Restraint of a Personal Representative Pending Removal

A recent comment asked a very good question – essentially what happens to the Personal Representative after someone has asked the court that they be removed, but before a hearing has actually been held on the matter? The answer to this question can be found in South Carolina Code §62-3-611 which states in relevant part, “after receipt of notice of removal proceedings, the personal representative shall not act (emphasis added) except to account, to correct maladministration, or preserve the estate.” In reading this statute, it seems clear that upon service of pleadings to remove a Personal Representative, the P.R. really shouldn’t be acting as P.R. except in the specific instances provided. That being said, a large majority of Personal Representatives as not represented by counsel or their counsel is unaware of this language and therefore I always recommend the following:

First, in your Petition to Remove, clearly state that you want the court to restrain the Personal Representative from acting under this section. In many courts, the court itself will send a standard Order Restraining Personal Representative back with your pleadings so that you can serve the Personal Representative with the same.

Second, if you have serious concerns or need to ensure that an act is stopped immediately (for example a closing on a piece of real property or a disbursement that is about to be made), I also suggest you include in your Petition to Remove a specific request under §62-3-607 which asks the court to restrain the Personal Representative and include in parties anyone involved in the transaction of concern. This statute states:

Order restraining personal representative.

(a) Upon application of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.

(b) The matter shall be set for hearing within ten days or at such other times as the parties may agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition.

Including this request in your Petition to Remove Personal Representative not only clearly indicates to the court that you want the Personal Representative fully restrained, but also gets you an appearance before the court quickly (ten days according to statute). The initial hearing will likely only be on the restraint but will give you an opportunity to express to the court your concerns.

If your petitions are not clear in these requests, it is highly likely that the Personal Representative will continue about their daily business. Even worse, they could respond to the request for their removal by believing that if they are going to be removed, they might as well go ahead and do what they want before the formal hearing. A good probate attorney will always use these sections to ensure there is no confusion as to what should and should not occur between the date of the filing of the removal action and the appearance in court.

 

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.

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Avoiding Probate

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!

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Removal of the Personal Representative – The Basics

It’s not uncommon for one or more of the heirs or devisees of an estate to be unhappy with the Personal Representative(s). Sometimes, they have a very good reason to be discontent, but on other occasions I find that decades of family disharmony, jealousy and miscommunication are simply rearing their head again after someone passes away.

If you are not satisfied with the Personal Representative of an estate in which you have an interest, there is something you can do about it so long as you have “cause” for your concern – simply disliking the person or thinking they might be unfair in the future is not enough. Under South Carolina law, a Personal Representative can be removed or restrained by a Petition of anyone with an interest in the estate (this generally means you are an heir under the laws of intestacy, a devisee under the will, or a creditor of the decedent). In order to succeed in this action, you must be able to show the Probate Court that there is legal cause for the restraint or removal. A good probate attorney can listen to the facts and determine if cause exists.

The S. C. Probate Code defines cause as follows: “Cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.”

This blog contains several posts that discuss the duties of a Personal Representative and more will follow. Reviewing these duties may help you determine if the Personal Representative has violated them in some way. During my years as the Probate Court Judge, I heard hundreds of actions to remove a Personal Representative. Below are examples of scenarios where I found that cause DID exist:

–       Personal Representative commingled funds by putting all of the estate money in his/her bank account with no records to separate the two.

–       In disbursing the personal effects, Personal Representative (also an heir), gave herself first choice of all items and refused to inventory or appraise items to ensure the distribution was fair.

–       After multiple written requests, Personal Representative continued to fail to inventory the assets of the estate or provide information to the heirs.

–       Personal Representative filed paperwork with the court indicating there were only three (3) heirs of the estate. Testimony was presented that proved she was aware of two (2) additional heirs whom she did not get along with.

–       Personal Representative donated all decedent’s personal effects to Goodwill without providing interested parties an opportunity to receive items of sentimental value.

–       Personal Representative hired her own husband as attorney for the estate and paid him fees significantly above the standard and reasonable fees for his services.

–       Personal Representative falsified the Information to Heirs and Devisees form to the court and attempting to keep the administration of the estate a secret from others.

These are obviously just a few examples. Unfortunately, Personal Representatives often misinterpret their “power” to mean that they are the boss of the estate, when in essence they are serving as an employee to all interested parties. Sometimes, a simple written letter from an interested party will get the Personal Representative back on track. Other times, more extreme measures are necessary. If you have an interest in an estate and feel the Personal Representative is not performing his/her duties as required, consider consulting with an attorney on whether he/she might be restrained or removed. To be successful in the courtroom, legal representation is almost always necessary.

 

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.

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The Omitted Spouse

Many people never create a valid last will and often those that do then forget to update them. Luckily, South Carolina law provides a remedy for spouses who marry and later learn that their husband or wife had a will in place before the marriage that was never updated.

South Carolina Code §62-2-301 states in relevant part that if a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will. This means the omitted spouse will receive a minimum of fifty percent (50%) of the estate if the decedent had children or up to one hundred percent (100%) if the decedent didn’t have children. This right should not be confused with the elective share, which applies when the decedent drafted the will after the marriage and intentionally excluded the spouse in whole or in part.

As with every rule of law, there are some exceptions. An omitted spouse is not entitled to this share if it appears from the will that the omission was intentional. An example may be where the will itself states that the decedent does not intend to provide for any future spouse or acknowledges an intent to leave everything to charity regardless of his marital status at the time of death. The omitted spouse may also have a problem if the testator provided for the spouse by transfer outside the will and it can be proven that the transfer was in lieu of a gift in the will. An example includes the deceased spouse providing for the spouse during life but having a valid prenuptial agreement whereby he/she agrees not to make a claim against the decedent’s estate.

Due to South Carolina’s continued acceptance of common law marriage, it is important to note that this right extends to those who successfully prove a common law marriage that was entered into after to the execution of the decedent’s last will. If the evidence indicates that the common law marriage was entered into before the decedent’s last will, then the spouse will be limited to the elective share. A wise attorney when dealing with a common law marriage will plead both omitted spouse and elective share at the same time.

Similar to the elective share, a spouse who was unintentionally omitted from the last will and was not otherwise provided for by a separate transfer should take immediate action. A petition for such share must be filed within eight months after the date of death or within six months after the probate of the decedent’s will, whichever limitation last expires.

 

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.

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The Elective Share

In South Carolina, it is perfectly acceptable to disinherit your children. Spouses; however, have certain rights which may make disinheriting them difficult, if not impossible, unless you have planned ahead.

South Carolina Code §62-2-201 grants spouses the right in South Carolina to claim their elective share if a will executed during their marriage leaves them with less than the required share. This right is entirely separate from the omitted spouse claim which is reserved for spouses whose partner wrote the will before they were married and never updated. As a result of this right, the spouse disinherited in the will can make a claim for a share of one-third (1/3) of the estate. This amount is determined by the value of the estate after the enforceable debts and costs of administration have been paid. Keep in mind that this one-third is not on top of (or in addition to) anything they did receive. For example, if decedent’s spouse was left $10,000 in the will but this was not equal to one-third of of the estate, when they file their elective share they will receive the one-third minus the $10,000 gift they already received.

Elective shares generally only apply in situations where there is a will. In estates where no will exists (intestate estates), the law of intestacy apply and the spouse’s share is determined by a separate code (see our easier posts on heirs of the estate).

A spouse who feels they are entitled to more than they were left under the decedent’s last will should not sit back and wait to see what happens. A petition for the elective share must be filed within eight months after the date of decedent’s death or within six months after the probate of the decedent’s will, whichever limitation expires last. It’s also wise to remember that an elective share can only be filed by a spouse (or his/her agent) during the spouse’s life. This can be important to remember if you represent or are related to a spouse who is also unwell or of advanced age. Elective shares can be tricky and the other devisees in the decedent’s last will are sure to look for any loophole to avoid paying. To make sure that your petition is properly filed, that proper notice is given to all parties, and that your share is fairly calculated, legal representation is essential.

Lastly, it is possible to waive your elective share by agreement. Examples include signing a prenuptial or post-nuptial agreement in which you agree not to make a claim or take a share of the estate. Another common example is seen in Family Court when the parties, prior to their divorce, enter an agreement after full financial disclosure which includes language stating they waive any rights to the other parties estate. Prior to waiving your rights, you should also have an attorney review the document and ensure you understand exactly what rights you may be giving up.

 

 

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.

Posted in Advanced Estate Issues, Estate Planning Tips, Marriage | Tagged , , , , | 21 Comments

Am I An Heir? Part II – Decedent had no spouse or children. Now what?

While the majority of estates where there is no will are handled by the first portion of S.C. Code §62-2-103 (covered in an earlier post), there are situations where there are no takers and we must go further to find an heir. A common example is the death of a minor child.

S.C. Code §62-2-103, in relevant part, states the following:

(2) if there is no surviving issue (children or children of children), to his parent or parents equally;

(3) if there is no surviving issue or parent, to the issue of the parents (siblings) or either of them by representation;

(4) if there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents (aunts/uncles), half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents(aunts/uncles) if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half;

In our example of a child fatality, this means that if the parents are living, they would equally share the estate by each receiving 50%. If; however, only one parent was alive, that parent would take the entire 100% of the estate assets. While this rule seems simple, imagine the heartburn it causes for a single parent when the absentee parent suddenly steps in to take his or her share. Since a minor child can’t write a will, this is a common occurrence. Some people dismiss the example assuming that minors rarely own assets; however, anyone with any experience in Probate Court can assure you that some of the largest jury verdicts in personal injury and product liability cases pass to children (or their estates) who are injured or killed due to the fault of someone else. Single parents in this situation should immediately seek legal counsel to determine what, if anything, might be done to prevent the absentee parent from receiving under S.C. Code §62-2-114.

If there are no surviving parents, then the issue (children) of the surviving parents (which would be the siblings of the decedent), would share equally. Under S.C. Code §62-2-107, this would include half-siblings of the decedent as they are receiving through their respective parent. Again, all the siblings would share equally and if there were a sibling who was deceased, his or her share would pass to his or her children by representation. If the sibling had no children, that share would be re-divided amongst the siblings who were taking under this statute.

The next step is as far as we will go in this example as it’s extremely rare and would again only apply if the decedent had no spouse, no children (including grandchildren, great-grandchildren, etc.), no parents, and no siblings or children of siblings (nieces/nephews). In that situation, the next taker would be the grandparents and the estate would be divided equally between the maternal and paternal sides. Aunts and uncles would step in if the grandparent(s) were deceased. Children of aunts/uncles would also be eligible if their parent was deceased.

Although the statute continues, it’s safe to say that the majority of estates without a will are determined in the first few sections. While the statute can be difficult to read, the law of intestacy is actually very straightforward and easily applied once you understand the basic principles. If you have any question as to whether or not you qualify as an heir or what share you will receive, seek a qualified probate attorney to assist you during a consultation.

 

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.

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Am I An Heir? Part I – Share of spouse and children

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.

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Want to be a Probate Judge?

Never in a million years would I have thought this to be a topic of interest; however, I was recently notified by my blog statistics that almost 20 people per month land on this site because they are trying to find out what is required to be a Probate Judge in South Carolina. So, for those random searchers out there . . . this one is for you.

The most common misconception about South Carolina Probate Judges is that they are all lawyers. While many of them are, an equal number of our Probate Judges are not. In South Carolina, Code Section 14-23-1040 detail the requirements to be a Probate Judge as follows:

  1. You must be a U.S. citizen and a resident of South Carolina.
  2. You must be twenty-one (21) years of age.
  3. You must be a “qualified elector” in the County where you intend to be a Judge (in other words, you must be a resident of that county).
  4. You must have a four (4) years bachelor’s degree OR four (4) years experience as an employee in the Probate Court.

The U.S. Department of Justice has not approved the requirement and therefore it’s technically unenforceable. So, reading these qualifications (espececially removing the education component), it would seem that a vast majority of people could become Probate Judges; however, the biggest issue is that Probate Judges in South Carolina are popularly elected. And, despite the fact that our legislators have not seen fit to increase the qualifications required, the general public usually applies some degree of common sense when going to vote (note I said usually). This means that candidates will need public support, campaign funding and plenty of yards signs. The filing fee to run varies by county but in many it’s as much as $3500 just to have your name on the ballet. And, for the most part, the public will vote for someone who is either an attorney or who has experience in the Probate Court, Clerk of Court, or related offices. In fact, some of our best Judges in the state are non-lawyers who worked their way up in the courts.

Probate Judges are county-wide elected positions which means there is one per county (46 in the state as a whole). Currently, Probate Judges do have to “declare” a party (meaning they run as Republicans, Democrats or Independents). Probate Judges are the only elected judiciary position in the state of South Carolina and are bound by very strict ethical rules when running for this position. They run every four (4) years and are allowed unlimited terms.

Besides the minimal qualifications and ability to get elected, there are some traits that are also required to actually perform the function of Probate Judge (and get re-elected). You must be very public service oriented (low pay, lots of constituent service), have incredible patience, and be capable of reading, researching and understanding the law in the areas of probate, guardianships, conservatorships and commitments. This isn’t your “typical” judicial position and a quick look at the biographies and backgrounds of our state’s Judges will show you that while almost anyone technically qualifies to run for Probate Judge, it takes a certain temperament to truly get the job done.

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So how long is this going to take?

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.

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Who will be the Personal Representative? (Part II)

This is the second part of a two part post on who has priority to serve as Personal Representative of your estate.

When people pass away without wills, the determination of who can be appointed as their Personal Representative (P.R. for short) can get sticky. Here are some of the most common issues that arise.

Minor Children – If the decedent is not legally married at death (whether by divorce, death or perhaps they had the common sense never to get married in the first place), their children have the right to serve as P.R. But, what if their children are minors? Obviously, a minor is not “fit” to serve (minimum age is 18) and therefore the S.C. Probate Code determines who is next in line. Often times in these situations, people assume that it would be the decedent’s parents; however, that is not the case.

In South Carolina, if you leave behind no will and have minor children, before YOUR parents are entitled to serve, the appointment will go to THEIR other parent or guardian. That’s right, your ex-spouse (or baby mama as the case may be) will suddenly be in charge of everything you own. And, it doesn’t matter that they have told 100 people they hate you or that they took you to the cleaners in family court, unless it can be shown that they are unfit to serve due to a criminal history, incarceration, incapacity, etc. then they get the job. The bottom line is that since you didn’t choose someone in your will, the law assumes that the best person to serve is the legal guardian of your primary heir. This scenario gets even more entertaining when you have children with more than one person so that the court must now referee between the two. Enter Jerry Springer . . .

Separation – Because South Carolina does not have “no fault” divorce, many couples have to lived separated for 1 year in order to qualify for a divorce. To avoid expenses and complications, many of them don’t part ways through legal documentation and instead simply “split up.” While this may save you money in family court, the consequences can be disastrous in probate court. The S.C. Probate Code is clear in Section 62-2-802 what is required before a spouse will loose their entitlement to be considered a “spouse.” Essentially, one of the following has to have occurred:

A divorce or annulment. And, it isn’t even enough for a couple to “think” they are divorced. The Judge has to actually have signed the decree. In a landmark case titled Hatchell-Freeman v. Freeman a wife was actually entitled to serve as P.R. and entitled to receive a share of the estate even though they had attended the final hearing on their divorce (simply because the Judge had not signed the decree).

A decree of separate maintenance or property settlement agreement acknowledged by the court which which terminates these rights.

Adultery, abandonment or other acts of the spouse are not relevant to the Probate Court under these sections. So, the bottom line is that if you find yourself in this situation you need legal help and a properly drafted will to ensure your ex isn’t in control against your wishes.

Common Law Marriage – We will discuss common law marriage in greater detail in a future posts but for purposes of this discussion, just know that common law marriage must be affirmatively proven in the court and until that time the question of who has priority to serve as the Personal Representative may be difficult to answer. Because a spouse has priority to serve, the question is – who serves while it is determined whether or not someone is the spouse? In this case, the court may rely on a Special Administrator to handle the estate until the marriage issue can be resolved. Or, in a perfect world, the potential spouse and other heirs would agree by consent as to who will serve in the interim.

There is no shortage of court hearing to determine who will serve as Personal Representative. And, even after the appropriate person is appointed, parties may find themselves litigating whether or not that person is doing the job properly. In the end, the only way to protect your assets from these disputes is to make these choices before you go!

 

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.

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