SC Lawyer, November 2008, #6. Misconceptions About Probate Law.

• Author: By Joanne Burkett

South Carolina Lawyer

2008.

SC Lawyer, November 2008, #6.

Misconceptions About Probate Law

South Carolina LawyerNovember 2008Misconceptions About Probate LawBy Joanne BurkettAh, death and taxes-the two certainties in life! And where do they come together? In probate court, of course, possibly the largest service court in our legal system.

While it may be possible to avoid other courts by staying on the straight and narrow, most people are involved with probate court at some time-when they marry, if they become incompetent or when they die, not necessarily in that order.

Despite the familiarity people feel with probate court, public misconceptions are common.

Misconceptions of the public

If you die without a will, the State of South Carolina is going to take your property. This is not true, of course, but "lots of folks think this," says Spartanburg Probate Judge Ponda Caldwell. "I get that question every time I speak to a group. But I have been working in probate court 30 years and only in five instances have we had estates escheat to the State of South Carolina because there were no heirs. And in two of those cases there was nothing to go to the State once the decedent's bills were paid." So, when does the State get your property? Only when there are absolutely no heirs at law.

You need to avoid probate because court costs are going to be extraordinary. That may be true in other states, but in South Carolina probate fees are generally reasonable. However, a recent California case (Estate of Claeyssens, 74 Cal.Rptr.3d 304 (Cal. App. 2008)) found that graduated probate fees based on the value of the estate, such as South Carolina has, were an unconstitutional tax created for revenue purposes but disguised as a fee. So, the debate over probate fees continues.

If you get appointed personal representative, the estate property belongs to you. Judge Caldwell remembers, "I had one situation in determining heirs and opening an estate formally where two people came from out of state asking to be appointed PR. They thought they were going to get the real estate just because they came in and got appointed. What they did not know was that once appointed they were going to have to deal with finding all the other heirs."

Personal representatives do take title to real or personal property, pursuant to S.C. Code § 62-3-101, but only to marshal resources for the estate, to pay debts or distribute. This section provides that upon the death of a person, his real property devolves to the person to whom it is devised by will or to the heirs at law "subject to the purpose of satisfying claims as to exempt property rights and the rights of creditors, and the purpose of administration."

Therefore, if it is necessary to sell real estate in order to properly administer an estate, the personal representative may do so either under a power of sale granted by the decedent's will or with court approval. If the real estate does not have to be sold for administration purposes, the personal representative will issue a deed of distribution which "constitutes a release of the personal representative's power over the title to the real estate" pursuant to S.C. Code § 62-3-907(B).

Also, look at S.C. Code § 62-3-101 carefully because title devolves at death differently for real and personal property. Regardless, being appointed PR does not mean you are going to inherit the estate and cut out other heirs.

If you are the beneficiary of real property in a will, the property passes to you immediately upon the testator's death. Again, see carefully the words in S.C. Code § 62-3-101 following "subject to." The property may eventually pass as directed in the will but does not do so until...