Wills and Estates – Small Estates – South Carolina
Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.
South Carolina Summary:
Under South Carolina statute, where as estate is valued at less than $10,000, an interested party may, thirty (30) days after the death of the decedent, issue a small estate affidavit to collect any debts owed to the decedent.
South Carolina Requirements:
South Carolina requirements are set forth in the statutes below.
PART 12. COLLECTION OF PERSONAL PROPERTY BY AFFIDAVIT AND SUMMARY ADMINISTRATION PROCEDURE FOR SMALL ESTATES
Derivation from Provisions of the Uniform Probate Code
Code Section Uniform Probate Code Section
62-3-1201 3-1201 (modified)
62-3-1202 3-1202 (verbatim)
62-3-1203 3-1203 (modified)
62-3-1204 3-1204 (modified)
SECTION 62-3-1201. Collection of personal property by affidavit.
(a) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment of the indebtedness or deliver the tangible personal property or the instrument evidencing the debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent upon being presented an affidavit made by or on behalf of the successor. Before this affidavit may be presented to collect the decedent’s personal property, it must:
(1) state that the value of the entire probate estate (the decedent’s property passing under the decedent’s will plus the decedent’s property passing by intestacy), wherever located, less liens and encumbrances, does not exceed ten thousand dollars;
(2) state that thirty days have elapsed since the death of the decedent;
(3) state that no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction;
(4) state that the claiming successor is entitled to payment or delivery of the property;
(5) be approved and countersigned by the probate judge of the county of the decedent’s residence at the time of his death and only upon the judge’s satisfaction that the successor is entitled to payment or delivery of the property; and
(6) be filed in the probate court.
(b) A transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit as provided in subsection (a).
SECTION 62-3-1202. Effect of affidavit.
The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
SECTION 62-3-1203. Small estates; summary administrative procedure.
(a) If it appears from the inventory and appraisal that the value of the entire probate estate (the decedent’s property passing under the decedent’s will plus the decedent’s property passing by intestacy), less liens and encumbrances, does not exceed ten thousand dollars and exempt property, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, after giving notice to creditors required by Section 62-3-801, but without giving additional notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.
(b) If it appears from an appointment proceeding that (1) the appointed personal representative is either the sole devisee under the probated will of a testate decedent or the sole heir of an intestate decedent, or (2) the appointed personal representatives are the sole devisees under the probated will of a testate decedent or the sole heirs of an intestate decedent, the personal representative, after giving notice to creditors as required by Section 62-3-801, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 62-3-1204.
SECTION 62-3-1204. Small estates; closing by sworn statement of personal representative.
(a) Unless prohibited by order of the court and except for estates being administered under Part 5 (Sections 62-3-501 et seq.), a personal representative may close an estate administered under the summary procedures of Section 62-3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating that:
(i) to the best knowledge of the personal representative, the value of the entire probate estate (the decedent’s property passing under the decedent’s will plus the decedent’s property passing by intestacy), less liens and encumbrances, didnot exceed ten thousand dollars and exempt property, costs, and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent; or
(ii) the estate qualifies for summary administration according to the provisions of subsection (b) of Section 62-3-1203;
(2) the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto;
(3) the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected.
(b) If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.