Many South Carolina residents have a general notion of what probate is and would prefer to avoid the process if possible. In many cases, the necessity of probate can be obviated by careful planning. If, despite the parties’ intentions, probate becomes necessary, it need not be an adversarial proceeding. Probate litigation, however, can be complex, time consuming and expensive.
Although the probate court has jurisdiction over matters involving conservatorships and guardianships, probate professionals explain that the bulk of cases revolve around settling the estates of those who have passed, sometimes with and a will and sometimes without. The primary duty of the probate court is to ensure that all the debts and obligations of the estate are satisfied and then to oversee the distribution of the decedent’s assets to the intended beneficiaries. If there is no will, the distribution proceeds according to a statutory scheme established by the state known as intestate succession.
Not every estate that includes a valid will needs to go through probate. Estates that contain no real property and are of minimal value may go through an expedited and simplified estate process. Additionally, estates that contain no probate property do not require probate. Non-probate property includes property held in joint tenancy, property with pay-on-death designations and life insurance proceeds, among others. However, when the validity of a will is challenged in some matter, the dispute may result in litigation, over which the probate court has exclusive jurisdiction.
The existence of multiple wills, allegations of undue influence or some type of fraud can all become issues once a will is presented. An estate planning lawyer may explain how probate works, how to potentially avoid it and how to adjudicate a contested matter if necessary.