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.