What is Probate?

 One of the most common questions asked of an estate planning attorney is, “What exactly is Probate?” Probate is the transferring of assets from a deceased person to those directed to receive them. Usually, if the decedent executed a Will, they will have named an individual to be their Personal Representative/Executor. 

The named Personal Representative is to administer the estate and ensure any assets are distributed to the appropriate heirs. If a person dies without a Will, the Court will follow the intestacy statute and appoint a Personal Representative. It becomes the job of the Personal Representative to determine (1) what assets comprise the decedent’s estate, and (2) are those assets probate assets or non-probate assets. Probate Assets are those titled only in the decedent’s individual name and are without designated death beneficiaries. Non-Probate assets are those assets either not titled solely in the decedent’s name or have a designated death beneficiary.   

 South Carolina’s Probate Code directs a decedent’s estate to be probated in the county where they were domiciled. Once the proper Court is identified, the Personal Representative will submit to the Court the petition to probate, proof of death (usually the death certificate), the last will and testament, and remit a filing fee to open the estate.   

The probate process for each estate is unique, but usually involves the following steps:

• Filing of a petition with the proper probate court.
• Notice to heirs under the will or to statutory heirs (if no will exists).
• Petition to appoint Executor (in the case of a will) or Administrator for the estate.
• Inventory and appraisal of estate assets by Executor/Administrator.
• Payment of estate debt to rightful creditors.
• Sale of estate assets.
• Payment of estate taxes, if applicable.
• Final distribution of assets to heirs.

 Typically, in South Carolina, the entire probate process takes at minimum one year. All probate cases are not equal. Some probate cases may be completed in less than a year if the estate is small or the Personal Representative is the only beneficiary. Some probate cases may take longer than a year if there are disputes or other hindrances and depending on the county in which you reside.  

 If you have been named as a Personal Representative/Executor of an estate, contact a local attorney who is well versed in your state’s probate process. 

 Every state has different statutes and rules governing probate. States like California, have a complex process, whereas, states like New Jersey and Georgia are relatively simple. The worst mistake a Personal Representative can make is attempted to navigate the probate process on their own without a working knowledge of what is required.