It’s human nature after the death of someone to be curious as to whether or not you might be an heir to their estate. But, before you quit your day job and rely on living off of an inheritance, you need to know the actual likelihood of you receiving anything at all.
The first question that must be asked is whether or not the decedent had a valid will? If so, that document will control who receives property from his or her estate. Even if you are the next of kin, a valid will can remove your rights to receive and give the property to someone else instead. The only party that has the right to receive, even if disinherited in a will, is the surviving spouse. We will cover that right in a future post on the elective share. If the will leaves you nothing and you are not the surviving spouse, you will only receive if you or another interested party proves the will to be invalid.
If there is no will, property passes to the intestate heirs through the law as determined by the S.C. Code in §62-2-102 and §62-2-103. The statues read as follows:
SECTION 62-2-102. Share of the spouse.
The intestate share of the surviving spouse is:
(1) if there is no surviving issue (children) of the decedent, the entire intestate estate;
(2) if there are surviving issue (children), one-half of the intestate estate.
So, this essentially means that if you were married to the decedent and the decedent had NO children, you will receive 100% of his or her estate. Remember, this does not mean that he/she had no children with YOU, this means the decedent had no children at all, with any person, whether biological or adopted. While this statue clearly establishes the rights of the spouse, the following statute, in relevant part, will be of interest to anyone else.
SECTION 62-2-103. Share of heirs other than surviving spouse.
The part of the intestate estate not passing to the surviving spouse under Section 62-2-102, or the entire estate if there is no surviving spouse, passes as follows:
(1) to the issue (children) of the decedent: if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree then those of more remote degree take by representation;
Although only a small portion of the statues, this covers the majority of heirs. By combining §62-2-102 and §62-2-103, you can determine your rights as follows:
SURVIVING SPOUSE AND NO CHILDREN – Surviving spouse will take 100% of the assets of the estate. This includes those that have proven themselves to be common law spouses under SC law.
SURVIVING SPOUSE WITH CHILDREN – Surviving spouse will take 50% of the assets of the estate. The remaining 50% will be divided equally among the children of the decedent, regardless of whether or not they are also children of the surviving spouse. So, if there are two (2) children, they would each get 25%. If there were five (5) children, they would each get 10%. Remember that to be considered a child for the purposes of this statute, you must be a child of the decedent by birth or adoption. Step-children of the decedent are not treated as children under this section. Furthermore, illegitimate children may have to prove their paternity to receive.
CHILDREN BUT NO SURVIVING SPOUSE – If there is no surviving spouse, the children of the decedent will share equally in the estate such that if there are two (2) children they would each receive 50% for a combined 100% of the estate assets.
An important point to remember is that only the spouse must survive in order to be an heir. If a child of the decedent passes away, their children will stand in their shoes and receive their share by representation. For example, if decedent has a wife and four adult children, one of whom has passed away but left behind a child, the wife will take 50% of the estate assets, each of the living adult children will take their 12.5% and the child of the deceased child (grandchild to the decedent) will take the 12.5% that belonged to his/her parent.
And lastly, before planning how you will spend your share, remember that you only receive after the debts of the estate have been paid or resolved. In today’s economy, there are many estates which are left with very little to pass down.
If the decedent had no surviving spouse, children, or children of children (grandchildren), then move on to Am I An Heir – Part II to see if you might still receive.
Tierney hinde says:
September 20, 2011 at 4:10 PM
How do i find out if im heir to my grandmothers estate as i dont know if she had a will and was told i would recieve estate?
September 14, 2016 at 3:36 AM
I recently inherited 1.5 acre of land in Mannng SC from my father who just passed away. My aunt who has been paying the taxes for the past twenty five years and whom has been living on the property(she has share ofi t also) has demanded that I pay her the taxes she has paid for the past 25 years. I am 48 years old and had no idea of the land until the reading of the will. My question, am I responsible to paying her back the monies for all twenty five years? She made my uncle pay her with interest and want me to do the same. I am at a loss here. Please help.
Tiffany Provence says:
September 19, 2016 at 12:07 PM
There is a lot of information we would need to properly answer this question. How did you inherit the property? When was your father’s estate opened? Did your Aunt file a claim for repayment of the taxes? Were there any agreements between your father and Aunt? Has she enjoyed exclusive use of the property during the entire 25 years? How much are the taxes? In short, she can’t “make you” do anything but she might be able to take legal action to get payment. I would proceed with caution. Many estate attorneys can provide you with a discounted consult to help you better understand your rights but they will need all of this information.
Donna Hughes says:
June 2, 2017 at 2:21 AM
My father passed November, 2016, my stepmother passe May, 2017. Can my stepmother give her daughter, house( which is paid for, they were married 60 yrs.) and all it’s contents, and biological get nothing
Tiffany Provence says:
June 2, 2017 at 9:13 AM
We would love to help answer your questions but unfortunately we need additional information.
Once serving as the Personal Representative, it will be necessary to take an inventory of all assets owned by the decedent at the time of his or her death. These items have to be recorded on the state approved form 350 PC (located here).
Before attempting the paperwork, it’s essentially that the Personal Representative follow some general guidelines. South Carolina Code Section 62-3-709 explains that “every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration.” In essence, this means it is the responsibility for the Personal Representative to collect the assets UNLESS they are in the possession of the person who will ultimately receive them.
As you might imagine, this duty causes a great deal of friction between Personal Representatives and heirs. Imagine that your husband passes away and that your step-son (his son) is the Personal Representative. You could potentially return home to find ½ of your home furnishings gone because the Personal Representative “took possession” of them to administer the estate. Again, Personal Representatives should walk a fine line between performing their duty and using their powers unwisely. Meanwhile, heirs who are in possession of property belonging to a decedent must cooperate in ensuring that the Personal Representative is aware of the properties location.
Once the Personal Representative has a general grasp on the decedent’s assets, he must list them according to the type of asset and include information about any joint owners.
Before attempting the paperwork, a good Personal Representative can prevent a migraine by making a list and collecting the information as follows:
REAL PROPERTY – You will need a copy of the deed to determine who the exact owners are and whether or not the property is held jointly, or jointly with a right of survivorship. You will also need a value for the inventory. This can be the tax assessed value or the fair market value as determined by an appraisal or cost market analysis (available from a real estate agent). Please note that in an effort to reduce estate costs and fees, Personal Representatives will often make the huge mistake of undervaluing the property which can have negative tax consequences on those receiving the property from the estate. Tread carefully in this area, the courts can not and will not give you advice on the value for this reason. If you are unsure how to value, discuss this issue with your attorney or CPA before filing the value with the court.
PERSONAL PROPERTY – The courts don’t expect you to list every piece of “stuff” owned by the decedent; however, if an heir begins to contest your management of the estate, a more detailed list may be required. Initially, it’s safe to group items in to large categories and give them a resale value (i.e. – what could you get for them if you had to sell them at a garage sale). Common categories include household furnishings, clothing, electronics, collectibles, etc. Sentimental values do not go on an inventory. For example, while your mother’s china may be the prized possession every heir is after, it should only be valued by it’s actual resale value. EBay or other online resources are very helpful in this regard. Kelly Blue Book or Edmunds are great for placing a value on cars (which also fall in this category).
BANK ACCOUNTS – In South Carolina, there are essentially three ways to title a personal bank account. Sole ownership (decedent was the only person with his/her name on this account), joint ownership (account was held by two or more people), and joint ownership with rights of survivorship (more than one person was on account and ownership shifts automatically to other owners upon death). It is essential that you contact each bank where the decedent held an account and determine the form of ownership. The type of ownership determines not only where it goes on the inventory form, but also who has the right to the funds.
IRA’S – The court will need to know if the decedent had any IRA accounts. If so, you are only required to give detailed information on the account if the estate was named as the beneficiary. Otherwise, most courts just want to know that the account existed and that it named a specific beneficiary to receive the proceeds.
DEBTS – The court will need to know any debts held by the decedent. This does not include consumer debts or debts incurred after death (such as funeral expenses). The debt reported to the court is essentially the debt related to other assets. For example, if a car appears in the personal property, this is where the car loan will appear. If a home appears in the real property, this is where the mortgage would go.
List in hand, it’s time to tackle the official inventory form which must be submitted to the court within ninety (90) days from your appointment as Personal Representative. Having your items sorted as stated above will go a long way in getting you prepared for the inventory form. Another tip – the first page should actually be done last so start with page 2.
And, if for some reason, you just can’t get it done in time, you can use the form 352 (located here) to file for an extension. Good luck and make sure to check out other posts under the category Personal Representative’s Duties for other tips.
Important Note: Effective January 1, 2014 there were substantial changes in South Carolina’s Probate Code. While we’ve tried to update this blog, please note the date of blog posts and send us an email or call for a consult before relying on information written prior to January 1, 2014. We appreciate your understanding.
Jackie Cramer says:
November 19, 2010 at 6:33 PM
Ms. Provence, I am concerned about the estate I filed. The person from the Funeral Home who assisted said I did not need to list my autos? Now what do I do?
bill brown says:
March 13, 2011 at 1:16 PM
I am the PR for my mother’s estate. My younger brother died three years ago,
leaving one son , my older brother died seventeen days after my mother, which means he exceeded the one hundred and twenty hour rule in SC.
My older brother’s estate is now in probate as is my mother’s. the problem is the three heir of my brother’s estate is made up of his second wife and two adult children, a male and female. The female is a disbarred lawyer and a most unpleasant person.
My mother died with out a will even though my older brother was a lawyer.
My mother promised (not in writing) everything to everybody.
She promised her jewerly to the female child of my brother.
When I told her verbal promises would not be honored she became a little upset. Now I can’t get her or her brother to set a date to distribute the
the household goods so we can proceed to sell my mother’s house.
This is her way of holding her breathe until she gets the jewelry.
Since legally my older brother’s estate is the heir not his children and widow, can i bypass the female ex-lawyer and deal with the PR for his estate.
Skeeter gray says:
May 21, 2012 at 11:51 AM
this informayon is awesome. if oony my sister hsad followed the guidelines fo being PR.and not tried to keep evrtything for herself. I would not have to petition the court for s hearing about the estate assessts and future distributions,
Judy Loveday says:
September 19, 2015 at 2:08 PM
It’s painful when a parent dies, but it’s a shame when you don’t trust your own sister who is the PR of the estate. My 2 sister’s are 9 & 10 yrs older than me and have retired, so we just don’t click. I have been doing thorough research on the probate process in SC. My mom died at home in April 2015 after 15 yrs of COPD. I lived with her for 4 yrs and took care of her, the house, cooking….absolutely everything while big sis, her POA went on Caribbean cruises and trips, bought 2 New cars mths apart and so on. I lost my job in security/law enforcement in 2012 because I was having a massive panic attack and left work when I was unsuccessful in locating my boss for permission. From then until my mom died, I had no money, no health insurance, nothing. I became her caretaker 24/7. As she got sicker I started asking questions to mom and sis, like when she passes away what am I supposed to do, I was penniless and severe anxiety and depression. They just said over and over “I don’t know what to tell you”‘. She’s paying the utilities for me to live in mom’s house, which is 1/3 mine. In May both sister’s sent me an email saying I could have their portion of the house, since they have farms and vacation homes. But now big sis is planting a seed in my head that we might have to sell the house for blah blah blah bogus reasons. She continues to play dumb about how to handle the estate. OMG, it consists of a will listing only the house and its to be split 3 ways…..My Mom died 6 mths ago and her lawyer still hasn’t sent me a copy of the will.
Willie Westrope says:
April 26, 2017 at 11:46 AM