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What are the types of probate in South Carolina?

On Behalf of | Aug 19, 2021 | Firm News

Unless a deceased individual has established a comprehensive estate plan that avoids the probate process completely, most South Carolina residents will have their estate assigned to probate. Even when there is no estate, creditors who hold outstanding debt will still need a legal disposition on their claims in order to close the account. There are essentially four types of probate cases in South Carolina, with each one applying according to how the state views the financial status of the decedent.

Intestate probate

Intestate probate applies when the decedent passes without a valid written will. Merely explaining to a family member or loved one what they want to happen with their personal property is not sufficient for the state to follow the statements. There must be some type of will in writing to avoid an intestate probate situation where all assets are seized for distribution to tax assessors and creditors holding outstanding debt.

Testate probate

Testate probate occurs when the decedent has actually established a valid will and testament as a directive for distribution of all assets and personal property that is not subject to claims by tax assessors and creditors. A comprehensive will can actually bypass probate completely when structured effectively, but many do not expect to die soon when making their will. This condition typically applies when someone dies unexpectedly with a valid will recorded.

Small estate affidavit

Many people pass with minimal assets left to distribute. What is accepted as “small” in the view of South Carolina courts is any estate valued under $25,000. These are very common probate cases that often do not require transferring real estate unless it is a small lot of property.

Will filed only

This form of probate is similar to testate probate, but it only applies when there is a will with no estate. Many South Carolina residents file a will regarding distribution of personal belongings even when they have no financial assets.