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Charleston Estate Planning & Asset Protection Blog

Sunday, November 26, 2017

What is Probate?

Probate is the legal term for the process or proceedings that occur after a person passes away. During probate, a person’s assets and debts will be determined and distributed. The exact manner in which a person’s assets are distributed (and to whom) depends on the state and the amount of preparation the person has made beforehand. 

If done correctly, probate can be a quick and straightforward process. If done incorrectly, then probate can be a nightmare for a person’s heirs and beneficiaries during an already-difficult time of grieving. To ensure you have maximal control over how your assets are divided it is important to reach out to a South Carolina trust administration lawyer. 

The average probate proceeding takes between six and nine months, according to the American Bar Association. Almost all property is included in probate. However, there are notable exceptions. Notably, real property that is held jointly or life insurance policies with a designated beneficiary are not included. Therefore, a house owned by a married couple will not go through the probate proceeding, the surviving spouse will become the full owner at the time of death. 

The laws governing a probate proceeding can vary based on multiple factors including whether a person does or does not have a will to the state where the will was created. Importantly, the state of mind the person is in when the will was made is also very important. One of the main goals of estate planning is to avoid probate as much as possible, creating a will or a living trust is one of the most popular methods of achieving this goal. 

If a Person Dies With a Will, Do They Have to Go Through Probate?

If a person dies with a will, then when he or she passes the will “go through probate.” When a person dies with a will they are said to have to died “testate” in legal jargon. Assuming all of the exacting rules and procedures were followed when the will was created, the judge should quickly adjudicate the estate and divide the possessions. 
Importantly, probate is also the period where a person may “attack the will” or try to invalidate some or all of its provisions. The exact situations where this is allowed depends on the exact circumstances, but common reasons are that the now-deceased person was not of “sound mind” or another person exerted “undue” or overbearing influence on him or her. A competent trust administration attorney will ensure there is sufficient evidence of a person’s “sound mind” to prevent these types of attacks from being successful. 

What Happens if a Person Dies Without a Will?

If a person dies without a will then they are said to have died “intestate” in legal jargon. In this circumstance, the judge will look to the state laws regarding, what is termed “intestate succession.” Often these provide hard-and-fast rules for the judge to follow but sometimes there is room for a judge’s discretion. In that line of thought, no two circumstances are the same so it is important to  request a consultation with one of our South Carolina trust administration lawyers to see what your available options may be during the probate process. 

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Wiles Law Firm, LLC helps clients with their estate planning needs in Charleston, South Carolina and the surrounding areas such as West Ashley, Summerville, North Charleston, Mount Pleasant, and John's Island.

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