When a loved one passes away, the emotional toll can be overwhelming. Amid grief, families are often faced with the legal responsibility of settling the deceased’s estate. One aspect of this process is known as probate. In South Carolina, probate is a court-supervised procedure that ensures a person’s assets are distributed according to their Last Will & Testament (the will) or, if no will exists, according to state law.
This guide is designed to help you understand some key steps, timelines, and roles involved in South Carolina’s probate process.
What Is Probate?
Probate is the legal process of administering a deceased person’s estate. It involves:
- Validating the will (if one exists)
- Appointing a personal representative (executor)
- Identifying and valuing assets
- Paying debts and taxes
- Distributing remaining assets to heirs or devisees
In South Carolina, the probate process is governed by the South Carolina Probate Code, found in Title 62 of the South Carolina Code of Laws.
Who Is Involved?
Several key parties play a role in the probate process:
- Personal Representative: Appointed by the court to manage the estate. This person has a variety of duties and responsibilities, including collecting the assets of the estate, ascertaining and paying debts, administration expenses and taxes, and distributing the remaining assets to those persons entitled to receive them.
- Probate Court: Oversees the probate process to ensure compliance with the law.
- Heirs and Devisees: Individuals potentially entitled to inherit estate assets after fees and creditors have been satisfied.
- Creditors: Individuals or entities decedent or their estate is indebted to.
- Attorneys: Legal professionals hired by interested parties to protect the estate or their interest in the estate.
- Appraisers: When property of an unknown value is involved, sometimes an appraiser is utilized to determine the value of an asset.
- CPAs: A Personal Representative can hire a CPA to assist them with the payment of decedent’s taxes.
How Long Does Probate Take?
The timeline varies depending on the complexity of the estate:
- Simple estates: Typically take 8 to 12 months.
- Complex estates: May take over a year, especially if disputes arise, assets are difficult to value, estate taxes are due, etc.
- Small estates: Lower value estates that do not contain real property, may qualify for a simplified process that can be completed in weeks.
Key Steps in the South Carolina Probate Process
1. Filing the Will and Petition
Within 30 days of death, the will should be filed with the probate court in the county where the deceased resided. With it, the personal representative files a petition for appointment as personal representative, along with a variety of other documents and payment of court fees to open the estate,
2. Appointment of Personal Representative
The court issues a Certificate of Appointment, giving the applicant legal authority to do business on behalf of the estate.
3. Notice to Heirs and Creditors
Heirs and devisees are notified of the appointment by mail. If the estate is opened within a year of the decedent’s death, creditors must be notified via a published notice in a local newspaper for three consecutive weeks. Creditors have eight months from the notice or one year from the date of death to file claims, whichever comes first.
4. Inventory and Appraisal
Within 90 days of appointment, the personal representative must file an Inventory and Appraisement listing all probate assets and their estimated value.
5. Paying Debts and Taxes
The Personal Representative must settle valid claims made against the estate and pay outstanding fees incident of the estate before distributing assets. This includes things like funeral expenses, administrative costs, and any outstanding taxes.
6. Distribution of Assets
After the creditor’s notice period has lapsed, and once debts are paid, the remaining assets are distributed according to the will or, if no will exists, under South Carolina’s intestacy laws (South Carolina Probate Code Title 62, Article 2).
7. Closing the Estate
The representative files a variety of closing documents, if necessary, and requests discharge as Personal Representative of the estate.
Why an Attorney Is Essential
While South Carolina law does not require a Personal Representative to hire an attorney, doing so is highly recommended—especially for estates involving:
- Real estate
- Business interests
- Out-of-state property
- Disputes among heirs
- Complex tax issues
An experienced probate attorney can:
- Ensure compliance with court procedures and deadlines
- Help interpret unclear will provisions
- Defend against creditor claims or disputes
- Minimize delays and reduce the risk of personal liability for the Personal Representative
Common Pitfalls to Avoid
- Missing deadlines: Failing to file notices or inventories on time can delay the process and result in penalties.
- Improper asset valuation: Misreporting asset values can lead to tax issues or disputes.
- Neglecting creditor claims: Overlooking valid debts can expose the representative to personal liability.
- Disputes among heirs: Without legal guidance, family conflicts can escalate into costly litigation.
Conclusion
Probate in South Carolina is a structured but often complex process. Whether you’re named as a Personal Representative or are simply trying to understand your rights as an heir or devisee, having knowledgeable legal counsel can provide clarity and peace of mind.
If you’re facing the probate process, don’t go it alone. Contact our office to schedule a consultation and let us help you navigate this important legal journey with confidence and care.
If you are in need of assistance, the attorneys at Collins Family & Elder Law Group can help.
