When someone dies, they almost always leave behind assets of one type or another. Sometimes a large and valuable estate is left behind while in other cases only personal property is left behind. In most cases, the legal process known as probate is required in order to ensure that the decedent’s estate assets are properly handled after death and passed down to the intended beneficiaries or heirs of the estate. Is probate always required though? The answer is “no”, probate is not always required.
Probate has several purposes. First, probate is used to ensure that all estate assets are located, inventoried and valued. Second, probate is used to notify creditors of an estate so that claims against the estate can be filed and paid. Third, probate is used to ensure that all personal and estate taxes due are paid and finally, probate allows for the legal transfer of estate assets to beneficiaries or heirs of the estate. Absent pre-planning on the part of the decedent, most estates are required to go through formal probate which can be a lengthy and time consuming process. Even a relatively small estate can take months, even years, to probate.
In South Carolina, there are alternatives to formal probate. If the total value of the decedent’s belongings is less than $25,000, and if no real property is involved, a Small Estate probate process can be used in lieu of formal probate. Even if the decedent owned nothing at the time of death, probate may still be required if legal action on behalf of the decedent is required, such as a wrongful death lawsuit.
Because of the cost and time involved in formal probate, people often choose to incorporate probate avoidance strategies in their estate plan. One of the most popular ways to avoid probate is to create a trust agreement and transfer all major assets into the trust. Assets owned by a trust are not required to go through the probate process. In addition, life insurance proceeds are also not required to pass through probate nor are assets held in an account designated as a “Payable on Death (POD) or Transfer on Death (TOD) account. Finally, jointly held property, if titled in the right way, may also pass outside of the probate process. With careful estate planning, most, if not all, of your estate assets can be transferred to beneficiaries without the need for them to wait out the probate process first.
If you have additional questions or concerns about the probate process or estate planning in general, contact the experienced South Carolina estate planning attorneys at Kuhn & Kuhn Law Firm by calling 843-577-3700 to schedule your appointment.
John Kuhn, Estate Planning Attorney
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