South Carolina Trust and Estate Law Blog

By MillerLaw

South Carolina Trust
and Estate Law Blog

Oregon and Wyoming enact model digital assets law

March 24, 2016

While a number of states (South Carolina included) have introduced legislation to adopt the Uniform Fiduciary Access to Digital Assets Act, only three have actually adopted it thus far. The first was Delaware, which adopted it on August 12, 2015, effective January 1, 2015. Second was Oregon, adopted on March 2, 2016, effective January 1, 2017. Now Wyoming makes the third, which adopted the uniform law on March 7, 2016.

The Uniform Fiduciary Access to Digital Assets Act allows personal representatives, executors, guardians/conservators, and persons acting under a power of attorney to have access to digital accounts of a decedent or incapacitated person. The law is intended to make it easier to gather the digital assets and get access to them to administer a decedent’s or incapacitated person’s estate. Nowadays, an important part of estate planning will be focused on generating a list of digital assets and providing the ability for our designated agents to obtain access to the digital assets when necessary. Other bills are pending around the country, so it is expected that this uniform law will be adopted somewhat rapidly.

South Carolina has a bill currently pending in the state legislature. You can find it here. It will be interesting to see if this bill can move forward, particularly when lots of attention seems to be on the highway bill and gas tax proposal. I am unsure however how effective this bill will be. The various terms of services agreements users accept when using online services can potentially take the effectiveness out of this law. This will be a fascinating area of estate planning and probate to watch in the coming years.

Check out this prior post for some examples of why this bill can be so important.

Tags: digital-assets estate planning internet Probate — Christopher L. Miller

Help! What is a formal appointment?

January 12, 2014

Sometimes clients come to me because they have tried to deal with Probate Court themselves, but the Court returned their paper work and directs them that a formal appointment proceeding is required and to go find a lawyer. So what is this formal appointment thing? And when is it necessary? And why do you need a lawyer?

It is definitely preferable to administer estates on an informal basis in the Probate Court. Informal appointment means that the familiar trappings of litigation, such as a summons, service of process, and court hearings will not be required to get appointed as a Personal Representative. Unfortunately, informal appointment is not possible in all cases. In some cases, you must instead proceeed formally.

Formal appointment is required in the following circumstances:

  • 1. The Decedent did not leave a Last Will, surviving family members cannot agree on who will serve as the Personal Representative, and there is no single person who has priority to serve, or
  • 2. The Decedent left a Last Will designating a particular person to serve as Personal Representative, but that person either cannot or will not serve, there is no alterate designation in the Last Will (or there is an alternate but that designee cannot or will not serve as well), and there is no single person who has priority to serve.

So what does formal probate require? Formal probate requires that you file a formal petition with the Court, as well as a summons. Once filed, you must serve the petition and summons on all the heirs of the decedent, as well as all the will beneficiaries, if any. The summons provides a thirty day period for any interested party to file an Answer to the petition. A hearing must also be requested from the Court, and notice of the hearing served on all interested parties as well, providing at least twenty days notice of the hearing.

After the hearing is held, the Probate Court will make its decision as to who will serve as Personal Representative. It is obviously preferable to have all the interested family members in agreement so that informal probate can be undertaken. But in some cases there is no agreement, and the more complex formal probate procedure is available.

Tags: formal-proceedings Probate — Christopher L. Miller

Rejecting Creditor’s Claims Against An Estate

November 20, 2012

When you open an estate and there are creditors who would like to get paid for unpaid debts, you will likely find that creditor’s claims will be made by the creditors filing a claim form in the Probate Court where the estate is being administered, as well as serving said claim on the Personal Representative.

The claim period for doing this is the earlier of 8 months after the Personal Representative is appointed, or 12 months after the death of the Decedent. Once this claim period is expired, it falls to the Personal Representative to determine which of the claims is: 1) valid and must be paid, 2) which is invalid and should not be paid, and 3) which is valid but cannot be paid because there are insufficient assets with which to pay.

What should a Personal Representative do when he or she believes that a claim is either invalid, or is valid but there are insufficient assets to pay with? In this case, the Personal Representative should send a notice of rejection of the claim to the creditor. This is done pursuant to SC Code Section 62-3-806. What sending this rejection does is it puts the onus on the creditor to petition the court for a hearing to have the validity of the claim determined. And it forces the creditor to do this within 30 days of the mailing of the rejection notice. If the creditor fails to file said Petition, the claim will be forever barred.

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm. Before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

Tags: creditors estate Probate — Christopher L. Miller

Creditors’ Claims Against An Estate

August 14, 2012

The Personal Representative of an estate is responsible for marshalling and managing the assets of the estate. One part of this responsibility is dealing with creditors of the estate. There are a number of South Carolina statutes that lay out what this responsibility is.

First off, creditors of an estate must file their claims in Probate Court prior to the earlier of eight months after a creditor’s advertisement is published or one year after the Decedent’s date of death. (SC Code §62-3-805) Personal Representatives can put themselves in serious jeopardy if they pay out funds from the estate to the estate beneficiaries before the expiration of the claim period. Personal Representatives who do so can be personally liable to any creditor who files a valid claim within the claim period but after the PR distributes assets to a beneficiary.

Creditors who do not make their claims prior to the expiration of the claim period will have their claims barred. One exception to this is if the creditor is a secured creditor, such as the holder of a mortgage on estate real property. This debt will not be barred by the claim period, as the mortgage is attached to the property. Typically bills like credit cards, medical bills, and utility bills, are unsecured debts, and can be barred if claims against the estate are not made on time.

Once the creditor’s period is passed, the Personal Representative may pay the valid claims made against the estate. The Personal Representative must evaluate all of the claims made and insure that they are valid debts and the claims have been validly and timely made. The validly and timely made claims can then be paid. If there are sufficient estate assets to pay with, they can all be paid and releases obtained and filed with the Probate Court. If there are insufficient assets to pay the claims, they must be paid according to the statutory order of claim priority, and if there are insufficient assets to pay all the claims at the same level of priority, they are paid on a pro rata basis.

S.C. Code §62-3-805 lays out the following order of claim priority:

Costs and expenses of estate administration, including attorney’s fees and reasonable funeral expenses have the highest priority. Claims with the second highest priority are those reasonable and necessary medical and hospital expenses of the decedent’s last illness and/or medical assistance paid under Medicaid for the Decedent’s benefit. The claims that come next are debts and taxes required to be paid under federal law, and debts and taxes required to be paid under South Carolina law. All other claims are paid last.

Tags: creditor's claims Probate — Christopher L. Miller

South Carolina Probate Lawyer Mail Bag: Who Has The Right to Be The Personal Representative?

October 28, 2011

Good question reader. The person who has the right to be the Personal Representative is said to have the highest right of priority. The right of priority to be personal representative is laid out by statute, SC Code 62-3-203. The statute lists the following persons in order of highest priority to lowest priority:

(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;

(2) the surviving spouse of the decedent who is a devisee of the decedent; (a devisee is a person who receives a gift under a Last Will)

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent regardless of whether the decedent died intestate and determined as if the decedent died intestate (for the purposes of determining priority under this item, any heirs who could have qualified under items (1), (2), (3), and (4) of subsection (a) are treated as having predeceased the decedent);

(6) forty-five days after the death of the decedent, any creditor;

(7) four months after the death of the decedent, upon application by the South Carolina Department of Revenue, a person suitable to the court.

(8) Unless a contrary intent is expressed in the decedent’s will, a person with priority under subsection (a) (1 through 7 above) may nominate another, who shall have the same priority as the person making the nomination, except that a person nominated by the testator to serve as personal representative or successor personal representative shall have a higher priority than a person nominated pursuant to this item.

If there are multiple people who have the same level of priority to be Personal Representative, the Probate Court will require the Petitioner seeking appointment as Personal Representative to file a Renunication of Right to Appointment by those not seeking appointment. If the other people will not sign such a renunciation, the Court will require a formal appointment proceeding to be conducted.

If you are having trouble obtaining appointment as a Personal Representative, you should consider obtaining the advice of an estate attorney who can guide you through the process.

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.