Let’s face it, no one looks forward to dealing with the Department of Motor Vehicles. This can be even
more stressful when coupled with the loss of a loved one. We frequently receive questions on transferring title to vehicles (this includes boats, RV’s, etc.) that are part of an estate. In some instances this may or may not include a mobile home.
Here is some information to help you along:
In August 2011, the Department of Motor Vehicles changed its procedures. Previously a form called an Affidavit of Inheritance was required to transfer title to a vehicle. Under the current procedure, you will need the original title, along with DMV Form 400, and the appropriate fee. Other documents you need to complete this transaction will depend on (a) how the vehicle is titled and (b) the value of the estate/other assets. Determining these up front will make sure you have what you need to have before you head to the DMV.
A. HOW IS THE VEHICLE TITLED? There a three (3) options for how a vehicle can be titled:
B. VALUE OF THE ESTATE?
If you have specific questions regarding how to handle a vehicle or mobile home, consultation with an experienced probate attorney may be helpful. These guidelines are also important to keep in mind when acquiring a new vehicle or creating an estate plan.
In South Carolina, opening a small estate is a convenient alternative to opening a full estate. It’s a quick and cheap option available to some depending on the value of the decedent’s property that needs to be transferred. The small estate process, authorized by S.C. Code Section 62-3-1201, allows the person that paid funeral expenses on behalf of the estate to transfer and receive certain types of property belonging to the decedent. The person that paid the funeral expenses is considered a creditor of the estate and is therefore entitled to reimbursement for the amount they paid. Any assets remaining after the reimbursement will be split according to the decedent’s Will or the laws of intestacy, whichever may apply.
Upon filing the proper form with the Probate Court along with proof the funeral expenses have been paid in full, the Probate Court will issue an order allowing the payor of the funeral expenses and/or the heirs to collect the property of the decedent. The entire procedure with the Probate Court is completed within a few days once the Court issues its order, as opposed to the year or so it usually takes to administer a full estate.
Certain restrictions apply. Thirty days must pass after the date of death before a small estate can be filed, and the value of the entire probate estate, minus liens and encumbrances, must not exceed $10,000.00 (please note this amount was increased to $25,000.00 in January 2014). Almost any kind of property can be transferred via a small estate, except for real property. If the decedent held any real property in their name without the essential rights of survivorship language appearing in the deed, opening a full estate will be necessary to properly transfer the land.
The small estate process can eliminate most of the expense and frustration associated with the process of transferring the assets of a deceased loved one. If you think the procedure may be available to you, contact your county’s probate court. Some counties require additional documentation before they will process a small estate. Also, remember that the court cannot issue a small estate order until thirty days have passed since the date of death. Use that time to locate all of the decedent’s property so that everything can be addressed and transferred at one time.
December 10, 2014 at 7:36 PM
Thank you for this information. But what about creditors other than the person who paid the funeral expenses? Are they simply out of luck in the small estate context? Why should the heirs walk away with up to $10,000.00 while deceased’s creditors get nothing?
Perhaps one of the most common questions we get when people start the probate process is, “Exactly how long is this going to take?” Unfortunately, the answer to this question is very specific to your case and often beyond the control of your attorney. And perhaps the biggest factor in determining when the estate can close is how soon you begin. Yes, it’s a well known fact that in order to complete the process, you first must actually begin the process.
Here are a few considerations:
Once you have opened the estate, you can expect it to remain open for a minimum of eight (8) months, most likely it will take closer to a year or longer from start to finish. Even the best attorney can’t complete it in less time as the law requires the estate be open that long in order for creditors to have time to make claims for any money they are owed by the decedent.
Here are a few more things to consider:
In closing, know that while good estate planning can eliminate many of the hassles of probate, nothing can change the court’s requirements for probating an estate. Only those who have no real property, no titles assets (cars, boats, mobile homes) and no personal property or assets that total above ten thousand (note: this amount was increased to $25,000 in 2014) can skip the formalities by using a process called a small estate, which will be the topic of a future post.
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.
Russ DeMott says:
January 20, 2010 at 11:37 PMGreat post. Very helpful to those going through a difficult time after the passing of a loved one.
Technically, the word Probate means “to obtain the official approval of, as of an instrument purporting to be the last will and testament.” (Thanks Webster!) However, in the common sense, probate describes the process by which the Probate Court oversees the transfer of assets from someone who has passed away (the “decedent”) to those entitled to receive them. The word probate has become tainted by all the “avoid probate” propaganda used when financial planners or others are trying to sell trusts, annuities or other products. In reality, what you are really trying to avoid in this process is taxes and creditors, not “probate,” so don’t fear the court. In fact, Probate Court Judges are the only elected members of the judiciary in the state and generally strive to be as helpful as possible.
A review of assets belonging to the decedent at their time of death is required in order to know whether or not you will need to go through probate. For example, if the decedent owned any real property (real estate) or titled assets (cars, vehicles, boats, mobile homes) in their name alone, you will definitely be required to go through the probate process. Additionally, if the decedent held bank accounts, investment accounts, CD’s or other assets in their names alone, probate is the only way to get access to this property (although some estates may qualify for an abbreviated procedure called a small estate). Even if the decedent didn’t own any assets, probate may still be required as only a Personal Representative appointed by the Probate Court may act on behalf of the decedent to bring a lawsuit. So, now that you realize your probably can’t “avoid probate”, what do you need to know?
A decedent’s estate must be probate in the county where they are domiciled. In most cases, this is their place of residence. However, it is possible to have more than one residence but you can only have one domicile. If your loved one lived in multiple places, a probate attorney or the court may be able to assist you in determining which court is appropriate. Each county in South Carolina has a Probate Court which is almost always located in the county courthouse. Once you have determined which court you must file in, it is wise to contact that court for specific office hours and to determine if you must have an appointment to open an estate. In some cases, if you are particularly internet savy or have an attorney assisting you, you may not have to appear in the court at all.
To open the estate in South Carolina, you must have proof of death. This is generally accomplished with a death certificate but in unusual circumstances proof from another government agency can be provided. If the decedent had a will, you will also need to deliver the original to the court (where it will remain). The minimum fee to open the estate is $25, made payable directly to the probate court. Additional court costs will be due once the court determines the extent of the decedent’s assets.
Last, but not least, the person who appears at the court should be the person who intends to serve as the Personal Representative (a general term in South Carolina which includes Executors and Administrators). The will should name the Personal Representative. If there is not a will, South Carolina law determines who has priority to handle the decedent’s affairs. In general, when no will exists, priority of appointment is as follows:
People often wonder how quickly they should go to the court to begin the process and there isn’t a perfect answer to that question. The law requires that any person holding the original will of another who has passed away should present it to the court within 30 days; therefore, waiting beyond that period isn’t recommended. Meanwhile, heading to the court before you have the death certificate is premature. In some cases, the only assets available to bury the decedent may be held solely in the decedent’s name which means moving quickly is required. In general, how quickly you go is likely determined by the unique circumstances in your case.