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

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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.

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In South Carolina, how long is my will valid?

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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?

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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?

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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.

How much are probate fees in South Carolina?

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Often people ask me how much probate costs in South Carolina. There are a number of factors that go into the cost, but the one people seem most concerned about are filing fees. The cost to get the process started and to advertise in the newspaper varies by county (in Richland to get started it is $45 or $150 to file and $55 to advertise):Here is a  list of the fees you can expect (I copied it from the Richland County, South Carolina website).

Filing Fees

South Carolina Probate Estate Fee Schedule

Size of the Regular Estate Filing Fee
 $0.00 to $4,999 $25.00
 $5,000 to $19,999  $45.00
 $20,000 to $59,999  $67.50
 $60,000 to $99,999  $95.00
 $100,000 to $599,999  $95.00 plus .0015 in excess of $100,000
 $600,000 and above  $845.00 on the 1st $600,000 plus .0025 in excess of $600,000

Small Estate Affidavit or Affidavit for Collection of Personal Property

 Less than or Equal to $100.00 $17.50
 $101.00 to $4,999.99  $30.00
 $5,000.00 to $19,999.99  $50.00
 $20.000.00 to 25,000.00  $72.50
 Includes $5.00 certification fee

*Pursuant to SC Code of Laws §8-21-770

Possible Additional Fees:

 Copies per page  $.50
 Search Fee  $3.00
 Filing Demand for Notice  $5.00
 Issuing Certified Copies  $5.00
 Filing Conservatorship Accounting  $10.00
 Filing of a Will only  $10.00
 Will Filed only Advertising Fee  $35.00
 Certifying Appeal Record  $10.00
 Probated Will Filing Fee  $10.00
 Order Issued without a Hearing  $15.00
 Issuing Exemplified/Authenticated Copies  $20.00
 Recording Authenticated or Certified Copies  $20.00
 Reopening Closed Estates  $22.50
 Application/Petition for Special Administrator  $22.50
 Application for Successor Personal Representative  $22.50
 Advertising fee for creditor’s claims (required by state law)  $55.00
 Copy of an entire estate file on CD  $52.50
 Any Summons and Complaint or Petition $150.00
 Affidavit for Access to Safe Deposit Box $22.50
 Affidavit to Obtain Bank Balance $22.50

 

In South Carolina, will my house go through probate?

285HIn 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.

In South Carolina, do I need to worry about the estate tax?

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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, how do I notify creditors that someone has passed away?

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.

Tips for Finding a Lost Will

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.

 

In South Carolina can there be more than one personal representative for an estate?

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.