As a probate attorney in Summerville, South Carolina, I get asked questions about what assets are subject to probate. Probate is a general term for the entire process of administration of estates of the deceased, including those without wills, with court supervision.
The first step in the process is proving a will is valid and then administering the estate of the deceased according to the terms of the will. The will must be filed with the clerk of the appropriate court in the county where the deceased lived, along with a petition to have the court approve the will and appoint the executor named in the will. If there is no executor named in the will, one will be appointed. A declaration of the person who had signed the will as a witness is also filed. If the court determines the will is valid, the court then allows the will to probate.
Even if there is a will, probate may not be necessary if the estate is worth no more than the stated dollar value or is small with no real estate title to be transferred or the entire estate is either jointly owned or community property. The probate process involves fees set by statute and/or the court for attorneys, executors, and administrators.
What Are Probate Assets in South Carolina?
Probate assets include most types of real and personal property which are owned solely by the deceased rather than owned jointly. Examples of assets that will transfer through probate include:
- Real property which is titled only in the name of the deceased.
- Personal property owned by the deceased such as a car, furniture, and household items.
- Bank accounts if those accounts are solely in the name of the deceased.
- Interests in certain types of businesses.
- Life insurance policies which list the deceased as a beneficiary on the policy.
- Brokerage accounts which list the deceased or the estate as the beneficiary on the account.
What Aren’t Probate Assets in South Carolina
There are certain assets which do not have to transfer through the probate process after a death. Assets that are considered non-probate include:
- The property which is jointly owned, it can pass automatically outside of probate to the joint owner.
- Bank accounts which have joint ownership.
- Bank accounts which have payable on death beneficiaries.
- Life insurance policies which list a beneficiary who is not the deceased or not the estate.
- Retirement accounts such as 401(K)s and IRAs can pass outside of probate and can pass to the designated beneficiary on those accounts.
- If the deceased created a Living Trust to hold assets, they will not go through probate, unless the assets left outside of the trust add up to more than South Carolina’s small estate limit. The Living Trust was created to avoid probate after the death of the trust’s Grantor.