What to Do After a Loved One Dies in South Carolina: A Practical Deep Dive

After the death of a loved one, there are many things to do – some personal, some administrative, and some legal. The following guide is intended to help you through that process, in the following general order:

First things first
Make funeral arrangements
Gather important paperwork
Inform parties of death (and stop or apply for benefits)
Settle the estate

Do expect to jump around between sections, as things don’t always proceed step by step.

Don’t be daunted by all the checkboxes. You won’t need to do all the things listed below, as the exact tasks depend on individual circumstances.

Let’s get started.

1. First Things First

These items should be taken care of within the first hours and days after death.

– Identify the personal representative / executor. The personal representative (as it’s called in South Carolina) has the critical job of settling the estate of the deceased. This is usually a close loved one like a spouse or responsible adult child. The personal representative is named in the will; if there is no will, the probate court will appoint a personal representative. (See below under Settle the Estate for more details.)The personal representative is typically in charge of carrying out or delegating the tasks below.

– Find a funeral home to handle the remains and take care of arrangements. Even if there are no plans for a funeral, showing, or ceremony of any kind, a funeral director is licensed in the state to handle human remains and can help with the necessary paperwork, including the death certificate.

– Inform family and friends of the death, as well as the deceased’s workplace, school, agent(s) of POAs, guardian, conservator, or any other party relying on him or her. This is a task that can be divided among a few family members.At this time, you may also want to inform the family lawyer, financial advisor, and tax preparer/accountant as a courtesy and for help as needed throughout the process.

– Make arrangements for dependents and pets as needed, if arrangements have not already been made.

– Start vacating deceased’s home if required. If the deceased lived in an apartment or other rental, check the lease or speak with the landlord to determine how long you have to vacate the premises. It’s often 30 days, but it could be more or less. Important: Do not dispose of anything without the explicit permission of the personal representative. Ideally, the personal representative will take part in the cleaning process from the start.

2. Make Funeral Arrangements

– Ascertain the deceased’s last wishes. Surviving family members may already know what kind of service and burial/cremation the deceased wanted. If not, check whether the deceased included last wishes in his or her last will, living will, or advance directive, if available.

– Request honors for veterans and active-duty military. Surviving family members of eligible veterans and active-duty military members may request funeral honors and items such as the playing of Taps, a burial flag, an urn, and more. Your funeral director can make arrangements for honors at the service with 48 hours’ notice. You can request memorial items before or after burial. Learn more on the USA.gov Military Funeral Honors page here or call 1-844-872-4681.Certain veterans and active-duty military members may also be eligible to buried in a national cemetery. Learn more about that on the VA website here or call 1-800-698-2411 (TTY: 711).

– Make arrangements and hold services. Your funeral director will help you with the process, including requesting information or completing paperwork for compliance purposes.

In South Carolina, authorization is required for cremation. If the deceased filled out a pre-need authorization before death, that will be on file with the pre-selected funeral home or crematorium. If not, an at-need authorization form can be filled out by an agent of the deceased. You can find both these forms on the SC Board of Funeral Service page and scrolling down to the “Forms” section at the bottom, or navigate directly to the PDF here.

– Send thank you notes afterwards. It’s kind and customary to send a thank-you note to those who sent condolence notes and flowers, gave the eulogy, acted as pallbearers, performed music, or otherwise helped in planning and carrying out services, and anyone else whose presence or actions were a comfort to you.

3. Gather Important Paperwork

Much of tying up loose ends after someone’s death is submitting the right document to the right party. Here are the kinds of documents that should be collected:

Request official documents from the state

The links below are for deaths, marriages, and divorces that occurred in South Carolina. If you need records from another state, contact that state’s vital records agency or the relevant county clerk’s office.

– Death certificate. The funeral home will complete and file the death certificate in the county where the death occurred, and many funeral homes provide a limited number of copies to surviving family members.

Additional certified copies may be requested online, by phone, by mail, or in person from the Vital Records division of the SC Department of Public Health. Learn more on the Vital Records website here or call 803-898-3630.

We recommend getting ten (10) certified copies of the death certificate in most cases. Very complex estates could need more.

– Marriage certificate. Not always required. For marriages that occurred in South Carolina, request copies from relevant county or from the Vital Records department. Learn more here or call 803-898-3630.

– Divorce decrees. Not always required. For divorces that occurred in South Carolina, request copies of the Report of Divorce from the relevant county or from the Vital Records department. Learn more here or call 803-898-3630.

Obtain documents from the deceased’s personal files regarding:

Last will and testament
Social Security number
Life insurance policies
Retirement account and/or pension information
Federal income tax returns for the past 3 years
C. State income tax returns for the past 3 years
Federal gift tax records
Real estate deed(s)
Mortgage(s)
Vehicle title(s)
Bank and financial account(s)
Stocks and bonds information
Credit card account(s)
Veteran’s discharge papers (DD-214)
Safe deposit information (and keys)
Trust documents
Adoption decree(s), as needed
Bankruptcy papers
Other documents specific to the deceased

This list is a good starting point. As you go through the process of settling the estate (see more below), you may find you need additional documents.

Tip: Where to look

Locating another person’s items after death can be challenging. Here are some places to look if you can’t easily find the documents above:

File cabinets, folders, binders, safes are the first places to look
Estate planning attorney who drafted the will, trusts, or other estate planning documents; some attorneys keep original copies
Safety deposit boxes for important and sensitive documents
Mail for correspondence on accounts, which can help you find account numbers

4. Inform Parties of Death and Stop and/or Apply for Benefits

Wait to formally inform creditors, like mortgage lenders and credit card companies, until after speaking with a probate attorney (see below). Do not wait to put a stop to benefits.

Inform relevant agencies and parties to stop benefits

If the deceased was receiving regular payments or benefits, the personal representative should ensure the government agencies are informed of the death as soon as possible (within a few days or weeks) to avoid overpayment. All overpayments must be paid back.

Federal-level agencies to inform, as needed:

– Social Security Administration (SSA) and Medicare. The funeral director usually reports the death to the SSA, which in turn informs Medicare. Learn more on the USA.gov website here. Verify with the funeral director that the SSA was informed, and if not, call to report the death yourself at 1-800-772-1213 (TTY: 1-800-325-0778).

– Veteran Affairs (VA). Report the death of a veteran to the VA as soon as possible. Learn more on the VA website here or call 1-800-827-1000 (TTY: 711).

– Defense Finance and Accounting Service (DFAS). Report the death of a military retiree to the DFAS as soon as possible to avoid overpayment. Learn more on the DFAS website here or call 1-800-321-1080.

– US Office of Personnel Management (OPM). Report the death to the OPM if the deceased was a federal employee (go here for more information) or a federal retiree (go here for more information) receiving benefits.

State-level agencies to inform, as needed:

– SC Public Employee Benefit Authority (PEBA). Report the death to PEBA if the deceased was a South Carolina State employee; learn more on the PEBA website here or call 1-888-260-9430.

– SC Department of Social Services (DSS). Inform the DSS if the deceased was receiving SNAP, TANF, KinGAP or foster-care payments, adoption assistance, or any other assistance program benefits. Learn more here or call 1-800-616-1309. Contact any other state-administered assistance programs as needed.

– SC Department of Employment and Workforce (DEW). Inform the DEW if the deceased was receiving benefits through the Unemployment Insurance program; call 1-866-831-1724, Relay 711.

Other parties to inform, as needed:

Insurance company paying workers’ compensation benefits
Insurance company paying long-term disability (LTD)
Union or private pension providers

Tip: Check the deceased’s mail, documents, or bank statements, or call the employer’s HR department to find contact information of the correct party to notify.

This list may not be comprehensive. Contact all relevant parties as needed. The USA.gov website has a long list of federal agencies to potentially notify when someone dies; check that out here.

Inform other parties to close accounts or make changes as needed

The personal representative should inform the following parties, if relevant:

– US Postal Service (USPS). Learn how to stop or forward mail of the deceased on the USPS website here, or call or visit your local USPS location.

– US Citizenship and Immigration Services (USCIS). If the deceased was a petitioner, financial sponsor, or both for any pending USCIS application, inform the USCIS of the death, even if the deceased was a US citizen. Learn more on the USCIS website here or call 800-375-5283 (TTY 800-767-1833).Look into Humanitarian Reinstatement if Form I-130, Petition for Alien Relative, was approved before the petitioner’s death. Learn more about it on the USCIS website here.

– SC Department of Social Services (DSS). If the deceased was paying or receiving child support, or was enrolled in the Adult Protective Services (APS) program, the DSS must be notified. Find contact information for APS here and for child support here or call the Child Support Call Center at 1-800-768-5858.

– Credit bureau. Inform one of the three credit bureaus (Equifax, TransUnion, or Experian), which will inform the other two; learn more on the Experian website here.

Apply for benefits in a timely manner

The beneficiary should apply or verify eligibility for benefits in a timely manner. In cases where the surviving spouse or child is the personal representative, he or she will apply as the beneficiary. Otherwise, as a courtesy, the personal representative can advise the next of kin to complete these tasks if applicable.

Parties to contact, if relevant:

– Social Security Administration (SSA). Surviving family members may be eligible to receive a one-time lump sum death payment (LSDP) of $255 and/or ongoing benefits. Learn more on the SSA website here or call 1-800-772-1213 (TTY: 1-800-325-0778).

– Veteran Affairs (VA). Certain surviving family members are eligible to receive a Survivors Pension; learn more on the VA website here. Dependency and Indemnity Compensation (DIC) is also available to eligible surviving family members; learn more on the VA website here or call 1-800-827-1000 (TTY: 711).

– Department of Defense (DoD) Department of War (DoW). Eligible survivors of a member of the Armed Forces who died while on active duty or in other select circumstances may be entitled to a one-time, tax-free payment of $100,000. Learn more here.

– Defense Finance and Accounting Service (DFAS). If the deceased had enrolled in the Survivor Benefits Plan (SBP), then a Verification for Survivor Annuity form (DD 2656-7) will be sent in the mail to the address on record that must be completed and sent back to begin receiving annuity payments. Learn more on the DFAS website here or call 1-800-321-1080.

– US Office of Personnel Management (OPM). Upon being informed of the death, the OPM will mail a packet to survivors with forms to fill out and return to begin receiving benefits. Learn more here or call 1-888-767-6738.

– SC Public Employee Benefit Authority (PEBA). Complete required survivor-benefit claim forms to confirm eligibility of benefits; learn more on the (PEBA) website here or call 1-888-260-9430.

– SC Workers’ Compensation Commission. If the deceased’s death was work related, the dependent must file Form 52 within 2 years of the death to receive death benefits. Find more information on the FAQ page with a link to forms here or email claims@wcc.sc.gov with any questions.

– Union pension survivor benefits. If the deceased was part of a union (e.g., Teamsters or United Auto Workers), contact the union for instructions on what to do next.

This list may not be comprehensive. Contact all relevant parties as needed.

Inform personal and professional associations

Do this as a courtesy and/or to close accounts and prevent recurring dues/fees:

Gyms and health clubs
Professional groups and unions
Alumni groups
Hobby groups and associations
Automobile service clubs
Other organizations specific to the deceased

Note: If the deceased recently moved to South Carolina from another state or country, make sure to notify relevant out-of-state parties and check for any assets, benefits, or policies in that state or country.

5. Settle the Estate: Open Probate, Pay Debts, Distribute Assets

Soon after the decedent’s death, his or her personal representative (executor) should begin to administer the estate, ideally working alongside a probate attorney. Here is a brief overview of that process:

– Find a probate attorney. Working with a probate attorney is not legally required in South Carolina, but it is advisable to hire one unless the estate is very small and straightforward. Probate attorneys are paid out of the estate.The personal representative and probate attorney work together to complete the tasks below.

– File a petition for probate with the county probate court within 30 days. The probate court will officially appoint the personal representative, either an individual named in the will or (if there is no will) the next of kin. The most recent will (if any) and death certificate must be furnished to the court within 30 days.See below for links and/or phone numbers to South Carolina counties’ probate courts.

– For small estates: File a Small Estate Affidavit instead after 30 days. A streamlined process is available for estates valued at or below $45,000 with no real estate. A probate attorney can help determine whether this is an option.

(Note: the threshold for summary administration for small estates in SC was raised from $25,000 to $45,000 effective May 8, 2025; see SC Code § 62-3-1203. Not all county probate court pages, linked below, have been updated to reflect this change.)

– Inform creditors and other interested parties. A Notice to Creditors must be published in a newspaper once a week for three weeks. Some probate courts in SC now do this for you. In addition, send formal notices to interested parties, including heirs, beneficiaries, and known creditors such as:

- Bank(s), credit union(s), brokerage firm(s).
- Mortgage company
- Credit card company
- Auto loan lender
- Other creditors

– Create an inventory and appraisement. List all assets in the probate estate and their estimated value on Form 350PC, Inventory and Appraisement, often available on the website of the county where the decedent died. Submit this to the court within 90 days of the appointment of the personal representative.

– Address Assets Not Subject to Probate. Not all assets are subject to probate. While they are not part of the probate estate, the probate attorney will often help as part of the process. If not, the personal representative can handle them (if he or she is the intended beneficiary) or, as a courtesy, advise the next of kin to do so.

- Life insurance policies. This includes private, union or association, employer, and government-provided policies. Follow the company’s procedures for payment of proceeds to the named beneficiary. If the deceased was a federal employee or retiree with Federal Employees’ Group Life Insurance (FEGLI) coverage, notify the FEGLI; learn more on the OPM website here.
- Retirement account(s). Follow the procedures of the company managing the retirement account to ensure funds are paid to beneficiaries.
- Bank and investment accounts that are Payable on Death (POD) or Transfer on Death (TOD). Notify the institution to claim the funds.
- Properties owned as joint tenants with rights of survivorship (JTWROS). The survivor owns the property automatically without having to do anything. However, notifying the county of the death is advisable to keep the chain of title clean and avoid future headaches.
- Vehicles owned jointly or vehicles with a TOD beneficiary. Inform the SC Department of Motor Vehicles (DMV) of the death if a vehicle was owned jointly or had a Transfer-on-Death beneficiary. (If not owned jointly, the vehicle will be part of the probate estate.) Read more here about inheriting a vehicle.
- Trust assets. The probate attorney often helps administer existing trusts, including trusts attached to a pour-over will.
- 529 plans with successor owners. These plans are unique because they do not pass to the beneficiary, but to a successor owner. If no successor owner is designated, it will be part of the probate estate.This list is not comprehensive but covers the most common assets not subject to probate.

– Pay money owed. Debts and taxes are paid out of the estate first, including funeral bills, court and administration fees, attorney’s fees, and the personal representative’s fee (if not waived). Keep track of all transactions.

Note that creditors have eight (8) months from the time the Notice to Creditors is published or one year from the date of death, whichever is earlier, to make a claim against the estate.

Learn more about filing the final federal tax return after someone has died on the IRS website here and about the final SC State tax return here.

– Distribute assets. Assets may be distributed to heirs according to the terms of the will or, if no will, according to state intestacy laws.

– Submit a final accounting to the court. This document shows income, expenses, distributions, remaining assets, and more of the estate.

– Close the estate. Once everything is done, fill out and file a settlement or closing document as required by the county to officially close the estate.

South Carolina County Probate Courts Contact Information

Here are links and/or phone numbers for South Carolina probate courts / estate administration pages by county:

Abbeville County: https://abbevillecountysc.com/probate-court/ (864) 366-5312, ext. 62
Aiken County: https://www.aikencountysc.gov/376/Estates 803-642-1715
Allendale County: no probate court page; (803) 584-3157
Anderson County: https://www.andersoncountysc.org/departments-a-z/probate-court/ (864) 260-4000
Bamberg County: https://www.bambergcounty.sc.gov/county-courts/probate-court (803) 245-5191
Barnwell County: no probate court page; (803) 541-1031
Beaufort County: https://beaufortcountysc.gov/probate-court/estate-administration.html (843) 255-5850
Berkeley County: https://berkeleycountysc.gov/dept/probate/ (843) 719-4519
Calhoun County: https://www.calhouncountyprobate.net/estates (803) 874-3514
Charleston County: https://www.charlestoncounty.gov/departments/probate/estate.php (843) 958-5031
Cherokee County: https://cherokeecountysc.gov/probate-court/ 864-487-2583
Chester County: https://chestercountysc.gov/courts/probate-court/ (803) 385-2604
Chesterfield County: https://www.chesterfieldcountysc.com/probate-court (843) 623-2574
Clarendon County: https://www.clarendoncountysc.gov/our-government/probate/ 803-433-3263
Colleton County: https://www.colletoncounty.org/probate 843-549-5571
Darlington County: https://darcosc.com/courts_legal/probate_judge.php 843-398-4310
Dillon County: https://dilloncountysc.org/courts/probate_judge.php (843) 774-1423
Dorchester County: https://www.dorchestercountysc.gov/government/courts-judicial-services/probate-court/estate-division (843) 563-0100
Edgefield County: https://edgefieldcounty.sc.gov/probate-court/ 803-637-4076
Fairfield County: https://www.fairfieldsc.com/departments/probate-court/estate-administration 803-712-6519
Florence County: https://www.florencecountysc.gov/offices/elected/probate-court/estate.php 843-665-3085 (ext. 2)
Georgetown County: https://www.gtcountysc.gov/224/Probate-Court 843-545-3274
Greenville County: https://www.greenvillecounty.org/probate/467.7170
Greenwood County: https://www.greenwoodcounty-sc.gov/probate-court (864) 942-8500
Hampton County: https://hamptoncountysc.org/25/Probate-Court (803) 914-2172
Horry County: https://www.horrycountysc.gov/departments/probate-court/ (843) 915-5370
Jasper County: https://www.jaspercountysc.gov/public-safety-offices/county-courts/probate-court/ 843-726-7700
Kershaw County: https://www.kershaw.sc.gov/government/departments-h-q/probate-court/estates (803) 425-1503
Lancaster County: https://www.lancastercountysc.gov/366/Probate-Court 803-283-3379
Laurens County: https://www.laurenscountysc.gov/government/elected_officials/probate_court/index.php 864-984-7315
Lee County: https://www.leecountysc.org/directory/departments___elected_officials/probate_court_judge.php 803-484-5341 ext. 3155
Lexington County: https://lex-co.sc.gov/departments/probate-court/estate-administration (803) 785-8324
Marion County: https://www.marionsc.org/departments/probate_judge/index.php (843) 423-8244
Marlboro County: https://marlborocounty.sc.gov/government_/departments_.php#collapse1310b19 843-479-5610
McCormick County: https://www.mccormickcountysc.org/departments/probate_court.php#outer-25 (864) 852-2630
Newberry County: https://www.newberrycounty.gov/probate-court/estate-administration (803) 321-2118
Oconee County: https://oconeesc.com/probate-home 864-638-4275
Orangeburg County: https://www.orangeburgcounty.org/206/Probate-Court 803-533-6284
Pickens County: https://www.co.pickens.sc.us/departments/probate_court/index.php (864) 898-5903
Richland County: https://www.richlandcountysc.gov/Courts-Safety/Probate-Court/Estates 803-576-1961
Saluda County: https://saludacounty.sc.gov/departments/probate 864-445-4500 ext. 2219
Spartanburg County: https://www.spartanburgcounty.org/153/Probate-Court 864-596-2556
Sumter County: https://www.sumtercountysc.gov/departments/j_-_r/probate_court/index.php 803-436-2166
Union County: https://www.unioncountyprobate.net/ (864) 429-1625
Williamsburg County: https://www.williamsburgcounty.sc.gov/311/Probate-Court 843-355-9321 Ext. 6200
York County: https://www.yorkcountygov.com/169/Probate-Court 803-684-8513

Help with the Process

The process of settling someone’s affairs after death can seem daunting, but help is available. If you’re in the greater Charleston or Myrtle Beach area, call probate attorney Gem McDowell of the Gem McDowell Law Group at 843-284-1021 to schedule your free consultation today.

Learn More:

Check out these other related articles on our website by topic:

Personal Representative – Probate

I’m a Personal Representative – Now What? Rights, Roles, Responsibilities, and Risks

Clearing Up Confusion About Probate in South Carolina

Should Your Estate Go Through Probate? Why or Why Not?

Probate vs. Non-Probate: A Practical, In-Depth Look at Assets After Death in South Carolina

Wills – Inheritance – Disinheritance / Omission – Elective Share

What Happens If You Die Without a Will in South Carolina?

Left Out of the Will – Now What? Omitted Spouse, Pretermitted Child

The Omitted Spouse: When the Spouse is Left Out of the Will

I’ve Been Disinherited – Now What?

Spousal Elective Share: What It Is and How to Claim it in South Carolina

Heirs’ Property

What is the “Heirs’ Property Tax Relief Act”? Help Clearing Titles

Probate vs. Non-Probate: A Practical, In-Depth Look at Assets After Death in South Carolina

When someone dies and the estate is settled, not all of the assets are treated the same way. Some assets go through probate, while others pass outside of probate.

Assets that pass through probate are called probate assets.

Assets that do not pass through or go through the probate process are called non-probate assets.

If you are helping settle the estate of a loved one who recently died or are engaging in estate planning for yourself and your family, understanding this distinction is important.

Below is a practical, comprehensive overview of the topic that goes beyond the surface.

Why Probate vs. Non-Probate Matters

First, why does it matter?

Probate vs. non-probate is not just a legal technicality or a matter of semantics. It has real-world implications for the heirs and beneficiaries.

Whether an asset like a house, vehicle, or bank account is subject to probate or not will determine:

How quickly the heir/beneficiary can take possession of certain assets
Whether court oversight is required
Whether the asset can be used/liquidated to satisfy creditors
Whether the asset goes into the probate estate or not

On this last point, only assets subject to probate make up the “probate estate.” It’s from this pool of assets that debts, taxes, and other expenses are paid, and what’s left over is then divided among heirs. If someone has purposely tried to avoid probate, the probate estate itself will be small or non-existent. Read more about what it means to avoid probate in South Carolina, and why it’s not always necessary.

We’ll look at the probate process more below. Next, what assets are subject to probate, and what aren’t?

Probate Assets vs. Non-Probate Assets (Which Assets Are Always, Never, Sometimes Subject to Probate)

Whether an asset is subject to probate or not does not depend on whether there’s a valid will. Instead, it’s the legal mechanism of transfer that determines whether the asset is subject to probate or will pass outside of it.

Probate: When the succession of ownership is determined either by the terms of the will or (if there is no will) by state intestacy law, the asset is subject to probate.
Non-probate: When the transfer of ownership is controlled by beneficiary designation, survivorship terms, or contract language, the asset is not subject to probate.

Assets subject to probate in South Carolina:

Real estate owned solely by the deceased
Deceased’s share in real estate owned as joint tenants in common (TIC)
Bank accounts solely in the name of the deceased with no valid POD (payable on death) designation
Bank accounts owned jointly without explicit survivorship language
Investment accounts with no valid beneficiary or TOD (transfer on death) designation
Vehicles, etc.*, owned solely by the deceased
Deceased’s share in a vehicle, etc.*, owned jointly with “AND” in the title
Deceased’s interest in a business without a valid written succession plan
Life insurance proceeds payable to the estate rather than an individual beneficiary
Life insurance proceeds from a policy with missing or invalid beneficiaries
Retirement accounts with missing or invalid beneficiaries
Unpaid wages, commissions, or refunds owed to the deceased at the time of death
Personal property (e.g., furniture, jewelry, clothing, physical cash)

Assets not subject to probate in South Carolina:

Real estate owned as joint tenants with rights of survivorship (JTWROS) or owned with explicit survivorship language in the deed
Vehicles, etc.*, with a TOD designation
Vehicles, etc.*, jointly owned with “OR” in the title
Deceased’s interest in a business with a valid written succession plan
Life insurance proceeds from a policy with a valid named beneficiary
Retirement accounts with a valid named beneficiary
Annuities with a valid named beneficiary
POD (payable-on-death) bank accounts
TOD (transfer-on-death) investment accounts
Assets correctly held in certain trusts

* “Vehicles, etc.” includes any property for which the SCDMV issues a title of ownership, including motor vehicles, mobile / manufactured homes, trailers / campers / RVs, etc.

Assets sometimes subject to probate depending on how they are owned/titled, include (but are not limited to):

Mineral rights
Digital assets
Timeshares
Intellectual property
Promissory notes
Structured settlements

A probate attorney can help unravel ownership and how these assets should be handled.

Cheat Sheet Chart by Asset and Ownership

Here’s a chart summarizing how different assets are categorized as probate or non-probate in South Carolina depending on how they are owned or titled:

Deceased’s interest in:	Subject to probate:	Not subject to probate:
Real estate / real property	Owned solely by the deceased Owned jointly as tenants in common (TIC)	Owned jointly as tenants with rights of survivorship (JTWROS) or otherwise owned jointly with explicit survivorship language
Vehicles, inc. motor homes, RVs, etc.	Owned solely by the deceased without valid TOD designation Owned jointly with “AND” in the title	Owned solely with valid TOD designation Owned jointly with “OR” in the title
Bank and investment accounts	Owned solely by the deceased without a POD or TOD designation Owned jointly but without explicit survivorship language	Owned solely by the deceased with a valid POD or TOD designation Owned jointly with explicit survivorship language
Retirement accounts, life insurance proceeds, and annuities	Proceeds from policies and accounts with missing or invalid beneficiaries Life insurance proceeds payable to the estate rather than an individual	Proceeds from policies and accounts with valid named beneficiaries
Business (LLC, partnership, etc.)	Interest in business without a valid written succession plan	Interest in business with a valid written succession plan
Other	Unpaid wages, commissions, refunds owed to deceased at time of death Personal property (e.g., furniture, jewelry, clothing, physical cash)	Assets correctly held in trust

Where Probate vs. Non-Probate Gets Complicated

The lists above are nice and neat, but they don’t fully reflect the sometimes-messy reality of probate. Here are some areas to watch out for that can cause confusion:

“Joint ownership” without survivorship language. In South Carolina, joint ownership doesn’t mean automatic ownership for the surviving co-owner. There must be explicit language regarding survivorship succession for the asset to pass outside probate. For real property, this means survivorship language in the deed itself. For bank accounts or investment accounts, this means survivorship language in the account agreement. If that language is missing, the deceased’s interest in that asset will be subject to probate.

Property located or titled in another state. Different states recognize different forms of ownership, which can affect whether an asset is subject to probate.

For example, South Carolina has not recognized a type of ownership of real property called “tenants by the entirety” (TBE) since 1953, but several other states still do. If a property owned as TBE is located in another state, a South Carolina court will follow the rules of that state. This usually means ownership of the deceased’s interest in the property will automatically pass to the surviving tenant outside probate. But if a property owned as TBE is located in SC (rare, but it can happen), and the deed does not contain explicit language on survivorship, it will be treated as if it were owned as joint tenants in common. Then the deceased’s interest in the property will be subject to probate.

Insolvent estates. Many assets passing outside of probate are shielded from creditors by law, but not all. In cases where the estate is insolvent – i.e., there’s not enough in the probate estate to cover debts, taxes, and other expenses – creditors may be able to recover from certain non-probate assets, even though they are not part of the probate estate.

Undetected errors, mistakes, and inconsistencies. Assets intended to pass outside of probate may end up in the probate estate for a variety of reasons, including named beneficiaries who are pre-deceased or missing, mistakes in language on a deed or title, unenforceable business operating agreements or buy-sell agreements, or improperly funded trusts. These kinds of errors only come to light in the course of settling the estate.

How Ownership of Probate Assets Passes, and How Long It Takes

Assets subject to probate must go through probate, the process of tying up legal and financial loose ends after a person dies, in order to be put in the heir’s possession.

The probate process is overseen by the county’s probate court. The personal representative, whose job it is to settle the estate of the deceased, often works with a probate attorney to get it done. Probate assets can only be transferred to heirs after approval from the probate court. Read more about the steps and costs of probate or read more about the role of the personal representative (aka executor) in South Carolina.

The personal representative and the probate attorney create an inventory of the deceased’s outstanding debts and assets. The assets subject to probate make up the “probate estate.” Debts, expenses, and final taxes are paid first out of the probate estate. Only then are the remaining assets distributed among heirs either according to the terms of the valid will or according to state intestacy laws. Read more about what happens to a person’s estate when they die “intestate” (without a will) and read more about the importance of probating the estate and taking the step-up in basis.

Timeline: How quickly heirs can take possession of their inheritance depends in part on state law, in part on the estate’s complexity and solvency. South Carolina law gives creditors eight months from the time notice is published to make a claim and expects most estates to be closed within three years after death.

Small estates: Small estates (estates with no real property that are valued under $45,000 as of May 2025) may qualify for a simplified, expedited process. Assets may pass to the heir(s) within just a few months after death.

Most estates: Disbursements typically occur within 9-12 months for most estates. If the estate is clearly solvent and straightforward, the personal representative may begin making partial disbursements even before the full eight months has passed.

Complicated and/or potentially insolvent estates: Disbursements typically occur once all outstanding issues (lawsuits, liens, debts, etc.) have been resolved, which may be many months or even years after death.

How Ownership of Non-Probate Assets Passes, and How Long It Takes

Ownership of assets not subject to probate passes according to the way the asset is owned or titled. Ownership is transferred:

Either automatically: For some assets, ownership passes automatically upon death without the heir/beneficiary having to do anything. E.g., interest in real estate owned as JTWROS or otherwise owned jointly with explicitly survivorship language in the deed; interest in a vehicle jointly owned with “OR” in the title; bank accounts owned jointly with survivorship language; and assets owned in certain kinds of trusts.

While it’s not absolutely necessary, the heir may have vehicles and real property retitled in his or her name only to keep the chain of title clean.

Or after claiming: For other assets, the heir/beneficiary must claim them to take legal possession. This usually requires submitting a claim form along with the death certificate and any other information required under the rules of the particular asset. E.g., life insurance proceeds, retirement account proceeds, POD or TOD accounts, and annuities.

Timeline: Heirs/beneficiaries may take or claim possession of non-probate assets right away without waiting for any set amount of time to pass. Approval from the probate court is not required. (Remember, however, that some non-probate assets may still be subject to creditors’ claims if the estate is insolvent.)

For Help with Estate Planning and Probate in SC, Call Gem McDowell

Are you the personal representative in charge of settling a loved one’s estate? Or are you looking for help with your own comprehensive estate plan? Gem and his team at the Gem McDowell Law Group can help. Gem has over thirty years of experience practicing in South Carolina, including helping families navigate the probate process and creating custom estate plans that avoid surprises and ensure peace of mind. Call today to schedule your free, no-obligation consultation. Offices in Myrtle Beach and Mt. Pleasant, SC. Call 843-284-1021 today.

11 Common Myths About Wills – Do You Believe These Misconceptions?

Which of these myths and misconceptions about last wills do you believe?

Myth: I have a will, so my estate will not go through probate.

Truth: Having a will does not mean your estate avoids probate.

This myth likely persists because of a misunderstanding of what probate is. Probate is simply the process of settling an estate’s debts and transferring ownership of certain assets to the appropriate heirs. To that end, a last will actually helps guide the probate process by directing what should happen to assets that are subject to probate.

Learn more about probate in South Carolina here on our blog.

Myth: Only rich people need a will.

Truth: Wealth is not the only factor to consider when it comes to creating a will.

Distributing sums of money to various heirs is not the only function of a will. In a will you can also name a guardian to take care of your minor children, specify who should receive personal property like family heirlooms, and name a personal representative / executor to be in charge of managing and closing the estate.

Making your wishes clear in a last will can be especially helpful if you have a complex family situation like second or third marriages with stepchildren or strained relationships with would-be heirs. By recording your final wishes in a will, you can help avoid litigation and arguments between beneficiaries after your death and other ramifications of Family Malpractice™.

Myth: Only old people need a will.

Truth: You don’t know when you’ll need a will; death can come at any age.

It can be hard to face your own mortality, but that’s not a good reason to put off getting a will. No matter your age, you should have a will, especially if you have children or other dependents.

Myth: My family knows what my wishes are, so I don’t need a will.

Truth: Your family does not determine what happens to your estate after your death.

If you die without a will, aka intestate, your estate is subject to your state’s intestacy laws. It’s not up to your family members to direct where your assets go, even if they did want to honor your wishes. And in many cases, sadly, they don’t want to honor the decedent’s wishes. A valid will with valid stipulations is the only legally binding way to direct where your assets that are subject to probate will go.

Myth: I don’t need a will because my spouse has power of attorney.

Truth: Your spouse’s powers under a power of attorney cease upon your death.

A power of attorney (POA) becomes invalid upon the death of the principal. So even if you grant your spouse unlimited powers over your estate through a POA during your life, those powers disappear upon your death, and your spouse has no legal authority to direct where your assets go. You can either rely on a valid will to determine what happens to your estate after death or you can rely on your state’s intestacy laws. There is no third option.

Learn more about powers of attorney here on our blog.

Myth: I don’t need a will because my only real asset is my house.

Truth: Even more reason to have a will!

If you die without a will, intestacy laws apply. In South Carolina and many other states, that means half your estate goes to your spouse and half your estate is split among your children. This can create a few different nightmare scenarios for surviving family members, such as the creation of heirs property, or a disagreement between the spouse and kids on what to do with the house. Read more about intestacy in South Carolina and what can go wrong here on our blog.

Myth: If I die without a will, my spouse will get everything, which is what I want anyway.

Truth: Maybe, maybe not. Don’t just assume your spouse will get everything.

This depends on your situation and your state’s intestacy laws. Under intestacy laws in most states, if you have a spouse and no issue (descendants) at death, your entire estate will indeed go to your spouse. But in some states, your parents or siblings could be entitled to a share. And if you do have children or grandchildren, your estate will likely be split in some manner between them and your spouse.

Myth: If I die without a will, the government will get everything.

Truth: Your estate will go to your relatives, and only in the rarest of cases will it go to the state.

Different states have different intestacy laws, but all states pass the estate on to the heirs of the deceased. The estate will go to the government as a last resort only if no heirs, close or distant, are located. But this is rare.

For example, in South Carolina, the estate will go to the surviving spouse or be divided between the surviving spouse and issue (descendants); if none, then to surviving parent(s); if none, then to issue of a parent (i.e., siblings); if none, then to grandparents or issue of grandparents; if none, then to great-grandparents or their issue. If none, only then does the estate pass to the state (see South Carolina Code Section 62-2-105).

So you can see that it would be a rare situation in which a person’s estate would go to the government. In the vast majority of cases, some surviving heir(s) will be located first.

Myth: I am the personal representative/executor for someone’s estate, so I can do what I want.

Truth: Personal representatives/executors have well-defined responsibilities and limited powers.

Personal representatives/executors do not have carte blanche to do whatever they want. Their role is to carry out the wishes of the decedent as stated in the will and settle the estate. In that role, they have a legal duty to execute the terms of the will in accordance with state law and a fiduciary duty to act in the best interest of the estate and its beneficiaries. If they fail to uphold their legal and ethical obligations, they can be held personally responsible.

Read more about the rights, responsibilities, and risks of being a personal representative on our blog.

Myth: I have a trust, so I don’t need a will.

Truth: Even with a trust, you should consider getting a “pour-over will.”

A pour-over will is a specific kind of will that ensures any assets left out of your trust(s) at the time of your death will be transferred into the trust(s). It’s not uncommon for people to create elaborate estate plan to avoid probate and forget to include an asset in the trust, meaning in addition to the expense of the trust, the estate must go through probate anyway. Getting a pour-over will should be part of your estate plan if you are determined to avoid probate.

Read more about different types of wills.

Myth: I can make small changes to my will on my own.

Truth: Changes to your will must follow legal formalities under state law to be valid.

Changes to a will are valid only if they follow the same legal formalities as the original will, such as being signed in the presence of two disinterested witnesses. This means you can’t just strike out terms and write in new ones, even if the changes you want to make are small. Make changes to your will by adding a valid codicil or drafting a new will entirely.

Two exceptions: 1. You can make changes to a handwritten memorandum if it’s legal in your state and referred to in your original will. 2. You can make changes to a holographic will, which is a type of will entirely written in the testator’s hand without a witness or notary.

Myth: My old will must be destroyed for the new one to be valid.

Truth: A new, valid will automatically renders previous wills invalid.

There’s no legal requirement to destroy an old will to make a new one valid. While some people believe there’s value in keeping old wills, in our practice we make a point to destroy them by shredding whenever possible.

Get Help with Your Will and Estate Plan in South Carolina

Do you need help with a will or trust? Whether you need a simple and straightforward will or a comprehensive estate plan for a large or complex estate, Gem McDowell and his team at the Gem McDowell Law Group can help. Call to schedule a virtual or in-person consultation at the Myrtle Beach or Mt. Pleasant, SC office today at 843-284-1021.

Risks for Personal Representatives: When Distributing Assets Becomes a Breach of Fiduciary Duty

Oftentimes, a personal representative (executor) in charge of settling a decedent’s estate is also a named heir who may be entitled to assets under the terms of the will. In real life, this looks like a daughter settling the estate of her deceased father, or a husband handling the estate of his deceased wife, or something similar.

This can lead to potentially complicated situations. A personal representative has a fiduciary duty to the estate, meaning they are legally required to act in the best interest of the estate and its heirs. But they may be faced with the possibility of distributing assets to themselves in a way that benefits them to the detriment of another beneficiary, which would be a breach of their fiduciary duty. (To learn more about the rights, roles, responsibilities, and risks of being a personal representative in South Carolina, read more on our blog here.)

How does a personal representative know if the way they are distributing the estate’s assets is fair or if they are giving themselves an advantage in breach of fiduciary duty? Sometimes it’s not entirely clear. This was the central issue in the 2022 South Carolina Supreme Court case Bennett vs Estate of James Kelly King (read here). The court ultimately went against the conclusions of the probate court, circuit court, and appeals court. How did that happen, and what does it mean for personal representatives in South Carolina?

The Background: A Blended Family, a Valid but Old Will, and Complications

This case is admittedly convoluted, but it’s important to get into the details of the background and the will itself in order to understand the law and the way the courts interpreted it.

Testatrix Jacquelin K. Stevenson (Testatrix) died in September 2007, leaving behind six children: two sons and two daughters from her marriage to Thomas Stevenson, a son by former marriage, and a stepdaughter.

The practical question at the heart of this case is who should receive ownership of the family’s vacation house in Lake Summit, NC. The parties are Testatrix’s two daughters from her marriage to Thomas Stevenson, Jacquelin S. Bennett and Kathleen S. Turner (Petitioners), and her stepdaughter Genevieve Stevenson Felder (Respondent).

The intended distributions of the will

Testatrix had a valid will dated October 1996 that directed distributions of her existing assets at the time in the following way:

The house on Wadmalaw Island, SC to her two daughters with Thomas Stevenson (Petitioners)
The house in Lake Summit, NC to her two sons with Thomas Stevenson
A bequest of $400,000 to her son James Kelly King
A bequest of $400,000 to her stepdaughter (Respondent)
Any property in the residuary estate to be divided “in equal shares” among the six children

Clear enough. But complications arose quickly afterwards.

First, her sons with Thomas Stevenson, Thomas Stevenson III and Daniel Stevenson II, stole millions from the estate as co-trustees from 1996 to 2006. As a result, the Petitioners were named co-personal representatives, the sons were cut out from receiving anything from the estate including the Lake Summit house, and there wasn’t enough cash in the estate to pay the bequests of $400,000 each to King and Petitioner. (King’s interest in the residuary estate was later bought out by Petitioners and Respondent, which is why he is not involved in this action.)

Additionally, Testatrix had acquired two more properties since she executed her will in 1996, one on Edisto known as “Bailey’s Island” and one in Mt. Pleasant known as “Paradise Island.” Both of these properties were undeveloped at the time of her passing.

The terms of the will

Section 10 of the will gives broad discretion to the personal representatives to make distributions “[w]ithout the consent of any beneficiary… in cash or in specific property, real or personal, or an undivided interest, or partly in cash and partly in such property… without making pro-rata distributions of specific assets.” In other words, as long as the distribution was fair according to the will, the personal representatives could distribute the assets as they saw fit without permission from the heirs.

The residuary clause stated “[a]ll the rest, residue and remainder of my property and estate… I give, devise and bequeath to [all six children] in equal shares.” The two properties acquired after the execution of the will (Bailey’s and Paradise) went into the residuary estate, as did the Lake Summit property, since the two sons were barred from inheriting it after stealing from the estate. The Wadmalaw Island went to the Petitioners, as originally directed in the will.

The proposed distribution by Petitioners

As personal representatives, Petitioners had the estate’s properties appraised and made the following distribution proposal for the assets in the residuary estate:

Lake Summit, NC appraised at $1,100,000, to split between the two Petitioners
Bailey’s Island appraised at $725,000, to split between Petitioners and Respondent, with Respondent owning the majority of it
Paradise Island appraised at $390,000, to split between Petitioners and Respondent

No parties dispute the appraised values of the properties or that the proposed distribution would give equal monetary value to the heirs. Instead, Respondent objected to the way the Lake Summit property was distributed, with ownership going to Petitioners and no share going to Respondent.

Probate Court, Circuit Court, and Appeals Court

The matter went before three lower courts before going before the supreme court. All three came to the same ultimate conclusion that the proposed distribution was not fair and equitable and must be altered.

Probate Court

The matter first went before a probate court, where Respondent argued that the proposed distribution was not fair and equitable. Respondent argued that Petitioners needed to take certain intangibles into account when deciding how to divide the assets, such as the fact that the Lake Summit property was both a family vacation home that had been in the family for decades and a rental property that produced income, while the Bailey’s Island and Paradise Island properties were undeveloped lots.

The Petitioners argued that the appraised values of the properties already took these facts into account, that the proposed distribution was equal, and that Section 10.6 of the will explicitly gave them broad powers to distribute the estate’s assets as they saw fit.

The probate court ruled that each of the three parties should receive an equal ownership in all three properties. It relied on the language in the residuary clause that stated property should be distributed “in equal shares,” interpreting this to mean that all parties should have equal ownership. Petitioners made a motion to reconsider, arguing that 10.6 gave them broad discretionary powers, which the probate court denied. It interpreted Testatrix’s intention as section 10 giving those broad powers only to the distribution of specific assets, not assets in the residuary estate.

Circuit Court

The circuit court upheld the probate court’s finding. It stated that even considering the broad powers granted by section 10 of the will, Petitioners had to treat all beneficiaries fairly and equitably, and they must take “non-economic considerations such as sentimental value, utility, and other intangible factors” into their proposed distribution. It also stated that the proposed distribution “fails the test of equity and good faith” because the Petitioners were favoring themselves by “cherry pick[ing]” the assets they wanted, rather than distributing them equally. It held that the Petitioners were in breach of fiduciary duty.

Appeals Court

The appeals court affirmed the circuit court’s decision. In an unpublished opinion, it held that a “plain reading of the Will supports the probate court’s contention that Article 10.6 referred to the Will’s grant of specific property, not the Residuary Estate.”

The Supreme Court of South Carolina Reverses and Remands

The case went before the SC Supreme Court, which went against the probate court, circuit court, and appeals court, ultimately reversing and remanding to the probate court.

The issue before the court was “Whether the court of appeals erred in affirming the probate court’s decision to reject the personal representative’s proposal and instead dividing the Lake Summit property in pro-rata ownership shares?”

The court’s discussion centered around two issues: Testatrix’s intentions and how Section 10.6 applies to the will; and breach of fiduciary duty.

Testatrix’s intentions and how section 10.6 applies

The court states that rather than picking out and reading individual provisions in a will “in isolation” or “elevating” them above the rest, the entire document should be read in a way such that disparate sections are “harmonized.”

In this case, that means that Section 10.6 is “equally important and must be honored,” and it remains in effect even for assets that go through the residuary estate. The probate court’s conclusion that section 10.6 applied only to specific bequests and not to assets in the residuary estate is “exactly backwards,” says the court. Nothing in the will nor in South Carolina’s jurisprudence limits these powers to specific bequests only.

Further, it’s in the distribution of the residuary estate assets where section 10.6 would matter most, since the personal representatives were bound to carry out the specific bequests as directed and would only be able to exercise their broad discretionary powers distributing other assets. “Indeed, section 10.6 would be meaningless if the broad powers of the personal representatives did not apply to the residuary estate,” writes the court.

The language of the will is clear in giving personal representatives broad powers to carry out its terms, including the ability to make distributions “without the consent of any beneficiary” and “without making pro-rata distributions” (i.e., equal shares) “of specific assets.”

Ultimately, Petitioners here have the power to make the distributions as proposed, and “absent a breach of fiduciary duty, their proposed distribution should be upheld.”

So the next question is, was there a breach of fiduciary duty?

Breach of fiduciary duty

The supreme court says no.

First, the court notes that none of the three courts were specific in what constituted the breach of duty on the part of Petitioners.

The burden of proof is on the party bringing a claim of breach of fiduciary duty. But, the court says, the burden of proof was (incorrectly) reversed in this case, when the circuit court affirmed the probate court, and then when the appeals court stated that the proposed distribution “would be inequitable because there is no reasonable purpose for their proposal.”

But it is not up to Petitioners to prove they have a “reasonable purpose” for their proposal; instead, the supreme court writes, “the burden was on the Respondent to show that the proposed distribution was unfair or inequitable, which she did not do and likely could not do in light of her stipulation that the proposed distribution was of equal monetary value.” It states that Respondent was “entitled to nothing more than a monetary equal distribution of the residual estate.” This is a different interpretation than the lower courts had of the phrase “equal share” in the will’s residuary clause.

The court also notes that the behavior of the Petitioners here “looks nothing like” that of personal representatives who have been found to be in breach of fiduciary duty. It cites two such cases: Turpin v Lowther, 2013, in which a personal representative secretly negotiated with a third party to purchase a property which beneficiaries had an interest in; and Moore v Benson, 2010, in which a trustee took funds from her father’s retirement account and used it to buy his property.

Finally, the court says it doesn’t accept the argument that sentimental value and other intangibles must be taken into consideration when distributing an estate’s assets, as “this would place an untenable burden of personal representatives and provide an unworkable framework going forward.”

But it says that even if the court accepted that argument, the claim still fails – Respondent (Testatrix’s stepdaughter from her second husband’s prior marriage) was an adult when the family acquired the Lake Summit property, while Petitioners (daughters of Testatrix and her second husband) spent summers there growing up. If sentimental value accounted for anything, it would favor Petitioners over Respondent.

In conclusion, the supreme court reverses the appeals court and remands to probate court to approve the Petitioners’ proposed distribution.

Key Takeaways: Good Lessons for Personal Representatives and Testators

There are some good lessons here in the supreme court’s decision for personal representatives in South Carolina.

Do not take intangibles into account when distributing assets. Attaching a monetary value to things like sentimental value is not necessary and creates an untenable burden for personal representatives, the supreme court found.

Adhere to the terms of the will when distributing assets to yourself. As a fiduciary, you can be found in breach of fiduciary duty if you give yourself an advantage to the detriment of another beneficiary when distributing assets to yourself. Reduce the likelihood of a claim against you by being even-handed and above board and by following the terms of the will to the letter.

Act in good faith. It is possible to be found in breach of fiduciary duty due to an innocent mistake, but it’s much more likely in instances of malicious intent. Act in good faith in your dealings as a personal representative and never forget your duty to do what is in the best interest of the estate and its heirs.

South Carolina testators can learn some lessons here, too.

Keep your will current. Update your last will after major life events like the birth of a child, death, or divorce; after acquiring significant property; and after relevant changes in the law. An entirely new will is often not needed, as many matters can be addressed in a codicil to the will. (Had Testatrix directed where the Bailey’s Island and Paradise Island properties should go in her will, this entire situation might have been avoided.)

Be specific to ensure your will reflects your wishes. The more specific the language in your will is, the less the courts have to guess what your intentions were, if it ever goes to court. (What did Testatrix mean by “equal shares” in the residuary clause? Did she mean equal ownership, as the lower courts interpreted it, or would equal monetary value suffice, as the supreme court interpreted it?)

Create or Update Your Last Will in South Carolina

If you don’t have a current will, now is the time to get one. A last will is a gift to your family that can help avoid conflict once you’re gone, and it ensures that your estate will be settled according to your wishes rather that the state’s procedures.

Call estate planning attorney Gem McDowell. He and his team at the Gem McDowell Law Group help people in South Carolina create estate planning documents including last wills, trusts, and powers of attorney. He can advise you on how best to protect your assets and maintain family relations after you’re gone. If you need help settling an estate in South Carolina, Gem is an experienced probate attorney as well. Call Gem at his Mt. Pleasant office at 843-284-1021 today.

I’m a Personal Representative – Now What? Rights, Roles, Responsibilities, and Risks

An important part of creating a last will is naming a personal representative (executor) to handle matters once the testator or testatrix has died.

But what does a personal representative in South Carolina do? If you’ve been named a personal representative in a last will in South Carolina, or someone has asked if you’d be willing to take the role, you should know what’s expected.

Personal representatives have certain rights, roles, and responsibilities under the law, and face potential risks, which we’ll cover here. But first, we’ll look at when you may want to hire a probate attorney to help you perform your duties.

Do I Need to Hire a Probate Attorney in South Carolina?

In South Carolina, there is no legal requirement for a personal representative to hire an attorney in order to settle an estate. However, you may want to.

Settling the decedent’s estate may be a small, straightforward job or a long, complicated one. If you’re the personal representative of a small estate with few heirs, you may feel comfortable completing the job yourself.

But if the estate is large and complex, or if there are several heirs and beneficiaries with contentious personalities and relationships, you should strongly consider working with a probate attorney to help you carry out all the duties listed below. A probate attorney knows what to do, saves you time, and helps you avoid mistakes that could be costly to the estate or even to you, personally (more on that below). And if you expect family drama, a probate attorney can help keep familial relations congenial while acting as a “buffer” between you and the conflict.

Since probate attorneys are paid out of the estate, it doesn’t cost you anything out of pocket; however, it does also mean the value of the estate will be diminished somewhat.

Learn more about probate in South Carolina here.

Rights of the Personal Representative in South Carolina

The personal representative has many more responsibilities than rights, but one right they do have under South Carolina law is the right to compensation paid out of the estate. SC Code § 62-3-719 states that a personal representative is entitled to a minimum of $50, regardless of the estate’s value, up to a maximum of 5% of the estate’s value. In some cases, the court may approve additional compensation “for extraordinary services.” The personal representative may waive their right to compensation.

The personal representative also has a right to be reimbursed for expenses they incur settling the estate.

Role of the Personal Representative

The role of the personal representative is to distribute the estate of the deceased person according to the terms of their will. (If there is no will, the court appoints an administrator to handle the estate. Read more about dying intestate – without a will – in South Carolina here.)

The tasks for a personal representative in South Carolina to carry out include:

Locating and listing decedent’s assets including bank accounts, securities, and real property
Settling outstanding debts and giving notice to potential creditors of the decedent’s death
Paying outstanding taxes and bills, including funeral expenses
Distributing assets according to the terms of the will to heirs and beneficiaries
Filing lawsuits if necessary
Closing out the estate

To an extent, the will may partially define the role of the personal representative. It may be very prescriptive in how the personal representative is in carrying out their role, or it may give them more leeway in how to distribute assets. But regardless of how much leeway the will gives a personal representative, the tasks they must carry out remain the same.

Responsibilities and Risks of the Personal Representative

All personal representatives have a legal responsibility to act in the best interests of the estate and its heirs and beneficiaries rather than themselves. A personal representative is a fiduciary, with a fiduciary duty to the estate and its heirs and beneficiaries.

Since the personal representative is often an heir to the estate, this can lead to sticky situations where they are responsible for distributing assets to themselves in a way that’s fair and doesn’t benefit themselves at the expense of another heir.

When is a personal representative within their rights to distribute desirable assets to themselves, and when does that cross over into the territory of breach of fiduciary duty? That’s a judgment call that sometimes must be decided by the court. See this blog on the SC Supreme Court case of Bennett vs Estate of King, 2022, for a real-life example.

Breach of fiduciary duty encompasses clearly wrong actions like intentionally stealing money from the estate. But there need not be malicious intent; something like failing to pay outstanding taxes on time or distributing assets before all creditors are paid can be considered a breach of fiduciary duty, too.

A beneficiary or unpaid creditor who has suffered a loss from the personal representative’s actions or mismanagement of the estate may bring a civil claim against them. A personal representative may be found personally liable for damages caused, meaning you as the personal representative could be responsible for using your own money to make up for any mistakes and mismanagement. For this reason alone, working with a probate attorney is a good idea, since it minimizes your risk of personal liability.

Estate Planning in South Carolina

For help settling an estate in South Carolina, contact estate planning and probate attorney Gem McDowell. Gem and his team at the Gem McDowell Law Group help people across South Carolina with probate and estate planning, including creating last wills, trusts, and powers of attorney, for estates large and small. Call Gem at his Mt. Pleasant office at 843-284-1021 today.