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
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
300PC/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
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 300PC/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 300PC, 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.
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
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
305PC). 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
Within 90 days after your appointment, you must file an Inventory and
350PC) 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
351PC) 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
Petition for Extension (Form
352PC) 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
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
400PC) 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
- 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
361PC) 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
- PETITION FOR SETTLEMENT
Complete and file your Petition for Settlement (Form
412PC) with the Probate Court.
- NOTICE OF RIGHT TO DEMAND HEARING
Notice of Right to Demand Hearing (Form
416PC) 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
403PC), 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
The 30-day period can be waived if a Waiver (Form
111PC) 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
- FILE INDEX/CRITICAL DATE LIST
Attached to these procedures is a file index/critical date list. Please use
this index as a checklist to keep track of what you have completed in
probating the estate.
- 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
1-770-455-2360, fax number is 1-678-530-6156.
- 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
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
- 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.