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Probate FAQ's in South Carolina

Probate

What is the typical Probate legal process?

  • An executor or administrator, who takes over the deceased affairs and property, is appointed by a court;
  • The heirs are identified and located;
  • The deceased’s property/assets are gathered and accounted for;
  • The deceased’s debts and creditors are paid;
  • Any income tax and estate tax returns are filed and the taxes paid;
  • The estate assets and property are sold to create cash to pay bills, taxes and expenses of the estate.
  • Payment/distribution is made of all remaining property, assets and cash to the approved heirs and beneficiaries.

What if the probate estate is in a different state?

It is common for heirs to reside in a different state from the deceased, and it rarely causes any difficulty.

How can I avoid Probate?

To avoid the need for probate, a Will or a Living Trust can be established. A Living Trust must be created prior to death and is designed to make sure all property and assets owned by a decedent are transferred at death to his or her heirs according to the decedent’s wishes.

What is a Living Trust?

Creating a Living Trust can be an effective way to ensure property and assets owned by the decedent are transferred to his or her heirs according to the decedent’s wishes. Having a Living Trust also helps protect individual and family privacy because the terms of a living trust are not disclosed to the public, unlike a Will. Additionally, Living Trusts most often don’t go through the Probate court system. Setting up a Living Trust may allow for quick distribution of property and assets, whereas those that go through the Probate process can take months or even years to distribute due to required legal and court proceedings. There are sometimes a number of tax benefits to having a living trust, especially for those with a large number of assets.

Although there are some advantages to a using a Living Trust instead of a Will, there are also disadvantages. The cost of setting up a Living Trust and administering it prior to death is usually higher than the cost of drafting a Will. If you are thinking about creating a Living Trust instead of a Will, we recommend meeting with one of our qualified attorneys to find out which option will work best for you.

How do I petition for Probate?

A Probate Petition must be filed in the county where the decedent was living at the time of death, no matter where he or she passed away. When the “Petition for Probate” has been filed, a hearing is scheduled in Probate court. The hearing (which starts the Probate process) is usually scheduled on a day three-to-six weeks after the filing date. The length of time between filing the Petition for Probate and the hearing can vary greatly depending on the size of the county and the number of judges and support staff employed by the Probate court. Additionally, the Probate process requires that a “Notice of Probate Hearing” be sent to all the decedent’s heirs as well as everyone mentioned in the Will. Completing the notice requirement can affect the timetable for the initial Probate hearing.

To discuss your legal options, contact us or call our office at (843) 667.0400. We can help with any SC probate process questions you may have.