Monthly Archives: January 2016

Revised Probate Forms in South Carolina

The South Carolina Supreme Court approved revisions to a number of probate forms. Check out the Order here.

What is probate?

When I use the term probate, 90% of the time I am referring to a couple of situations.
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First, probate can mean the system by which people’s affairs get taken care of after they die. Their creditors need to be paid and their stuff needs to get distributed to their heirs or devisees. The personal representative is in charge of making sure this happens.

The personal representative is responsible for things such as collecting assets, protecting assets, paying creditors, and distributing things to the heirs at the end. It involves a number of forms, notices, and disclosures. Sometimes the system is easy, sometimes is complicated. It depends on a lot of things.

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Second, probate can mean the process of establishing guardianships or conservatorships. I will go over those terms in a later post. However, in a nutshell, when someone becomes incapacitated such that they can’t handle their own affairs, and they don’t have a power of attorney or anything like that, someone else may need to take over. That someone else (usually a spouse or a family member)  may petition to make either personal and health care decisions (guardianship) or handle financial affairs (conservatorship) or both for the incapacitated individual. Once again, this involves forms, disclosures, and notices.

In South Carolina, probate matters are found in the probate court. The probate judge is elected by the people in his or her County. He or she has a number of clerks that work for them. The probate court is responsible for a number of other things, including the above. They also handle marriage licenses and other things. But when I talk about probate, I’m usually talking about honoring a deceased person’s wishes and handling their estate, establishing a guardianship, or establishing a conservatorship.

In South Carolina, is a personal representative entitled to a fee?

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Although a personal representative doesn’t typically make as much as these guys, a personal representative in South Carolina is entitled to a fee. Generally, unless there are extraordinary circumstances, the personal representative is entitled to 5% of the appraised value of the personal property of the estate, 5% of the sales proceeds from real estate, and 5% of the estate income. The personal representative does not have to take the fee. The good news is that the minimum is fifty bucks. Many of the rules are set forth in S.C. Code Ann. § 62-3-719, if you want to look it up.

In South Carolina, what is an executor called?

Some jurisdictions use the term executor or executrix to identify the person who is in charge of administering an estate. In South Carolina we use the term Personal Representative. For all intents and purposes, it is the same as executor or executrix.  If you are someone’s attorney in fact under a power of attorney, you are not automatically the personal representative. This is a common misconception. It is common for an individual to name one person as the attorney in fact under a power of attorney to help handle their finances while they are alive, and to name a different person as Personal Representative to handle the estate. The decision of who does what is the client’s.

What do I do if I’ve inherited a car in South Carolina?

The South Carolina Department of Motor Vehicles has some good information. Here is some information about inherited vehicles from the DMV website that should point you in the right direction:

Inherited Vehicles

If you are a surviving owner of a car, and your name and the deceased’s name is separated by “or” on the title, you can sign as the sole owner for an auto title transfer.

If the names on the title were separated by “and“, or if there was only one owner on the title, distribution of the vehicle must be determined by the probate court.

Depending on the determined form of distribution, the court will issue one of the following:

  • An Affidavit for Collection of Personal Property Pursuant to Small Estate Proceedings.
  • Personal Representative with an original Certificate of Appointment.
  • Probate Court Order.

To complete a South Carolina car title transfer, you will need one of the above documents, along with the Application for Certificate of Title/Registration (Form 400) and a signed Affidavit of Inheritance of a Vehicle (Form 4036).

RIP Monte Irvin, Baseball Hall of Famer

Although not strictly probate or elder law, I was sad to see that Monte Irvin passed away. The New York Times has a  good story here. I wish I could have seen guys like Monte Irvin, Satchel Paige, Cool Papa Bell, Martin Dihigo, and the rest play in their primes. It is amazing to think what they went through in their time. He was among the choices to break the color barrier, and he was one of the pioneers after it was broken. Here is a picture of his plaque from the Baseball Hall of Fame, and a link to his page there.

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Communication and Probate

One thing that I have found is that if a family of someone who has died can communicate effectively then the probate process goes smoother. (I suppose that is the same both before and after someone passes away. Effective communication can prevent all kinds of problems. Easier said than done, I know.However, many times I go to court only to find out that the time and expense could have been avoided if the parties had communicated better (or at all.)

Deborah Matthews, an attorney in Virginia, has a great post with some ways to get this year off on the right foot with one such discussion. Check it out here.

PS-This and all my posts are for informational purposes only. I am not your attorney just because you are reading this, and this is not intended as legal advice. If you would like more information, feel free to contact me at (803) 929-0096 or mike(at)belserpa.com.

Is probate law the same in every state?

No. Probate law is different in every state. If you start poking around the internet for information, (which presumably you are because you ended up here) make sure you are getting information relevant to the right state. Just because you helped with someone’s estate in Florida, or they do it a certain way in California, doesn’t mean the same rules apply here in South Carolina.

PS-This and all my posts are for informational purposes only. I am not your attorney just because you are reading this, and this is not intended as legal advice. If you would like more information, feel free to contact me at (803) 929-0096 or mike(at)belserpa.com.

In South Carolina, Can I file a will with the probate court while I am alive?

Apparently, in some states now, and in South Carolina in the old timey days, people could file their wills with the probate court while they were alive so that when they died, their heirs knew where the will was. In South Carolina, people do not file their will with the probate court while they are alive. Although some counties have a will vault with some old wills, the practice in South Carolina is for people to keep track of their own wills. For the most part, if an original will is not found, it is presumed to be destroyed. There are exceptions, of course, to this general rule.

In case you are wondering, most attorneys I know do not keep their client’s original will, either, because of liability purposes.

So if you live in South Carolina, keep that original will in a safe place!

PS-This and all my posts are for informational purposes only. I am not your attorney just because you are reading this, and this is not intended as legal advice. If you would like more information, feel free to contact me at (803) 929-0096 or mike(at)belserpa.com.