Steps to take after the death of a loved one

grieve-58058_1920

I recently came across this article from the California Probate Blog and it has some great tips about what to do after a loved one dies. Check it out here

The probate court can’t give you legal advice, but they can sometimes point you in the right direction. And, of course, you may want to contact an attorney with your questions. You may find it easier to let someone else handle the legal end of things.

In South Carolina, can I file my will with the probate court for safekeeping?

folder-146134_1280

 

In South Carolina, you cannot file a will with the probate court while you are alive. I believe at some point in the past the Courts had vaults to keep wills, but nowadays it is up to you to keep up with it. So, keep your will safe, don’t write on it, and let someone know where it is!

New Forms

Several probate forms have been updated. Here is a list.  If you need the forms themselves, either for probate or the other courts, you can look for them here.

 

Does the probate court give me the original will and death certificate back after I file them?

files-files

 

No, in South Carolina the probate court keeps the original documents after you file them. If you are doing this on your own, you may want to bring an extra set of copies to the probate court when you file them. In the future, you can request a certified copy if you have need of one, as well.

If you have any questions or comments, or if I can help in any way, please feel free to call me at (803) 929-0096, or email me at mike@belserpa.com.

In South Carolina, when is my will effective?

document-428335_1280

 

In South Carolina, a will is valid when it is executed. Usually, the will contains a provision revoking all previous wills.

Life Insurance Locator

bereavement-1239415_640

 

Many times life insurance is used to pay for burial expenses. Unfortunately, sometimes the heirs cannot locate the policy. The National Association of Insurance Commissioners has launched a life insurance policy locator service that might help. Check out the service here.

In South Carolina, can I name a relative who lives out of state as personal representative in my will?

map-1149538_1920

 

Yes, you can name a relative or friend who lives out of state as personal representative. There may be some logistical difficulties, but we have helped many out-of-state personal representatives with South Carolina estates. As with all choices of personal representatives, make sure that they are able to handle the paperwork and that you completely trust them to follow your will.

In South Carolina, how long is my will valid?

document-1729019_1280

 

In South Carolina, a valid will does not expire. However, it is a good idea to revisit your estate planning (wills, powers of attorney, beneficiary designations) after any life changes such as births, deaths, divorces, and the like.

 

 

How long do I have to probate a will in South Carolina?

146H

 

There are two important deadlines. First, In South Carolina, a person has a duty to deliver a will to the probate court within 30 days of knowledge of the testator’s death.  A person who intentionally destroys, conceals, or fails to deliver a will can be liable for damages. However, often it takes longer to get the probate process started for various reasons, and sometimes it takes longer than 30 days even to find a will. Barring any fraud, bad faith or delay because someone doesn’t like what the will says, the probate court is usually understanding.  Second, in South Carolina you only have 10 years after someone dies to probate their estate. After 10 years you will have to take other action, and many times an attorney can be helpful in going through your options.

 

 

Does South Carolina recognize common law marriages?

T5ZR7KSJZQ

 

Under certain circumstances, South Carolina will recognize a common law marriage. You are probably going to want, or need, to talk to an attorney about your situation sooner or later. Every situation is different. From a legal standpoint, the South Carolina Supreme Court says the following:

A common-law marriage is formed when two parties contract to be married. Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960). No express contract is necessary; the agreement may be inferred from the circumstances. Id.; Kirby v. Kirby, 270 S.C. 137, 140, 241 S.E.2d 415, 416 (1978). The fact finder is to look for mutual assent: the intent of each party to be married to the other and a mutual understanding of each party’s intent. Consideration is the participation in the marriage. If these factual elements are present, then the court should find as a matter of law that a common-law marriage exists.
9 Further, when the proponent proves that the parties participated in “apparently matrimonial” cohabitation, and that while cohabiting the parties had a reputation in the community as being married, a rebuttable presumption arises that a common-law marriage was created. Jeanes v. Jeanes, 255 S.C. 161, 166–67, 177 S.E.2d 537, 539–40 (1970). This presumption may be overcome by “strong, cogent” evidence that the parties in fact never agreed to marry. Jeanes, 255 S.C. at 167, 177 S.E.2d at 540.
Callen v. Callen, 365 S.C. 618, 624, 620 S.E.2d 59, 62 (2005)
So you can see from the legal discussion above, a party trying to prove they are common law married has to jump over a number of hurdles. Often the evidence conflicts.
If you have any questions or concerns, or want further information, please call me at (803) 929-0096, and I will be glad to discuss your situation.