries to make him mad.  It’s why a party should consider and ponder all the facts first before the deposition, and answer in a cool fashion (appearance of credibility). Before, during, and after the deposition, be cordial to the opposing attorney without forgetting he is opposed in interest.  In other words, do not get too close in conversation while outside the deposition he picks up information he should not know.

 

        The other objective of the attorney in the party deposition is gathering critical information for his case.  That’s a reason for a party to solely answer questions asked of the attorney, and take time thinking to give clear, concise answers.  Many times, a party will believe they have to talk beyond the question. The opposing attorney may learn something critical to his case when he didn’t even ask the question, or be able to use “loose” words as evidence to for his case.  Make the other attorney do his job.

 

        Do not try to argue with the other attorney during the deposition and become flustered. Your attorney will have the opportunity on cross examination to explain something you need explained more fully. Discuss this with your attorney before the deposition.  For example, during a personal injury car wreck deposition the other attorney may not let you go beyond a question of whether or not you saw the other car before impact. It might be important that you be able to speak about the incident beyond a simple yes or no answer due to the specific conditions.  Your attorney will give you that chance in cross examination.

 

       Lastly, it is critical your deposition testimony not be used to impeach you if the case goes to trial. Get the facts straight before the deposition.  If you don’t know or can’t remember those become perfectly acceptable answers.  Always tell the truth, and do it in a way a jury would both like you and believe you.

 

Bill Connor

 

 

 Planning for what happens to one’s property after death can be a tough process but the motivation comes from the security of caring for others.  Without any estate planning, loved ones are forced to make tough decisions about the property of the departed within the constraints of state law, and the lack of direction can cause families to become bitter or separate.  With this being the case, it’s important to think through all aspects of estate planning while still in the mental capacity to do so.  What is most important about this process?

 

       The most obvious important part of estate planning is in executing a last will and testament.  This not only directs where property should go among loved ones, but who is responsible for handling the estate.  Without a will, family members may be in conflict about who should act as the Personal Representative (formerly Executor or Executrix) for the estate.  There may also be conflict when property must be divided by state intestacy (no will) law.  This happens frequently with a person who has a second spouse after raising a family with a first spouse.  The second spouse has priority as personal representative, and the estate must be divided between the living spouse and living children (who may not care for the spouse).  A will relieves these questions and conflicts.

 

       Also part of the process is in having Durable Power of Attorney given to a trusted loved one.  This is for the period before death in which one may not be capable of conducting business affairs.  Along with the Durable Power of Attorney, should be a Health Care Power of Attorney.  This allows end of life decision by a loved one and communication and recovery are no longer reasonably possible. 

 

       Lastly, it’s important to consider setting up non-probate transfers upon death to help minimize the work in probate (and prevent the estate from reaching the point of having to pay substantial Estate taxes).  This can be done through “payment on death” or “transfer on death” accounts, whether checking or savings.  It can also be done with other types of fungible wealth transfers like stocks/bonds/401K/etc or even retirement accounts.  It is important to ask about this option on various accounts and investments.  With house and land (“real property”) one can transfer the Title to a loved one during life, subject to a “life estate” by the person transferring.  That allows one to live in the house/land until death, without the real property going through probate.

 

        It’s really never too early to consider estate planning, as we never know when the Lord will come calling.  Do it now, and take care of your loved ones.  Make this your legacy.


 

       At some point in the future if not already, you will be in the position to become personal representative (formerly this was known as Executor for men and Executrix for women).  This can happen when a loved one has died and has designated you their personal representative in the will.  It can also happen when a loved one dies without a will, but you are the closest living relative to the person and obligated to file an intestate (without will) estate.  Sometimes, it can happen when you are the person who is most competent and in the best position to probate the estate.  In the event there is no will, the SC probate law does provide priority, first to living spouse and next to living children.  A question will arise in whether to hire an attorney and when to hire an attorney in the probate process.

 

      First, a person “can” probate an estate as a personal representative (PR) without an attorney (called “Pro Se”). In this event, the only time during the process when an attorney would have to get involved is if a Deed of Distribution must be drafted and filed.  Otherwise, the law allows individuals to file an estate and act as PR until the closing of the estate.  Before taking this option, you should be aware that the PR is a fiduciary and must follow SC law throughout the process of the estate and is accountable to heirs and beneficiaries.  If something is done wrong, the PR cannot blame the lack of an attorney in trying to avoid liability.  Additionally, if you attempt to start the probate process without an attorney, some mistakes might not be undone by later hiring an attorney, particularly if money is lost or distributed improperly.

 

      Estate attorneys can be paid out of the estate after a person is appointed PR, so it generally makes financial sense for the PR to hire an attorney.  If the attorney is retained prior to appointment as PR, you must pay him for the work in filing the estate, which could also involve defending the petition for PR against someone contesting the appointment.  Assuming no contest (which is the norm when a person is designated PR by the will, or is a close relative like a spouse) the expenses are minimal prior to appointment as PR. 

 

      The Estate attorney has a primary duty to the estate and the processing of the estate by the SC probate code, but works with the PR toward completing the inventory and appraisement, any real estate sales involved, payment of creditors and estate expenses, and finally closing the estate by an accounting and distribution to devisees.  The PR oversees the process and acts as the ultimate responsible party but the lawyer (and firm) does the detailed work.

 

       It is best to hire an attorney at the beginning to ensure the process is done correctly, legally, and without liability on the PR. If not at the beginning, then after appointment as PR, but before starting the process involving fiduciary liability.   

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