- General Info...
- How Do I Open an Estate?
- Testate Info...
- Intestate Info
...
- What are My Duties as Personal Representative?
- When is a Bond Required?
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If
there is a Will, this must be filed with the Court within thirty (30) days from
the date of death.
The majority of estates will come under the informal procedures. There are no
Notices required or Hearings unless demanded by an interested party pursuant to
South Carolina Code of Laws, § 62-3-204 (1976, as amended).
Formal proceedings are contested matters such as objections to appointments of
personal representatives, will contests, lost or destroyed will and declaratory
judgments on intestacy. Formal proceedings require Notices to all interested
parties and a Hearing. Formal proceedings must be commenced within the later of
eight months from informal probate or one year from the decedent's death.
A Small Estate Administration occurs when the decedent's estate less liens and
encumbrances does not exceed ten thousand dollars. This cannot take place until
thirty (30) days after death. The death certificate and a copy of the funeral
bill must be furnished to the Court.
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The first step in opening an estate is gathering information about the
decedent. The first questions to ask are:
- Was the decedent domiciled in Cherokee County at their time of death?
If no,
contact the Probate Court in the appropriate County or State. If the
answer is yes,
please continue.
- Did the decedent pass away within the last ten (10) years?
If no, a
Petition to Determine Heirs is necessary. A Petition to Determine Heirs
is very complicated. Please contact an attorney to help with this
process. If the answer is
yes, please
continue.
- Did the decedent own personal property of less than $10,000 and no
interest in real property? If YES, a
Small Estate Administration can occur if the decedent owned personal property,
in their name alone, (excluding real estate, joint banking accounts, and life
insurance or annuities payable to a specific beneficiary) of a total value of
less than $10,000.00. However, you must wait thirty (30) days
from the date of death. You must also submit a CERTIFIED DEATH
CERTIFICATE, an obituary or the funeral program, an appropriate FILING FEE,
proof of payment of any creditors claims filed with the Court. A copy of the
paid funeral bill may be required when reimbursement is requested. A
Probate Court Clerk can help you with this process. If
the answer is NO, please continue.
- Did the decedent have a will? If YES, you will proceed to
the TESTATE procedure for Probate of a
Will and Appointment of a Personal Representative. If the answer is NO, you will proceed to
the INTESTATE procedure.
When the decedent died with a will and probate assets, you will proceed under
the Testate procedure for Probate of Will and Appointment of a Personal
Representative. This could be a FORMAL APPOINTMENT AND TESTACY procedure or an
INFORMAL APPOINTMENT AND TESTACY procedure.
FORMAL APPOINTMENT AND TESTACY:
Formal Appointment procedures will be required when:
- The will does not name a Personal Representative and the heirs do not
agree on an appointment;
- There is a will contest;
- The will is not clear;
- The will is a copy and the heirs do not agree that it is the decedent's
final will;
- The Petitioner does not have priority under state law to serve as the
Personal Representative;
- The Petitioner is a creditor; or
- There is more than one Petitioner.
The process for a FORMAL
APPOINTMENT is very complicated. The services of an attorney will be
necessary.
INFORMAL APPOINTMENT AND TESTACY:
Informal Appointment and testacy procedures are allowed when:
- The Petitioner is nominated as the primary Personal Representative in the
will or is named as the alternate Personal Representative and the primary
Personal Representative is deceased or unable to serve and renounces their
right to serve;
- Original will cannot be located and all heirs agree in writing to accept
the copy of the will as the last will and testament of the Decedent and the
Petitioner is named in the copy as Personal Representative or alternate
Personal Representative; or
- All devisees under the will renounce their right to serve and agree to the
appointment of the Petitioner.
If the decedent died with a will, but owned no probate assets, the will
should still be filed on record with the Probate Court within thirty (30) days,
but no longer than ten (10) years from date of death. The filing of the
will could prevent the necessity of a Petition to Determine Heirs action at a
later date if assets are later discovered.
When the decedent died without a will, you will proceed under the intestate
appointment for PERSONAL REPRESENTATIVE. This could be a FORMAL APPOINTMENT
procedure or an INFORMAL APPOINTMENT procedure.
Formal Appointment:
Formal Appointment procedures will be required when:
- The Petitioner does not have priority under state law to serve as the
Personal Representative;
- The Petitioner is a creditor;
- The Petitioner claims to be a common law spouse; or
- There is more than one Petitioner.
The process for a FORMAL
APPOINTMENT is very complicated. The services of an attorney will be
necessary.
Informal Appointment:
Informal Appointment procedures are allowed when:
- The Petitioner has priority under state law to serve as the Personal
Representative;
- The Petitioner has been nominated to serve as Personal Representative by
someone who has priority under state law;
- The Petitioner is the sole heir;
- The sole heirs are Petitioning to serve together as Co-Personal
Representatives; or
- The heirs of equal priority agree that the Petitioner should serve as
Personal Representative.
A Personal Representative is the person
appointed to handle an estate. The Personal Representative is responsible for
collecting, protecting and administering the estate. This includes giving Notice
to all interested parties, filing an Inventory of the estate, making sure the
assets are secure, paying required claims and costs, and making sure the proper
people get what they are entitled to receive.
Also see
South Carolina Code Ann.
§62-3-703
Bond is required in the following circumstances:
- Appointment of a Special Administrator
- Appointment of a Personal Representative not named in the will (unless
they are the sole devisee)
- Appointment of a Personal Representative of an intestate estate (unless
they are the sole heir)
- Appointment of a Personal Representative expressly required by the will
- If demanded by an interested person
Bond may be waived if all heirs and devisees sign an agreement to that
effect.
Cherokee County Probate Court. All rights reserved.
Last
Revised: 09/16/04.