Please note that the Probate Court strongly advises the use of a licensed attorney to handle estate matters.
**A probate judge is not allowed to assist with the preparation of documents and is not allowed to comment on an individual case or discuss an individual case before or after its commencement so that impartiality can be maintained.**
The act or process of proving a Will.
To be valid, a will must be an original will in writing, signed by the person making the will (the testator). The testator must be at least 18 years of age and of sound mind. The will must be signed by two witnesses who are not beneficiaries of the will.
An original will must be filed at the Probate Court within 30 days of death of the decedent along with an original death certificate. The Probate Court does not file wills before an individual’s death.
All real property such as a house and land plus all personal property such as mobile homes, boats, and household goods worth more than $25,000.00 owned by the decedent at the time of death. An “estate” will need to be opened in the Probate Court if the decedent owned real property and/or personal property in excess of $25,000.00 and sometimes because of other legal matters that may be pending.
The decedent died without a will.
The decedent died with a will.
This is an uncontested matter. No hearing is required and notice is given to interested parties by filing an Information to Heirs and Devisees with proof of delivery.
Formal proceedings are contested matters such as objections to appointments of personal representatives, will contests, lost or destroyed will and declaratory judgments on intestacy. The proceedings must be commenced within the later of eight months from informal probate or one year from the decedent’s death. Formal proceedings require notices to all interested parties and a hearing.
If an estate must be opened, the Probate Court must receive an application from the person seeking to be appointed to administer the estate. If there is a will, the personal representative is usually nominated in the will. If there is no will, South Carolina law determines the priority of who may serve as personal representative.
The court appointed personal representative has the responsibility for administering the estate (a process which may take 8-12 months). The administration includes gathering and protecting all property of the decedent, preparing an Inventory and Appraisement, paying required claims, attorney fees, funeral bills and court costs, and distributing the assets to those who are entitled to receive them according to the will or the laws of intestacy.
If there is a will, it must be filed in the Probate Court within 30 days of death. An application for personal representative (P.R.) is filed and the P.R. is appointed as fiduciary. If publication of a notice is required, a Notice to Creditors must be filed with The Advertizer-Herald newspaper in Bamberg. Within 30 days of appointment, the P.R. must serve all interested parties with an Information to Heirs and Devisees showing that an estate has been opened and providing a copy of the application for appointment and a copy of the will, if there is a will. The information to Heirs and Devisees is filed at the court with a Proof of Delivery. Within 90 days of the appointment of a P.R. an Inventory and Appraisement must be filed in the Probate Court listing all assets of the decedent’s estate. An estate remains open, generally, for approximately a year. If all claims have been paid including attorney fees, probate fees, funeral bills, and all assets of the estate have been administered, a final accounting must be filed showing all income to the estate and all expenses of the estate. A Deed of Distribution must be filed with the Clerk of Court’s office showing the distribution of real estate out of the estate and closing documents will be filed at the Probate Court in most cases, along with signed receipts and releases for personal property distributed.
Filing of a certified (or exemplified) estate in Bamberg County if the decedent owned real estate in another county or state. An ancillary estate must be filed in another county or state if the decedent owned real estate outside Bamberg County.
If the decedent had no real property (no house and no land) and the total amount of the estate less liens and encumbrances does not exceed $25,000.00, a small estate may be opened. The applicant must wait 30 days after the death to file and must present an original death certificate and a paid funeral bill at the time of application. There will be a statutory fee, which is based on the value of the assets.
It is occasionally necessary to determine whether an estate should be opened based on any legal action that needs to be taken in behalf of the decedent (including medical malpractice or wrongful death actions) even if there is no real estate or personal property.
An estate may be reopened in order to distribute assets which were not distributed at the time of closing the estate. Usually, the same personal representative will be appointed.
SUCCESSOR PERSONAL REPRESETATIVE
If a personal representative dies, or is removed before completion of the administration of an estate, a successor will be appointed to complete the administration.