If you have recently lost a loved one recently then hiring a probate lawyer is probably not the first thing on your mind. Unfortunately, even families with well-designed estate plans are required to follow specific legal procedures when distributing a decedent’s estate.
It can be challenging to navigate the probate system in South Carolina on your own. A skilled Aiken probate lawyer can help you protect your family and its assets.
If you need an experienced probate lawyer, Johnson, Johnson, Whittle, Lancer and Staggs (JJWLS) in Aiken, South Carolina is ready to serve you. call us today at (803) 649-5338 to schedule a consultation.
What is Probate?
Probate refers to the process of filing and validating a will in the court system. It includes paying the decedent’s taxes and debts, whether that’s based on the information in the will or according to South Carolina law.
What Type of Assets Go Through Probate Court?
The following assets are subject to probate in South Carolina:
- Property held in only the decedent’s name
- Real estate held by the decedent as a tenant in common
- The decedent’s interest in a partnership, corporation, or LLC
The following assets don’t go through probate in South Carolina:
- Retirement funds with a named beneficiary
- Insurance policy with a beneficiary
- Assets in a pension plan
- Assets in a trust
- Joint accounts deemed transferable or payable upon the death of another
- Real estate with joint tenancy with right of survivorship
- Assets with a beneficiary attached to them already.
What is the Probate Process?
Probate is a legal procedure that a court must go through prior to giving effect to a will. A court must first determine that a will is actually valid before putting it into effect.
The probate process in South Carolina generally follows the following steps:
Petition Filing
Filing a petition with the appropriate South Carolina probate court with the intention of admitting the will to probate and appointing the executor is the first step in the probate process. If there is no will, an administrator of the estate is appointed at this step.
Role of the Executor/Administrator
The role of the executor or administrator is to protect the decedent’s property until all taxes and debts have been paid, and to transfer all that’s left of the decedent’s estate to the beneficiaries.
Specifically, the function of the executor/administrator is to:
- Survey the decedent’s assets, locate them, and secure them
- Submit the relevant documents to open probate
- Notify the decedent’s creditors either personally or by publishing a notice in the newspaper
- Reviewing and approving/denying creditor claims
- Establishing the value of assets with the assistance of appraisers and other professionals
- Defending the decedent’s estate against litigation
- Preparing and paying taxes
- Managing and safeguarding estate assets, including physical upkeep
- Sell estate assets as necessary to satisfy beneficiaries and creditors
- Transfer assets to the beneficiaries in accordance with the law.
Probate Court Proceedings
The South Carolina probate court has several important duties in the probate process, which include ruling on the validity of wills, making an inventory of the estate’s assets, and making note of all debts owed by the decedent. If a will is deemed to be valid, the court distributes the property according to its terms.
What Are the Different Types of Probate?
South Carolina has adopted the Uniform Probate Code (UPC), which is a set of laws written by national experts for the purpose of expediting and simplifying the process. 17 other states also follow the UPC, but some states make their own modifications.
Three types of probate are offered under the UPC:
Informal Probate
The vast majority of probates proceed under this category, which means that there aren’t any court hearings. Informal probate can be held whether there’s a will or not, but if the proceedings are challenged, then a different form of probate has to be utilized.
Unsupervised Informal Probate
Unsupervised informal probate typically involves court hearings. It typically comes into play when the decedent’s surviving family members argue, creditors aren’t satisfied with the distribution of assets, or the beneficiaries complain.
Supervised Formal Probate
It usually comes into play only if the court considers it necessary, usually to protect a beneficiary unable to look after their own interests, or at the request of dueling family members that don’t trust the executor to look after their interests. Here, it is the judge that assumes the primary role.
Summary Administration and Small Estates
In South Carolina law, it is possible for small estates to completely bypass the probate process via small estate affidavit, or simplify it using summary administration.
Small Estate Affidavit
Small estates can minimize probate with some actually being able to be closed in 30 days. To do this, any assets held within an estate once encumbrances and liens have been applied must be valued at $25,000 or less. To minimize probate this way, the beneficiary is required to sign an affidavit under oath.
Furthermore, the administrator is required to file a publication with the local newspaper to advertise the decedent’s estate to possible creditors. The ad must run for 3 consecutive weeks and gives creditors 8 months to file claims against the estate.
Summary Administration
It is also referred to as simplified probate and can be used for larger estates valued higher than $25,000 or if you simply prefer having court involvement in the probate process to formalize the enforcement and protection.
Summary administration is usually available to a surviving spouse if they are the sole beneficiary of the estate of their deceased spouse. It allows the deceased spouse’s estate transferred to them outside the probate process, as long as they also take the estate’s liabilities.
What Are Some Common Challenges in Probate?
The following are some of the most common challenges in probate:
Contested Wills and Disputes
Will disputes and contests are one of the most common challenges in probate. This may occur if the beneficiaries in question the will’s validity, claim that the deceased lacked mental capacity or was coerced, or that there’s a more recent will.
Will disputes and contests are best addressed by working with the experienced Aiken probate lawyers at JJWLS who can provide legal guidance and representation. Our skilled lawyers can gather evidence supporting the will’s validity and resolve disputes through litigation or negotiation.
Dealing with Debt and Creditors
Dealing with any creditor claims against the decedent’s estate is another challenge in probate. Creditors are allowed to seek the repayment of outstanding debts from the decedent’s assets. This includes credit card debt, loans, medical bills, and various other financial obligations.
Executors/administrators should review and validate creditor claims carefully. Debts must be paid from the assets of the decedent’s estate. Fortunately, our skilled Aiken probate lawyers at JJWLS can make sure that creditor claims are properly handled.
How Can I Avoid Going to Probate Court?
Probate is a cumbersome process that limits your loved ones’ ability to inherit assets upon your death. While some estates can completely avoid probate, others find themselves stuck in this court-supervised process for a year or longer. It’s perfectly understandable to want to avoid probate.
Estate Planning Tools to Bypass Probate
To bypass probate, you can take advantage of various estate planning tools. You might not be able to avoid the process completely, but you can limit the assets that go through probate by either removing assets from your assets while still alive or having “non-probate” assets in your estate.
Here are some effective estate planning tools to bypass probate:
Beneficiary Designation
Name beneficiaries on life insurance policies and retirement accounts and they will receive the insurance proceeds or inherit the account. Fortunately, naming a beneficiary is a standard process when buying life insurance or when opening a retirement account such as a 401(k).
Create a Living Trust
A living trust is one of the best tools for bypassing probate. Best of all, it’s incredibly easy to create since it requires just a simple form. Any asset can be owned by a trust such as cash, vehicles, real estate, household furnishings, etc.
Joint Ownership
Owning real estate as joint tenants with rights of survivorship is another effective way to avoid probate. Property owned in joint tenancy automatically passes to surviving owners at your death. Spouses usually own a home in this way. If one spouse dies, the surviving spouse automatically owns the entire property.
Payable-on-Death Accounts
You can easily designate a beneficiary to inherit the account. You can set it up at the bank. Typically, it is used for checking accounts, savings accounts, and certificates of deposit. The beneficiary has no power over the account while you’re alive, but inherits it without the need for probate upon your death. All they have to do is present certain documents (like a death certificate) to the bank.
Benefits of Avoiding Probate
Your reasons for avoiding probate will likely be personal and specific to your situation, but many people can benefit by making a probate avoidance plan.
Here are the top 3 benefits of avoiding probate in Aiken, South Carolina:
Saving Time
Probate is a process that takes up to several months to complete. Creditors have to be vetted and each asset must be assessed, valued, sorted, and distributed as approved by the court. Probate can even take years when issues arise or the estate is complete. If the assets of the decedent’s estate can be transferred without probate, the process would go much more quickly.
Saving Money
Estimated cost of probate proceedings typically range between 3 and 7 percent of the value of the estate being transferred, which can be a substantial sum of money. Individuals that make an estate plan will often want to avoid fees associated with probate, which is why it is so important to have a probate avoidance plan.
Increased Privacy
Probate proceedings usually occur in court, which means that the public can obtain information by reviewing court records or attending hearings. Families usually prefer the transfer of wealth to be more private. Using alternative means to transfer property eliminates the need for legal proceedings such as those of probate unless a problem arises.
What is the Role of an Aiken Probate Lawyer?
A probate lawyer is a legal professional that helps the executor/administrator of a decedent’s estate get through the probate process. They might simply serve as advisors or can take a more hands-on approach to estate administration by distributing assets.
Here is why you need an Aiken probate lawyer:
Navigating the Probate Process
An Aiken probate lawyer helps guide the executor or estate administrator navigate the probate process smoothly. They help identify beneficiaries and estate assets, file the relevant documents, represent the estate in court, and distribute assets and inheritances.
Resolving Estate Disputes
An Aiken probate lawyer can also assist in mediating disputes among the beneficiaries if disagreements develop throughout the probate process, such as challenges to the will’s validity or charges of mismanagement by the executor or administrator.
Estate Planning to Avoid Probate
Aiken probate lawyers can also help clients do proper estate planning to avoid probate. They can help clients create comprehensive estate plans, including trusts, wills, and other legal documents. They help clients make sure that their assets are dispersed according to their preferences upon their death.
Contact Our Aiken Probate Lawyers Today!
If you are estate planning and are seriously considering setting up your estate to avoid the probate process or have any questions regarding any aspect of probate, it would be prudent to consult with an experienced and local probate attorney.
An Aiken probate lawyer can assist with guiding your estate planning along with the entire probate process with valuable advice. The advice given can help you know what to expect from the probate process as well as the best strategies for protecting estate assets.
Our Aiken probate lawyers at Johnson, Johnson, Whittle, Lancer and Staggs (JJWLS) in Aiken, South Carolina have experience handling probate-related matters of all types. We understand that this is a particularly stressful time, which is why we provide compassionate legal counsel.
Call us today at (803) 649-5338 to discuss how we can assist with your needs!
