Upon death, a decedent’s assets must typically go through the Probate process before they can be transferred to beneficiaries. In many cases, the probate process may not place a significant burden on beneficiaries; however, there are a number of reasons to consider avoiding probate in the State of South Carolina.
- Delays: After appointment, a Personal Representative is required to publish a notice to creditors for four consecutive weeks. After the fourth publication, creditors are allowed eight months to make a claim against the estate before assets may be distributed to beneficiaries. Because of this, it is not uncommon for the probate process in South Carolina to take approximately 12 months to completely run its course.
- Second Marriage Situations: Blended families often find themselves at odds after a loved one’s death. This is particularly relevant when the decedent is survived by a spouse and children from a prior marriage. Unfortunately, this often results in legal battles that cost the estate and create emotional turmoil for beneficiaries.
- Spendthrifts or Drug Addiction: There are many families who want to provide for children or other beneficiaries upon death; however, they are concerned that money may be squandered or used to satisfy a drug or alcohol addiction. Protective provisions may be included in a decedent’s Last Will and Testament; however, an unhappy beneficiary may be tempted to challenge such restrictions, resulting in delays and legal bills for the decedent’s estate.
- Estranged Heirs at Law: An “heir at law” is a person who is related to a decedent based on State law. For example, a decedent’s children and surviving spouse are her heirs at law. Grandchildren and other more distantly related heirs may be included if a spouse or children are deceased. Even if an heir at law is intentionally omitted from a Last Will and Testament for good reason, he or she is entitled to notice of the decedent’s probate and will have an opportunity to object to the will.
- Property in Multiple States: A decedent’s estate is typically Probated in her state and county of domicile. If the decedent owned property in another state, an “Ancillary Probate” will be necessary before property can be transferred to beneficiaries. This process may vary depending on the county and state where the additional property is located and will likely cause the estate to incur additional court and attorney’s fees.
There are a number of tools available to help clients avoid probate upon death. Updating beneficiary designations, properly titling assets and funding a Revocable Living Trust are all important considerations to discuss with a competent estate planning attorney. Please call our office at (803) 306-6053 to register for one of our free estate planning seminars to learn more.