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:
1) There are a variety of reasons why people delay the opening of an estate, the most common of which is grief. It is absolutely understandable that when a loved one passes away, the last thing on your mind is hiring an attorney or locating your local probate court. And while that is perfectly understandable, failure to start the probate process quickly can cause problems. Take a week or two to deal with the most pressing issues and if you still don’t feel you a re ready to begin, ask a trusted friend or family member to help you.
2) In South Carolina, it is actually a misdemeanor to withhold a decedent’s last will from the court for more than thirty (30) days. This means that if you have the original will in your possession, you need to get it to the court promptly. Hiding a will is never a good idea as it leads to speculation, confusion and chaos amongst those who feel they might be inheriting from the decedent.
3) Failure to open an estate in a timely fashion may lead to another party getting priority to serve as Personal Representative. In fact, if you have not opened the estate within forty-five (45) days, a creditor can open it on your behalf. Again, if you are grieving and unable to deal with these issues, find someone to help you as having a creditor handle the affairs of the estate is never in anyone’s best interest (except the creditors).
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:
1) The eight (8) months begins from the date that you publish the court approved creditor’s notice in the local paper. So, just picking up the paperwork from the court is not enough, you must ensure the Personal Representative quickly gets that notice in the paper (some courts do this for you, others require you to do it on your own).
2) Attempting to convince the court that you already know everyone your loved one owed will never work, although just about every family has hoped to shorten the process by making this argument. The time set by law can not be waived, shortened, or changed for any estate.
3) Once you have opened the estate, your attorney should provide you with a general guideline of what you need to do and when in order to satisfy the courts. If you are attempting to handle the estate without legal guidance, make sure to ask the court for a list of their deadlines so that you are clear on what documents need to be submitted and when so that you don’t further delay the estate.
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.