If you have been appointed as the Executor of a Will—or a “Personal Representative” as the position is known in South Carolina—you might be wondering what your responsibilities are and what you should be careful of. In this article, we will address some of the common concerns for first-time Personal Representatives.
If you are appointed as an Executor, you have a choice to accept the appointment or seek to be relieved of your duties with the Probate Court. If you accept this appointment, you can be held personally liable for certain mistakes that are a breach of the “Duty of Care.”
One of the responsibilities of the Personal Representative is to pay the debts of the Estate before paying beneficiaries. If the Executor fails to do so, she or he may be personally liable to creditors for the debts of the Estate. Note that if the Executor takes all proper steps and the assets of the Estate are insufficient to cover all debts, the Personal Representative will not be personally liable for the remaining amount owed.
While similar, Probate requirements differ from state to state. In South Carolina, the Probate Court has jurisdiction over the settlement of estates. If the Executor and beneficiaries are in agreement about the terms of the Will, the Probate process is quite simple and streamlined. If there is a dispute about the Will, the Probate Court will closely supervise the process.
If you are appointed as a Personal Representative of a Will, you should make an appointment with an Attorney in the county where the decedent lived, after you receive a copy of the death certificate and obtain the original Will, if there is one.
The Attorney can help you to determine whether a full probate action is necessary based on the assets owned by the decedent at the time of passing. If necessary, the Attorney can assist you in filing the Application for Appointment and Probate. Once you are appointed, a notice will be published in the newspaper to alert creditors that the Estate is open. The Executor must send notices to all of the beneficiaries and heirs within 30 days after receiving the appointment as Personal Representative.
A notice of inventory and appraisement of the assets of the Estate must be completed by the Personal Representative and sent to the Probate Court as well. This is an inventory of the assets owned on the decedent’s day of passing. It does not include assets obtained or received after passing.
Finally, the Personal Representative must pay claims to creditors according to the provisions of South Carolina Probate Code and execute the terms of the Will. Your Attorney can assist you in determining what claims must be paid and in what order. Once all creditors claims are paid, the Personal Representative may proceed with completing the Final Accounting and Application to Close the Estate.
Estates valued at less than $25,000 are subject to South Carolina’s Small Estate laws, which follow a more streamlined approach to settling an estate. Certain processes may be expedited with a small estate affidavit.
Fiduciary Income Tax
The Executor of the Will is responsible for filing state and federal income tax returns for the Estate. In South Carolina, a tax return must be filed if:
Federal estate taxes only apply to estates valued at over $5 million.
Safeguarding Estate Assets
One of the duties of the Personal Representative is to safeguard estate assets. This involves identifying estate assets and ascertaining the value of those assets. The Executor is responsible for paying all debts of the Estate and then keeping assets safe until beneficiaries are paid. This includes making sure that real estate is maintained and personal property is cared for and protected from theft and other threats.
Unfortunately, it is not uncommon to encounter family conflict when executing a Will. Some people may feel certain beneficiaries were left more than they deserve and others may feel entitled to assets that were not given to them. As the Personal Representative, you have a legal obligation to carry out the terms of the Will—regardless of your personal feelings about the terms of the Will. If necessary, the Probate Court can play a role in settling disputes over the Will.