Are you involved in probate litigation?
Probate is the legal process through which the court oversees the estate of a deceased person to make sure the debts are paid and the estate is properly distributed to the heirs.
When a loved one passes, the ordeal of settling their estate begins. This complicated probate process involves an heir or beneficiary, an executor or an administrator, and a state court which typically oversees the matter.
What’s involved in probate?
Every probate is different, but the following steps are usually involved.
Swear in a personal representative
In your will, you’ll name the individual you want to be your personal representative—typically called an executor. If you die without a will, the court will select a personal representative for you. A family member, spouse, or adult child can request that the court appoints them as the executor of your estate.
When it’s time to execute your estate, the court will issue your executor Letters of Administration or Letters Testamentary—official documentation that gives them the authority to act on behalf of your estate—and require them to swear an oath of office.
Your personal representative will then file a Petition for Probate of Will and Appointment of Personal Representative with the probate court, officially beginning the probate process.
Notify heirs, creditors, and the public of your passing
Some states require your executor to publish a death notice in your local newspaper. This serves as a public notice of your estate’s probate and enables people who think they have an interest in your estate (such as creditors) to file a claim against it within a specified time period—usually three or four months. This makes the matters of your estate part of the public record.
Inventorying your property
One of the executor’s jobs is to inventory your property, both real and personal, so the estate’s value can be determined. They need to make sure you’ve left enough to cover the debts and distributions to beneficiaries. If there isn’t enough to cover all debts, beneficiaries may receive less than you intended after the debts have been paid.
Your executor must also collect and inventory your assets to ensure that all property is available for distribution at the end of the probate process. If property is missing, replacement assets or cash equivalents can sometimes be used.
It’s always a good idea to determine what your estate is worth so you can make informed choices for your estate planning.
Paying bills and taxes, and distributing the estate
While it varies from state to state, payments are typically made in this order:
- Estate administration costs (legal advertising, appraisal fees, personal representative fees, attorney fees, etc.)
- Family allowances (for the support of family members)
- Funeral expenses
- Taxes and other debts (such as medical bills)
- All remaining claims
- Distribution to beneficiaries according to the will
If probate proceeds according to plan and all notices and communications are properly handled, the executor is usually protected against subsequent, late-arriving claims.
Timeline
Some probate processes can be straightforward, while others can be extremely complex. The simplest estates might be probate as quickly as three months. However, complexities—such as contests to the will—could add months or even years to the process.
Does probate occur even if there’s no will?
Yes. If there isn’t a will, South Carolina law will determine how and to whom the remaining property is distributed.
When should I contact an attorney?
If you’re entering probate, or just want to ensure that you’re fully prepared in the event of your passing, contact a Williams & Williams attorney today.
Call or schedule a free consultation today.
Contact a lawyer at Williams & Williams Attorneys at Law in Orangeburg, South Carolina by calling (803) 534-5218 to schedule a free consultation.
Your consultation will always be handled by one of our experienced attorneys.
