Is Probate Mandatory in South Carolina?

Dividing assets after the loss of a loved one can be fraught with legal paperwork and court proceedings, which have the potential to create additional stress and hassle for those who are still in mourning. A little preparation ahead of time can help with the probate process. Some states have very specific probate laws that must be followed, which makes people wonder if probate is mandatory in South Carolina.

Between 35 and 60 probate cases are filed per month in York County, South Carolina. These cases are usually filed and brought to court at the Probate Court on North Main Street in Lancaster, NC. The number of cases can cause the process to move slowly, but it might be possible to minimize probate or avoid it altogether with the help of a Lancaster probate attorney.

The Probate Process in South Carolina

After someone dies, probate is the process that helps define what happens to their assets. It occurs with or without a will. If there is a will, then the court will verify its validity, and then the assets will be divided according to the will’s instructions. If not, then probate laws will determine how the assets are divided.

At the beginning of the probate process, the court will designate a representative. Usually, the deceased will have designated someone in their will, but if they haven’t, then the court will appoint someone. The representative will be in charge of assembling the assets, paying bills, and distributing the assets.

Reasons to Avoid Probate

Probate can be a long and complicated process. You might want to avoid probate because it can:

• Be expensive. Some expenses include court costs, probate fees, and attorney and executor fees.
• Be time-consuming. It can take six months to a year to move through the probate process.
• Make private details public. Because probate is public, details of the estate can be made public as well, which might affect the privacy of not only the deceased but also of the beneficiaries.
• Lead to family disputes and conflicts. Beneficiaries or heirs might disagree over how the assets should be divided, leading to difficulty and sometimes family disputes.
• Lower the distribution of assets. Because probate law will define how the assets are divided, it could mean the beneficiaries receive less than they might otherwise.
• Allow creditors to make claims on the estate. During probate, creditors are allowed to make a claim on the estate, which might lower the amount available for beneficiaries afterward.

Ways to Avoid Probate

In South Carolina, probate may be necessary in most cases, especially if the deceased is the sole owner of their assets or doesn’t have a living trust. Sometimes, you can avoid probate completely by setting up a living trust that will transfer the estate easily after death. The following assets can help you skip or minimize probate:

• Bank accounts that designate beneficiaries
• Real estate with joint tenancy and rights of survivorship
• Stocks and bonds that have designated beneficiaries to transfer on death
• Life insurance and retirement accounts with designated beneficiaries
• Tenancy in its entirety, which is allowed only for married couples who own real estate together

Planning your estate carefully before you die can help your loved ones avoid a potential headache in the future.

A simple way that you can avoid probate is to name a beneficiary or beneficiaries on all of your bank accounts, retirement accounts, and life insurance policies. For real estate, you can have a joint tenancy with the right of survivorship, which allows for the property to automatically transfer to the surviving owner.

FAQs

Q: Can You Avoid Probate in South Carolina?

A: Yes. It is possible to avoid probate in South Carolina. You can:

• Create a living trust.
• Name beneficiaries on your accounts.
• Include the joint owner’s name on the title or deed.
• Designate pay-on-death or transfer-on-death beneficiaries on your assets.

There are other ways as well, and most of them involve preparation before death. Talk to a Lancaster probate attorney for help with any questions about your particular situation.

Q: Does a Will Have to Go Through Probate in South Carolina?

A: To make sure the will is valid, the will must go through probate. This process is in place to ensure that the wishes of the deceased are followed. The probate proceedings take place in the county where the deceased lived. If the will follows all of the guidelines—it’s in writing and signed by two witnesses—then generally, the will is judged to be valid, but if not, then the witnesses might be needed to prove its validity.

Q: How Much Does an Estate Have to Be Worth to Go to Probate in South Carolina?

A: Probate occurs whether there is a will or not in South Carolina. To go through the formal probate process, the estate must be worth at least $25,000. Estates worth less than that can go through a “small estate administration,” which is less intensive and somewhat simpler than those over $25,000. Most estates, even those worth less than $25,000, will have to go through some type of probate process in South Carolina.

Q: Who Determines if Probate Is Necessary?

A: The state of South Carolina has clearly defined probate laws, and even if you have a will, it will need to be filed with the courts to determine its validity. With or without a will, the probate court makes sure those laws are followed. The court’s job is to work in the interest of the estate and the beneficiaries.

Contact Mack & Mack Attorneys

Mack & Mack Attorneys has been serving the Lancaster community for over 85 years. With our extensive years of experience, one of our Lancaster probate attorneys can use their knowledge to help you establish a plan for helping your loved ones avoid the probate process or, if you are already in probate, help you navigate it.

Contact us today to schedule a consultation.