Understanding the Probate Process in South Carolina
When a loved one dies, grief and emotional adjustments can be overpowering. Yet, it is necessary for the family to begin dealing with the financial realities of the person’s estate. This includes the probate process, which deals with distributing and settling the estate with court supervision. In most cases, probate is a legal responsibility in South Carolina.
However, probate can be avoided if the decedent’s assets were placed in a living trust before they died with beneficiaries designated to inherit the estate. Other funds that will not enter the probate process are those that have already been promised to certain beneficiaries. These include life insurance policies, bank accounts with payable upon death designations or securities with a named beneficiary.
What Assets Go Through Probate?
In South Carolina, the following assets are subject to probate:
- Property only held in the deceased’s name
- Any real estate that the decedent held as a tenant in common
- The deceased’s interest in an LLC, corporation or a partnership
Assets That Do Not Go Through Probate in South Carolina
- Any asset that is in a trust
- Assets in a pension plan
- Any asset that already has a beneficiary attached to it
- Insurance policy with a beneficiary
- Retirement funds with a named beneficiary
- Real estate with joint tenancy with right of survivorship
- Joint accounts that are deemed payable or transferable upon the death of another
How the Probate Process Works
The first thing that happens is that the will is delivered to the probate court or the person designated to handle the estate. There is a 30-day deadline to do this. The court will name a personal representative for the estate. This person may be named in the will.
The heirs to the estate are notified. If someone believes they should inherit but were not acknowledged, they can challenge this step. Within 90 days, the estate must be appraised. Some large estates with homes and jewelry might be appraised by professionals.
All Accounts Are Settled
The probate of the estate will now enter a phase where all accounts are settled. Sometimes, the estate has enough funds to pay all accounts. However, on occasion, the funds are lacking. The person in charge will then refer to S.C. Code § 62-3-805 for guidance. Administrative fees are paid first, followed by federal taxes and debts, medical expenses, state taxes and debts and other estate claims.
When funds are left over after paying for all claims, the excess money may be distributed to the heirs.
The Court Issues a Certificate of Discharge
Once all claims have been paid, the will presented and all tasks listed above are completed, the court will close the estate. To confirm this, a Certificate of Discharge is issued.
Avoiding Probate - Good or Bad?
There are reasons to avoid probate. For instance, it saves money, relinquishes money to the heirs quicker and keeps matters private. Some aspects of avoiding probate are straightforward, and others are more complex. It is best to have a South Carolina probate attorney’s help. Having a will or a living trust in place are ways to make the transfer of assets easier. It is best to talk to your attorney about what is right for you. A little preparation can make a big difference when your loved one dies. No one is ever emotionally prepared for a family member’s death, but your attorney can help make the process easier.
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