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What Happens if You Die Without a Will in Greenville County, SC?

June 17, 2025/in Estate Planning

Navigating the loss of a loved one is incredibly difficult. When that loss is compounded by the absence of a will, families in Greenville County often face a complex and uncertain legal landscape. If someone passes away without a valid will in Greenville County, South Carolina law dictates how their assets are distributed through a process called intestate succession, overseen by the Greenville County Probate Court.

South Carolina law provides a default plan, but this plan may not align with what your loved one would have wanted. Knowing how the system works can alleviate some stress during an already challenging time. Here, we explore South Carolina’s intestate succession laws, the probate process specific to Greenville County, potential complications, and how proactive estate planning can prevent these issues.

Understanding Intestacy and South Carolina’s Laws

When a person passes away without a valid Last Will and Testament, they are said to have died intestate. This situation triggers a specific set of legal rules under South Carolina law that dictate how the deceased person’s assets, known as their probate estate, are distributed among their surviving relatives.

What Does Dying Intestate Mean in South Carolina?

Dying intestate means the state, not the individual, determines who inherits the property. South Carolina’s laws of intestate succession act as a default estate plan. These laws are designed to distribute assets in a way the legislature presumed most people would choose, typically prioritizing the closest family members. However, this statutory plan often differs significantly from what the person might have specified had they created a will. Without a will, there’s no designated executor to manage the estate, no named guardians for minor children, and no specific instructions for distributing personal belongings or assets with sentimental value.

The South Carolina Probate Code: Governing Intestate Estates

The primary legal framework governing these situations is the South Carolina Probate Code, specifically Title 62. This code outlines a clear hierarchy for inheritance based on familial relationships. It details who qualifies as an heir at law and the specific share of the estate each eligible relative receives. The code covers various scenarios, including situations involving a surviving spouse, children, parents, siblings, and more distant relatives. Understanding these provisions is vital for anyone involved in settling an intestate estate in Greenville County.

Role of the Greenville County Probate Court in Intestate Cases

The Greenville County Probate Court plays a central role in overseeing the administration of intestate estates within its jurisdiction. The court is responsible for:

Appointing a Personal Representative: Since no executor was named, the court appoints someone (often a close family member) to manage the estate administration process. This individual receives official authority through documents called Letters of Administration.
Overseeing Asset Distribution: The court ensures that the estate’s assets are distributed according to South Carolina’s intestate succession laws.
Resolving Disputes: If conflicts arise among potential heirs or creditors, the Probate Court provides the legal forum for resolving these issues.
Ensuring Legal Compliance: The court monitors the personal representative’s actions to ensure they comply with all legal requirements, including notifying heirs, paying debts, and filing necessary reports.

Navigating the procedures of the Greenville County Probate Court can be complex, making legal guidance often beneficial. In summary, intestacy triggers state laws and court oversight to distribute assets when no will exists.

Who Inherits Your Estate Without a Will in Greenville County?

South Carolina’s intestate succession laws establish a specific order for who inherits property when someone dies without a will. The distribution depends entirely on which relatives survive the decedent.

The Legal Hierarchy: Determining Heirs Under SC Law

The South Carolina Probate Code outlines the following priority for heirs at law:

Surviving Spouse:
- If the decedent has no surviving children (or descendants), the spouse inherits the entire probate estate.
- If the decedent has surviving children, the spouse inherits one-half (50%) of the probate estate.

Children (Descendants):
- If there is no surviving spouse, the children inherit the entire probate estate, divided equally among them.
- If there is a surviving spouse, the children inherit the remaining one-half (50%) of the probate estate, divided equally.
- The term “children” legally includes adopted children in South Carolina. Grandchildren may inherit the share their parent would have received if that parent predeceased the decedent (known as inheritance per stirpes).

Parents:
- If the decedent has no surviving spouse or children, the parents inherit the entire estate equally, or the surviving parent inherits it all.

Siblings:
- If the decedent has no surviving spouse, children, or parents, the siblings inherit the entire estate equally. Descendants of deceased siblings may inherit their parent’s share.
More Distant Relatives: If none of the above relatives survive, the law looks to grandparents, aunts, uncles, cousins, and other next of kin based on degrees of relationship.

What Happens if No Heirs Are Found? (Escheat to South Carolina)

In the rare event that absolutely no eligible heirs can be identified after a thorough search, the entire probate estate “escheats” to the State of South Carolina. This means the state government takes ownership of the assets. This outcome underscores the importance of having at least a basic will, even if one believes they have no close family.

Special Considerations: Stepchildren, Non-Marital Children, and Dependents

Intestacy laws can create complications in modern family structures:

Stepchildren: Stepchildren generally have no inheritance rights under South Carolina intestacy laws unless they were legally adopted by the decedent.
Non-Marital Children: Children born outside of marriage can inherit from their mother automatically. They can inherit from their father only if paternity was legally established before the father’s death (e.g., through court order, acknowledgement, or subsequent marriage of the parents).
Dependents: While the law prioritizes heirs based on relation, certain allowances might be available for financially dependent family members during the probate process, but specific inheritance rights are strictly defined by the hierarchy.

These rules highlight how intestacy may exclude individuals the decedent considered family or intended to provide for. Essentially, SC law follows bloodlines strictly, which can lead to surprising outcomes without a will.

Navigating the Probate Process for Intestate Estates in Greenville County

Probate is the court-supervised process of validating a deceased person’s affairs, paying debts, and distributing assets. When someone dies intestate in Greenville County, the probate process follows specific steps mandated by South Carolina law and overseen by the local court.

Initiating Probate: Filing and Appointing a Personal Representative

The process typically begins when an interested party (usually a potential heir) files an application with the Greenville County Probate Court to open the estate and be appointed as the Personal Representative. Since there is no will naming an executor, the court appoints someone based on a statutory priority list (often spouse, then adult children, then other relatives). The appointed Personal Representative receives Letters of Administration, granting them the legal authority to act on behalf of the estate.

Key Duties of the Personal Representative

The Personal Representative has significant responsibilities, acting under the court’s supervision. Key duties include:

Inventory and Valuation of Estate Assets: Identifying, locating, and determining the value of all assets belonging to the decedent that are subject to probate (real estate, bank accounts, vehicles, personal property, investments).
Notifying and Paying Creditors: Formally notifying known creditors and publishing a notice to potential unknown creditors. Valid debts, taxes, and funeral expenses must be paid from estate assets before distribution to heirs.
Managing Estate Assets: Protecting and managing assets during the probate period (e.g., maintaining property, managing investments).
Distributing Assets to Heirs: Once debts are paid and tasks are complete, distribute remaining assets to heirs according to SC intestate succession laws.
Filing Court Documents: Submitting required documents to the Greenville County Probate Court (inventories, accountings, final reports).

Greenville County Probate Court Procedures and Timelines

The probate process in Greenville County generally follows state procedures but involves specific local forms and filing requirements. The timeline can vary significantly, often taking six months to a year for straightforward cases, but potentially two years or longer for complex estates with disputes or creditor issues.

Understanding Small Estate Affidavits in South Carolina

For very small estates, South Carolina offers a simplified process. If the probate estate’s value (less liens and encumbrances) does not exceed $25,000 and does not include real estate, eligible successors may use a Small Estate Affidavit to collect assets, potentially avoiding formal probate.

Probate ensures legal transfer of assets but involves court oversight, specific duties for the Personal Representative, and varying timelines.

Potential Complications and Challenges When Dying Intestate

While South Carolina’s intestacy laws provide a framework, dying without a will often leads to complications and challenges that can cause stress, delays, and unintended consequences for surviving family members.

Family Disputes and Conflicts Over Inheritance

The absence of clear instructions in a will is a common catalyst for disputes among heirs. Disagreements can arise over:

Who should serve as the Personal Representative.
The valuation of assets.
Whether certain property should be sold.
Perceived unfairness in the statutory distribution, especially in blended families or where relationships were strained.

These conflicts can lead to costly probate litigation and damage family relationships permanently.

Appointing Guardians for Minor Children

One of the most significant oversights in intestacy is the lack of designated guardians for minor children. If both parents pass away without a will naming guardians, the Greenville County Probate Court must appoint someone. While the court prioritizes the children’s best interests, the appointed guardian may not be the person the parents would have chosen, leading to potential instability and distress for the children.

Probate Delays Caused by Complex Assets or Disputes

Intestate estates involving complex assets like businesses, extensive real estate holdings, or valuable collections often face significant delays. Valuing these assets, managing them during probate, and deciding on their distribution can be time-consuming. Furthermore, any disputes among heirs or challenges from creditors will inevitably prolong the probate process, sometimes for years.

Issues with Out-of-State Property or Missing Heirs

Complications multiply if the decedent owned real estate in another state (requiring ancillary probate in that jurisdiction) or if potential heirs are difficult to locate. Identifying and notifying all legal heirs, especially distant relatives, can be a lengthy and expensive process, delaying the final settlement of the estate.

Intestacy can breed conflict, uncertainty for minors, and significant delays, especially with complex assets or family situations.

Financial and Legal Implications of Intestacy in Greenville County

Dying without a will carries significant financial and legal consequences beyond just the distribution of assets. Understanding these implications is important for families navigating the aftermath.

Settling Estate Debts and Liabilities

Under South Carolina law, the decedent’s debts must be paid before any assets can be distributed to heirs. The Personal Representative is responsible for identifying creditors, validating claims, and using estate funds to pay outstanding bills (mortgages, loans, credit cards, medical bills, funeral expenses). If the estate lacks sufficient liquid assets, the Personal Representative may need to sell property to satisfy these obligations, which might conflict with the family’s wishes.

Estate Taxes and Intestate Succession in South Carolina

South Carolina currently does not impose a state-level estate tax or inheritance tax. However, very large estates may still be subject to federal estate taxes. The Personal Representative must determine if the estate exceeds the federal exemption threshold and file necessary tax returns. Income generated by estate assets during probate may also be subject to income tax.

Wrongful Death Claims in Intestate Estates

If the decedent’s death was caused by the negligence or wrongful act of another party, the Personal Representative may have grounds to file a wrongful death lawsuit on behalf of the estate and eligible beneficiaries. Any settlement or judgment obtained becomes part of the estate, subject to creditor claims and distribution rules, though specific statutes govern how wrongful death proceeds are allocated.

Understanding Non-Probate Assets vs. Probate Assets

It’s important to recognize that not all assets are controlled by intestacy laws or the probate process. Non-probate assets pass directly to a named beneficiary or co-owner outside of court supervision. Common examples include:

Life insurance policies with designated beneficiaries.
Retirement accounts (e.g., 401(k)s, IRAs) with designated beneficiaries.
Bank accounts or property held in joint tenancy with right of survivorship.
Assets held in a living trust.

These assets bypass probate, regardless of whether a will exists. Identifying which assets are probate vs. non-probate is a key early step.

How Estate Planning Prevents Intestacy and Protects Your Wishes

The challenges and potential heartaches associated with dying intestate are largely preventable through proactive estate planning. Creating even a basic estate plan ensures your wishes are known and legally binding, providing peace of mind for you and your loved ones.

The Power of a Last Will and Testament

A Last Will and Testament is the cornerstone of most estate plans. This legal document allows you to:

Specify Beneficiaries: Clearly state who inherits your assets and in what proportions, overriding intestacy rules.
Nominate an Executor: Choose a trusted person to manage your estate.
Appoint Guardians: Designate guardians for your minor children.
Include Specific Bequests: Leave particular items to specific individuals.
Create Testamentary Trusts: Establish trusts within your will for specific purposes.

Using Trusts to Avoid Probate and Control Asset Distribution

Living trusts (revocable or irrevocable) offer additional benefits, including potentially avoiding the probate process altogether for assets held within the trust. Trusts can provide privacy, continuity of asset management, detailed control over distributions, and sometimes asset protection.

Benefits of Proactive Estate Planning in Greenville, SC

Taking the time to create an estate plan offers numerous advantages:

Ensures your assets go to the people and causes you choose.
Minimizes potential family conflicts.
Reduces the time, cost, and stress of probate.
Provides for the care of minor children.
Allows planning for potential incapacity (Powers of Attorney, Health Care Directives).
Offers peace of mind.

Working with an experienced Greenville estate planning attorney helps create a comprehensive plan tailored to your needs.

Experienced Guidance for Intestate Probate in Greenville County

Dealing with the death of a loved one is never easy, and navigating the complexities of an intestate estate in Greenville County can add significant stress. Whether you are facing the probate process without a will or wish to proactively plan to protect your own family from intestacy, having knowledgeable legal support is invaluable.

At DeBruin Law Firm, we understand the intricacies of South Carolina probate law and the specific procedures of the Greenville County Probate Court. We provide compassionate and skilled guidance to families managing intestate estates, helping personal representatives fulfill their duties efficiently and ensuring assets are distributed correctly. We also assist individuals and families in creating comprehensive estate plans, including wills and trusts, to prevent the uncertainties of intestacy.

If you need assistance with an intestate estate or want to create an estate plan to secure your legacy, contact DeBruin Law Firm today. Call us at (864) 982-5930 or reach out through our online form to schedule a consultation. Let us help you navigate these important legal matters with confidence and care.

Navigating Probate When the Executor Lives Outside South Carolina

June 17, 2025/in Estate Planning

Being asked to manage a loved one’s final affairs is a significant responsibility, often undertaken during a time of grief. When that responsibility involves handling a South Carolina estate, specifically in the Greenville area, while you live hundreds or even thousands of miles away, the complexities can feel overwhelming. Suddenly, you’re not just dealing with loss, but also with unfamiliar state laws, logistical hurdles, and the challenge of managing assets from afar.

Imagine receiving the call: you’ve been named the Personal Representative (often called an executor) for a relative’s estate in Greenville County. You live in California. How do you secure their home in Simpsonville? How do you access their bank account in Mauldin? What are the specific rules of the Greenville County Probate Court you need to follow? These are common, pressing concerns for non-resident executors.

The process of settling an estate, known as probate, involves identifying assets, paying debts and taxes, and distributing the remaining property to the rightful heirs or beneficiaries. It requires careful attention to detail and adherence to legal procedures. Adding distance to this equation introduces unique challenges, from practical difficulties in managing property to navigating South Carolina’s specific legal requirements for those serving from outside the state.

Can Someone Living Outside South Carolina Serve as Personal Representative?

A common first question is whether South Carolina law even permits someone living out of state to take on this role. The good news is, yes, South Carolina generally allows non-residents to serve as Personal Representatives for estates within the state. The South Carolina Probate Code, specifically Section 62-3-203, outlines the priority and qualifications for appointment, and it doesn’t automatically disqualify someone based solely on their residency outside the state.

Whether you were named as Executor in a will or might be appointed as an Administrator by the court (if there’s no will or the named executor cannot serve), the residency rules apply similarly. You must still meet the basic qualifications applicable to any Personal Representative in South Carolina:

Be at least 18 years old.
Be of sound mind (not legally incapacitated).

Unlike some states, South Carolina doesn’t automatically bar individuals with felony convictions from serving. However, the probate court, particularly in formal proceedings, can find someone “unsuitable” to serve. If concerns arise about a nominated PR’s fitness, the Greenville County Probate Court could hold a hearing to determine suitability.

While being an out-of-state resident isn’t an automatic disqualifier, South Carolina law does impose specific requirements to ensure the court can maintain oversight and that legal processes can be handled efficiently, even with a geographically distant executor. These often involve appointing a local point of contact and potentially securing a bond.

The Core Duties of a Personal Representative: Amplified by Distance

Serving as a Personal Representative carries significant fiduciary duties – legal obligations to act in the best interests of the estate and its beneficiaries. When you live outside Greenville, fulfilling these duties requires extra planning and effort.

Key responsibilities include:

Identifying and Gathering Assets: This means locating and taking control of everything the decedent owned in South Carolina – bank accounts in Greenville, real estate in Taylors or Greer, vehicles, investments, personal belongings. Living elsewhere makes physically inspecting property, accessing safe deposit boxes, or dealing with local banks much harder.
Notifying Interested Parties: You must formally notify all heirs, beneficiaries named in the will, and known or potential creditors about the estate administration. This involves specific legal notices and deadlines.
Paying Debts and Expenses: Valid debts of the decedent, funeral costs, taxes (income, potentially estate), and the expenses of administering the estate must be paid from estate assets before any distributions are made. Managing this from afar requires careful record-keeping and potentially local assistance.
Managing Estate Property: If the estate includes real estate in Greenville County, you’re responsible for its upkeep, insurance, property taxes, and potentially its sale. Overseeing maintenance, repairs, or preparing a house for sale from another state presents obvious logistical challenges.
Filing Court Documents and Tax Returns: Probate involves submitting various forms and reports to the Greenville County Probate Court on schedule. Final income tax returns for the decedent and potentially income tax returns for the estate itself must also be filed.
Distributing Remaining Assets: Once debts and expenses are paid, you distribute the remaining assets to the beneficiaries according to the will or, if no will exists, South Carolina’s intestacy laws (laws determining inheritance order).

The Non-Resident Reality

Each of these tasks is complicated by distance. Simple actions like getting mail forwarded, meeting with a local Greenville real estate agent, or appearing for a court hearing require significant coordination. Time zone differences can hinder communication, and the need for travel adds expense and time commitment to an already demanding role.

South Carolina’s Specific Rules for Out-of-State Executors

To address the challenges of distance and ensure accountability, South Carolina law includes specific provisions for non-resident Personal Representatives. These are designed to protect the interests of beneficiaries and creditors and ensure the local probate court, like the one in Greenville County, can effectively oversee the process.

Appointment of a Resident Agent for Service

A primary requirement is that a non-resident Personal Representative must typically appoint someone who resides in South Carolina to act as their agent. This individual, often the estate’s local attorney, is designated to receive official legal documents (like lawsuits or court notices) on behalf of the out-of-state PR. This is sometimes referred to as appointing a “Registered Agent” or consenting to the jurisdiction of the South Carolina courts. This ensures that legal papers can be properly served and that the Greenville County Probate Court maintains authority over the estate administration, regardless of where the PR lives. Failure to appoint a resident agent can hinder or prevent your appointment.

Potential Requirement for a Probate Bond

A probate bond (also called a fiduciary bond or surety bond) acts like an insurance policy for the estate. It protects beneficiaries and creditors against potential mismanagement or fraud by the Personal Representative. While a will might state that no bond is required, South Carolina law often gives the probate court the discretion to require a bond from a non-resident PR even if the will waives it. This is more likely if the PR lives outside the state. The reasoning is that it provides an extra layer of security when the person managing the assets is not local. The amount of the bond is typically based on the estimated value of the estate’s personal property and anticipated income. The PR must pay a premium for this bond, which is considered an administrative expense of the estate.

Potential Delay in Appointment (Informal Probate)

South Carolina Code Section 62-3-307(a) notes a specific consideration for non-resident decedents in informal probate proceedings. If the decedent was a non-resident (meaning SC probate is likely ancillary or secondary), the court might delay appointing a PR for 30 days after death unless certain conditions are met (like the applicant being the PR appointed in the decedent’s home state). While this section primarily addresses non-resident decedents, it highlights the court’s careful approach when non-residency is involved. Always consult with the Greenville County Probate Court or local counsel regarding specific timelines.

Practical Strategies for Managing a Greenville Estate Remotely

While serving as an out-of-state Personal Representative for a Greenville County estate presents hurdles, effective strategies and the right support can make the process manageable.

Hire Local Legal Counsel Immediately: Engaging a qualified probate attorney based in Greenville is almost always essential. They understand South Carolina law, know the specific procedures of the Greenville County Probate Court, can act as your required resident agent, handle local filings efficiently, and provide invaluable guidance throughout the process.
Leverage Technology: Modern tools can bridge the distance. Use email for routine communication, video conferencing (like Zoom or Teams) for meetings with your attorney or beneficiaries, and secure cloud storage or document portals for sharing important papers. Check if the Greenville County Probate Court offers e-filing options for certain documents.
Establish Clear Communication: Maintain open and regular communication with beneficiaries, keeping them informed about the process and progress. Also, establish a clear communication channel with your local attorney and any other professionals involved (accountants, real estate agents).
Get Organized: Meticulous record-keeping is vital. Keep detailed files of all communications, transactions, assets, debts, and deadlines. Create checklists based on your attorney’s advice and the requirements of the Greenville County Probate Court.
Plan for Necessary Travel: While technology helps, anticipate that some trips to Greenville may be unavoidable. This could be for initial tasks like securing property and inventorying assets, attending significant court hearings (though some may allow remote appearance), or finalizing the sale of real estate. Budget for the time and expense involved.
Delegate Practical Tasks: You don’t have to handle every hands-on task yourself. Consider hiring local help where appropriate:
- Property Managers: If the estate includes rental property or real estate that needs ongoing maintenance before sale.
- Real Estate Agents: To handle the listing, showing, and sale of estate property in the Greenville market.
- Appraisers: To value real estate, vehicles, or valuable personal property.
- Accountants: To assist with final tax returns and estate accounting.
Secure and Manage Assets: Work with your attorney to gain access to and secure South Carolina bank accounts, consolidating them into a new estate account (with an Employer Identification Number – EIN) that you can manage. Ensure estate property is properly insured and maintained.

By combining local professional help with technology and careful organization, you can effectively manage your responsibilities from afar.

The Role of a Greenville Probate Attorney

For an out-of-state Personal Representative handling a South Carolina estate, attempting to navigate the process alone is often impractical and risky. Hiring an experienced probate attorney located in Greenville County is not just helpful – it’s frequently a necessity for smooth and compliant estate administration.

A local attorney provides critical support by:

Navigating Local Rules: They possess in-depth knowledge of the South Carolina Probate Code and, importantly, the specific rules, procedures, and preferences of the Greenville County Probate Court.
Serving as Resident Agent: Your Greenville attorney can fulfill the legal requirement of acting as your resident agent for service of process, ensuring legal notices are properly received and addressed.
Handling Court Filings: They can efficiently prepare and file all necessary documents with the Greenville County Probate Court, ensuring compliance with deadlines and local formatting requirements.
Communicating with the Court: The attorney acts as your local liaison with the court staff, judges, and clerks, streamlining communication and resolving issues quickly.
Advising on SC Law: They provide tailored advice on South Carolina-specific laws regarding creditor claims, property distribution, potential tax implications, and other legal nuances.
Facilitating Local Tasks: They can connect you with reputable local appraisers, real estate agents, accountants, or property managers in the Greenville area if needed.
Problem Solving: Should complications arise, such as disputes among beneficiaries or challenges from creditors, your local attorney is positioned to represent the estate’s interests effectively in South Carolina.

Choosing an attorney familiar with the Greenville County probate system provides peace of mind and significantly reduces the burden and potential pitfalls of managing an estate from a distance.

Work with Our Seasoned Greenville, SC Probate Attorneys

Administering a loved one’s estate from another state is a complex undertaking, but it doesn’t have to be overwhelming. Understanding South Carolina’s requirements for non-resident Personal Representatives, employing practical management strategies, and securing experienced local legal counsel are key steps toward fulfilling your duties effectively and respectfully.

If you live outside South Carolina and have been named Personal Representative for an estate in Greenville County or the surrounding Upstate area, navigating the probate process requires knowledgeable local guidance. The potential need for a bond, the requirement to appoint a resident agent, and the practicalities of managing assets from afar all highlight the value of experienced support.

At DeBruin Law Firm, we frequently assist out-of-state Personal Representatives in managing South Carolina estates. We understand the unique challenges you face and can provide the comprehensive legal support needed to navigate the Greenville County Probate Court system efficiently and effectively. We can serve as the required resident agent, guide you through each step, handle court filings, and help coordinate with local resources as needed, allowing you to manage your responsibilities with confidence, even from a distance.

Contact DeBruin Law Firm today to discuss how we can assist you in fulfilling your role as a non-resident Personal Representative for a South Carolina estate. Call us at (864) 982-5930 or reach out online to schedule a consultation.

What Does a Probate Lawyer Do? Here’s What You Need to Know

September 17, 2020/in Real Estate, Resources

What does a probate lawyer do? Unfortunately, there’s no one-size-fits-all answer to this common question.

The true answer depends on what you need help with and where the lawyer would be able to assist you. These types of lawyers are specialized to be able to perform a number of tasks involved with the probate process on your behalf.

We’ve put together this guide to help you understand more about what their role is and why it is important, so make sure you keep reading below to find out more.

What Does a Probate Lawyer Do?

When a person passes away, they leave behind a number of assets, such as their personal belongings, a home, money, etc. Most people appoint an executor of will to be in charge of disbursing these assets to any other beneficiaries.

This process can often be complicated and confusing. That’s where a probate lawyer comes in.

This type of lawyer is well versed in all the probate laws in your state, and their job is to guide the executor of will through the process and help with any difficult steps.

Some of the jobs they might take care of including the following:

Appraising the property of the person who passed away
Securing all that person’s assets
Finding out how much (if any) estate taxes are owed
Handling the proceeds from life insurance
Filling out any necessary documents

If the person who passed away had any debt or bills they failed to pay, a probate lawyer will also advise the executor of will on the best way to handle these issues.

What Happens If There Was No Will?

If someone dies without a will, all their assets must be dispersed according to intestacy laws. In other words, the state will distribute the assets—regardless of what the person may have wanted.

For cases like these, you can hire a probate lawyer to help the administrator of the estate (which is kind of like the executor of will) through the process. They may still be able to perform all the same jobs, but they may be limited by the intestacy laws.

This is one of the reasons it’s so important to have a will (even if you’re young and healthy). Otherwise, your assets may not go to the people you want.

When Should You Hire a Probate Lawyer?

The specific process of probate varies depending on the sate. Some states have a simple probate process, so you may be able to get through it on your own.

However, in most cases, it’s better to hire a probate lawyer.

Since they know the probate laws inside and out, a lawyer will be able to guide you through the steps quickly and efficiently. They’ll also be able to take care of troublesome paperwork and ensure you don’t make any mistakes that can turn into bigger problems later.

Most importantly, however, hiring a probate lawyer will help you focus on what really matters, which is mourning your loved one who passed away and being with family and friends.

Questions You Should Ask a Probate Lawyer Before Hiring

If you’re getting ready to hire a probate lawyer, you should make sure you get the answers to these questions before you hand over any money. This will ensure you get an experienced lawyer who knows what they’re doing.

“Have You Worked on Cases Similar to Mine?”

Any probate lawyer you work with should have at least several years of experience. If your case is complicated, you should also make sure they have worked in similar circumstances. This way you know they can handle any problems that come up along the way.

“Are There Any Issues I Should Expect With My Case?”

It can be difficult to predict if anything will go wrong during any type of case, but a probate lawyer should be able to review your case and point out any small issues that could turn into more pressing concerns. They should also be able to recommend solutions to help you solve those problems.

“Do I Need to Know About Any Deadlines?”

There may be specific deadlines you need to meet when submitting claims or filling out paperwork. Ask your lawyer about these dates so you know what has to be done by what time.

“How Long Will the Probate Process Take?”

Again, this is a difficult question to answer. Every case takes a different about of time depending on the circumstances. A probate lawyer should be able to give you a rough estimate, however, and they should keep you up to date with everything that happens as it goes on.

“How Much Do You Charge?”

Make sure you understand how much the lawyer charges before you hire them. You should also ask about any other fees you’ll be responsible for so you aren’t surprised by a large bill later.

Don’t focus on the price too much.

You don’t want to hire the cheapest probate lawyer you can find simply because they’re the cheapest. Remember, you get what you pay for. Investing more money into a lawyer that has the right experience is well worth the cost.

Hiring a Probate Lawyer That Can Help You

So, what does a probate lawyer do? In short, they help you through the process of distributing someone’s assets after they pass away.

Not sure where to find good probate lawyers in your area? Our team at De Bruin Law Firm can help you with any of your probate needs.

Don’t hesitate to give us a call today.

Advantages of Avoiding Probate

October 31, 2019/in Estate Planning

There are several important advantages that come from avoiding the probate process. First, time. If you are the owner of a small business that you intend to pass along to a family member, this can be especially important. Probate puts everything in a state of limbo, sometimes leading to long delays before important business decisions can be made. Uncertainty and a lack of legal authority can make it difficult, if not impossible, to keep a business running, which is why many business owners take steps to ensure their business passes outside the probate system.

Another advantage to avoiding probate is saving money. Probate is a court process and court costs needs to be paid. Usually the amount of money is relatively small, but complicated cases can become quite costly, especially if experts or other third parties become involved.

A final advantage of avoiding probate is the lack of public disclosure. The probate process takes place in the court system and, as such, is open to the public. That means that the person’s will, the final property allocation, and anything else related to the administration of the estate will become matters of public record, available for anyone to read. These deeply personal and financial matters are obviously sensitive and many people would prefer to keep things private.

What is Probate?

Probate is technically the legal mechanism by which title to property of a recently deceased person is transferred to his or her heirs. The goal of probate is to ensure that every possible claim against the estate and those owing to the estate has been settled and that title has been given to the rightful heirs. This can be a lengthy process in some especially complicated cases, and the goal is to ensure that when all’s said and done, an estate can be wrapped up without lingering disputes.

Does everything go through probate?

The short answer is no, not everything a person owns goes through probate. These assets pass through other avenues, such as payable-on-death accounts or beneficiary designations. Examples of assets that do not pass through the probate system include property that has been transferred into a trust, life insurance proceeds, retirement funds, money in payable-on-death bank accounts, and property that is owned with someone else as a joint tenant.

10 Steps to Making a Will — And Why You Need a Lawyer to Help

June 13, 2018/in Estate Planning

Have you written your will yet? If the answer is no, this is something you should not ignore.

Every adult should have a written will to protect their assets and family from the unexpected

If you think making a will is complicated, we’re here to help. Keep reading to learn how.

1. Understand Why You Need a Will

There’s a common misconception you need to be rich in order to make a will. However, failure to do so will result in a difficult time for your loved ones in the event of your passing.

Maybe you don’t have millions of dollars or many properties, but you still need to designate who will keep your possessions.

A will dictates your last wishes. If you promised your younger brother your motorcycle but don’t leave a will, who is to say there won’t be many family disputes over it.

Having a will is important for any person, not just rich individuals.

2. Inventory Your Estate

Making an inventory of your material possessions is quite simple. If you have a living spouse, you could simply leave any properties, trusts, and insurance policies to your spouse.

Then if you want to leave other material possessions to other family members, you should specify it in the will. This part is simple, but it does get a bit tricky when you have more financial affairs.

You might not be aware of other aspects that should be included in the will. Consulting a lawyer is the best way to get some guidance on things like trust accounts, insurance policies, 401K or IRA accounts, and more.

A lawyer will ensure there are no loopholes left when you make the inventory of your estate.

3. Appoint an Executor

You will need to appoint an executor. An executor is not necessarily a beneficiary, it can be anyone you fully trust.

The job of an executor is to ensure your last wishes are fulfilled when you pass away. Your executor will distribute the property, pay the taxes, and perform other legal duties on your behalf.

If you don’t have a family member or friend to be the executor, you can leave it in the hands of your lawyer.

4. Decide Who Will Get Custody of Your Kids

If you have underage children, it’s even more important you have a will. In order to avoid your children ending up without a guardian, or with the wrong one, you should appoint on in your will.

Remember, the person you pick to be your guardian should be fully aware of the commitment.

Pick a relative or close friend who you trust and will match your parenting style and values.

5. Designate a Power of Attorney

If you decide to draft a will, you should also designate a power of attorney.

A power of attorney is someone who will act on your behalf should you become physically or mentally disabled and unable to make your own decisions.

Whoever you designate will have the financial responsibility of paying your bills, managing debts, and other critical financial decisions you’re unable to make for yourself.

Consult an attorney to get more information or what kind of power of attorney you would need.

6. List All Your Debts

In the event of your passing, your debts don’t go away. Since your executor will be the person responsible for paying all of your debts, you should leave them a list to guide them in the process.

Make a detailed list of all your financial obligations including car loans, mortgages, credit cards, medical bills and more.

7. Choose Your Beneficiaries

If you have a simple family dynamic, your estate will probably go to your spouse or children. At least that is how a judge would decide it if you don’t leave a will behind.

If this is your wish, you should leave a will to make sure is in writing an no one can try to take from your family what is rightfully theirs.

However, if you don’t have immediate family or are estranged, you should designate a beneficiary. In doing so, it will speed up the probate process.

8. Pick a Place for Your Will

Your will is an important legal document, therefore, you need to make sure store it in a safe place.

Leaving it in one of your drawers at home is not a good idea. In a will, you included your last wishes and should only be read in the event of your passing. No one should have access to this document.

It should be stored in a fireproof place away from prying eyes, like a bank safe deposit box. Just make sure someone you know knows the location.

9. Review and Update Your Will

Once a copy of your will is drafted, you have to make sure it says what you meant for it to say.

This is the time to make changes and be as specific as possible.

Even once your will is done, you’re not done with it. You should pull your will out of the safe place where you keep it to review and update it.

You should aim to pull your will out of hiding every four to five years just to verify those are still your wishes.

If you fell out of touch or someone you included in your will passed, then you want to make sure they’re removed from the will.

10. Don’t Forget the Importance of a Lawyer

Although there are some will DIY resources, hiring a lawyer to write your will is one of the safer choices.

Hiring a lawyer means there will be no confusion on your will because they know the law and know how to navigate complex cases and situations.

Making a Will Doesn’t Have to Be Difficult

Making a will is not only for rich people. If you have belongings, property, or children, is a smart move to leave a will behind.

A will is the record of your final wishes and it’s important you leave those instructions in the right hands. Are you in the South Carolina Area and would like help in your estate planning? Don’t hesitate to contact us.

South Carolina Probate Process Part 1

March 14, 2017/in Estate Planning

When an individual dies, typically, at least some of the property that individual owned will be subject to probate. This means that the property must go through a formal probate process to be distributed according to the individual’s will. Even if the individual did not have a will, that individual’s property may still pass through probate.

Understanding Probate in South Carolina

Probate is the legal process through which a deceased person’s assets are identified, gathered, debts are paid, and the remaining property is distributed to their heirs or beneficiaries. It is a necessary step to ensure the orderly transfer of wealth and to validate the will, if one exists. In South Carolina, like many other states, the probate court oversees this process, ensuring that the deceased’s wishes are honored and that all legal requirements are met. While the concept might seem straightforward, the actual process can be complex, involving numerous legal procedures and strict timelines.

What Property is Subject to Probate in South Carolina?

In South Carolina, a wide array of assets can be subject to probate. This typically includes any property owned solely by the deceased at the time of their death that does not have a designated beneficiary or a joint owner with rights of survivorship.

Common examples include:

Land, houses, and other real estate held in the individual’s name alone.
Vehicles, such as cars, boats, and motorcycles, also fall under this category if they were solely owned.
Personal effects, like antiques, jewelry, art, and other valuable collectibles, are also part of the probate estate.
Financial assets are frequently subject to probate, including stocks, bonds, mutual funds, and bank accounts (checking, savings, CDs) that do not have “payable on death” (POD) or “transfer on death” (TOD) designations or joint ownership.

Unless all of the individual’s property was meticulously placed into a revocable living trust, or otherwise structured to avoid probate, the estate will almost certainly need to go through the probate process to legally transfer ownership to the rightful heirs.

What Property Is Exempt from Probate?

While many assets are subject to probate, it’s equally important to understand what property is typically exempt from this process. Assets that pass directly to a named beneficiary or joint owner generally bypass probate. This includes life insurance policies and retirement accounts (like 401(k)s, IRAs) where a beneficiary has been explicitly named.

Upon the death of the account holder, these funds are paid directly to the designated individual without court intervention. Similarly, property held in joint tenancy with right of survivorship, such as a joint bank account or real estate owned by two or more people where the surviving owner automatically inherits the deceased’s share, avoids probate.

Assets held within a properly funded revocable living trust are also exempt because the trust, not the individual, legally owns the assets. These non-probate assets can significantly streamline the estate settlement process and provide immediate access to funds for surviving family members, highlighting the importance of proper estate planning.

What is the Role of the Executor in South Carolina?

The executor plays a pivotal role in the probate process, acting as the personal representative of the deceased’s estate. This individual is typically named in the will, but if no executor is designated or if the named executor is unable or unwilling to serve, the probate court may appoint one.

The executor’s responsibilities are extensive and legally binding, requiring diligence and careful attention to detail. Their primary duty is to ensure that the deceased’s final wishes, as expressed in their will, are carried out, or if there is no will, that the estate is distributed according to South Carolina’s intestacy laws. This role involves significant legal and financial responsibilities, making it crucial for the chosen individual to be trustworthy and capable of managing complex administrative tasks. The executor is accountable to the court and the beneficiaries, and any missteps can lead to legal complications.

Initial Steps for the Executor

The first crucial step for the individual named as executor is to meet with the clerk of the probate court in the county where the deceased resided. This initial meeting formally begins the probate process. During this meeting, the executor must present several vital documents. An original copy of the deceased’s will, if one exists, is paramount, as it outlines the deceased’s wishes regarding their property distribution.

The death certificate is also a mandatory document, serving as official proof of death. Additionally, the executor must provide comprehensive contact information for all known relatives and heirs, as they are interested parties in the estate and must be notified of the probate proceedings. This initial filing allows the court to formally recognize the executor’s authority and initiate the legal framework for administering the estate. Without these foundational documents, the probate process cannot proceed.

Safeguarding Estate Assets in South Carolina

Once the court has officially appointed the executor, a critical responsibility is to ensure that all of the assets within the estate are identified, noted, and meticulously safeguarded. This step is vital to prevent loss, theft, or unauthorized access to the deceased’s property during the probate period.

For instance, if the estate includes multiple bank accounts, the executor must take immediate steps to ensure that no unauthorized withdrawals are made from these accounts until the probate process is complete and the assets can be legally distributed. This might involve notifying financial institutions of the account holder’s death and requesting that the accounts be frozen or transferred into an estate account.

Similarly, physical assets like real estate, vehicles, and valuable personal property must be secured. This could mean changing locks on properties, ensuring vehicles are stored safely, and inventorying valuable items to prevent their disappearance. The executor is legally obligated to protect the estate’s value for the benefit of the heirs and creditors.

Locating All Assets

One of the most challenging tasks for an executor can be locating all of the deceased’s assets. If the deceased maintained thorough and organized records, the executor is indeed fortunate, as these records may clearly list all accounts, investments, and pieces of property owned. However, this is often not the case.

A good starting point when records are scarce is to obtain a credit report for the deceased. This report can reveal open bank accounts, lines of credit, credit cards, and other financial relationships that might indicate hidden assets. Next, a careful review of the deceased’s past tax returns can be highly illuminating. Tax returns often show receipts of interest, capital gains from investments, dividends from stocks, rental income, or business income, all of which can point to specific financial accounts or properties.

If, after these steps, there is still uncertainty about whether all assets have been located, or if the estate is particularly complex, hiring a private investigator may be a necessary measure to conduct a more thorough and comprehensive search. This can uncover assets that were not immediately apparent from standard financial documents.

Unclaimed Property Search in South Carolina

Beyond personal records and financial statements, South Carolina offers an additional valuable resource for locating potential assets: the “Unclaimed Property Search” available on the state treasurer’s website (www.treasurer.sc.gov). This program serves as a central repository for funds and property that companies or other agencies have been unable to return to their rightful owners.

This can include forgotten bank accounts, uncashed checks, dormant safe deposit box contents, utility deposits, insurance proceeds, and even stock dividends. When these entities cannot locate the owner, they are legally required to report and remit the unclaimed property to the state’s unclaimed property program. It is a straightforward process to conduct a search on the website using the deceased’s name, and it is a crucial step for any executor to perform, as it can uncover significant assets that might otherwise remain undiscovered and undistributed to the heirs.

Identifying Debts and Liabilities

Just as important as locating assets is the executor’s responsibility to identify any debts or liabilities the deceased had at the time of death. This can be equally, if not more, difficult than finding assets, as creditors may not be immediately known. South Carolina law provides a specific procedure for notifying potential creditors.

The executor is required to publish a notice in a local newspaper once a week for three consecutive weeks, formally announcing the death and inviting creditors to file claims against the estate. If the executor is already aware of specific creditors, such as mortgage lenders, credit card companies, or medical providers, they may also send direct written notices to these debtors.

Creditors who receive direct notice have 60 days from the date they receive the notice to file a formal claim with the estate. For creditors unknown to the executor, or those who did not receive direct notice, they have a longer period of 8 months from the date of the first newspaper publication to file their claims. This structured notification process ensures that all legitimate debts are identified before assets are distributed.

Valuing Estate Assets

Once all assets have been located, the executor is responsible for determining their fair market value as of the date of the deceased’s death. This valuation is crucial for several reasons: it helps in calculating any potential estate taxes, ensures equitable distribution among heirs, and provides a clear accounting for the probate court.

Different types of assets require different valuation methods. For real estate, a professional appraisal is typically necessary to determine its market value. Stocks and bonds are valued based on their trading prices on the date of death or an alternative valuation date if elected. Bank accounts are straightforward, reflecting the balance on the date of death. Personal property, especially valuable items like antiques, jewelry, or collectibles, may require appraisals from specialists. Accurately valuing all assets is a significant undertaking that ensures transparency and compliance with legal and tax requirements throughout the probate process.

Paying Debts and Taxes in South Carolina

After all assets have been identified and valued, and all legitimate claims from creditors have been received and verified, the executor’s next critical duty is to pay all outstanding debts and taxes of the deceased. This step must be handled with extreme care, as there is a specific order of priority for payments under South Carolina law.

Generally, administrative expenses of the estate (like court fees, attorney fees, and executor commissions) are paid first, followed by funeral expenses, then certain government claims (like taxes), and finally, other secured and unsecured debts. It is imperative that all legitimate debts are satisfied before any distributions are made to beneficiaries, as the executor can be held personally liable if assets are distributed prematurely and then debts cannot be paid.

This phase also involves addressing any federal estate taxes (though most estates do not meet the federal threshold) and the deceased’s final income taxes. Proper accounting and record-keeping during this stage are essential for a smooth probate closing.

Distribution of Assets in SC

With all debts and taxes paid, the executor can finally proceed with the distribution of the remaining assets to the rightful heirs or beneficiaries. If the deceased left a valid will, the executor must strictly adhere to its instructions, distributing specific bequests to named individuals and dividing the residuary estate as directed. If there is no will, the estate is distributed according to South Carolina’s laws of intestacy.

These laws dictate how property is divided among surviving spouses, children, parents, and other relatives based on a predetermined hierarchy. The executor will prepare a final accounting, detailing all assets, income, expenses, and proposed distributions. This accounting is typically presented to the court and to the beneficiaries for approval. Once approved, the executor will transfer ownership of assets, such as deeding real estate, transferring stock certificates, and distributing cash, formally concluding the distribution phase.

Closing the Estate

The final stage of the probate process is closing the estate. Once all assets have been collected, all debts and taxes paid, and all distributions made to beneficiaries, the executor must file a final accounting with the probate court. This accounting provides a comprehensive summary of all financial transactions that occurred during the administration of the estate, demonstrating that the executor has fulfilled all their duties according to the law and the will (if applicable).

The court will review this final accounting to ensure everything is in order. Upon approval, the executor will typically be formally discharged from their duties, releasing them from further responsibility for the estate. This official closing signifies the completion of the probate process, allowing the estate to be fully settled and all legal obligations to be met.

If you need assistance with the probate process, contact our attorneys

At the De Bruin Law Firm, our estate attorneys understand how difficult it is to manage an estate while grieving the loss of a loved one. We are here to provide the guidance you need through each step of the probate process.

The attorneys at the De Bruin Law Firm understand that estate matters are emotional and stressful. We are available to provide objective advice and guidance to our clients. To schedule a free consultation, call 864-982-5930 or use the link below.

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The attorneys at the De Bruin Law Firm understand that Estate Matters can be difficult to understand and plan for. We are available to provide our clients advice and guidance during the Estate Planning Process. To view common fees associated with an Estate Plan please call us at 864-982-5930 or use the link below to view some of our common Estate Planning Fees.

Benefits And Pitfalls Of Transferring Property Through Joint Ownership

April 16, 2016/in Estate Planning

Transferring property when its held jointly can come with certain complications. Joint ownership is a term that arises when more than one person owns property. And, ultimately, it can be used as a simple and cost-effective way to transfer property after death. For example, a parent who wants to make sure that an adult child inherits money in a bank account can add the adult child’s name as a joint owner of the account. When the parent passes away, the adult child automatically becomes sole owner of the account and there will be no need to open a probate estate to transfer the money.

Transfer Property

Under South Carolina law, people can also transfer real estate after death by adding someone to the deed as a joint tenant with rights of survivorship. By adding a second person to a deed as a joint tenant with rights of survivorship, the real estate will automatically belong to the surviving owner when the other owner passes away. The surviving owner will only need to file a certified copy of the death certificate with the Register of Deeds for the county where the real estate is located.

When property is jointly owned, there is no need to go through probate to transfer the property. By avoiding probate, the property is transferred quickly and the costs of opening a probate estate are avoided. However, there are potential problems with adding another person’s name to your property.

Potential Problems With Joint Ownership

One potential problem is that the other person actually owns the property also. That ownership gives the second owner certain rights to the property that the initial owner might not want. For example, both owners of a bank account have the right to withdraw money from the account. In the perfect world where everyone can be trusted, that will not be a problem. Unfortunately, there are some people who will freely spend the funds in the bank account even if they were only named on a bank account for estate planning purposes.

There are also potential problems with joint real estate ownership. If you add someone’s name to the deed to your home for estate planning purposes and later decide to sell the home, the other owner will need to sign off on the sale also. A problem will arise if the joint tenant does not want to sell the property.

Estate Planning Documents

When developing an estate plan, it is important to make sure that all of your estate planning documents are consistent to avoid future problems. Dispute with heirs may arise if your will states that one heir will receive all of your money although a different heir is named as a joint owner of your bank account. It is very important to speak with an estate planning attorney to make sure that you do everything possible to avoid disputes after your death.

Contact An Attorney In Greenville For Help

At the De Bruin Law Firm in Greenville, South Carolina, our estate planning attorneys can help you to determine if adding another person’s name to your property is in your best interest. Our estate planning attorneys can also prepare any necessary deeds or other conveyancing documents. In the event there is a dispute resulting from the ownership or transfer of property, our estate planning attorneys will aggressively represent your interests. Contact the De Bruin Law Firm today to schedule an appointment with one of our estate planning attorneys.