Amidst the grief, funeral planning, and casseroles, the aftermath of death is a difficult time. At some point, the word ‘probate’ will come up. What is probate? How does it work? When does an estate have to go through probate? In this article, we will outline the basics of the probate process. Although these steps will generally apply across the country, we will use South Carolina law to demonstrate certain parts of the process. Note: This is not legal advice. For legal advice, please contact an attorney.
What is probate? Probate is the process by which a person’s estate is settled. Important things that may occur include distributing assets to beneficiaries, paying taxes, and resolving certain kinds of debts. This process is overseen by a court. In South Carolina, the county probate court manages this process.
Let’s clear up some misconceptions about probate. Probate does not let the government take the estate of someone who dies without a will. While not immediate, most probated estates don’t take years to settle. Finally, probate isn’t a way to avoid estate taxes.
What Goes In Probate?
Each state has different rules governing which estates and what kinds of assets go through the probate process. Typically, you don’t have to make special plans for an estate to go through probate. In fact, some people make specific arrangements to keep their assets away from the probate process! One way people avoid probate is to place their assets into a living trust, making sure it passes to a successor trustee after their death. For help making this decision, you should contact an attorney for personalized legal advice.
In South Carolina, some of the assets that are subject to probate include interests in companies, property held exclusively by the decedent, and real estate held as tenants in common. Assets that can often skip the probate process (in SC) include assets held in trusts, accounts with named beneficiaries, payable-on-death accounts, and real estate held as joint tenants with the right of survivorship.
Steps of the Process
The next step is to examine the process of probate. It’s worth noting that some states have procedures where smaller estates can be distributed in a streamlined fashion, but this article is focused on the regular probate process. South Carolina’s process is used as an example.
• Delivery – The will is delivered to the probate court within 30 days of death.
• Appointment – A personal representative is appointed (usually who is listed in the will).
• Notification – If someone dies without an estate plan, persons who are entitled to inherit the estate are notified.
• Inventory & Appraisement – The assets in the estate are listed and assessed – usually within the first 90 days an estate is open.
• Creditor’s Claims- Once an estate is opened, creditors of the estate have an opportunity to file claims within a certain time period. Valid creditor’s claims must be paid prior to the beneficiaries receiving their share of the estate.
• Accounting – Before the beneficiaries receive their inheritance, certain obligations need to be fulfilled. This can include taxes, debts, and administration fees of the estate.
• Disbursement – This is when the beneficiaries of the will (or intestate heirs as declared by the state) receive their share of the inheritance.
• Closing – The Personal Representative files paperwork with the Probate Court, which issues a Certificate of Discharge.