Probate Simple Estates
Probate Simple Estates
This law firm concentrates in the area of real estate construction litigation, which includes all matter of real estate law, premises liability law, contract law, and mechanics lien law in the upstate of South Carolina.Read more...
This Law Firm assists individuals with filing and Administering Probate Estates.
Upon the death of a loved one, you must first open an Estate. This is done by filing the original Death Certificate along with the original Last Will and Testament of the deceased with the Probate Court in the County where the deceased lived at the time of death. You will also make a request for appointment as Personal Representative at this time. If the deceased did not leave a Last Will and Testament you would file only the original Death Certificate and the potential heirs would be established by the Court.
Once you have now been appointed to administer or probate an estate and have received your Certificates of Appointment. The following information is a brief breakdown of the South Carolina statutory requirements of administering an estate.
1. NOTICE TO CREDITORS
Immediately after appointment, the Personal Representative is required to publish the Notice to Creditors advertisement. Publication is to be once a week for three consecutive weeks. In County of residence, the Probate Court handles this for you. Publication is placed in the local Newspaper, and there is fee for this advertisement, which will need to be paid when the estate is opened. Creditors, by law, have eight months from the date of first publication of this notice to file claims.
2. INFORMATION TO HEIRS AND DEVISEES
Within 30 days after your appointment you must give information of your appointment and the probate of the Will, if applicable, to all devisees and heirs by mailing them a copy of the Information to Heirs and Devisees (Form 305PC). [Devisees are those named to inherit anything in the Will, and the heirs are those who would inherit if there were no will. Both groups must be sent this form.] You must return the Proof of Delivery (Form 120PC) to the Probate Court along with a copy of the Information to Heirs and Devisees form to show this step has been completed. If you use a different manner of giving notice for different persons, please indicate such on the Proof of Delivery form.
3. INVENTORY AND APPRAISEMENT
Within 90 days after your appointment, you must file an Inventory and Appraisement (Form 350PC) with the Probate Court. You are to list and value all probate assets owned by the decedent at death including property owned with another person (joint tenants in common). You may petition the Probate Court to authorize the employment of appraisers (Form 351PC) if you feel there is a need. Take care to discover, list, and value all probate assets (including fractional interests and inherited interests) to avoid delays in closing this estate later. In the event an extension is needed, please submit a Motion for Extension (Form 352PC) prior to the Inventory due date. Upon receipt of the Inventory, a Court cost will be assessed and billed:
$0 - $5,000......................................... $25.00
$5,000-$20,000.................................. $45.00
$20,000-$60,000................................ $67.50
$60,000-$100,000.............................. $95.00
$100,000 - $600,000 ......................... $95.00 +
.15% for amount over
$100,000 up to $600,000
$600,000+..........................................$845.00 +
1/4 of 1% over $600,000
The filing of tax returns and/or payment of any South Carolina and Federal estate taxes or income taxes are the responsibility of the Personal Representative.
4. CLAIMS
Eight months after the first publication of the Notice to Creditors, the period for filing creditor’s claims expires. If you have not already done so, proceed to pay claims. If the assets of the estate are insufficient to pay all claims in full, payment is to be made in the following order and may need to be prorated.
1) Costs and expenses of administration, including attorney’s fees and reasonable funeral expenses; 2) (a) Reasonable and necessary medical and hospital expenses of the last illness of the decedent; and
(b) Medical assistance paid under Title XIX;
3) Debts and taxes with preference under federal law;
4) Debts and taxes with preference under other laws of this state, in order of their priority;
5) All other claims.
5. DEED OF DISTRIBUTION
If there is real estate in the estate, a Deed of Distribution (Form 400PC) must be completed and recorded. It is recommended that an attorney assist you with this particular duty. The Deed of Distribution shows to whom the property vested at date of death and changes the real property records from the decedent’s name to those who inherit it. It is suggested that this not be done until the creditors filing time has expired and it is determined that the real estate does not need to be sold to pay debts. For Greenville County real property, this document will be recorded in the Register of Deeds Office (Suite 1300) after paying the recording fee of $10.39. File a copy of the recorded Deed of Distribution with the Probate Court. Real property located in other counties will require the Deed of Distribution be recorded in the appropriate county. You should then deliver the recorded Deed of Distribution to the new owners of the property.
6. CLOSING
ACCOUNTING
Between eight months and twelve months after the first publication of the Notice to Creditors (or, if this is a taxable estate, 90 days after receipt of South Carolina Department of Revenue and Taxation’s estate tax closing letter), you must file with the Probate Court a complete accounting (Form 361PC) of the entire administration (probate assets received during the course of administration, disbursements/bills paid out, and balance to be distributed to the beneficiaries). If applicable, file a Proposal for Distribution (Form 410PC) indicating assets which have not yet been accounted for or have not yet been distributed.
PETITION FOR SETTLEMENT
Complete and file your Petition for Settlement (Form 412PC) with the Probate Court.
NOTICE OF RIGHT TO DEMAND HEARING
Notice of Right to Demand Hearing (Form 416PC) is to be sent to all interested parties, including unpaid creditors, along with a copy of all Accountings, a Proposal for Distribution (if applicable), and the Petition for Settlement. Proof (Form 120PC) that you have sent these documents must be filed with the Probate Court. If no written requests are received by the Probate Court within 30* days, you may proceed with making your final distributions and completing the final requirements as outlined by the Probate Court. This will include beneficiary receipts from the distributees (Form 403PC), release of claims, copy of recorded deed of distribution for real estate, and copy of transfers for titled personal property (i.e., stocks, cars, etc.); confirm any requirements with your assigned Judicial Assistant. Upon receipt of all final documents, the Probate Court will issue an Order closing the file and terminating your appointment as Personal Representative (Form 413PC).
*The 30-day period can be waived if Waiver (Form 111PC or Form 112PC) is signed by all interested parties.
GENERAL CONSIDERATIONS
PR Commission: The Personal Representative is entitled to a commission of 5% based on the appraised value of personal property of the probate estate, sales proceeds of real estate specifically sold by the Personal Representative, and income earned by the probate estate. Probate estate personal property consists of those items listed on the Inventory and Appraisement under Schedules B, C, D (part 1), F, and I (part 1). For further detail, see S. C. Code of Laws, Section 62-3-719.
Inheritance Tax Limit: For inheritance tax purposes, an estate is considered taxable if the gross value at date of death is more than:
DATE of DEATH FILING REQUIREMENT
1/1/79 - 6/30/88 $120,000
7/1/88 - 6/30/89 $140,000
7/1/89 - 6/30/90 $170,000
7/1/90 - 6/30/91 $320,000
7/1/91 - 12/31/97 $600,000
1998 $625,000
1999 $650,000
2000-2001 $675,000
2002-2003 $1,000,000
2004-2005 $1,500,000
2006-2007 $2,000,000
2008-2009 $3,500,000
See www.irs.gov for further tax information. S. C. Tax Waivers are no longer required.
Estate Bank Account: In order to keep proper books for the estate, it is recommended that an estate bank account be established. If a Federal Tax Identification Number (EIN) is required, the application form is obtained from the IRS (Form SS-4 - www.irs.gov/forms_pubs/forms.html). Transactions shown in the estate bank account will include deposit of every monetary item belonging to the decedent which comes into your hands and payment of all claims and bills by check. By doing this you will have no trouble in keeping the account in exact balance and preparing your final estate accounting.
Formal Petition: If a formal Petition requiring a hearing is filed by you or anyone else during the course of administration, it is highly recommended that an attorney be employed. The Court cannot advise on matters which it must decide.
Demand for Notice: If, at any time during the administration of the estate, you receive a Demand for Notice (Form 111PC), you must comply with the demand and send a copy of whatever is demanded to the person indicated on the form. When filing any documents on the Demandant’s list, a Proof of Delivery (Form 120PC) will need to accompany the submitted filing.
SEE TITLE 62 OF THE SOUTH CAROLINA CODE OF LAWS
FOR MATTERS NOT INCLUDED IN THESE INSTRUCTIONS.
Copy of this law is available for viewing at the Public Library, Law Library,
or on the Internet: www.lpitr.state.sc.us/code/titl62.htm
Please contact us at (864) 242-9103 to see how we can help you!