Alan Donald with Keller Williams, Realty and Morgan Insley, attorney from Blanco Tackabery talk about Probate.

What is probate?
Probate is a courtsupervised process of getting property from someone who has passed away to their heirs or beneficiaries.

Who can start a probate process?
The estate should be filed and opened by the person serving as the Personal Representative (PR).

Does the probate process vary by county, or is it a state mandated process? Different counties may have different requirements to file. But most forms are standard.

If the decedent has a Will, can the heirs avoid probate?
Not at that time. If the strategy is to avoid probate, that needs to be done by the persons themselves during their lives. Some assets have to go through probate. Once someone has passed away, you cannot avoid probate.

It's very common to title property as Joint Tenants with Right of Survivorship (JTROS). Would that avoid probate?
Initially yes, until the last person standing passes away, then the asset does have to go through probate.

Who is a PR and who appoints him/her?
The PR is either appointed in someone’s will or appointed by state law. In SC, there's an order of priority. Once someone has been named, the court will appoint that person with the powers of the PR.

What's the priority by law in SC?
The surviving spouse is first (assuming there is no will), and then other heirs. If there's any conflict, the court will decide.

Is a PR different from an Executor or Executrix?
Our state statute has combined all of the different terms (Executor, Administrator, etc.) into one simple term Personal Representative.

What is a probate bond and when would we need one?
A probate bond is something the PR may have to purchase, it is an insurance policy for the heirs to make sure the PR administers the estate and distributes the property as per the terms of the will or state law. If you have a will, you can waive the bond. If everyone is in agreement, they can also agree to waive the bond. Otherwise, it may be required.

What are the main functions of the PR?
All of the estate administration, filing of paperwork, opening the estate, issuing creditors’ notices, dealing with the property and approving or denying creditor claims. They may also need to sell real property.
Alan: And that's where someone like us comes in if there is real real estate that needs to be valued or disposed off. And even if not if they don't have real estate, we have a whole set of resources to help Personal Representatives,including estate sale companies, contractors, etc.
For example, when someone passes away and a house is empty,the insurance policy needs to be switched to “vacant policy.”, otherwise, if there is a loss, the insurance provider might not cover the estate.

There are a lot of nuances that many people just aren't aware of. It's very important to have a good team, especially when dealing with real estate.

Does the PR get compensated for their work?
It depends. If you have a will, you can decide whether or not the PR will be paid or not. If they are able to be paid, it has to be a reasonable compensation.
If there is no will, generally PRs are allowed to be compensated. The unwritten standard is a maximum of 5% of the personal property unless there's real estate to be sold.

If you have real estate, how do you sell it?
It depends on the will. If the will gives the PR the power to sell real property, they can sell it just like anyone else would, and put the net proceeds back into the estate account for distribution. Not all wills include that provision and not everyone will have a will. In that case, you need court approval, which can be a lengthy process.

If the heirs are in dispute as to what to do with the real estate, what happens?
The PR is in charge of handling the estate.They have to abide by the terms of the will, if there is one, and it's really up to them to protect and distribute the estate property.

You mentioned that certain assets and trusts may be used to avoid probate. Why would anyone want to avoid probate?

There are good reasons why you would want to avoid probate. One is the cost. The Probate Court assesses a fee that is based on the gross value of the assets. Probate can be a lengthy process that can also get costly as you may have to hire a professional to help you. Also, anything that goes through probate is a matter of public record.

Who are the important team members to hold your hand through the process?
A probate attorney. If there is any sort of real estate involved, a Realtor who is knowledgeable in the probate process. Also someone to handle estate sales for personal property.

At The Alan Donald Team, we are Certified Probate Experts (CPE) and have most resources needed to guide and connect PRs, including probate attorneys, estate sale companies, contractors, financial planners, insurance agents and accountants.

Please call us on 8439000155. We're here to help!