General Probate Code Flashcards
At what point does a Will become effective?
Upon the death of the testator.
How long do you have to file a Notice of Appeal after receipt of a Probate Court’s Order?
10 days
The probate code applies to what persons/entities?
1- decedents
2- missing persons
3- protected persons, specifically,
3a. incapacitated persons, and
3b. minors living in this state;
4. the property of non-residents located in this state;
5. survivorship and related accounts located in this state; and
6. trusts administered under and subject to SC law.
SC Probate Code § 62-1-102(b)(1)
What is the paramount rule of Will construction?
To determine and give effect to the testator’s intent.
The Probate Court has exclusive subject matter jurisdiction over:
1) Estates if decedents
- Will contests/challenges
- Construction of Wills
- Determination of heirs
- Determination of decedent’s property interests
2) Estates of protected persons
3) Trusts
4) Issuance of Marriage Licenses
5) Involuntary Commitment of persons
Where should venue be for probating an estate?
1) In the county where the decedent was domiciled at his date of death; or
2) If the decedent was not a resident of SC, but he owned real property in SC, then an ancillary administration is necessary and venue is proper in any county in which the property is located.
- If venue could be maintained in more than 1 place in SC, then the court where the proceeding is commenced first has the exclusive right to proceed.
- The court can transfer a proceeding or a file to another court if
(i) it finds that venue is proper in another court, or
(ii) it finds that it should be moved to another probate court in the interest of justice.
Why is an estate probated?
We use the probate process to “clear” title to property owned by the decedent.
Also, to distribute the decedent’s assets in accordance with his Will, the intestacy provisions of the code, or to his creditors.
To be sure that we have paid all of the decedent’s debts, and that no creditor will come against us down the road; it gives the creditors a chance to be heard and limits their time frame within which to pursue a claim.
At what point does the administration of an estate begin?
Upon the issuance of letters; that is, the Certificate of Appointment.
How long does a creditor have to file a claim against an estate?
A creditor may file a claim anytime before 1 year from the decedent’s date of death, or 8 months from the date of the Certificate of Appointment, whichever occurs first.
What is the statute of limitations with regard to probating an estate?
There is a 10 year SoL for the informal or formal probate of an estate, with very few exceptions; if a PR is not appointed w/in 10 years of the decedent’s date of death, then probate may not be commenced thereafter.
What are the differences between an Informal Estate Administration and a Formal Estate Administration?
1) An applicant APPLIES for informal probate and appointment vs. A petitioner PETITIONS for formal probate and appointment (FORM 300 PC / ES); Application v. Summons and Complaint.
2) Informal proceedings are conducted without notice to interested persons by the court (SCRCP not required) vs. Formal proceedings require a Summons and Petition and must adhere to the SCRCP (be served upon all interested persons).
What are reasons you would file a Formal proceeding as opposed to an Informal proceeding?
1) You have a Will that needs to be probated and you know that there will be an argument and litigation to follow;
2) You want to stop or block an application for Informal Probate that has been filed by someone else;
3) You want to overrule a previous Informal Order of Probate and/or reverse it; (Must happen with the later of 8 months from the start of the Informal probate or 1 year from the decedent’s date of death).
4) To get a Court Order that total or partial intestacy has occurred and to determine the heirs to receive property under intestacy.
5) You want to probate a Will that has been lost, destroyed, or is otherwise unavailable (as you do not believe that it was revoked).
What are the consequences of filing a Formal Probate after an Informal Probate?
1) Any informal probate that is in progress is suspended; and,
2) If informal probate has been granted, then the PR appointed in that proceeding is prohibited from making any distributions of the estate pending resolution of the Formal proceeding.
What must be included in a Petition for Formal Probate and Appointment?
A Petition must:
1) Ask the Court to determine if there is a valid Will;
2) Ask the Court to determine who the heirs are (if an intestate estate)
3) Include all the same info required on the application for an Informal Probate (Form 300).
What are the Notice requirements of a Summons and Petition for Formal Probate and Appointment?
It must be served on:
1) Anyone who has filed a demand for notice under § 62-3-204;
2) the surviving spouse and children;
3) other heirs of the decedent;
4) devisees named in the Will;
5) Personal Representatives named in any Will that is being probated or has been informally probated; and
6) A Personal Representative whose appointment has not been terminated.
