PROBATE 101: PART I TEN FREQUENTLY ASKED QUESTIONS ABOUT PROBATE AND WILLS

I receive a lot of different questions about probate, wills and trusts, and sometimes I hear the same questions asked repeatedly.  So, in this article, I have set forth and answered five of the ten most frequently asked questions that I receive about probate and wills. Perhaps some of your questions are among the most frequently asked, and now answered!

1.         What is probate?  Probate, in its simplest terms, is the process by which a deceased person’s "probate" property, real or personal, tangible or intangible, is protected and managed after the person’s death, the deceased's lawful creditors and debts are paid from such property, and then the remaining property is transferred to those persons entitled to the property.  These persons may be the deceased person’s beneficiaries under the deceased person’s Last Will and Testament or, if the person died without a Will, to their heirs at law. It also involves the Probate Court's determination of whether the deceased person left a valid Last Will and Testament.  This determination is called "probating" the Will.

2.         What does the probate process involve?  Probate is commenced by filing an Application on a Probate Court specified form or a Petition (also a Probate Court form) for appointment of a personal representative along with any Last Will and Testament belonging to the deceased person (the decedent).  The Will is probated, and the person named in the Will applies for appointment as personal representative (previously referred to as an executor).  If there is no Will, a close relative such as a spouse, adult child or sibling will apply for appointment. Once the personal representative is appointed, a notice to creditors of the deceased person's estate is published in a local newspaper advising all persons of the personal representative's appointment and the Will, if any.  A separate notice of the commencement of the probate administration process is also provided to all heirs of the decedent and the beneficiaries under any Will. The personal representative must then collect and account for all of the decedent’s property, real and personal, and file an inventory of such property with the Court.  Assuming no contested matters or unresolved claims are filed against the estate, once the creditor claims period expires, the personal representative, after paying or resolving all claims, then files an accounting of his handling of the decedent’s property and, after review and approval by all interested persons and the Court, the decedent’s remaining property is distributed (and retitled) to the persons entitled to such property as the decedent’s heirs or as beneficiaries under the decedent’s Will, if any.  New laws in SC now allow all persons interested in the decedent's estate to waive the filing of an accounting, which makes the probate administration process easier and quicker.

3.         Do I have to go through probate if all of my deceased spouse's property was owned jointly with rights of survivorship or had beneficiaries designated to receive the property?  Generally, jointly titled right of survivorship property, such as real estate or bank accounts, are not subject to the probate administration process and the surviving joint owner can obtain the property without Probate Court approval or authorization being required. The same is true for beneficiary designated property provided (i) the deceased "estate" is not the designated beneficiary, (ii) the designated beneficiaries or designated contingent beneficiaries survive the deceased person, or (iii) the property passes by default to other beneficiaries and not the deceased's "estate".  Even though all of a deceased person's property is titled with rights of survivorship or is beneficiary designated property, if the deceased person had a Last Will and Testament, the Will is required to be filed with the Probate Court following the person's death.  No probate administration, however, will be necessary. 

4.         How long does probate take?  A simple, nontaxable estate (currently, an estate that is less than $11,200,000 is nontaxable) with everything going to one person such as a surviving spouse or a sole surviving child who is also appointed personal representative of the estate can be virtually completed in as little time as two or three months.  Also, a small estate that is less than $25,000 (after deducting liens, expenses and encumbrances) can also be almost entirely completed in just a couple of months.  The estate remains open for the expiration of the claims period but most filing are complete within just a few months. If the estate is more than $25,000 and includes numerous beneficiaries, then it takes a minimum of 12 months from the date of the deceased's death to complete the probate process. The primary reason for this delay is because of the creditors' claim period.  Although there is an 8-month period in South Carolina in which most creditors of a deceased person must file their claims against the decedent’s estate, there are some creditors who have up to one year from the deceased's death to file their claim. Generally, a personal representative handling the estate will wait until the claims’ period expires to assess the status of the claims, pay and/or resolve all claims, and thereafter distribute the remaining property to the heirs or beneficiaries. There is no requirement, however, that the personal representative wait the full creditor claim period before distributing property, but an early distribution of property could subject the personal representative to personal liability if too much property is distributed before the claims’ period expires and enough property is not left in the estate to pay all valid claims.

5.         Do I have to wait for the expiration of the creditor claim period before I sell the decedent’s real estate?  No. Generally, a personal representative can sell real estate owned by the decedent as soon as they are appointed and an appropriate contract to sell is obtained with a buyer.  If the decedent had a Last Will and Testament and the Will gives the personal representative the express authority to sell his property, real and personal, then the personal representative has the authority to sell the property without approval by the Probate Court.  If there is no Will or the Will does not grant the authority to sell, then the personal representative must petition the Court for authority to sell, which can be simply a matter of procedural filings and documentation to obtain an order if all interested persons are in agreement to sell.  If some parties object to the sale or do not sign necessary consent forms, a hearing in the Court is required.

Next month, I’ll set forth and answer the remaining five most frequently asked questions that I receive about probate and wills.

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC  29575.  The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law.  Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)