If you are the Personal Representative of a Will or a family member or friend of a recently deceased individual, you may be wondering what types of situations necessitate a probate court action and whether you will need to hire a lawyer.
Perhaps the first most important factor on how your loved one’s estate will be administered is whether or not they died with a valid Will in place.
Probating an estate WITH a Will
When someone dies with a Will in place, and the Will was validly executed, the Estate will generally be probated through an informal process at the Probate Court in the County of the Decedent’s primary residence and according to the wishes of the deceased.
Probating an estate WITHOUT a Will
When someone passes away without a Will, they are said to have died “intestate”. The Estate of a person who dies intestate is passed on according to South Carolina law and is probated in the County of the Decedent’s primary residence
The second most important factor in how the probate process will work is whether there are any disagreements or disputes involved in administering the Estate. Generally, if there is no disagreement or dispute involved, the Estate will be probated through an informal process. However, sometimes the circumstances may call for the supervision of the Probate Court. These circumstances include:
Family members fighting over differing versions of a Will.
If there are multiple Wills, the Probate Court will get involved to determine which version is the valid Will.
Disputes about whether there is a valid Will.
There may be disagreement about whether any valid Will exists at all.
Subsequently born children not included in the Will.
If all children alive at the time of the drafting of the Will were included in that Will and another child was born after the Will was executed, most people will generally assume the deceased would have meant to include that child and provide for that child to inherit an equal share. Certainly, there are many details in a situation like this that could give rise to a dispute.
If there is Real Property or Personal Property of a high value.
If there is no Will, a formal petition must be filed to obtain permission from the Court to sell Real Property or personal property with a high value.
These are just some of the situations that may require a Probate Court to help settle an issue involved in the administration of a Will.
When do I need a lawyer?
As an executor of a Will or a family member involved in the administration of an estate in South Carolina, you should seek the advice and counsel of an Estate Planning or Probate lawyer in South Carolina if you encounter an issue with the drafting of a Will, the validity of a Will, multiple Wills, disputes between family members and friends, or need to sell Real or personal property. Even those experienced in Probate issues sometimes find it is less stressful to simply hire an Attorney to handle things. An experienced Probate lawyer can walk you through the process of probating the estate in South Carolina in both informal and formal probate situations.