Bill Connor
Beyond major life events, like buying or selling a house and creating estate documents like Wills and Power of Attorney, most people do not deal with lawyers. That changes in the event of a major accident (vehicle, slip and fall, etc.), when an attorney becomes part of one’s life for months or sometimes years. Lawyers are meant to help clients navigate all the issues involved with resolving an accident, and clients are dependent upon the lawyer’s experience and expertise. Sometimes, the lawyer involved does not appear to be doing all he should in the case or with communicating properly about important issues of events with the case. It is at these times the client may need to switch attorneys, and it’s important to know how to do it right. The first thing to understand is that a potential substitute attorney cannot take over as lead counsel and advise about the case until the first attorney is discharged as counsel by the client. Therefore, don’t be surprised when “shopping around” for a new personal injury lawyer if the potential new lawyer is limited in what they can advise. They can do a consultation about the laws involved with the case, but cannot direct the client while that client is still represented by other counsel. Normally, the “new” lawyer will ask the client to provide notice to the “old” attorney of being terminated and retrieve the file. At that point, the “new” lawyer can become the lead counsel, file a notice of appearance (or “substitution of counsel” to switch out with the court), and start advising. A potential issue can arise when switching lawyers in a personal injury case in South Carolina, and this issue can sometimes deter “new” lawyers from taking over the case. Personal injury cases are generally done on a “contingency” fee basis. This means that the lawyer working the case is paid with a third (sometimes 40%) of the settlement or award at the resolution of the case. If the “old” lawyer has put work in the case, he can attempt to put a “lien” on that contingency, and take some percentage to cover his work before switching lawyers. If the lawyers are switched at the end of the case, this can sometimes cause the “old” attorney to assert a lien most or even all of the contingency. This becomes a deterrent from other lawyers taking the case and earning little for their work. It is just something to discuss with the incoming attorney and understand that dynamic between lawyers. Regardless of the issues involved, do not stay with an attorney if you have multiple indicators that the lawyers are not properly representing you. It’s your right to have the best representation possible. If you are in need of an attorney in Orangeburg SC contact the Bill Connor Law Firm to see if we can help.
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 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.
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.
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.
Though cases do go to trial, most cases are settled between parties prior to trial. After someone is injured due to the negligence of another, that starts a process toward an eventual resolution between the parties. In most cases, the injured party will retain a lawyer who will put together the evidence of wrongdoing and evidence of damages, and send a demand for settlement to the other side. Parties will then go back and forth over settlement numbers to attempt to reach a settlement. Mediation could come at this point, as a “pre-suit” mediation, but normally it happens after filing a lawsuit. This is the formal median to prepare to win. The Plaintiff, through his attorney, will normally file a lawsuit against the Defendant (and usually it’s through the Defendant’s insurance company) if the Defendant and/or his insurance company does not offer enough to satisfy what the Plaintiff perceives as his damages. The Plaintiff will file a Complaint, which will be served on the Defendant. The Defendant will normally give it to his insurance company, and the company will assign an attorney to defend and answer the complaint. After answering the complaint, parties will engage in discovery of information from each other, and this will include depositions of the parties and witnesses. At any point along the way, either party could reach out with an offer to settle, but normally the suit does not settle until after discovery when the parties know all the evidence. Mediation is mandatory in most circuit courts in South Carolina prior to trial of the case, so most will engage in mediation. The mediator is paid by both the parties, and is normally an attorney or former judge experienced in the type of case. The parties will normally provide a mediation packet to the mediator prior to mediation, and will usually come to mediation with their first offers to settle. What’s critically important is for parties and attorneys to plan the strategy of mediation. They must go in with the “walkaway” amount that is the limit to what they will accept from the other side. Most know from human nature if a side is desperate to settle, and willing to go as far as can be pushed. Another important part of planning is identifying all potential quid pro quos (this for that) between parties. Usually, there are other exchanges of value beyond the strict dollar amount to settle. Sometimes, it may be something as simple as an apology. It may be a confidentiality agreement if parties settle. Each case is different, but the reason for identifying potential exchanges is that it helps alleviate coming to an impasse with just the dollar figure of settlement. It’s important to “keep position” in a mediation. The first offer should be to the high end of what is desired. In almost all mediations, the starting offers are just that: A start. A high-end position allows room before coming to the walkaway number. It’s important to have the justification for demands, through good knowledge of both liability and damages. Arguments are made between parties to convince them of what would likely happen at trial. Most of the discussion will be about the legal and financial aspects of the case. However, arguments can be made about other reasons for settlement, like the history of jury verdicts in the venue and other such considerations. During the mediation, it’s important to be patient and also flexible about reading the other side. It’s important to understand the actual decision maker, which may not be the Defendant or attorney, but an insurance agent. Lastly, it’s important that in reaching settlement the specific terms are spelled out at the mediation, and the mediator has all necessary parties sign a settlement which he will file with the court. You can win at Mediation, but it just takes planning, preparation, and good execution.
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When you have been hurt due to the negligence of another, whether in a car wreck or slip and fall, it’s important to consider the potential that the case may settle at any point before a jury verdict. Normally, the first step after the injury will be to gather the evidence of the other side’s liability the accident, usually some kind of report, video or eyewitness statement. Along with the evidence of liability, evidence of the damages shown by medical reports/bills, lost wages, etc. are necessary. Once your attorney has the necessary evidence, he will normally then send it to the other side, along with a demand to settle. In other words, he will offer to settle the case and have the injured person sign a release of the liable party in exchange for a sum of money. Since most liable parties are insured, the attorney normally seeks satisfaction of damages from the liable party’s insurance company, and the demand will be capped at the limits of the insurance. For example, if the liable party only has minimum SC state vehicle insurance limits of $25,000.00, that’s the amount the attorney will likely demand if the medical bills are beyond five thousand. Parties will go back and forth after the initial demand, as the insurance company will likely “lowball” with a counter to the demand much lower than the demand. Then the lawyer may drop his demand to a lesser amount, and the counter may come up. If parties reach agreement, the case is settled “pre-suit” or before filing. The positive aspect of settling pre-suit is that at that point the injured party will likely have almost no “costs” involved, that would come out of his part of the settlement (note: the attorney will normally perform work on contingency, in which the attorney receives 1/3 of the settlement or jury verdict and the injured party receives 2/3 but minus any costs of the litigation and any medical liens to his insurance company). An example of a pre-suit settlement: The injured party incurs $6,000 in medical bills. The other side has a $25,000.00 policy, of which the demand is the full policy. The parties go back and forth and finally settle on $18,000.00 paid by the liable party insurance company in exchange for a release of their insured by the injured party. Because this was pre-suit and involved no costs, the injured party receives their full $12,000.00 with the contingency ($6,000.00 for the attorney). The medical insurance company may have a small lien (potentially $1,000.00) which would come out of the injured party amount, but the rest is with then injured party. If the parties are not able to settle pre-suit, the injured party begins to incur costs that will come out of his portion after the attorney contingency. Filing a law suit is normally costs around $150, and all Defendants must be served at roughly $100 each. During discovery, the injured party would incur the costs of depositions of around $400-500 per deposition. Experts might be needed, and their fees of thousands of dollars would also factor. If the case settles during litigation, the injured party might have settled at a higher amount, but then must pay the costs I described. So “if” the parties settled for $21,000,00, meaning $14,000.00 for the injured party, costs may be beyond $2000. In that event, the injured party may “take home” less than if settlement was pre-suit. If the case goes to trial, the injured party might obtain a jury verdict of $24,000.00, but the costs might be $4000. In that case, the injured party would be at $14,000.00 (minus any lien), which is $2000 more than if he settled pre-suit. The insurance limits will vary, and every situation is different. However, the above factors must be considered in regards to settlement.
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!
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.
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