When a person dies in South Carolina, someone must take responsibility for managing his or her final affairs. That person is the deceased’s “personal representative.” A personal representative may be designated in the deceased’s will; or, if no designation has been made, then a personal representative will need to be appointed at the start of the probate process.
The role of a personal representative is an important one. The personal representative has the authority – and the obligation – to carry out the terms of the deceased’s estate plan (if any), and he or she must comply with all applicable provisions of South Carolina law. This includes executing a number of specific duties which, if not executed properly, can lead to problems for the estate and liability for the personal representative.
How is a Personal Representative Qualified to Serve?
Under the South Carolina Probate Code, the qualifications to serve as a personal representative are minimal. Section 62-3-203(e) states that a person is qualified to serve as long as he or she:
- Is 18 years of age or older;
- Has not been found “unsuitable” in formal court proceedings;
- Is not acting in the capacity of an officer or agent of a foreign corporation; and,
- Is not a probate judge in the jurisdiction where the estate is being administered (with certain family-related exceptions).
In other words, most adults will qualify to serve as a personal representative in South Carolina; and, if a person’s will includes a personal representative designation, in the vast majority of cases that designation will be upheld. If the will does designate a personal representative, then priority is first given to the deceased’s spouse (if the spouse is a devisee), then to other devisees, and then to various other heirs and creditors under varying circumstances. If someone wishes to challenge the appointment of a personal representative, he or she must submit a formal objection to the probate court.
What Authority is Granted to a Personal Representative in South Carolina?
As a general rule, a personal representative has the authority to take all action necessary to administer the deceased’s estate in accordance with his or her estate plan (if any) and South Carolina law. This includes the authority to hire legal counsel, to pay expenses on the estate’s behalf, and to make disbursements to creditors, heirs, and devisees. The personal representative also has the authority to make court filings on behalf of the estate, whether in conjunction with the probate proceedings or otherwise (i.e. in the event of a claim for wrongful death).
What are a Personal Representative’s Duties in South Carolina?
Personal representatives have a number of duties. In terms of administering the deceased’s estate, these duties include:
- Opening the Estate – The personal representative must first open the estate. If the deceased left an estate plan, this involves filing the will with the probate court in the appropriate jurisdiction. If not, it involves filing a petition with the court for intestate estate administration.
- Managing the Estate – During probate, the personal representative has an obligation to manage the estate. Among other things, this includes preserving estate assets, paying bills, and taking any other action necessary in order to prevent losses and avoid claims against the estate.
- Notice to Creditors – As a general rule, creditors of the estate are entitled to payment before the estate’s remaining assets are distributed to heirs and devisees. The personal representative must provide adequate notice to creditors (consistent with South Carolina law) and pay all valid creditor claims. The personal representative has a duty to dispute invalid creditor claims as well.
- Determining the Rights of Heirs and Devisees – Next, the personal representative must determine the deceased’s heirs (individuals who are entitled to a share of the estate under South Carolina law) and devisees (those who are named in the deceased’s estate plan). The personal representative must also determine the share of the estate to which each individual heir and devisee is entitled.
- Distributing Estate Assets – Once creditors have been paid and all heirs and devisees have been determined, then the personal representative can distribute the remaining assets of the estate. If the deceased left an estate plan, then the estate plan will control (unless it is successfully challenged in court). If the deceased did not leave an estate plan, or if the estate plan does not cover all assets of the estate, then the personal representative will need to apply the laws of intestate succession.
- Closing the Estate – Finally, once all of the estate’s assets have been distributed, then the personal representative must formally close the estate in the probate court.
In addition to these specific duties, personal representatives also have an overarching duty to act in the best interests of the estate. This is known as a “fiduciary” duty, and violating the fiduciary duty can have severe consequences. Examples of fiduciary duty violations include mismanaging estate assets, improperly distributing estate assets, and engaging in conflict-of-interest transactions.
What Can Family Members (and Creditors) Do if a Personal Representative Fails to Satisfy His or Her Duties?
If a personal representative violates his or her fiduciary duty or otherwise fails to properly administer the deceased’s estate, then heirs, devisees, and creditors can take responsive legal action in the probate court. Depending on the nature of the personal representative’s violation, this can involve:
- Filing a claim against the personal representative for damages, and/or
- Seeking the appointment of a replacement personal representative.
Affected creditors and family members will often need to act quickly when seeking to recover damages or have a personal representative removed, as subsequent improper acts can lead to greater losses and make it more difficult to recover improperly-disbursed funds.
Contact Real Estate Attorney Patrick Watts in Summerville, SC
If you have been named as a loved one’s personal representative, or if you have run into issues during the estate administration process, probate lawyer Patrick Watts can help. To discuss your situation in confidence, please call 843-851-7050 or request an initial consultation online today.