As an estate and probate attorney in Summerville, South Carolina, I work with families who have lost a loved one and their estate must go through probate court. Contrary to popular belief, dying without a Will does not mean the State of South Carolina is going to take your property, but it can cause difficulty when your family is trying to administer the estate. Your family will receive your property, but a Will makes the probate process easier and less expensive for your family. In this article, I will define probate and the issues that may arise which may delay the probate process in South Carolina.
What is Probate in South Carolina?
Probate is the legal process that allows the court to conclude all your legal and financial matters after your death. If you have prepared a Will, the court will distribute according to that.
The benefits of probate in South Carolina include:
- ensuring that all assets owned after your death are located and transferred to the intended heirs or beneficiaries.
- allows creditors of the estate to file a claim against the estate.
- guarantees that the government will receive any taxes owed by you or the estate before assets are transferred to heirs or beneficiaries.
What Issues Could Delay The Probate Process in South Carolina?
In South Carolina, it will take a minimum of eight months to probate because the law requires it to remain open to allow creditors to file claims. Beyond the minimum eight months, several factors determine how long probate takes to conclude.
Factors that may delay probate in South Carolina include:
- Intestate estate. You did not leave behind a Will.
- Personal Representative. A personal representative must be appointed by the court to administer your estate since no Will was left behind.
- Familiarity with your estate. The personal representative will likely not be as familiar with your estate, which causes a delay in locating assets.
- Finding heirs. The legal heirs of your estate must be determined and located.
- Liquidity. Your assets may need to be sold to pay creditors. The sale of assets can delay the probate process by months, even years. Creditors who litigate to receive payment will certainly cause delays.
- Litigation. If the Will is contested, it can cause probate to last for years. Additionally, creditor disputes often result in litigation, which will certainly prolong the probate process.
- Family Feud. Beneficiaries who despise one another or will not speak to each other will force the personal representative to go to court to get permission from the probate judge to do handle the affairs of your estate as they see fit. In cases like that, some heirs may hire their own attorneys and the process will most likely come to a grinding halt.
Probate can move swiftly if your Will is testate and uncontested. Oftentimes, there are issues within our control to prevent a long, drawn-out process which is why a Will is so important. Contact the Watts Law Firm to explore the ways in which you can avoid delaying your wishes for your family.