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Is There Still Probate Court without A Will?

Butler Law Oct. 12, 2018

If a loved one has died intestate, meaning without a will, you may be inclined to believe that probate, the official proving of a will, would not be necessary. However, probate can’t be avoided because of the absence of a will.

In fact, there tends to be more probate litigation in intestate cases due to the lack of official documentation detailing the loved one’s wishes. Here are a few of the issues that often arise in intestate probate cases.

Succession order

The reason wills are primarily created is so that the appropriate beneficiaries receive certain property or assets. However, if a person has died intestate, the only official documentation to designate these assets is South Carolina intestate law.

The law designates the entire estate of the person who has passed to his or her surviving spouse unless the person who has passed had children. In that case, children would be entitled to equal shares of half of the estate, while the surviving spouse inherits the whole of the other half.

If the loved one who has passed had children and no spouse, the children inherit equal shares of the estate. In the cases that the person had no spouse or dependents, parents inherit the estate. And if the person had no parents, spouse or descendants, siblings would inherit the estate. Grandchildren of a deceased intestate person only receive a share if the parent (the intestate person’s child) has also passed. If none of these apply, distant relatives may be eligible to make a case in probate court. Friends and charities, however, will not be able to inherit from a person who has died intestate.

This succession can rarely be challenged, but exceptions may be made in some circumstance. For example, in cases where relatives are estranged or there is a history of abuse, a case may be made that the succession should be altered.

Succession designation

Another issue that often arises in intestate probate cases is who gets what. For example, if children of the intestate person are all entitled to equal shares of half of the estate, there may still be conflict over who gets the antique clock or the family heirloom chest. If these issues cannot be resolved among family members, probate litigation may be necessary to prove who the assets should rightfully belong to.

Appointing an administrator

An administrator, also called a personal representative, is in charge of handling the responsibilities that the executor of a will would normally have. This includes settling debts and taxes, managing the estate, distributing assets and more. Generally, the court will appoint someone to manage the probate process. However, family members may dispute this in probate proceedings if the person appointed is not competent in carrying out these duties.

If you have further questions concerning probate proceeding for a loved one who has died intestate, consult with an attorney to learn more about your rights and the expectations you should have if you choose to pursue probate litigation.