Did you know that nearly sixty percent of adults do not have a will or trust? No matter how old you are, not having a will has the potential to be a pretty big oversight. A will helps ensure that the probate process goes smoothly and your belongings go to the exact people that you would like to have them.
Maybe now you’re sitting here realizing that you’ve never heard of probate and you feel a little in over your head. If that’s the case, don’t worry; you’ve come to the right place.
In this article, we’ll explain exactly what probate is and how it works. We’ll also explain the finer points of the probate process in the area where you live and if you should have a will or not. All you need to do in order to start preparing is keep reading.
What Is Probate?
Probate is a court-supervised process following the death of a person. If that person has a will, it includes determining if that will is valid and breaking up the deceased’s assets according to their previously recorded wishes.
The probate process is overseen by what is called a probate court, which has been given the legal right to make decisions in matters of estates and wills.
Probate court is also responsible for appointing an executor, someone who is responsible for handling the estate. In addition, the probate court will pay the deceased’s debts using the deceased’s estate. Finally, the probate court is in charge of locating and identifying all of a deceased person’s assets.
Probate laws vary from state to state. No matter what circumstances you’re in, whether it’s planning your will or handling a loved one’s death, it would be smart to read up on the laws of your state.
How Does Probate Work?
If the deceased person has a will, the first step in the probate process is authenticating that will and making sure it is valid.
Once this is complete, probate court will typically select an executor. It is the executor’s responsibility to make sure assets are handed out as planned. If the deceased had a will, then they may have selected their own executor.
If the deceased did not have a will, it becomes the executor’s responsibility to locate and identify each of the deceased’s assets. This can take a lot of work; some people own assets they never mentioned to anyone.
Once all the assets are identified, the executor is in charge of paying off their debts using the estate. They are also in charge of notifying any creditors the deceased had accounts with. Lastly, they file the deceased’s final tax return.
When all of these responsibilities have been fulfilled, the executor can file a probate petition to begin distributing the estate to the heirs.
Should I Have a Will for the Probate Process?
The simple answer to this question is that you should absolutely have a will. Even though it seems like a hassle for you, there are plenty of good reasons why you should have a will.
The first and probably best reason why you should have a will is that it allows you more control over your estate, even following your death. There are likely different assets that you would like to go to different people. Having a will allows you to specify this in writing, which makes it more likely to happen.
Another good reason is that it allows you to spare your loved ones any additional stress. Writing a will means that your loved ones merely have to follow it, rather than try to figure out what you would want on their own.
Probate Laws in Mount Pleasant, SC
The first thing to know is that South Carolina has a longer window of time when you can file probate than other states do. South Carolina allows you to file a probate petition within ten years of a loved one’s death.
Another important thing to know is that the South Carolina probate court is merely a separate entity in the category of trial courts. In addition, each county in South Carolina has its own probate judge.
Formal probate in South Carolina is typically open for eight months. Some may choose to have probate be open slightly longer than that. This allows a period of time for creditors to file claims against the estate.
If someone contests the will, that will delay any other proceedings. This is because probate court will need to arrange a hearing on the matter.
Depending on how complex one’s estate was or how many people challenge it, the probate process can last for years.
Problems in the Probate Process
There are plenty of problems that can come up during the probate process.
The most common problem is typically involving the will. This can be an heir challenging that the will wasn’t valid, or it can be a claim that a new will was created before the person’s death.
In the first case, this happens because someone believes the deceased’s will was made when the deceased wasn’t of sound mind and is therefore fraud. In the second case, there could be multiple wills and you’d need to determine which will is the most recent.
Another common problem is that the person named executor decides they don’t want the responsibility. If this happens, the probate court will need to appoint another executor.
Reach Out to Us
Now that you’ve learned how the probate process works in Mount Pleasant, SC, are you ready to search for a Mount Pleasant lawyer? If so, look no further. Where better than McGrath Law Firm?
Whether you need help finding a lawyer to assist in the probate process or you’re looking for a lawyer to help you make a will, we’re sure one of our attorneys will be able to help.
If you have any questions or concerns, you should reach out to us. Simply fill out the form and we’ll get back to you with your answers.