The Probate Process
The probate process is long and consists of essentially three stages — the opening of the estate, a waiting period and the closing of the estate.
The waiting period is at least eight months from the day publication is made informing the decedent’s creditors of the decedent’s death.
Because of this waiting period, the probate process often takes a year or longer to complete. If the estate is required to file an estate tax return, the estate cannot be closed until the IRS issues an Estate Tax Closing letter, which could delay the closing of the estate.
The probate process can either be formal or informal. Most estates are administered informally, but whether the estate is administered formally or informally, the process is very much the same.
What Is Involved In Opening The Estate?
The personal representative (“PR”) and beneficiaries of an estate are required to complete and file many forms during probate. These forms can be found at the South Carolina Supreme Court’s website, www.sccourts.org/forms/index.cfm.
A PR is the individual or organization appointed to serve as representative of the estate. Formerly, this person was called the “Executor” or “Executrix.” The main tasks of a PR include:
- Collecting the decedent’s assets
- Inventory the decedent’s assets, not including non-probate assets
- Paying the decedent’s debts
- Distributing the decedent’s assets in accordance with the decedent’s will, or the laws of intestacy if the decedent did not have a will
To open an estate, a petitioner (often the person nominated to serve as PR in the decedent’s will) files an Application for Appointment of Personal Representative (which may include the probate of the decedent’s will) along with the decedent’s original will (if any), and pays the applicable fee.
The probate court will then appoint the individual as PR of the estate and admit the will for probate. In formal proceedings, before the petitioner is appointed as PR, the petitioner must file a petition and notify those named as beneficiaries in the will and the decedent’s heirs of the PR’s petition for appointment.
Within 30 days of the PR’s appointment, the PR must notify the interested parties of his or her appointment as PR. If the probate court in the county does not publish notice in the local newspaper, the PR must publish a legal notice informing any creditors of the decedent of the decedent’s death.
The Waiting Or Creditors’ Period
For eight months after the notice described above is published, creditors of the decedent’s estate may file a claim against the estate. This claim can be allowed or disallowed by the PR. If disallowed, the creditor must file a petition for allowance of the claim within a certain period of time.
Claims against the decedent’s estate are barred after the eight month period (or one year after the decedent’s death, if earlier).
What Forms Are Necessary For Closing The Estate?
Closing an estate involves filing several forms confirming to the probate court that the assets of the estate have been managed properly and distributed in accordance with the terms of the decedent’s will. Below is a list of the forms that need to be filed in order to close an estate:
- Final Accounting: Showing the receipts and disbursements of the estate. This includes the expenses of the estate, such as legal, accounting, funeral expenses, and the amount to be distributed to each beneficiary.
- Proposal for Distribution: The PR’s proposal for distributing the assets remaining in the estate after the payment of the decedent’s debts.
- Receipt and Release: Signed and returned from every beneficiary who receives assets from the estate.
- Application for Settlement: The PR’s request to the probate court that the above-described forms be approved, the PR be discharged from the PR’s duties, and the estate be closed.
- Waiver of Statutory Filing Requirements: If filed by all of the necessary parties, the estate can be administered without the need for a Final Accounting, Proposal for Distribution, or Notice of Right to Demand Hearing. If the Waiver of Statutory Filing Requirements is not filed by the beneficiaries, the PR must send certain of the above-described documents to the beneficiaries for their approval.
Several of these forms can be waived if the beneficiaries are confident the estate was administered correctly.
Distributing The Assets
Once the creditors’ period has expired and all of the decedent’s debts are paid, the assets of the estate may be distributed by the PR without fear of personal liability.
The distribution of estate assets may include deeds of distribution for real property, transfer of possession of tangible personal property, and the distribution of financial assets.
Estate Tax Return
Any estate can file an estate tax return, however, not all estates are required to file one. It still may be beneficial to file a return to limit the amount of time the IRS can question the value of the estate.
Affidavit For Collection Of Personal Property Pursuant To Small Estate Proceedings
If the decedent’s estate has assets worth $25,000 or less and does not possess any real property, the estate can be administered pursuant to a shortened procedure. It is important to note that the dollar limitation and restriction regarding real property applies to only “probate property.”
This means that even if the individual had assets which exceed these requirements, it may be possible to administer the estate under these simplified procedures. With this procedure, no PR is appointed and there is no eight month waiting period.
If you have any questions about the probate process or would like assistance in navigating the probate courts, please allow us to help you. Call The Nelson Law Firm of Bluffton, LLC, at 843-548-0157 or reach out to us via email us to schedule a consultation.