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Probate and the Administration of Trusts and Estates
On this page we will provide an overview Probate and the Administration of Trusts and Estates. Mr. Payne and other members of our firm have years of experience in matters involving the administration of trusts and estates. We assist our clients in navigating the probate and estate administration process, including where appropriate the filing of estate, gift and fiduciary income tax returns; and assuring the timely distribution of estate assets to heirs and devisees.
While we endeavor to assure all estate and trust administration matters end amicably, occasionally family disputes or conflicts with others arise. We assist our clients in working through these disputes and, if necessary, represent them in litigation before the Probate Court or higher level courts. Diversified experience is important in this area of law and at Warner, Payne & Black we have that experience.
In South Carolina the Probate Court has jurisdiction over the administration of Estates and Trusts. Our firm has significant experience in representing clients in Probate Court. Our firm can advise Personal Representatives (referred to in some states as the Executor) and Trustees as to their obligations under South Carolina Law when dealing with heirs or beneficiaries of an estate or trust.
Personal Representative and Trustees have a "fiduciary relationship" and "fiduciary duties" to the heirs of an estate or the beneficiaries of a trust. Black's Law Dictionary describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another." The courts impose special responsibility and liability on a person who enter into a Fiduciary Relationship with others. One should not undertake this responsibility without fully understanding the ramifications. Further, one should always seek guidance from an experienced attorney when acting in a fiduciary capacity. We can provide that guidance!
Likewise, if you are a beneficiary of an estate or trust, and you believe the Personal Representative or Trustee has not fulfilled his or her obligations to you, we can advise you as to your rights and assist you in enforcing those rights.
WHAT IS PROBATE?
Probate is the process by which the will of a decedent is acknowledged. The assets of the decedent's estate are inventoried and accounted for, the lawful, collectible debts and taxes of the decedent are identified and paid; and the remaining assets of the estate are distributed to the beneficiaries in accordance with the decedent's will. In South Carolina, the probate process can take as few as eight months or as long as several years if complications arise. However, for the vast majority of decedent's estates the probate process lasts one year or less.
In South Carolina, the Probate Court oversees the probate process, which has several steps. The first step is proving the will's validity or that no will exists. In fact, the term "Probate" comes from the Latin word meaning "to prove." A will must be presented to the probate court and its validity proved i.e. it must be Probated. If the will was not properly prepared or witnessed, the probate judge may decide to ignore the will's instructions, and proceed as if no will exist. If there is no will, or the court refuses to recognize the will, the decedent is determined to have died intestate. Intestate means, "without a will."
In addition to "proving the will," probate's other steps include: (1) officially confirming the personal representative named in the will, or appointing one when there is no will, (2) informing the affected parties, such as creditors, heirs and other beneficiaries, that probate has started, (3) filing an inventory and appraisal of the property, (4) paying creditors, taxes, and fees, (5) preparing a final accounting, (6) distributing the remaining property to beneficiaries, and (7) closing the estate.
Probate is not always necessary if you die owning only the type of property called "non-probate property." This is property which passes by law to a party through what is known as right of survivorship. Non-probate property includes, among other things, jointly owned bank accounts, life insurance and pension benefits that are paid through a beneficiary designation, property owned in trust, real estate held as joint with rights of survivorship, and POD (pay on death) accounts. Non-probate property passes to survivors outside the probate process and outside the terms of a decedent’s will.
Property that is subject to probate is called "Probate Property." Generally it includes (1) property that is owned - titled - in the decedent's name, (2) property owned jointly without a right of survivorship (tenants in common), and (3) life insurance paid to the decedent's estate, i.e. not to a specific person or organization.
A will affects only "probate property." If a person dies with a will, the Personal Representative carries out the will's instructions by distributing the probate property as the deceased person specified in the will. If a person dies without a will, the court allots the property according to a formula set by state law.
WHAT HAPPENS IF YOU DIE INTESTATE (WITHOUT A WILL)?
In South Carolina if an individual dies without a will, the South Carolina Code provides who will inherit their property. Essentially the state writes a will for you. In general, the statute provides as follows:
PROBATE RULES THAT SOMETIMES CAUSE UNEXPECTED RESULTS.
- If an individual is married and has no children, all to spouse
- If an individual is married with children, one-half to spouse and one-half to his children equally.
- If an individual is not married and has children, all to children equally.
- If an individual is not married and has no children, all to his parents if living, and if not living to his brothers and sisters equally with the issue of a deceased sibling taking the share their parent would have take.
- If the individual has no wife, children, parents or siblings, the statute continues on to define the next of kin who will inherit.
1. Pretermitted Heirs and Spouses. The pretermitted heir rule applies when an individual makes a will, and subsequently a child is born to or adopted by the person making the will. Under the rule, unless the will specifically references the pending birth of the child, if the individual dies without making a new will subsequent to the birth or adoption of the new child, the law presumes the child was inadvertently omitted and awards him an intestate share of the estate.
The pretermitted Spouse rule applies when an individual makes a will and subsequently marries. Under SC Law if the will does not state that it was in contemplation of marriage, and if the individual dies without making a new will subsequent to the marriage, the Spouse receives an intestate share of the estate.
2. The Elective Share. Under South Carolina Law, if an individual leaves a will in which his spouse receives less than one-third of his net probate estate in qualifying trust, the spouse is entitled to elect a one-third share of the estate. An election must be filed with the Probate Court within a specified time following the death of the decedent or the election is waved.
3. Anti-lapse statute. The anti-lapse statute provides that where an individual devises assets to a beneficiary, and the beneficiary dies before the testator (the individual making the will) unless the will provides otherwise, the following rules apply.
a. If the beneficiary is related to the decedent, as defined in the code, the devised assets will pass to that beneficiary’s heirs-at-law.
b. If the individual is not related to the decedent the devised assets will pass to the other beneficiary’s under the residuary clause of the will if any, and if none by intestacy.
If you are the Trustee of a Trust, the Personal Representative of an estate or a beneficiary of either; and you have questions regarding your rights and obligations, CONTACT US, we can provide answers.
The forgoing information is subject to change at any time, and other more complex rules may apply. Do not rely on this information for any action or inaction as you may not fully understand all aspects of this topic. If you need help in this area seek the assistance of a competent, experienced estate planning attorney. This site is not intended as legal advice.