by Attorney Alyson C. Fudge, Founder of the Lowcountry Law Office on Aging, Mental Health & Disabilities, LLC
Everyone has heard of a Will. We have all heard the term “Executor” as well. And some of us have heard the term “probate” mentioned by friends and relatives.
Typically, the term is used by someone expressing frustration or complaining about “assets being frozen.” The term conjures up images of long waits, going to court, paying attorneys, and family members fighting over who gets what. And, depending upon the situation, all of those things can be absolutely true.
The term “probate” actually means the process of transferring the title or ownership of assets out of the decedent’s name and into the names of whomever the assets are supposed to be given to next. We have a specific type of Court to oversee this process—the Probate Court.
You will have costs associated with probating an estate whether you use an attorney or not. Probate is not free, just like divorce is not free. Probate involves, at a minimum, filing fees, creditor notice fees (newspapers don’t publish for free), and the Court Assessment based upon the amount of the assets being probated. If there are issues or complications, attorneys may need to be hired as well.
Unfortunately, many people believe that having a Will avoids probate, and that is incorrect. The job—the sole purpose—of a Will is, in fact, to go through the probate process. If you die with assets of a certain type (“probate assets) that are titled in your name as an individual, your Will does two things for you:
- it nominates the person who will be responsible for taking those assets through probate (the “Executor”) and
- it gives directions about who gets those assets and in what amounts or percentages.
As an aside, we actually use the term “Personal Representative” in South Carolina instead of “Executor,” but I typically use the term “Executor” in conversation with clients because they know what that word means.
No one outside of the Court or the legal profession has heard of a “Personal Representative.” When I start to explain the probate process to clients, the most common issue that comes to light immediately is the time that it takes to do a probate – nine to 12 months on average if everything goes perfectly and no one causes any problems.
We have a reason for that and it’s not because attorneys like to run up fees or the Court has nothing else to do but to irritate grieving people. Our laws actually require probate to take a certain amount of time. We have to file a petition and some other paperwork to open the Estate and have an Executor appointed. We then have to run a Creditor’s Notice in a local newspaper. This Creditor’s Notice gives anyone who thinks the decedent owed him or her money a chance to file a claim and get repaid. People have 8 months to file a claim. However, if someone fails to file a claim within that 8 month window, that person cannot come forward later and try to get paid from the Estate.
While we are waiting to see who is going to file a claim, we have paperwork to do. Once the 8 months is up (and that 8 months starts when the first notice appears in the newspaper—not the day the Estate is opened), we have Accountings and Proposals for Distribution and Deeds and other paperwork to complete and file with the Court for its review and approval. We also then have to send copies of the Accounting, etc to all of the people named in the Will along with a Notice that those people have 30 days to ask for a hearing if one or more of them disagrees with the numbers for any reason.
Once all of these things are done, and assuming that no one is disagreeing with anything, the money and property can be distributed and the Court can discharge the Executor and close the estate. However, there are no time limits on how long this process can take if family members start fighting in Court. Litigation can take years—even in Probate Court.
In addition, if the decedent owned any part of real estate in more than one county or state, there may be “ancillary” or additional probates in addition to the “primary” probate. That will mean multiple courts and multiple attorneys. Fees and expenses can and do rise quickly.
Now, there are ways to avoid this process via documents such as Revocable Living Trusts, and there are certain types of assets that do not go through probate at all. For more information on how you or your loved one might avoid the probate process entirely, please contact an Elder Law Attorney.