The Nelson Law Firm of Bluffton
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letters testamentary; probate; fiduciary letters; personal representative; executor; probate court; probate administration; will contest; petition; undue influence; beaufort; bluffton; hilton head; south carolina

The Probate Process

The probate process is long. It consists of essentially three stages - the opening of the estate, a waiting period, and the closing of the estate. The waiting period is at least eight months from the day publication is made informing any creditors of the decedent of the decedent's death. Because of this waiting period, it is not uncommon for the probate process to last a year or longer. In addition, if the estate is required to file an estate tax return, the estate cannot be closed until the IRS issues an Estate Tax Closing letter, which could delay the closing of the estate even longer.

The probate process can either be formal or informal. The majority of estates are administered informally, but regardless of whether the estate is administered formally or informally, the process is very much the same. If you have any questions about the probate process or would like assistance in navigating the probate courts, please allow us to help you. 
Forms

The Personal Representative ("PR") and beneficiaries of an estate are required to complete and file many forms during probate. These are explained in more detail below. The forms can be found at the South Carolina Supreme Court's website ( www.sccourts.org/forms/index.cfm ). In addition, many counties also have the forms on their own websites, as well as having county-specific forms.

Personal Represenative

A PR is the individual or organization appointed to serve as representative of the estate.  Formerly, this person was called the "Executor" or "Executrix." The main tasks of a PR include collecting the decedent's assets, paying the decedent's debts, and distributing the decedent's assets in accordance with the decedent's will, or the laws of intestacy if the decedent did not have a will.

Opening the Estate

To open an estate, a Petitioner (often the person nominated to serve as PR in the decedent's will) files an Application for Appointment of Personal Representative (which may include the probate of the decedent's will) along with the decedent's original will (if any), and pays the applicable fee. The Probate Court will then appoint the individual as PR of the estate and admit the will for probate. In formal proceedings, before the Petitioner is appointed as PR, the Petitioner must file a Petition and notify certain individuals (those named as beneficiaries in the will and the decedent's heirs) of the PR's petition for appointment.

Within thirty days of the PR's appointment, the PR must notify the interested parties of his or her appointment as PR. If the Probate Court in the county does not publish notice in the local newspaper, the PR must publish a legal notice informing any creditors of the decedent of the decedent's death.

Inventory

One of the most demanding tasks of a PR is to make an inventory to the Probate Court of the decedent's probate assets. This does not include non-probate assets (a discussion of which can be found here ). The Probate Court calculates its fee based on the value of the probate assets of the estate.

Creditors' Period

For eight months after the notice described above is published, creditors of the decedent's estate may file a claim against the estate. This claim can be allowed or disallowed by the PR. If disallowed, the creditor must file a petition for allowance of the claim within a certain period of time. Claims against the decedent's estate are barred after the eight month period (or one year after the decedent's death, if earlier).

Estate Tax Return

Any estate can file an estate tax return; however, only those estates with assets in excess of $5,450,000 (in 2016) are reqiured to file an estate tax return. If an estate is close to this amount, it still may be beneficial to file a return to limit the amount of time the IRS can question the value of the estate.

Distributing the Assets

Once the creditors' period has expired and assuming all of the decedent's debts are paid, the assets of the estate may be distributed by the PR without fear of personal liability. The distirbution of estate assets may include Deeds of Distribution for real property, transfer of possession of tangible personal property, and the distribution of financial assets.


Closing the Estate

Closing an estate involves filing several forms confirming to the Probate Court that the assets of the estate have been managed properly and distributed in accordance with the terms of the decedent's will. Below is a list of the forms that need to be filed in order to close an esate.  Several of these forms can be waived if the beneficiaries are confident the estate was administered correctly.

Final Accounting

A Final Accounting is a form which shows the receipts and disbursements of the estate. This includes the expenses of the estate, such as legal, accounting, and funeral expenses, but also shows the amount to be distributed to each beneficiary.

Proposal for Distribution

A Proposal for Distribution is as simple as it sounds, it is the PR's proposal for how the PR intends to distribute the assets remaining in the estate after the payment of the decedent's debts.

Receipt and Release

A Receipt and Release is required from every beneficiary who receives assets from the estate.

Application for Settlement

The Applicaiton for Settlement is the PR's request to the Probate Court that the above-described forms be approved, the PR be discharged from the PR's duties, and the estate be closed.

Waiver of Statutory Filing Requirements

If the Waiver of Statutory Filing Requirements is filed by all of the necessary parties, the estate can be administered without the need for a Final Accounting, Proposal for Distribution, or Notice of Right to Demand Hearing. If the Waiver of Statutory Filing Requirements is not filed by the beneficiaries, the PR must send certain of the above-described documents to the beneficiaries for their approval.

Affidavit for Collection of Personal Property Pursuant to Small Estate Proceedings

If the decedent's estate has assets worth $25,000 or less and does not possess any real property, the estate can be administered pursuant to a shortened procedure. It is important to note that the dollar limiation and restriciton regarding real property applies to only "probate property." Therefore, even if the individual had assets which exceed these requirements, it may be posssible to administer the estate under these simplified procedures. With this procedure, no PR is appointed and there is no eight month waiting period.