PROVENCE MESSERVY I ATTORNEYS FOR LIFE
  • Probate
    • Conservatorships & Guardianships
    • Estate Planning
    • Wills, Trusts, & Estate Administration
    • Probate Litigation
    • SC Probate Lawyer Blog
    • Probate FAQs
  • Family Law
    • Separation / Divorce
    • Child Custody & Support
    • Alimony
    • Property Division
  • Criminal Law
  • Civil
    • Personal Injury
    • Wrongful Death
    • Probate Litigation
  • Mediation
  • About
    • Contact Us >
      • Schedule an Appointment
      • Make A Payment
      • APPOINTMENT FORMS
      • FAQs
    • Customer Reviews
    • Summerville
    • Charleston, SC (Daniel Island)
    • Meet the Team >
      • Tiffany Provence
      • Jim Messervy
      • David Causey
      • Virginia Spencer
      • Maureen Strusky
      • Cortney Ricker
      • Gail Elmore
      • Truc Tran
      • Scott Riddell
      • JOIN THE TEAM
    • SC Probate Lawyer Blog
    • News & Resources
    • Current Clients
  • Probate
    • Conservatorships & Guardianships
    • Estate Planning
    • Wills, Trusts, & Estate Administration
    • Probate Litigation
    • SC Probate Lawyer Blog
    • Probate FAQs
  • Family Law
    • Separation / Divorce
    • Child Custody & Support
    • Alimony
    • Property Division
  • Criminal Law
  • Civil
    • Personal Injury
    • Wrongful Death
    • Probate Litigation
  • Mediation
  • About
    • Contact Us >
      • Schedule an Appointment
      • Make A Payment
      • APPOINTMENT FORMS
      • FAQs
    • Customer Reviews
    • Summerville
    • Charleston, SC (Daniel Island)
    • Meet the Team >
      • Tiffany Provence
      • Jim Messervy
      • David Causey
      • Virginia Spencer
      • Maureen Strusky
      • Cortney Ricker
      • Gail Elmore
      • Truc Tran
      • Scott Riddell
      • JOIN THE TEAM
    • SC Probate Lawyer Blog
    • News & Resources
    • Current Clients
Call/Text Now (843) 871-9500
Charleston Summerville

SC Probate Lawyer Blog

Avoiding Probate

5/26/2011

0 Comments

 
Years ago, there was a booth at a local festival with a banner that said “Ask me how to avoid probate!” At the time, I was elected as a Probate Judge so naturally I approached the booth and asked “So, how do I avoid probate?” The salesman (who turned out to be part of a pre-paid legal services business) immediately started his sales pitch about creating trusts and family partnerships to avoid probate. In reality it wasn’t probate he was trying to avoid, it was the IRS. I didn’t interrupt but realized that even this man, whose job it was to sell estate-planning tools, didn’t really understand what “probate” actually is.

Probate is not taxes, it’s not intestacy, it’s not the process by which the government takes your assets. Most simply put, the term “probate” is used to describe all aspects of administering the estate of someone who has passed away. A deceased person can’t own assets. I know . . . shocking, but true. You literally can’t take it with you. Because of this there must be a process of determining what assets the deceased owned and transferring them to the appropriate person. That process is “probate.” Therefore, at the end of the day there is only one way to avoid “probate” at death – die owning absolutely nothing.

Since most of us will (hopefully) own something after spending the bulk of our life working, the process of probate becomes a necessity. This necessity is handled by the Probate Court. This court is not responsible for collecting taxes nor is it something to be avoided. In fact, the entire purpose of this court is to ensure that a deceased person’s assets are properly managed for the protection of both the creditors and the heirs of the deceased. They do this by providing two functions.

First, the Probate Court handles the legal process of administering the estate. They ensure a Personal Representative (also often called a PR, Executor or Administrator) is properly appointed, they assist this person in understanding the rules and requirements of serving in this capacity, and they manage the files of the deceased to make sure that all interested parties are treated fairly. They do not actually hold the assets, collect taxes or distribute the property; they simply ensure it’s done correctly. The file they maintain serves as the last public record of the affairs of the decedent’s finances, property and heirs.

The second function performed by this court is the judicial function. Many, if not most, estates never come before the Probate Judge. However, in those estates where a dispute arises, the Probate Court provides the opportunity for the interested parties to be heard and the matter to be resolved.  This might occur early in the estate (such as a dispute over who should serve as the Personal Representative), during the administration of the estate (a dispute between a creditor and the estate), or at the end of the estate (an heir upset about the items they did or didn’t receive).

​The jurisdiction of the Probate Court (which includes disputes that arise in trusts as well) is beyond the scope of this post, but it’s important to know (as the salesman clearly did not) that no matter how you decide to transfer your assets at your death, it’s likely that “probate” will be involved. Now avoiding the IRS, that’s an entirely different topic!
0 Comments



Leave a Reply.

    Author

    This blog is authored by the probate law team at Provence Messervy which includes Tiffany Provence, David Causey and Virginia Spencer. 

    Categories

    All
    120 Hour Rule
    24 Wait Period
    Abandonment
    Accounting
    Administrator
    Adoption
    Adultery
    Advanced Estate Issues
    Alzheimer's
    Aunts
    Avoiding Probate
    Bank Accounts
    Banking
    Basis Step Up
    Best Life Insurance Policies
    Burden Of Proof
    Capacity To Make A Will
    Car Title
    Children
    Common Law
    Common Law Marriage
    Conservators
    Conservatorship
    Court Forms
    CPA
    Creditors
    Death
    Death Certificate
    Decedent
    Deed
    Dementia
    Department Of Motor Vehicles
    Devisees
    Disinherit
    Disinherited Children
    Disinherited Spouse
    Divorce
    DMV
    Domestic Law
    Domicile
    Dorchester County Courthouse
    Dorchester County Probate Court
    Durable Power Of Attorney
    Duty To Collect Assets
    Duty To Inform
    Duty To Pay Creditors
    Election
    Elective Share
    Escheat
    Estate
    Estate Debts
    Estate Heirs
    Estate Planning
    Estate Planning Tips
    Estate Tax
    Estate Taxes
    Executor
    Exempt Property
    Extensions
    Family Court
    Family Law
    Fiduciary
    Finding An Attorney
    Form 305PC
    Form 350PC
    Form 435ES
    Formal Probate
    Funeral Bill
    General Power Of Attorney
    Gift Tax
    Grandparents
    Guardians
    Guardianship
    Guest Post
    Guide To Life Insurance
    Half-Siblings
    HCPOA
    Health Care
    Health Care Power Of Attorney
    Heirs
    Illegitimate Children
    Incapacity
    Incapacity Issues
    Informal Probate
    Information To Heirs And Devisees
    Inheritance
    Inheritance Tax
    Intestacy
    Intestate Share
    Introduction
    Inventory And Appraisement
    IRS
    Issue
    Joint Accounts
    Joint Property
    Joint Tenancy With Right Of Survivorship
    Joint With Rights Of Survivorship
    Last Will And Testament
    Legal Capacity
    Life Estate
    Life Insurance
    Litigation
    Marriage
    Marriage License
    Mediation
    Military
    Minors
    Neices
    Nephews
    Next Of Kin
    Non-Probate Asset
    Omitted Spouse
    Paternity
    Payable On Death
    Personal Injury
    Personal Property
    Personal Representative
    Personal Representative's Duties
    Petition
    Policies
    Postnuptial
    Power Of Attorney
    P.R.
    Prenuptial
    Probate
    Probate 101
    Probate Code
    Probate Court
    Probate Forms
    Probate Judge
    Provence Messervy
    Publication
    Qualifications
    Real Property
    Real Property Issues
    Removal
    Residence
    Residency
    Resolutions
    Restraint
    Retirement Accounts
    S.C. Code Of Laws: Title 62
    Senior Citizen's Handbook
    Seniors
    Separation Spouse
    Siblings
    Small Estates
    South Carolina Probate Code
    Spouse
    Summary Administration
    Surviving Spouse
    Taxes
    TCJA
    Tenancy In Common
    Trust
    Uncles
    Uniform Simultaneous Death Act
    Vehicles
    What Is Probate
    Wrongful Death

    Archives

    January 2019
    September 2018
    July 2018
    May 2018
    February 2018
    January 2018
    November 2017
    October 2017
    September 2017
    July 2017
    March 2017
    February 2017
    January 2017
    December 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    June 2015
    March 2015
    January 2015
    August 2014
    June 2014
    April 2014
    March 2014
    February 2014
    January 2014
    November 2013
    October 2013
    September 2013
    May 2013
    January 2013
    June 2012
    July 2011
    May 2011
    March 2011
    February 2011
    November 2010
    October 2010
    September 2010
    August 2010
    July 2010
    June 2010
    May 2010
    April 2010
    March 2010
    February 2010
    January 2010
    December 2009
    November 2009

 Probate  |  Family Law  |  Civil  |  Mediation  |  Contact Us  | SC Probate Lawyer Blog  |  Client Intake Portal | Make A Payment
Picture

Locations

Summerville
​300 N. Cedar St., Suite A
Summerville, South Carolina 29483
​Phone: (843) 871-9500
Charleston
(Daniel Island)
​234 Seven Farms Drive, Suite #112
Charleston, South Carolina 29492
Phone: ​(843) 871-9500
Hours
Monday-Thursday: 9am-5pm​
Friday: 9am-2pm
IMPORTANT LEGAL DISCLAIMERS
All content on this website is intended for general information only. Any information presented on any page on the site or links provided should not be viewed or interpreted as a formal legal consultation from a law firm nor should the formation of a lawyer-client relationship. 
​Copyright © 2019 Provence Messervy, LLC
Site Powered by CoulterWebPros.com