South Carolina Petition for Probate

Introduction

Key Things to Know

1. 1

   Filing: an application for informal probate and/or informal appointment, or a petition for formal probate or formal appointment, filed with the Probate Court of the county where the decedent was domiciled, or for a nonresident decedent any county where property is located (S.C. Code §§62-3-201(a), 62-3-301(a), 62-3-401). One statewide form, 300ES, covers all of them; a formal petition also requires a summons on Form SCCA 401PC. The court's form controls.

2. 2

   No one has authority over estate assets until the court appoints a personal representative and letters issue. Being named as executor in a will does not by itself allow anyone to collect assets, pay debts or transfer property. Do not distribute, pay heirs or sell estate property before appointment or before the creditor period runs.

3. 3

   There is no short deadline to open probate. No informal or formal probate or appointment proceeding may be commenced more than ten years after the decedent's death, subject to exceptions in §62-3-108(A)(2). A person with custody of a will must deliver it within 30 days of actual notice of the death to the probate judge, or to a named personal representative who delivers it; if probate is not begun within 30 days, the judge publishes notice once a week for three consecutive weeks (§62-2-901).

4. 4

   Priority for appointment runs: the person nominated in the probated will, a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, then a creditor 45 days after death, and four months after death a suitable person on application by the S.C. Department of Revenue (§62-3-203(a)). A person under 18, a person the court finds unsuitable in formal proceedings, certain foreign corporations and probate judges are disqualified. For rules on a nonresident individual serving, ask the Probate Court. Appointment is not guaranteed.

5. 5

   Notice: after informal probate, within 30 days the applicant gives written information of the probate to heirs and devisees (§62-3-306(b)), and within 30 days after appointment the personal representative gives information of the appointment (§62-3-705). On the formal track, the surviving spouse, children, other heirs, devisees and named personal representatives are served with the summons and petition, with notice of the hearing mailed or delivered at least 20 days before it (§§62-3-403(a), 62-1-401(a)).

6. 6

   Creditors: upon appointment the personal representative must publish notice once a week for three successive weeks in a county newspaper, and may also mail notice to known creditors (§62-3-801). Claims are generally barred at the earlier of eight months after first publication or one year after death; for creditors given actual notice by mail, one year after death or 60 days from mailing, whichever is earlier (§62-3-803(a)). Do not pay heirs before then.

7. 7

   Bond: no bond is required without a court order if all heirs and devisees waive, the personal representative is the sole heir or devisee, or the personal representative is named in the will, unless the will expressly requires a bond; an interested person may still demand one (§§62-3-603(A), 62-3-605). Not every estate needs probate: a small estate may collect personal property by affidavit without an appointed personal representative (§62-3-1201), and a smaller estate that is probated may use the summary procedure of §62-3-1203; both are covered on DocDraft's small-estate-affidavit page.

South Carolina Requirements for Petition for Probate

• Application or Petition on Form 300ES

  South Carolina uses an application for informal probate or appointment, or a petition for formal probate or appointment, on one statewide form, 300ES. The court's form controls (S.C. Code §§62-3-301(a), 62-3-401).

• Probate Court Where Decedent Was Domiciled

  Venue is the Probate Court of the county where the decedent was domiciled, or for a nonresident decedent any county where property is located (S.C. Code §62-3-201(a)).

• Summons for Formal Petition

  A formal petition must be filed with a summons on Form SCCA 401PC. Heirs, devisees and named personal representatives are served, with notice of the hearing at least 20 days before it (S.C. Code §§62-3-403(a), 62-1-401(a)).

• Ten-Year Outer Limit and Will Delivery

  No probate or appointment proceeding may be commenced more than ten years after death, subject to exceptions. A will custodian must deliver the will within 30 days of actual notice of the death (S.C. Code §§62-3-108, 62-2-901).

• Order of Priority for Appointment

  Priority runs from the person nominated in the probated will, to a surviving spouse who is a devisee, other devisees, the surviving spouse, other heirs, a creditor 45 days after death, then a suitable person on application by the Department of Revenue four months after death (S.C. Code §62-3-203(a)).

• Disqualified Persons

  A person under 18, a person the court finds unsuitable in formal proceedings, certain foreign corporations and probate judges are disqualified from appointment (S.C. Code §62-3-203(e)).

• Notice of Probate and Appointment

  After informal probate, the applicant gives written information to heirs and devisees within 30 days, and the personal representative does the same within 30 days after appointment (S.C. Code §§62-3-306(b), 62-3-705).

• Creditor Notice and Claims Bar

  The personal representative publishes notice once a week for three successive weeks. Claims are generally barred at the earlier of eight months after first publication or one year after death (S.C. Code §§62-3-801, 62-3-803(a)).

• Bond Exceptions

  No bond is required without a court order if all heirs and devisees waive, the representative is the sole heir or devisee, or the representative is named in the will and the will does not require one (S.C. Code §62-3-603(A)).