Questions to Open an Estate
- Was the decedent domiciled in Dorchester County at the time of their
death? If no, please contact the Probate Court of the appropriate County or
Sate. If yes, please continue.
- Did the decedent die within the last ten (10) years? If the answer is no,
please go to Petition to Petition to Determine Heirs information. If the
answer is yes, continue.
- Did the decedent only own personal property of less than $10,000.00?
(This would mean that the decedent did not own any interest in real
property.) If the Answer is yes, please go to the Small Estates information.
If no, please continue.
- Did the decedent have a will? If no, please go to Intestate information. If
yes, please go to Testate information.
If more than ten (10) years has passed since the decedents death,
the Court is required by state law to hold a hearing to determine
who the heirs of the decedent were at the time of their death. To
allow the Court to hold this hearing, an interested party (typically
the spouse or child of the decedent) must formally Petition the
Court setting forth the heirs or family members, status of the family
members and documents supporting the status and relationships.
This would include birth certificates, death certificates, marriage
licenses, Orders from divorce proceedings, adoption records, and
Termination of Parental Rights. This Petition must then be
personally served, along with a Formal Summons, on all of the
heirs. Proof of this personal service is required to be filed with the
Court. The heirs are then allowed thirty (30) days to Answer this
Petition. A publication is also required by state law to allow any
other potential heirs to come forward and attend this hearing. At
the hearing, the testimony to establish the heirs will be taken. A
disinterested party is required to testify to support the family
members. Currently, there is a non-refundable $100.00 FILING
FEE required for this hearing. As you can see, this process is very
complicated. The services of a PROBATE LAWYER are
recommended.If the decedent owned personal property, in their name alone, (this
would exclude real estate, joint banking accounts, and life
insurance or annuities payable to a specific beneficiary) of a total
value of less than $10,000.00, then you may be able to proceed
informally with a small estate. However, you must wait thirty (30)
days from the date of death. If during that time, a creditor files a
claim against the decedent that has not been satisfied, you will
have to proceed with TESTATE or INTESTATE proceedings. You
will need to complete the following:
SMALL ESTATE WORKSHEET, and
AFFIDAVIT FOR COLLECTION OF PERSONAL PROPERTY
(Form 420PC).You must also submit a CERTIFIED DEATH CERTIFICATE, an
appropriate FILING FEE, an obituary or the funeral program, proof
of payment of any creditors claims filed with the Court. A copy of the
paid funeral bill may be required when reimbursement is
requested.When the decedent died without a will, you will proceed under the
intestate appointment for PERSONAL REPRESENTATIVE. This
could be a FORMAL APPOINTMENT procedure or an INFORMAL
APPOINTMENT procedure.Formal Appointment
Formal Appointment procedures will be required when:
The Petitioner does not have priority under state law to
serve as the Personal Representative;The Petitioner is a creditor;
The Petitioner claims to be a common law spouse; or
There is more than one Petitioner.
To proceed, a SUMMONS and a Petition for Appointment (Form
300PC) must be submitted to the Court along with a CERTIFIED
DEATH CERTIFICATE and a $25.00 FILING FEE. Once filed, the
SUMMONS and Petition for Appointment (Form 300PC) must be
personally served on all interested parties. Interested parties
would include all heirs of the decedent (refer to the FAMILY TREE)
and creditors who have filed claims with the Court. Proof of the
personal service must be filed with the Court. Interested Parties
are then allowed thirty (30) days to Answer the Petition for
Appointment. A hearing date will then be set by the Court. The
Petitioner is also required to notify all interested parties of the
hearing date and file a Proof of Delivery (Form 120PC)of the Notice with the Court. A failure to comply with the required
procedures will result in a delay of the Appointment. As you can
see the process for Formal Appointment is complicated and the
services of a PROBATE LAWYER are recommended.Informal Appointment
Informal Appointment procedures are allowed when:
The Petitioner has priority under state law to serve as the
Personal Representative;The Petitioner has been nominated to serve as Personal
Representative by someone who has priority under state
law;The Petitioner is the sole heir;
The sole heirs are Petitioning to serve together as Co-
Personal Representatives;The heirs of equal priority agree that the Petitioner should
serve as Personal Representative; orThe Petitioner is an heir of equal priority with others who do
not agree that they should serve (ie. One of five (5) children
of the deceased). The Petitioner sends out twenty (20)
days notice of a hearing to all interested parties (ie.
Remaining four (4) children of the deceased). Twenty (20)
days have passed since the Petitioner has notified the
other heirs and they have not stepped forward and
responded to the Court. A response could return this to a
FORMAL APPOINTMENT.To proceed, an Application for Appointment (Form 300PC) as the
Personal Representative and all Renunciation of Right to
Administration forms (Form 302PC) must be filed with the Court
along with a CERTIFIED DEATH CERTIFICATE and appropriate
FILING FEES. If the decedent owned any personal property at the
time of their death, a BOND may be required.When the decedent died with a will but has no PROBATE ASSETS,
the will should be filed on record with the Probate Court within thirty
(30) days, but no longer than ten (10) years from date of death. The
filing of the will could prevent the necessity of a Petition to
Determine Heirs action at a later date when assets are
discovered.When the decedent died with a will and PROBATE ASSETS, you
will proceed under the Testate procedure for Probate of Will and
Appointment. This could be a FORMAL APPOINTMENT AND
TESTACY procedure or an INFORMAL APPOINTMENT AND
TESTACY procedure.FORMAL APPOINTMENT AND TESTACY:
Formal Appointment procedures will be required when:
The will does not name a Personal Representative and the
heirs do not agree on an appointment;There is a will contest;
The will is not clear;
The will is a copy and the heirs do not agree that it is the
decedent's final will;The Petitioner does not have priority under state law to
serve as the Personal Representative;The Petitioner is a creditor; or
There is more than one Petitioner.
To proceed, a SUMMONS and a Petition for Appointment and
Testacy (Form 300PC) and the original Will must be submitted to
the Court along with a CERTIFIED DEATH CERTIFICATE and a
$25.00 FILING FEE. Once filed, the SUMMONS and a Petition for
Appointment and Testacy (Form 300PC) must be personally
served on all interested parties. Interested parties would include
all parties listed in the will as devisees, any other heirs of the
decedent (refer to the FAMILY TREE), and creditors who have filed
claims with the Court. Proof of the personal service must be filed
with the Court. Interested Parties are then allowed thirty (30) days
to Answer the Petition for Appointment and Testacy. A hearing date
will then be set by the Court. The Petitioner is also required to
notify all interested parties of the hearing date and file a Proof of
Delivery (Form 120PC) of the Notice with the Court. A failure to
comply with the required procedures will result in a delay of the
Appointment and Probate of Will. As you can see the process for
Formal Appointment and Testacy is complicated and the services
of a PROBATE LAWYER are recommended.INFORMAL APPOINTMENT AND TESTACY:
Informal Appointment and testacy procedures are allowed when:
The Petitioner is nominated as the primary Personal
Representative in the will or is named as the alternate
Personal Representative and the primary Personal
Representative is deceased or unable to serve and
renounces their right to serve;Original will cannot be located and all heirs agree in writing
to accept the copy of the will as the last will and testament
of the Decedent and the Petitioner is named in the copy as
Personal Representative or alternate Personal
Representative; or- All devisees under the will renounce their right to serve and
agree to the appointment of the Petitioner.To proceed, an Application for Appointment and Testacy (Form
300PC) as the Personal Representative and all Renunciation of
Right to Administration forms (Form 302PC) must be filed with the
Court along with a CERTIFIED DEATH CERTIFICATE and
appropriate FILING FEES. If the decedent owned any personal
property at the time of their death, a BOND may be required.Locate Missing Heirs or Devisees
Missing heirs or devisees. Both the US Social Security
Administration and the Internal Revenue Service can offer
assistance in locating missing heirs:Social Security Administration has made a public announcement
that it will forward a letter to the missing person, providing that the
purpose of the search is either humanitarian (locating an
estranged family member or lost friend), or monetary (tracing a
missing heir). It is necessary to provide the person's date of birth,
parents' names or other identifying information. The agency won't
reveal the person's whereabouts or verify that the letter was
received: It simply acts as the intermediary. There is no charge for
humanitarian requests; other searches cost $3.00. The search
request should be made to:Social Security Administration
Office of Central Records Operations
300 N. Greene Street, Room 1312
Tower Metro West
Baltimore, MD 21201Similarly, in Rev. Proc. 94-22, the IRS has announced that it will
forward letters that serve a "humane purpose," (e.g., from a family
member who is trying to reunite with a relative, or from a company
or organization who controls assets that may be due a taxpayer . . .
.). The social security number of the missing person must be
furnished with the request. Requests should be directed to the
attention of the disclosure officer at the nearest district office of the
requester. There is no charge for the service provided. There are a
number of other rules and procedures contained in Rev. Proc. 94-
22 and the personal representative should review these rules prior
to making a request for assistance.Duties of the Personal Representative
Pursuant to S.C. Code Ann. ยง62-3-703(a):
A personal representative is under a duty to settle and distribute
the estate of the decedent in accordance with the terms of any
probated and effective will and this Code, as expeditiously and
efficiently as is consistent with the best interests of the estate. He
shall use the authority conferred upon him by this Code, the terms
of the will, if any, and any order in proceedings to which he is a
party for the best interests of successors to the estate.1. Asset control and safeguarding duties. One of the first and most
important duties of the Personal Representative is to gain control
of the decedent's assets as soon as possible to prevent theft and
vandalism. If there was a residence that is now unoccupied, locks
should be changed and fire insurance policies should be reviewed
to determine if an extended vacancy automatically terminates the
policy. Such insurance should be reviewed to determine if
amounts and coverages are adequate. The safety and security of
household goods and personal effects should also receive
consideration. If appropriate, the US Post Office should be notified
to forward mail to the personal representative. To accomplish part
of this task with internet assistance, go to
http://www.usps.gov/moversnet/coa.html and fill out the change of
address form, print it and deliver it to the nearest post office.2. Locating Assets of the Decedent. One of the most important
duties of the Personal Representative is to locate and identify
anything the decedent owned that had value. This information will
be placed on the Inventory and Appraisement, Form 350PC.The following is a list of places, sites and documents that the
personal representative should search:Income Tax Returns
A review of the decedent's federal and state income tax returns for
several years prior to his death may disclose income for which
there must be a source.Bank Statements
A review of bank statements, canceled checks and deposit slips
may also disclose income, the source of which may be an estate
asset. Canceled checks in payment of insurance premiums may
lead to an insurance policy. Canceled checks in payment of
purchase money notes may indicate the existence of other
property.Public Records
A search of local public records may disclose property or other
assets held of record by the decedent. Similar searches of real
and personal property tax records may disclose assets on which
property taxes have been paid.Fire and Casualty Insurance Policies
A review of the decedent's fire and casualty insurance policies or a
schedule of personal effects can be helpful.Bureau of Public Debt - Bonds
The Bureau of Public Debt suggests sending a letter of inquiry to it
concerning whether or not a decedent owned any United States
Government Savings Bonds. The Bureau's internet site has a lot of
helpful information - http://www.publicdebt.treas.gov/Decedent's Brokers
If the decedent was known to have invested in securities, a letter of
inquiry by the representative to the decedent's broker and other
possible or likely brokers inquiring about brokerage accounts may
disclose additional assets.Banks and Savings and Loans
The representative should also consider writing to local banks,
savings and loan associations, and credit unions in the city and
county where the decedent lived and in other likely areas, inquiring
about accounts and safe deposit boxes.Decedent's Employer
A letter from the representative to the decedent's employer,
inquiring about payments or benefits due to the decedent, may
also disclose other assets.Credit Life Insurance
For certain kinds of creditors, it is possible that the decedent may
have credit life insurance. A letter from the representative to such
creditors inquiring about the possible existence of such insurance
may reveal coverage.Decedent's Organizations
If the decedent was a member of a trade association, a
professional association, or other organization, he may have been
covered under group life or accident insurance and may have other
membership benefits which the representative should seek to
obtain.Veterans Benefits - If Applicable
If the decedent was a veteran, veterans benefits of various kinds
may be available. The representative should inquire about the
possibility of such benefits at the nearest office of the Veterans
Administration. For internet information about veterans benefits go
to the Dept. of Veterans Affairs homepage at http://www.va.gov/.
Downloadable VA forms are available at
http://www.vba.va.gov/pubs/forms1.htm. If the decedent was a
veteran, the Representative should determine if there are any
veterans death benefits. Deceased veterans may also be entitled
to a U.S. Flag for burial purposed and a headstone or grave
marker. For additional information, go to
http://www.cem.va.gov/index.htm.Beneficiary of Estate
If the decedent was or may have been a beneficiary of another
estate, the records of such prior estate should be reviewed in the
appropriate probate court to determine what assets the decedent
as a beneficiary received.Social Security Benefits
A Representative is no longer qualified to obtain Social Security
death benefits of the decedent. If the decedent was covered by
Social Security, left no eligible widow, and the expenses of his last
illness and funeral were paid by an entitled survivor (i.e., a survivor
entitled to benefits of the decedent while he was living), such
survivor, under some circumstances, may be entitled to lump sum
death benefits up to a maximum of $255.00. For additional
information, go to http://www.ssa.gov/pubs/deathbenefits.htm.