When your loved one passes away, his or her estate goes through the process of "probate." This term simply refers to the court process of administering an estate and making sure the decedent's property is properly managed and then distributed. In certain cases involving trusts, no court involvement is necessary. In other cases, involving wills, there may be minimal court involvement. In the majority of cases, where there is no will (called an intestate estate), the court will be more involved in the administration.
Provence Messervy has a team of three (3) lawyers dedicated solely to dealing with probate related issues from administration to litigation. We also have a very detailed blog where you can find answers to some of the most common issues related to this area of law. Here are a few of the most common questions our clients ask about probate:
How long is this going to take? The length of time needed to complete the probate of an estate depends on the size of the estate, whether or not there is a will and whether or not there are any issues requiring litigation (examples include will contests, common law marriage issues, or questions about who the heirs may be such as paternity suits). The probate process for each estate is unique, but you can expect a minimum of ten (10) months from start to finish in even the simplest estates.
What does probate involve? Again, every case is different but most cases involve the following steps:
Filing of a petition proper probate court to open the estate;
Notifying the devisees under the will or the statutory heirs (if no will exists);
Appointing a Personal Representative (also referred to as an Executor or Administrator);
Conducting an Inventory and Appraisal of Estate Assets;
Dealing with Creditors of the Estate;
Handling the Sale of Estate Assets;
Filing and Payment of Estate Taxes When Required;
Creating a Final Distribution Plan for the Asset.
What are non-probate assets? Certain types of property are “non-probate assets” and they get to take a shortcut through the process. These often include but aren't limited to life insurance proceeds, bank or retirement accounts with named beneficiaries, property owned by a trust or property titled jointly with rights of survivorship. Having an attorney help you identify non-probate assets can be incredibly useful in protecting these assets and speeding up the process.
Do I get paid to be the Personal Representative? Yes, usually. If you are appointed by a will, that document may dictate your payment (and could even state that you don't receive any). If you are appointed over an intestate estate, the court will allow you a 5% fee for your services. You can also be reimbursed for any out of pocket expenses which includes the expenses of an attorney to assist you. Paying an attorney does not change your right to receive the 5% fee.
Can I contest the will? Anyone with an interest in the estate can initiate a will contest, but probate litigation is a complex area of the law and should not be undertaken without fully understanding your chances of success. In South Carolina, a will can be contested for various reasons (undue influence, incapacity, and fraud are just a few examples); however, contesting a will without an attorney will be incredibly difficult. Read our blog for additional information on will contests and other probate related matters. Once you have decided to move forward, let us help you with the process by setting up a consultation with one of our experienced probate attorneys.
There's no reason to do this alone. Whether you need advice from the start to finish of administering an estate, want to bring a will contest or allege paternity, or simply need a deed prepared when it's time to close the estate, please call our team or schedule an appointment. We look forward to meeting you and becoming your Attorney's For Life.