North Myrtle Beach Probate Lawyer

A probate proceeding is a court-supervised procedure which occurs after a person's death (known as the decedent). The decedent's estate is administered in this proceeding, and the assets are distributed following the decedent's will or by law. If you want to ensure a smooth and hassle-free probate process for your loved ones upon your passing, speak with a dedicated North Myrtle Beach probate attorney at Bespoke Estate Law. We handle wills, trusts, probate, and other estate planning needs, and we would be happy to help.

When is the Probate Process Necessary?

In North Myrtle Beach and South Carolina generally, the probate process is governed by Article 3 of the South Carolina Probate Code (SCPC). A probate proceeding is needed if the deceased has property under their name that does not automatically transfer to the heirs. The deceased's estate is accounted for and distributed to the heirs during probate. The estate can include real estate, tangible personal assets like cars, jewelry, boats, and art, as well as intangible assets such as shares of stock in a corporation.

When the decedent has life insurance or retirement benefits without designated beneficiaries, probate is necessary to distribute these benefits to the decedent's legal heirs.

If the deceased has outstanding debts, creditors can make claims against the estate during probate. Additionally, disputes among the deceased's heirs are resolved during probate, often through litigation.

The Probate Process in North Myrtle Beach

The probate process begins upon filing a petition before the probate court that has jurisdiction over the location where the decedent resided at the time of his death. Attached to the petition is a copy of the decedent's will and death certificate to prove the fact of death of the decedent. If the decedent did not previously execute a will, intestate proceedings shall take place.

Upon filing the petition, the court shall assign the decedent's personal representative. If the decedent left a will, the executor named on the will shall represent the decedent. The court shall assign an administrator to represent the decedent if there is no will. Once assigned, the executor or administrator shall file a bond to ensure that they perform their functions under the terms of the will or the court's orders.

After that, the court shall notify the decedent's heirs and creditors. The notice is posted in a newspaper or any public place in case there are other unnamed creditors of the estate. The purpose of informing creditors is to ensure all parties with a potential claim to the estate are notified.

The representative's initial task is identifying and safekeeping the decedent's properties. The assets must be listed in detail with their corresponding value in an Inventory and Appraisement which is filed with the probate court. The representative may hire an appraiser to determine the market value of the decedent's properties.

The decedent's creditors shall be paid after determining the estate's total value. The remaining assets may be subjected to estate tax. If there are remaining assets, the cost of the probate administration, the executor's fee, and other necessary expenses may be subtracted from the estate's remaining value. Afterward, the remaining assets, if any, shall be distributed to the decedent's heirs.

Challenges in Probate Proceedings

The probate proceedings may either be contested or uncontested. If the probate is uncontested, the court may order probate or intestacy on the strength of the pleadings. However, the court can conduct a hearing concerning the execution of the will (S.C. Code Section 62-3-405).

If the probate is contested, the due execution of the will is put in question. The persons contesting the will shall have the burden of proof to show undue influence, fraud, coercion, mistake, revocation, or lack of testamentary intent or capacity.

How to Avoid Probate

A probate proceeding can be complex, especially in a contested probate. To avoid the hassle and the underlying costs in probate, you may adopt strategies to avoid probate. Some of the common ways to steer away from probate are as follows:

Living Trusts

A living trust, also known as a trust inter vivos, is a method to bypass probate proceedings after your death. A settlor creates a trust during their lifetime and names a trustee (oftentimes themself) as the legal owner of the trust property. When the settlor dies, the ownership of the trust properties automatically passes to the beneficiaries, with the named successor trustee making the distributions. As a result, probate proceedings are no longer necessary since the settlor is no longer the owner of the trust property upon his death.

Joint Ownership

In the joint tenancy of real property, the death of a joint tenant transfers the tenancy rights to the surviving joint tenant/s (S.C. Code § 27-7-40). For joint accounts, the death of one of the parties transfers the interest to the sums on deposit to the other parties (S.C. Code Section 62-6-202).

Beneficiary Designations

If the decedent has life insurance or retirement benefits with designated beneficiaries, probate proceedings are not necessary for those assets. The proceeds of the preceding benefits shall pass automatically to the designated beneficiaries.

Contact Our North Myrtle Beach Probate Attorneys

Bespoke Estate Law has established a reputation in North Myrtle Beach due to our inspired performance in helping South Carolinians with their probate needs. From drafting wills to avoiding probate, we are happy to assist. From our estate planning lawyers in Myrtle Beach to our business law services in Wilmington, we serve the entire Grand Strand.