Which Assets Do Not Go Through Probate?

Going through probate can be a stressful, drawn-out process for grieving families. If you’ve recently lost a parent or another close family member, you may be wondering, “Which assets do not go through probate?”  When you have questions like this, talking to a probate attorney can be helpful. A lawyer from Mack & Mack Attorneys can help you navigate the complexity of South Carolina probate laws.

About Mack & Mack Attorneys

The experienced team of lawyers at Mack & Mack Attorneys has decades of experience representing clients in South Carolina. We’re the oldest continually operating legal services provider in Fort Mill, and we leverage our experience to help our clients achieve positive outcomes. We’d love to meet with you about your probate case and help you navigate the complicated process.

What Is Probate?

Probate is a court-supervised process of settling a deceased person’s debts, validating their will (if there is one), and legally transferring their assets to the designated beneficiaries or heirs. Except in specific circumstances, a will must be declared valid by an adjudication of probate by the court, or an order of informal probate by the court, before the decedent’s property can be transferred to the correct beneficiaries.

In South Carolina, each probate case is handled by the applicable county’s Probate Court and governed by a probate judge. Residents of Fort Mill, SC, typically go to the York County Probate Court, located at 1675 York Highway in York, SC.  Individuals can access probate records publicly at the Probate Court and online.

What Triggers Probate?

Probate begins after an estate-holder’s death, as the decedent’s will and testament must be presented to the South Carolina probate court within 30 days. After filing the will, Form 300 must then be completed and returned to the court within 30 days to officially begin probate proceedings. Due to these deadlines, in most cases, probate begins within 30 to 90 days of the decedent’s death.

Once the court receives the will, the court will designate a personal representative to look after the estate disbursements. During probate, the court validates the decedent’s will, settles debts and assets, and identifies and distributes assets to heirs.

The Probate Process

Probate laws can be complex, but an experienced attorney can help you navigate them. Generally, the probate process follows these steps:

• Delivery of the will to the court within 30 days of death
• Appointment of a personal representative by the court
• Estate valuation, which requires the personal representative to have the deceased’s assets appraised
• Settling of outstanding debts and taxes
• Disbursement of assets to beneficiaries and heirs, according to the will’s terms or to state intestate succession laws in the absence of a will
• State-issued Certificate of Discharge to indicate closure of the estate

It is important for the personal representative of the estate to meet critical deadlines throughout the probate process. If deadlines aren’t met, state law dictates that the estate will be dispersed through intestate succession laws.

Creditor Statute of Limitations

Creditors can file a claim against the estate until the statute of limitations passes. In some cases, a creditor may choose to file a claim within the statute of limitations, but only after the estate assets have already been distributed. When this happens, the creditor might choose to seek reimbursement from the heirs and beneficiaries of the estate.

When to Hire a Probate Attorney

If you’re the personal representative of an estate as appointed by the court, it’s natural to feel anxious and overwhelmed. You may worry about your ability to gather and file the necessary documentation by the required deadlines. Having an experienced attorney in your corner can be helpful and may reduce your anxiety. They can help you follow the proper probate processes to avoid potential complications or setbacks.

You may also want to hire a probate lawyer if you or any other estate heirs want to dispute or appeal a probate decision. Probate litigation can occur in situations like the following:

• The validity of a will is challenged.
• A suit is brought against a trustee or executor for failing to follow legally binding documents or laws.
• A suit is brought to terminate a trust that has become impracticable.
• Guardian conduct or appointment is contested by one or more legal heirs.
• One or more heirs believe the will or trust has been misinterpreted or mishandled.

FAQs

Q: How Long Does the Probate Process Take?

A: The length of probate can vary based on the details of the specific case. For small estates, the process may be faster if it qualifies for a summary administrative procedure. When the value of the entire probate estate (minus encumbrances and liens) is $45,000 or less, estate assets may be distributed and disbursed immediately to the entitled persons. This is according to the recently amended and ratified S.C. Code of Laws Section 62-3-1203.

Q: What Assets Are Subject to Probate?

A: Knowing what assets will need to go through probate can help you avoid confusion and ensure the probate process is completed within the appropriate legal parameters and time frame. Assets that are subject to probate include:

• Financial investments, including bonds and stocks
• Real estate property (solely in the decedent’s name)
• Vehicles in the decedent’s name
• Bank accounts only in the decedent’s name
• Any interest or stake in an LLC or business
• Tangible personal items, such as collectibles, jewelry, etc.

Q: What Assets Do Not Go Through Probate?

A: Before going to probate court, it’s wise to familiarize yourself with what assets do not need to go through court. In South Carolina, the following property is exempt from probate:

• Insurance accounts (with a named beneficiary)
• Retirement accounts (with a named beneficiary)
• Pension plan distributions
• Joint bank accounts
• Assets held in a trust
• Real estate with right of survivorship and joint tenancy

Q: Is There a Creditor Statute of Limitations for Estate Claims in South Carolina?

A: Yes, there is a creditor statute of limitations for estate claims in South Carolina. Creditors can file a claim against the estate until the statute of limitations passes. In some cases, a creditor may choose to file a claim within the statute of limitations, but only after the estate assets have already been distributed. When this happens, the creditor might choose to seek reimbursement from the heirs and beneficiaries of the estate.

Hire a Probate Lawyer

Probate cases can be complex, emotional, and overwhelming. However, you may find that having an experienced probate lawyer on your side helps alleviate excess stress. The lawyers at Mack & Mack Attorneys have decades of experience navigating probate and other South Carolina laws. Contact us to schedule a consultation and tell us more about your probate needs.