No and yes. Probate is a court procedure by which a will is proved to be valid or invalid and then the terms of that document are applied to the estate situation. Probate is also the procedure for administration of an estate under the State of South Carolina intestacy laws when the decedent died and there is no will. Even though the situations can be very different there is still only one body or system of law relating to all matters which the probate court handles, although the circuit courts do have concurrent jurisdiction. In short it is best to think of probate as a process with a fair number of forms for someone to complete and file.
Depending on the factual situation there are four ways to address probate administration. Which way is right for your family situation will likely need to be determined after a detailed discussion of whether or not there is a will, how assets are titled, what bills are owed, and if any litigation is expected, such as when someone dies as a passenger in a car accident. Any kind of probate can have pitfalls for the unwary. An experienced attorney can best advise you on the best course of action.
Informal probate is probably the administrative procedure most people are familiar with. It is commenced by the person applying to be made the personal representative (the new term for executor or executrix of the will) completing and filing the mandatory petition that contains answers to certain required allegations, along with a death certificate and the original Last Will and Testament, any original codicils and personal property memorandum(s). The Probate Court may request other documents such as a deed or paid funeral bill in order to verify the answers in the petition before going forward. Informal probate can be used with a will or when someone has died intestate (i.e. without a will or the will is not valid for some reason, such as lack of proper execution). However the intestacy situation requires additional forms known as Renunciations to be filed by all other heirs-at-law with equal or greater priority consenting for the petitioner to serve as the personal representative. Informal administration is generally conducted without hearings, but hearings could be required if you sell real property or the distribution of assets is contested by beneficiaries, heirs-at-law or creditors.
Summary administration starts like informal probate but allows the Personal Representative who is also the sole devisee or heir-at-law or when the personal representatives and devisees are identical to notify creditors, file an Inventory and a statement that will automatically close the estate after nine (9) months, if no claims are filed or additional action by the personal representative is required. The total value of the estate must be less than $25,000 after liens, exempt property, administration costs, reasonable funeral expenses and necessary medical expenses of the last illness are paid. Your lawyer or local probate court staff can advise if this is an option for you.
A different summary administration is available when there are no known assets and for some reason it is deemed wise to not only file the will, but still probate the estate. Again the probate court is apt to alert you to your eligibility to proceed with this form of administration.
An Affidavit for Collection of Personal Property pursuant to Small Estate Administration is appropriate for estates that have no real property and less than $25,000 in assets after payment of the funeral bill AND at least 30 days has passed since decedent died and the person(s) seeking payment or delivery of tangible personal property is entitled to the same either pursuant to a valid will or by intestacy. This may be used when a trust holds most assets or most assets are joint with right of survivorship between spouses and one or more assets of a small value are solely titled in the name of the decedent, for example a used car, some stock and/or a checking account.
Formal administration or Part 5 Administration requires close supervision by the probate court, notice to interested parties, and often motion and multiple hearings. Formal testacy can be an original proceeding to probate will. It can also confirm whether a prior informal probate was correct or reverse or overrule it. Part 5 Administration can be used to block an informal probate which is pending, secure a declaratory judgment as to either partial or total intestacy and in that connection to determine who are the heirs in the intestacy, or establish that a will has been lost, destroyed or is unavailable. An attorney knowledgeable with probate administration, wills, trusts and estates should be used when Part 5 Administration and litigation is involved.
Probate administration typically takes 1 year, but it could be longer.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column. 9/2018