Estate Planning of SC, LLC

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Archive for the ‘Probate’ Category

10 years sounds like a long time . . . .

Monday, February 16th, 2009

Doesn’t it?  In South Carolina, we have a statute of limitations that requires estates to be probated within 10 years of the date of death.  If the estate isn’t probated within that time period – SC law provides that the distribution must be as if the deceased did not have a Will.  In addition, you must hire an attorney to file a Petition asking the Probate Court to determine the heirs of the decedent.  This means that you must have witnesses to prove who the children of the deceased were – and they need to be uninterested witnesses – not family members.  The Probate Court requires that the surviving spouse (if there is one), the children and the uninterested witnesses all attend a hearing.

I bring this topic up because although most people know that probate administration is required when there are lots of assets that need to be transferred out of the deceased name, but sometimes if it is just one or two assets and the beneficiaries don’t need to sell the assets right away, the probate administration seems less important.

For example, Wife dies and she only has joint ownership of the house.  If Husband plans to continue to live there and doesn’t need to refinance the home, then he may just continue to live there.  The fact that the house is jointly titled doesn’t affect Husband – it just means that his wife’s name is still on the property tax notice.  This issue only becomes important when Husband needs to go to a nursing home or do something else with the property.  More likely than not, Wife’s will provided that all of her assets at her death should be transferred to Husband, but if more than 10 years have passed, then her will is of no effect.  Under SC law, her assets pass according to the intestate statute, which says that one-half of her assets pass to her spouse, and the other half pass to her children.

If the family members all get along, after the hearing, the children might decide to transfer the house back to Husband.  If the family relationships are not good, though, this could cause significant problems.  What if one child really needs the money and requires her father to buy back her interest in the house?

I know that probate administration occurs during a difficult time and that sometimes it may seem better not to deal with it at all.  Please let us assist you with this process so that time doesn’t fly by, making the process even more difficult.