Probate FAQ

What is Probate?

South Carolina Estate Planning | Probate FAQProbating an estate means taking the original will to to the South Carolina Probate Court to have it approved as the proper will. The probate process requires filing the will, filing the inventory of estate assets and filing all other necessary papers to properly distribute the estate

What Does the South Carolina Probate Court Charge?

In South Carolina, each county has a separate probate court. South Carolina state law sets standardized probate court fees for all probate courts  in all counties across the state.  The responsibility for paying probate costs and fees will generally come from the probate estate, not from the executor, trustee or beneficiaries.  Initial estate expenses incurred by the executor, trustee, beneficiaries or others are often reimbursed after the probate estate has been opened. Simply put, the fee is 15% of 1% on the first $600,000 of estate assets and 25% of 1% on the amount above $600,000. It is important to note that the probate fees are not based on the net value of an estate after calculating debts and that they are instead calculated based on the gross value of the estate’s assets. It is also important to recognize that this fee only applies to assets that pass under the Will. All assets which do not pass under the will are not going to be considered by the probate court and will not contribute to the gross value of the estate’s assets.

Why do I need a Probate Lawyer?

Consider the following example:

If a grantor’s estate is estimated to be worth $450,000 with a house worth $85,000, but the tax assessor has appraised the house at $60,000, then one may be inclined to report the value of the house at $60,000 in the estate inventory. If the heir then happens to sell this house later on for $85,000, then the the heir will find themselves with a $25,000 income tax capital gain and roughly $5,000 due in income taxes. If the heir had properly consulted a probate lawyer before having reported the $60,000 house value in the estate inventory, then the incurred $5,000 income tax may been avoidable. The mathematics in this case are quite simple. A probate lawyer can often lower unforeseeable costs for the heir to save money in the future; in this case, the heir could have easily saved $5,000.

What are the Benefits of Probate?

There are many potential probate benefits that can make the probate process worthwhile in a financial sense. For instance, probate can be useful for shielding an estate from creditors’ claims, challenging potentially unnecessary or wrongful debts placed upon an estate, and settling any disputes over inheritance between the heirs.

What does it mean to Avoid Probate and why would someone want to?

Avoiding probate means not having anything pass under the will. If you choose to avoid probate, you will not be required to file any papers to the probate court or incur any probate fees. In some cases, avoiding probate may useful to safe both time and money. Trust administration and a pour-over will are the two most popular legal mechanisms to avoid probate while achieving the same outcome of total estate disposition. Our Charleston Estate Planning Attorneys can provide legal representation in understanding the when to pursue probate and when to avoid probate.