Probate is the process by which assets are transferred from the decedent to his or her heirs or devisees.
South Carolina law requires that you deliver the will to the Probate Court within thirty (30) days after the person’s death.
Regular Estate: If the decedent owned any real property (home, real estate), or if he owned personal property (boat, car, mobile home, jewelry, furniture, etc.), worth more than $25,000, someone will need to open a regular estate on behalf of the decedent.
Small Estate: If the total value of the decedent’s belongings is less than $25,000, and if no real property is involved, someone will need to open a small estate. Note: A small estate cannot be opened until more than 30 days have passed since the date of death.
Estate for Legal Actions: Even if the decedent had no belongings, you may still need to open an estate if any legal action needs to be taken on behalf of the decedent (e.g., medical malpractice or wrongful death cases).
If the deceased was a permanent resident of Colleton County, was a non-resident with property in Colleton County, or was someone with the right to take legal action in Colleton County, the estate must be processed through the Colleton County Probate Court.
When someone dies without a will, their estate is called “intestate.” This means that their property will pass to the decedent’s heirs, in a manner according to state law. The state does not, however, take a part of the estate (unless there are no heirs).
The Probate Court is not allowed to provide legal advice to anyone. Therefore, in situations in which there may be complex legal issues, disagreements among heirs, etc., it is strongly recommended that you have an attorney. In particular, this is important for formal probate or appointment because it is necessary to file a summons, petition, and filing fee, and to serve the pleadings on the interested parties. A hearing will then be set for the presentation of testimony.
Our office maintains a list of local attorneys who practice in probate court; however, we are unable to recommend any individual attorney. If you need help choosing an attorney, you may call the South Carolina Bar Attorney Referral Service at 1-800-868-2284 or go to www.scbar.org for more information. If you are unable to afford an attorney, you may call the South Carolina Bar’s Pro Bono Program at 1-888-346-5592 to see if you qualify for legal assistance at a free or reduced rate.
A personal representative (formerly referred to as an “Administrator” or “Executor”) is the individual or individuals with the responsibility of administering an estate.
A Personal Representative (PR) is often nominated in the will of the decedent. If the decedent did not have a will, S.C. law sets forth a priority list for determining who should be the PR (typically the next of kin).
Someone with priority has the option of not serving (by filing a form entitled “Renunciation of Right to Administer” – Form 302ES. This form can be found by clicking on the link to South Carolina Probate Court Forms in our Links section of this website). Anyone with priority may nominate someone else to serve. A person without priority may be appointed only through formal proceedings. Following service of the formal Summons/Petition, Probate Court will schedule a hearing to determine who should be appointed to administer the estate.
The Personal Representative (PR) is responsible for collecting, protecting, and administering the estate. This includes giving notice to all interested parties, filing an Inventory and Appraisement of the estate assets, making sure assets are secure during probate, paying required claims and costs, filing all appropriate tax returns, and making sure that the proper people receive the assets to which they are entitled.
For information regarding a Personal Representative's tax filing responsibilities, please consult a Certified Public Accountant (CPA). You should also review the following IRS publication: https://www.irs.gov/pub/irs-pdf/p559.pdf.
A regular estate will take an average of one year to complete, if all paperwork is filed in a timely fashion. State law requires that estates remain open for the shorter of one year from the decedent's death or 8 months from publication for creditors.
Just like with a regular estate, with a small estate you will be completing paperwork that can be obtained from the court. Once all paperwork is complete and you meet with one of the probate clerks, small estates can be opened and closed in one day. Only the person paying the funeral expenses should contact the court and everything will be handled on the day of appointment. Remember, this procedure applies only when there is no real property, and the total of all personal belongings is less than $25,000. Please note that small estates cannot be opened until 30 days after the decedent’s death.
As of August 1, 2011, the Department of Motor Vehicles (DMV) has adopted new procedures. (The DMV will no longer use the Affidavit of Inheritance to transfer a vehicle.)
If the vehicle is titled in the name of two or more owners with an "OR" relationship, and the DMV is aware that one of the owners is deceased, the surviving owner(s) must present the title and proof of identification to the DMV. No probate documents are required.
If the vehicle was not jointly titled and is worth less than $25,000, you will need to open a "small estate" with Probate Court. The Probate Court will give you documentation to take to the DMV to transfer the vehicle.
On your first trip to Probate Court, please bring the following items:
The ORIGINAL will of the decedent (if there was a will)
Original Death Certificate
During this trip, you will meet with one of the estate clerks, who will give you paperwork necessary to open the estate. You will take the paperwork home to complete and then make an appointment with the clerk to open the estate. For more information, please refer to the "Estate Opening Packet" in the "Documents" section of this website.
The Judge is not allowed to communicate with anyone individually about a pending case or about a case that may end up in Probate Court. The Canons of Judicial Ethics govern how judges preside over cases. One of the rules states:
“A judge shall not initiate, permit, or consider…communications made to the Judge outside the presence of the parties concerning a pending or impending proceeding…”
Therefore, if you are not able to meet with the Judge, it is because the Judge is to remain impartial without any outside influences whatsoever. Everyone involved has a right to a fair and impartial hearing.
Everyone should consider a Last Will and Testament, Durable Power of Attorney, Health Care Power of Attorney and Declaration of a Desire for a Natural Death (or Living Will). Please see the link in our “Links” section for more information on a Healthcare Power of Attorney and Living Will.
The document must be in writing, signed by the person making the will (the “testator”). The testator must be at least 18 years of age and of sound mind. The will must be signed by two witnesses, who are not beneficiaries of the will.
You should consult an attorney for the preparation of a will. Often, when people do not consult an attorney, their wills do not dispose of all of their property or they make mistakes that cause part or all of the will to be held invalid.
A will is not filed in our office until the person is deceased.