Palmetto Probate Blog

In South Carolina, some assets go through probate and others are not affected by probate. As far as your house or other real estate goes, if the deed to you and someone else contains the phrase “as joint tenants with right of survivorship and not tenants in common”  in the right places, then when one person on the deed passes away the other will be the owner without having to go through probate. If the deed does not contain the survivorship language, then the portion owned by the person who died will have to go through probate. If you are worried about your house going through probate, it is worthwhile to have an attorney check the language in it and advise you about your options.

As of this writing, if an estate is worth $5 million dollars or less, you probably do not need to worry about the Federal Estate Tax. Some states have a state estate tax, but South Carolina is not one of them.

In South Carolina, personal representatives must run a notice of death in a local newspaper.  Most probate courts (including Lexington County and Richland County) arrange for the publication of the notice and roll the cost of the notice into the filing fee. The notice triggers the creditor claims period. If a creditor does not file a claim before the claim period expires, then its claim may be barred, depending on the type of claim. Claims will be discussed in a separate post.

Kyle E. Krull’s blog has a good article about lost wills. Click here to read the article. Here are some highlights:

• Check to see if the will has already been admitted to “probate” with the probate court in the county where your loved one resided at death. If an attorney or other family member had the original (or knew where to find it), then he or she may have filed it already. Wills become public documents once filed.
• Check to see if there is a safe deposit box owned by your loved one. Oftentimes wills and other important legal and financial documents are kept there.
• Review the checkbook or bank statements of your loved one for any fees paid to an estate planning attorney. Striking gold here may mean finding the attorney who will either have the original will and/or trust or at least a signed copy.
• Look for any business cards or correspondence with a financial advisor who may know the attorney if not the location of the legal documents.
• Contact the accountant, too. Tax returns and account statements could have helpful information.
• Perhaps your loved one hid the legal documents. This would not be the first time. For example, I have clients who keep their original documents in the freezer.
• Reach out to relatives and close friends. Perhaps they know whether your loved one ever consulted an estate planning attorney or a financial advisor. They may have referred your loved one to their own attorney or financial advisor.

Stick tap to the Wills, Trusts, and Estates Prof Blog for pointing out the article.

Yes, in South Carolina the Probate Court may appoint Co-Personal Representatives. There are two disadvantages to having Co-Personal Representatives. First, it is difficult to get things done because both Personal Representatives have to sign all of the probate papers, contracts, and agreements. Second, if the Co-Personal Representatives disagree or dislike each other, the estate administration becomes complex, time consuming, and expensive.

When I use the term probate, 90% of the time I am referring to a couple of situations.

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.

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.

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.

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 title transfer form here: 400.

I usually tell my clients to go to the DMV with all of their paperwork – usually a death certificate and certificate of appointment. Most branches have someone up front to help direct people to the forms they need to fill out and where to go. If you are out of state, you can take care of it by mail, but it obviously will take a lot longer.

To get started with the small estate process (less than $25,000 worth of stuff but no real estate) here are the directions for the small estate affidavit: Small Estate Packet

If you qualify for the small estate, you will end up with an affidavit and order showing the DMV where everything should go.

In a full estate, the Personal Representative transfers the automobile using the form 400 above and the certificate of appointment. I have found it easiest to go go the DMV with the title, my certificate of appointment, and a death certificate.

If you can’t find the title, you can order one using the DMV form 400. If you are lucky, you may be able to get the new title and transfer it at the same time. (If there is a lien on the car, the lender usually has the original title.)