Florence and Myrtle Beach Probate Attorney

The South Carolina probate process follows the loss of a loved one or friend. The goal of the probate process is to distribute the deceased individual’s estate to the designated heirs or beneficiaries. When a decedent dies with a last will and testament, the probate court will oversee the distribution of assets to beneficiaries according to the terms of the will. When the decedent dies intestate, or without a will, the probate court will oversee the distribution of assets to the decedent’s heirs according to South Carolina probate laws.

The probate process doesn’t always go smoothly. Many different disputes can arise during the probate process. In some cases, probate disputes lead to litigation. If you are involved in probate litigation, Willcox, Buyck & Williams, PA is here to help. We have an in-depth understanding of the South Carolina probate process, and we will ensure that your rights are protected. Contact us as soon as possible to schedule your initial consultation. 

The Probate Process in South Carolina

At the beginning of the probate process, the probate court will validate the deceased individual’s last will and testament. In many cases, South Carolina residents appoint an executor in their will. When the decedent hasn’t appointed an executor, the court will step in and select one. The executor, commonly called a “personal representative”, must be at least 18 years old and of sound mind. The executor’s job is to protect the decedent’s estate until it is completely settled. 

The executor will receive documentation that allows him or her to act and enter into transactions on behalf of the deceased person’s estate. Next, the executor will locate all of the decedent’s assets and take possession of those assets. Depending on the size and complexity of the estate, it could take the executor some time to gather all of the assets. The executor will notify the decedent’s creditors of his or her death. Creditors have limited time to make claims against the estate for money owed after receiving notice of the decedent’s death.

After paying the debts of the decedent and preparing and filing income tax returns, the executor will determine whether any estate taxes need to be paid. In some cases, the executor needs to liquidate assets to pay outstanding debts and tax liability. Finally, the executor will distribute the remaining assets according to the terms of the will. 

Challenges to the Validity of the Will

Emotions often run high through the probate process. In some cases, family members are surprised and hurt when they discover the terms of the decedent’s will. For example, when a family member thought he would receive assets from the will and learned he’d been disinherited, he may try to challenge the will’s validity. 

There are several different grounds from challenging a will in South Carolina. A person may contest that the testator who wrote the will lacked the mental or legal capacity to create the will. Testators must be over the age of 18 and understand the provisions of the will under South Carolina law. 

Or, a person may allege that the will is invalid because it wasn’t correctly signed and witnessed. In some cases, a third-party exerts undue influence over the testator. For example, a long-time caretaker of an elderly testator may threaten him or her with mistreatment if the testator doesn’t change his will to include the caretaker. When the testator lacks the mental capacity to bargain with the caretaker, the probate court may decide that the will is invalid. Likewise, probate courts will strike down a will when the will was obtained by forgery or other fraudulent means.

Breach of an Executor’s Fiduciary Duty

Probate disputes can arise regarding the estate executor’s role. Managing a decedent’s estate is complicated. When executors accept their appointment and agree to serve as a personal representative of the estate, they take on significant legal responsibility. Under South Carolina law, estate executors owe the estate beneficiaries a fiduciary duty. Executors can bring their fiduciary duty by doing any of the following:

  • Self-dealing 
  • Using estate funds for their own personal use
  • Showing preference to one beneficiary or heir over another 
  • Allowing property insurance, or any other type of insurance, to lapse
  • Combining or commingling personal funds with the funds of the estate
  • Failure to pay the taxes or debts of the estate
  • Failure to maintain detailed and accurate records
  • Engaging in speculative investments

When an estate executor breaches his or her fiduciary duty, the probate court has the power to remove him or her from the position at the request of the beneficiaries. Additionally, probate courts can hold an executor personally liable for damages caused by the breach of fiduciary duty. Litigation can arise regarding an estate executor. 

Interpreting the Terms of a Trust or Will During Probate

Some wills are straightforward and easy to understand. In other cases, disputes can arise related to the terms of the will. What happens when one or more lines in the will are crossed out? Or, what happens when one family member interprets “vehicles” as including boats, cars, and motorcycles and another family member disputes this interpretation? When disputes arise regarding the terms of the will, the probate court will adjudicate the disputes and decide based on all available evidence. 

Contact Our Experienced South Carolina Probate Lawyers Today

For over 125 years, our law firm has helped people throughout Myrtle Beach, Florence, and the surrounding counties with issues involving probate litigation. We understand that the probate process can be incredibly challenging. If any issues related to your loved one’s probate are likely to result in litigation, you need a skilled probate lawyer representing your best interests. The experienced lawyers at Willcox, Buyck & Williams, PA are here to answer your questions and act as legal representation. Contact us today to schedule your initial consultation.