|Dear Personal Representative:
First, we offer our sincere condolences for the loss of your spouse, grandparent, mother, father, brother, sister, son, daughter, cousin or friend. We understand the great difficulty the passing of a loved one can cause. We are here to help you. One reason I ran for Probate Judge was to help people and make them aware that probate does not have to be a totally unbearable experience. Accordingly, the following information concerning the statutory requirements of probating an estate is furnished to assist you. Please do not hesitate to ask specific questions about any problem encountered which is not explained here. The staff of this Court will be happy to furnish assistance and information to the extent allowed by law. Beyond that, seeking legal counsel is always recommended. One estate clerk is assigned to your case from beginning to end. Please direct all inquiries to your estate clerk. Appointments are required because of the volume of cases we handle and our limited resources. If your assigned clerk is unavailable when you telephone, it is important that you leave a message (include your name, telephone number, case name, file number, and reason for your call). Keep in mind that each estate clerk has over 500 estate cases in process. We are here to help you but because of limited resources we must ask that you do your share of the work as outlined in the attached procedures.
Another reason that I ran for Probate Judge was to stress the need for estate planning. We hope that you will take this opportunity to review your estate planning documents. You should consider a Last Will and Testament, a Declaration of Desire for Natural Death (otherwise known as a Living Will), a Durable Power of Attorney for Healthcare, and a Durable Power of Attorney for Business Affairs. You need legal counsel to complete your estate planning. For the reason 'Why you need a Will' please call the South Carolina Bar Law Line toll-free at 1-800-521-9788 ext. 160. As a public service we provide the statutory Living Will and Health Care Power of Attorney. If you need these documents please ask one of our Clerks to provide them to you. We hope that you will take this opportunity to review and update your estate planning documents and that you will encourage other family members to do so also.
As your Probate Judge I am here to serve you. If you should have questions, comments, or suggestions please let me know. I thank you for electing me to be your Probate Judge and hope that we help make probate a pleasant experience considering the circumstances.
Irvin G. Condon
Overview for Probating an Estate
- OPENING THE ESTATE
To begin informal administration of an estate, complete the Application/Petition (Form 300ES/blue). This form is to be filed in the Probate Court in the county where the decedent was a permanent resident. Once you have a file number you will be assigned a clerk. No hearing is required for informal probate and/or informal appointment. For formal probate or appointment, the services of an attorney are recommended. This requires the filing of a Summons/Petition/filing fee and then service on the interested parties. A hearing will then be set for presentation of testimony. If a request for informal probate or appointment cannot be granted (because of certain legal requirements), we will so inform you. You may then proceed formally.
- PROOF OF DEATH
You need to furnish the Court with an original death certificate.
- LAST WILL AND TESTAMENT
You must provide the Court with the original Last Will and Testament of the decedent. If the person died without a Will this is known as "intestate" and you would indicate that on the application (Form 300ES).
Two fees will be required to open an estate -- one for probate fees and one for the Creditor's Notice. The fee to open the Estate is for the statutory probate fees (see attached schedule) and is due at the time the Informal Petition (Form 300ES/blue) is submitted. The Creditor's fee is for the creditor's advertisement, which appears in the newspaper once a week for three weeks. The Probate Court will handle the placement of this ad. You will select the newspaper as detailed on Item 2. Notice to Creditors below. After you file the Inventory and Appraisement you will be billed for Court Costs. See attached fee schedule.
Bond is required for an appointment of a Personal Representative of an intestate estate when a named Personal Representative is expressly required by the Will to post a bond, and when bond is demanded by an interested party. Bond may be waived: (1) if the Personal Representative certified by affidavit (ask for form) that the gross estate value will be less than $20,000, assets are sufficient to pay all claims, and that the Personal Representative agrees to be personally liable to any interested party for any negligence or misconduct in the performance of his duties; AND (2) if all known beneficiaries execute a written statement (ask for form) that they agree to the bond being waived.
Once all initial requirements are completed and filed (valid Will, certified death certificate, completed Form 300ES, advertisement fee, bond (if applicable), renunciations (if applicable), etc.), Proper Order(s), Fiduciary Letters, and Certificates of Appointment will be issued by the Probate Court. This indicates that the necessary steps have been taken to begin the administration of this estate.
- NOTICE TO CREDITORS - Due Date - Court to Handle
The Personal Representative is required to publish the Notice to Creditors
if passed less than one year ago. Publication is to be once a week for three weeks. In Charleston County, the Probate Court now handles this for you. Publication is in the newspaper you select, and the fee for advertising depends upon which newspaper is selected; the advertising costs must be paid when the estate was opened. (Note, that because the Court places the ad a volume discount is received which is passed on directly to you). Creditors, by law, have eight months from the date of first publication of this notice to file claims. The newspaper will send to the Court an Affidavit of Publication indicating on which dates the ad was published. The Probate Court will mail a copy of the Affidavit of Publication to the attorney of record or to the Personal Representative if there is not an attorney of record.
- INFORMATION TO HEIRS AND DEVISEES - Due Date - 30 days after appointment.
PROOF OF DELIVERY - Due Date - 30 days after appointment.
Within 30 days after your appointment you must give information of your appointment and the probate of the Will, if applicable, to all devisees and heirs (Form 305ES). The devisees are the persons named to inherit in the Will, and the heirs are those who would inherit had there been no Will. You must return the Proof of Delivery (Form 120PC) to the Probate Court along with a copy of the "Information to Heirs and Devisees". If you use a different manner of giving notice for different persons, please indicate such on the "Proof of Delivery".
- INVENTORY AND APPRAISEMENT - Due Date - 90 days after appointment.
Within 90 days after your appointment, you must file an Inventory and Appraisement (Form 350ES) with the Probate Court. You are to list and value all property owned by the decedent at death including property owned with another person. You may ask the Probate Court to authorize the employment of appraisers (Form 351ES) if you feel they are necessary, but they are not required. Take care to discover, list, and value all property to avoid delays in closing this estate later. In the event an extension is needed, please submit
Motion for Extension (Form 352ES) prior to the Inventory due date.
Upon receipt of the Inventory, a Court cost will be assessed and billed. See Probate Court fees on the attached back sheet.
The filing of returns and/or payment of any South Carolina and Federal estate taxes or income taxes are the responsibility of the Personal Representative.
Eight months after the first publication of the Notice to Creditors, the period for filing creditor's claims expires. If you have not already done so, proceed to pay claims. If the assets of the estate are insufficient to pay all claims in full, payment is to be made in the following order:
- Costs and expenses of administration, including attorney's fees, and reasonable funeral expenses;
- Reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him/her and medical assistance paid by Medicaid;
- Debts and taxes with preference under federal law;
- Debts and taxes with preference under other laws of this state, in order of their priority;
- All other claims.
Also, while debts or claims may be paid at any time by a Personal Representative, you may incur personal liability if any preferred creditor is damaged or injured by such payment. Claims which are not valid claims may be disallowed through proper procedures.
- DEED OF DISTRIBUTION
If there is real estate (land, house, etc.) in the estate, a Deed of Distribution (Form 400ES) must be completed. It is recommended that your attorney assist you with this duty. The Deed of Distribution transfers the real property from the decedent's name to those who inherit it. It is suggested that this not be done until all the claims are received and it is determined that the real estate does not need to be sold to pay the debts. For Charleston County real property, if an attorney prepares the Deed of Distribution, the attorney must record the Deed of Distribution at the Register of Mesne Conveyance Office (101 Meeting Street). After the RMC Office returns the recorded Deed of Distribution back to the attorney, then the attorney needs to furnish the Probate Court with a copy of the recorded Deed of Distribution. If a non-attorney prepares the Deed of Distribution the original Deed of Distribution must be forwarded to the Probate Court. The Probate Court will forward the Deed of Distribution to the RMC. You must furnish the Court with a check for the filing fee of ($10.00) made payable to the RMC Office at the time that you present the original Deed of Distribution to the Court. Real property in other counties will require the Deed of Distribution be recorded in that county. You should then deliver the recorded Deed of Distribution to the new owners of the property.
- CLOSING DOCUMENTS - Due Date - 8 to 12 months after date of Publication
- ACCOUNTING & PROPOSAL FOR DISTRIBUTION Between eight months and twelve months after the first publication of the Notice to Creditors (or, if this is a taxable estate, 90 days after receipt of South Carolina Tax Commission estate tax closing letter), you must file with the Court a complete accounting (Form 361ES) of the entire probate administration (assets received during the course of administration, disbursements/bills paid out, and balance to be distributed to the beneficiaries). You must also file your Proposal for Distribution (Form 410ES).
- APPLICATION FOR SETTLEMENT Complete and file your Application for Settlement (Form 412ES) with the Probate Court.
- NOTICE OF RIGHT TO DEMAND HEARING Notice of Right to Demand Hearing (Form 416ES) is to be sent to all interested parties, including unpaid creditors, along with a copy of the Accounting, Proposal for Distribution, and Petition for Settlement. If no written request for a hearing is received by the Probate Court within 30 days, you may proceed to complete the final requirements as outlined by the Probate Court. This will include beneficiary receipts from the distributes (Form 403ES), release of claims. You will need to check with your assigned Estate Clerk to determine all final requirements. Upon receipt of all final documents, the Court will close the file and terminate your appointment as Personal Representative (Form 413ES).
The 30-day period can be waived if a Waiver (Form 111ES) is signed by all interested parties.
- PROOF OF DELIVERY Proof of Delivery (Form 120PC) that you have sent these documents (Accounting, Proposal for Distribution Petition for Settlement, and Notice of Right to Demand Hearing) must be filed with the Probate Court.
- GENERAL CONSIDERATIONS
- BOOKS AND RECORDS In order to keep proper books for the estate, it is suggested that you establish an estate account in which you will deposit every item of money belonging to the decedent which comes into your hands and pay all claims by check. By doing this, you will have no trouble in keeping the account in exact balance and preparing your final accounting.
- FEDERAL IDENTIFICATION NUMBER If a Federal Identification Number is required, obtain it through the Internal Revenue Service (Form SS-4). The IRS phone number is 1-800-829-1040.
- DEMAND FOR NOTICE If, at any time during the administration of the estate, you receive a Demand for Notice you must comply with the demand and send a copy of whatever is demanded to the person indicated on the form. Any time you file documents with the Court, if a copy of the document has previously been demanded, you will be required to provide the Court with a Proof of Delivery (Form 120PC) indicating what you served on whom.
- FORMAL PETITION If a Formal Petition requiring a hearing is filed by you or anyone else during the course of administration, it is highly recommended that an attorney be employed. The Court cannot advise on matters which it must decide.
- ESTATE TAX MATTERS South Carolina Tax Waivers are obtained through the South Carolina Tax Commission. For estate tax purposes, an estate is considered taxable if the gross value is over $1,500,000 and there were no lifetime taxable transfers. For more information please call toll-free the South Carolina Bar Law Line - Taxes at Death 1-800-521-9788 ext. 161.
- PROBATE CODE See Title 62 Article 3 of the South Carolina Code for matters not included in these instructions. Copy of this law is available for viewing at the Probate Court or at the public library.
- RULE TO SHOW CAUSE If you do not complete the assigned tasks within the prescribed time periods, the law requires the Court to issue a Rule to Show Cause as to why the estate is not being probated in a timely manner. If a hearing is held you may be required to pay the court costs.