There are final bills, funeral expenses, and other matters to settle. There are also those who will inherit. Sometimes there is real estate to pass along or sell. Cars, boats, and other assets need to be retitled. Perhaps there are disagreements that need to be worked out. Maybe third parties are holding assets that need to be turned over to heirs. All this business needs to be transacted but there is a lack of authority to move without the probate court. The solution is probate administration and opening the probate estate.

In some situations, creditors will have the right to open an estate. More often it is somebody seeking to become the personal representative of the estate. A last will and testament can nominate the person that will serve. If there is no will, priority is determined from the statute. In South Carolina, a spouse will have priority followed by children and other more distant relatives. If all interested parties agree, somebody unrelated can be nominated as the personal representative. The personal representative (called an executor in some states) is the point of contact for the probate court and has responsibility to move the process forward. It is a fiduciary role that carries a duty to protect other parties interested in the estate.

The proposed personal representative must submit either an informal application or formal petition for appointment and/or probate of a will. If there is no controversy about appointment, it is likely that an informal application will do. There is a fee that needs to be paid if a formal petition is filed. There is a fee to simply probate the estate that also must be paid. The timing of payment depends on the county you are in. If there is a will, it gets filed at the same time along with a death certificate. If there are unusual conditions, other supporting documents may need to be filed.

Arrangements to publish a notice to creditors should be made upon the opening of the estate. In Charleston County, the probate court accepts a check and coordinates the publication. In other South Carolina counties, the personal representative or the probate attorney arranges the publication. An estate account should also be opened upon opening of the estate. This will help the personal representative or probate lawyer keep estate transactions separate from personal matters. This is important for proper record keeping.

An actual or proposed personal representative will decide whether or not to hire a probate attorney. If a lawyer works on the case, their job will be to draft filings, be aware of deadlines, and to resolve issues. The probate lawyer will also have a number of practical suggestions based on experience.

Probate administration can be complicated because of all of the duties that come with the personal representative role. Just opening the estate can be tricky depending on your case. I often see that the amount of time devoted and the length of the process are regularly underestimated.

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