Question:  What is an estate?

Answer: 

An estate is comprised of any real and personal property owned by an individual at the time of his/her death, including any partial ownership interests.

Question:  What is probate?

Answer: 

Probate generally means the proceedings involved in the administration of a decedent’s estate, including the transfer of legal title of property from the estate of the person who has died (the "decedent") to his or her proper beneficiaries.

Question:  How much does probate cost?

Answer: 

Fees are based on the total value of the probate assets as follows:

Assets                                               Filing Fee

$0 - $4,999…………........................$25.00

$5,000 - $19,999…......................…$45.00

$20,000 - $59,999…........................$67.50

$60,000 - $99,999…........................$95.00

$100,000 - $599,999.......................$95.00 plus .0015 over $100,000 - see EXAMPLE # 1 BELOW

$600,000 - unlimited........................$95.00 plus .0025 over $600,000 - see EXAMPLE # 2 BELOW

EXAMPLE # 1: If the estate is worth $325,000.00. The first $100,000.00 has a fee of $95.00. The remaining $225,000.00 is multiplied by .0015 for a total of $337.50. Add together $95.00 plus $337.50 for a total filing fee if $432.50.

EXAMPLE # 2: If the estate is worth $925,000.00. The first $600,000.00 has a fee of $845.00(computed using the formula in EXAMPLE # 1). The remaining $325,000.00 is multiplied by .0025 for a total of $812.50. Add together $845.00 plus $812.50 for a total filing fee if $1,657.50.

Question:  Why is probate necessary?

Answer: 

The primary function of probate is transferring title of the decedent’s property to his/her heirs and/or devisees. If there is no property to transfer, there is usually no need for probate. Another function of probate is to allow the payment of outstanding debts and for setting a deadline for creditors to file claims. 

Question:  Does all property have to go through probate?

Answer: 

No.  Any real or personal property owned jointly with right of survivorship passes to the surviving co-owners without going through probate. In addition, life insurance policies or annuities payable directly to a beneficiary do not have to go through probate. Furthermore, money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as beneficiaries. 

Question:  What if the decedent owned land or a home in more than one state?

Answer: 

If the decedent owned real property out-of-state you must also file for “ancillary administration.” Please note that the laws of the other state govern who gets the real estate located in their jurisdiction unless there is a Will. If there is a Will, it must be submitted in both jurisdictions. 

Question:  Why can’t we just distribute the assets according to the wishes in the Will without going through probate?

Answer: 

A Will is not effective until it is admitted to probate. Also, many assets cannot be disbursed without a Certificate of Appointment issued by the Probate Court.

Question:  Do I need an attorney?

Answer: 

There is not a legal requirement to retain an attorney, but Personal Representatives for many estates believe that it is most helpful, especially when real estate is part of the estate.

Question:  How long does probate take?

Answer: 

The administration of an estate lasts eight to twelve months, but it can be shorter or longer given the particular circumstances of each estate.

Question:  What if only a copy of the Will can be found?

Answer: 

Formal administration will be required if the original Will cannot be located. This means that you must give prior notice to all the intestate heirs and all persons named in the Will as devisees. This typically requires a hearing unless all persons receiving notice sign a Waiver and Consent asking that the copy be probated.

Question:  Can the Personal Representative charge a fee for his services?

Answer: 

Generally, a Personal Representative is entitled to a commission not to exceed 5% of the value of the personal property of the estate. This does not include the value of real estate, unless the real estate is sold by the Personal Representative as part of the administration of the estate.

Question:  What if someone objects to the Will?

Answer: 

If someone with legal standing contests a Will, any objections to probate must be in writing.

Question:  What happens if a Will cannot be found?

Answer: 

In the event that a Will cannot be found you might want to check with the decedent’s bank to determine if there is a safe deposit box that he or she may have had. You should also check with the decedent’s attorney, if they had one. If the Will cannot be found or a decedent did not leave a Will, upon application the Probate Court will appoint a Personal Representative who will distribute the assets in accordance with the rules of intestate succession.

Question:  If the decedent has a safe deposit box,  who may gain access?

Answer: 

According to Section 34-19-50 of the S.C. Probate Code the financial institution where the safe deposit box is held must allow the following persons to examine the safe deposit box without court order: (1) the surviving spouse; (2) the parents; (3) any adult children or grandchildren; and/or (4) a person named as Personal Representative who presents a copy of a document that appears to be the Will of the box holder.  The financial institution is allowed by law to deliver the Will to the Probate Court or to the person named as Personal Representative. Any life insurance policies can be given to the beneficiaries, and the deed to a burial plot may be given to any eligible family member who chooses to handle the burial. No other items may be removed from the box at this time.  Further search and removal of items from the box will be granted to the Personal Representative at such time that Certificates of Appointment are issued.