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Probate is the legal process of administering an estate, and paying the debts of a person who has died. Probate takes place with or without a will, but can be avoided or minimizing with estate planning. Probate can be a very lengthy, expensive, and stressful experience for loved ones of the decedent.
Following is a brief outline of some of the basics of South Carolina probate law:
The Importance of a Will
A will allows you to direct how your property and assets will be distributed when you die. You can also designate who will care for your minor children, and more.
If you die without a will your property is distributed according to South Carolina’s laws of intestate succession. This may not be according to your wishes, and if there is no qualifying heir under the law, your estate will go to the State of South Carolina.
The Probate Process
The probate process can take several months to several years.
If there is a will, probate is initiated by submitting the will to the probate court for validation. The executor named in the will must also request to be appointed as executor by the court.
If there is no will, a family member or another interested party can petition for probate and to be appointed as personal representative.
The executor or personal representative is responsible for providing an inventory of the estate to the probate court, along with the names and addresses of potential heirs. The executor then must settle all debts and claims against the estate, and pay estate taxes, before property and assets are distributed to the beneficiaries or heirs.
It may be necessary to liquidate part of the estate in order to settle all of the debts and claims.
Certain property and assets do not go through probate:
Property and accounts held jointly as Joint Tenants with Right of Survivorship
Payable upon death accounts
Life insurance with named beneficiaries
By planning ahead, you can ensure that your loved ones bypass as much of the probate process as possible.
Sometimes a person will create a will and fail to go back and update as circumstances and relationships change over the years. The surviving spouse of a decedent who executed a will before the marriage and did not update the will after the marriage is called an omitted spouse.
An omitted spouse is entitled to the same portion of the estate they would have received if there was no will. If there are children, the omitted spouse receives half of the estate. If there are no children the omitted spouse receives all of the estate.
There are exceptions to omitted spouse protections. If the wording of the will indicates that the decedent did not intend to leave anything to any future spouses, or that changes in marital status are not to change the conditions of the will, then the omission will be considered intentional.