If you are in need of an attorney to help you handle the closing of a family member’s estate, Payne Law Firm LLC is here to help. We understand that this is a difficult time, and we are here to take the legal burdens off your shoulders so you can grieve and deal with the emotions of losing a loved one.
What is Probate?
Probate is how the Court recognizes the property transfers from a deceased person to the proper heirs or beneficiaries. Heirs or beneficiaries are those who are spouses, children, family members, friends, or other parties who may be designated to receive distributions upon a person’s passing. Generally, the probate process consists of determining heirs, inventorying and managing probate assets, resolving creditors’ claims and disputes, and ultimately distributing estate property or funds appropriately. The process can be paperwork intensive and difficult to navigate on your own.
How long is the Probate process?
The probate process can be very time consuming. Each estate is different and the types of assets and value of assets can affect the amount of time it takes to properly close an estate. In South Carolina, there is a creditor’s period that requires most estates to remain open for at least eight (8) months. However, very small estates that involve smaller amounts of money and/or assets can be probated quickly. Disputes among heirs can also significantly delay proceedings. Hiring an experienced probate and estate attorney is key to ensuring that the probate process moves efficiently.
I have been named as a personal representative in a loved one’s will or I have been appointed as personal representative by the Court. Do I need a lawyer for probate?
Although there is no requirement that a personal representative hire a lawyer, it is strongly encouraged. The Court cannot give you legal advice as to decisions regarding how to handle debts and whether to pay those estate debts or how to resolve conflicts amongst heirs. As the personal representative, you owe fiduciary duties to the other family members or persons who are to inherit portions of the estate. Breaching those fiduciary duties by making mistakes can expose you to personal liability. A probate and estate attorney can help to ensure that assets are distributed quickly and properly so that your liability is minimized. Under certain circumstances, probate and estate attorneys may agree to take their fee out of the estate so that you are not required to pay an upfront retainer out of your own pocket for legal services.
Where should I probate the estate?
In South Carolina, the estate should be probated in the County where the deceased person permanently resided at the time of death. The Probate Court will have jurisdiction over all of the personal property of the estate such as vehicles, boats, jewelry, firearms, etc. In cases where a person owned real property located in another state, an ancillary estate may need to be opened in the state where the real property is located.
How do I determine what assets do and do not need to be probated?
Some assets are considered “non-probate” assets. Examples of non-probate assets include property that has a designated beneficiary, such as a life insurance policy or retirement account. Sometimes real property can be considered a non-probate asset depending on how the property is titled. An experience probate and estate attorney can assist a personal representative in determining what assets must be listed as a part of the Estate’s inventory and appraisal.