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Probate & Estate Administration

When a loved one passes away, his or her estate often goes through a court-managed process called probate where the assets of the deceased are managed and distributed.  If the assets of the deceased are owned through a well drafted and properly funded living trust, the court-managed probate process can be reduced and the trustee of the trust has more flexibility to administer the distribution of the deceased's assets.  The appropriate length of time for the probate process depends on the complexity and size of the estate and the local rules and schedule of the probate court.

The probate process for each estate is unique, but usually involves the following steps:

  • Filing of a petition or application with the proper probate court.
  • Notice to heirs under the will and statutory heirs (as if no will exists).
  • Petition or application to appoint Personal Representative (if nominated in the will) or Special Administrator for the estate.
  • Inventory and appraisement of estate assets by Personal Representative/Administrator.
  • Payment of estate debt to creditors.
  • Sale of estate assets under certain circumstances.
  • Payment of taxes (income and estate), if applicable.
  • Fiduciary Accounting reported to the Court.
  • Proposal for Distribution of Assets to the Court.
  • Petition or Application for Settlement of the Estate.
  • Legal Notice with detailed information must be lawfully provided to heirs under the will, statutory heirs (as if no will exists), and outstanding creditors or claimants.
  • Proof filed with the Court that Legal Notice with detailed information was lawfully provided to heirs under the will, statutory heirs (as if no will exists), and outstanding creditors or claimants.
  • Compliance with Court’s final order.
  • Final distribution of assets to heirs.

FREQUENTLY ASKED QUESTIONS

What happens if someone objects to the will?
An objection to a will, also known as a “will contest” sometimes occurs during the probate proceedings and can be incredibly costly to litigate.

In order to contest a will, one has to have legal “standing” to raise objections.  This can occur when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will.  In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Personal Representative.

Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the “devisees” (commonly referred to as “beneficiaries”).

Certain types of assets are “non-probate assets” and although they must be accounted for during the probate process, their management is sometimes separate from the probate process, except under limited circumstances.  Some “non-probate assets” include:

  • Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries other than your estate.
  • Life insurance policies not payable to your estate.
  • Bank accounts with “pay on death” (POD) designations.
  • Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.

Does the Personal Representative get paid for serving as a Personal Representative?
The estate reimburses the personal representatives for all legitimate deductible out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate.  In addition, the personal representative may be entitled to compensation, which varies depending on several factors.  The personal representative has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. The personal representative should retain an estate planning attorney to advise and assist in carrying out the required duties, which are legally tedious and frequently allow for numerous advantageous planning options that are most familiar to estate planning attorneys. Unfortunately, when a personal representative fails to get good legal advice, heirs commonly experience cumbersome and expensive consequences years after an estate is improperly administered or advantageous planning is overlooked.

How much does probate cost?  How long does it take?
The cost and duration of probate can vary substantially depending on a number of factors such as the complexity and value of the estate, the existence of a properly conceived estate plan, the exercise of advantageous optional post-mortem planning and the location of property owned by the estate.  Will contests or disputes with creditors over the debts of the estate can also add significant cost and delay.  Common expenses of an estate include personal representative fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds.  Combined, these can add up to 5 to 7 percent of the total estate value. Most estates with proper documents and known heirs are settled though probate in about 14 to 18 months, assuming there is no litigation involved.


The Law Office of Jay A. Mullinax, LLC is located on Hilton Head Island, SC and serves clients throughout the Hilton Head Island, Bluffton and Beaufort areas.



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| Phone: (843) 785-6101

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