PROBATE 101: PART II TEN FREQUENTLY ASKED QUESTIONS ABOUT PROBATE AND WILLS
Last month, I set forth five of the ten most frequently asked questions that I receive about probate and wills. This month I share my remaining top ten questions.
6. What fees are involved? The initial application fee for informal appointment of a personal representative and/or probate of the Will, if any, is $25.00. If for some reason a personal representative cannot be appointed informally (which is the exception), then a Petition along with a summons and a filing fee of $150.00 is required to commence the probate process. After a personal representative is appointed and files an inventory of the probate assets, the Court assesses additional court costs based upon a uniform state fee schedule, which is based upon the value of the decedent’s probate estate (that is, the property passing by Will or intestate succession) as follows:
Valuation less than $5000 $25.00 (initial fee only)
Valuation of $5000 but less than $20,000 $45.00
Valuation of $20,000 but less than $60,000 $67.50
Valuation of $60,000 but less than $100,000 $95.00
Valuation of $100,000 but less than $600,000 $95.00 plus .15 percent of the valuation between $100,000 and $600,000
Valuation of $600,000 or more Same fee immediately above plus ¼ of 1% of valuation over $600,000
7. Why do I have to go through probate if the Will says that I get everything? Although a decedent may have a Last Will and Testament leaving all of his or her property to a surviving spouse or to a child or children, the decedent’s property, such as their home, car, bank account, stocks, etc., is legally titled in their name. The property must be rightly and properly retitled to the beneficiaries named in the Will. Since the owner of the property (the decedent) is deceased, no one has the legal authority to transfer the deceased person’s property other than someone who has been appointed by the Court as the deceased person’s representative to handle his or her affairs, i.e., a personal representative. Appointment of a personal representative by the Probate Court gives the personal representative legal authority to handle the deceased person’s affairs, including the authority to transfer the title to their property to those persons rightly entitled to the property under the Will. The transfer of a deceased's person's property doesn’t just happen automatically under the Will. The Will must be given effect by being probated by the Court (that is, the Will must be found to be the decedent’s Last Will and Testament) and someone must then sign the proper legal documents to transfer and retitle the property that the decedent owned at the time of his/her death to the person(s) named in the Will to receive same. Therefore, a deed of distribution for any real estate must be signed and filed in the Register of Deeds office, new titles to any vehicles must be issued through the Department of Motor Vehicles, bank accounts must be closed and/or retitled, stocks and bonds retitled and reissued, and generally any other property, real or personal, that has a title or documentation evidencing title or ownership, must be retitled to the person or persons entitled to same under the Will. This retitling and transferring of title is accomplished by the personal representative for the decedent’s estate who is appointed by the Probate Court and given the legal authority to do these necessary things.
8. If I have to go through all this probate stuff, then what’s the purpose of having a Will in the first place? If you have probate property, you still have to go through this whole process of probate whether or not you have a Will. What the Will does is make the whole process much easier and less expensive. It also restricts the beneficiaries of the property to those persons who the decedent wants to take the property rather than relying upon state law to determine who is to inherit the property. A Will also appoints the person the decedent wants to be the Personal representative to handle his or her estate rather than relying upon state law to determine who is to be appointed. A Will often does so much more, such as generally eliminate the need for costly and time-consuming formal proceedings for (i) the sale of property, (ii) the appointment of conservators for minor or disabled beneficiaries, and (iii) most formal contested appointment procedures, etc. It is far better to have died with a Will than without one.
9. My Last Will and Testament was written in another state. Is it good in South Carolina? If your Will was prepared by an attorney in another state then it most likely can be probated in South Carolina as your Last Will without any difficulties. If the Will was executed in compliance with the laws of the state in which it was signed, then it can be admitted to probate in South Carolina as a person’s Last Will and Testament assuming that it meets our other statutory requirements (that is, it is the original Will, it has not been revoked by a subsequent Will, it has not been defaced, torn, obliterated, etc.). It is always a good idea, however, to have any out-of-state Will reviewed by an estate planning/probate attorney to make sure it is valid in SC and sets out properly your current wishes and desires with regard to your estate plan.
10. Can I do probate by myself or do I have to have an attorney? That depends. Many estates that are administered through the Probate Courts in this state are handled by family members without the assistance of an attorney. These are relatively simple, uncontested estates that, for the most part, involve the preparation and filing of various forms with the Court and then accounting for the assets and doing all the legwork and paperwork to properly transfer the property and assets at the appropriate time. Other estates may be complicated, taxable, or contested such that the services of an attorney are beneficial or necessary. And, then some people just want the peace of mind of turning everything over to a professional to take the burden, stress and work off themselves and to guide them through the probate administration process. So they seek professional assistance with the probate administration process. If an estate gets complicated or contested matters arise, the assistance of a probate attorney is often necessary. Whatever type of estate is involved, a seasoned probate attorney can help family members through the probate administration process.
(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.)