In South Carolina, “probate” is a term used for a variety of things, leading to considerable confusion. One probates a Last Will by submitting it to the Probate Court for acceptance into probate. In one sentence the word probate is used as a verb, as a noun, and in a proper noun. And then there is the additional fact that a Will only effects probate assets. So what is going on here?
In a probate proceeding involving a Will, the Probate Court has to determine the validity of the Will and appoint a person to be the “Personal Representative,” to be in charge of the probate estate of the deceased person (the decedent). In other states the Personal Representative may be called an “Executor” or “Administrator”. In certain cases, an estate can be handled informally by the Probate Court, but in other more complex circumstances, the estate must be handled formally.
The personal representative’s handling of the decedent’s estate, is often called the “probate administration.” In probate administration, the personal representative serves as a fiduciary of the estate. This means that the Personal Representative must act in the best interests of the estate and follow the decedent’s intentions expressed in the Will. The personal representative must take control of the estate’s probate assets; protect, manage, and preserve them; handle creditor’s claims; account for all the transactions involving the estate and; ultimately, distribute the probate assets according to the Will. The probate administration typically takes anywhere between six months to many years, depending on the complexity of the estate and whether any disputes arise.
The Firm has considerable experience handling probate administrations. The Firm’s attorneys maintain a thorough understanding of the South Carolina Probate Code, case law, the SC Rules of Civil Procedure, and the Probate Court rules and procedures. If you have been named in a Will to serve as the personal representative of an estate, The Firm can assist you by analyzing the situation, explaining your duties and helping you to carry them out, preparing you for the probate process, and by preparing and filing the necessary documents. If you are a beneficiary under somebody else’s Will, The Firm can also work to ensure that you are kept notified and fully updated on the process and that your interests are well represented.
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When a person passes without a Will, or if a Will fails to distribute all of a deceased person’s probate property, said person is said to have died “intestate.” In this situation, the person’s estate must still be handled through a judicial process. The Probate Court must make a finding of intestacy, appoint a Personal Representative, and determine who the heirs are who will receive the estate’s assets. The persons entitled to a share of an intestate estate are ascertained with reference to South Carolina’s intestacy statute. If a close or distant loved one has passed without a will, The Firm can advise you of your rights, if any, and help you through the process.
If a decedent’s estate consists of only a small amount of personal property, South Carolina law allows that the estate may be collected via a small estate procedure. While it is a good idea to consult with counsel about the suitability of this procedure, the law on small estates is located within the South Carolina Probate Code, and the required forms are available from the South Carolina court system.
We can help guide you through the complex laws regarding probate and intestate administration. Call the Miller Law Firm, P.A. today at (864) 527-0413.
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