Will My Family Need to Go Through Probate After I Die?
By David K. Allison; Pickens County, South Carolina Probate Judge, Pickens County Probate Court
Will my family have to go through Probate after I die? This is a common question that many seniors think about. The following information will explain the keys to this question so that you may consider the answer for your own family. There may then be steps available for you to help reduce the amount of effort required to handle your estate.
The assistance of Probate Court is required only when a person retains an ownership interest in assets after death. At that point, the Court can help in the transfer of such assets to the lawful heirs or beneficiaries of the estate. It is therefore possible that, by planning ahead, the Probate process can be simplified or even avoided altogether. Examples of this would be the re-titling of real estate/vehicles, adding beneficiaries to financial assets, or placing assets into a trust.
Most people, however, do own assets at the time of death that require Probate Court assistance to transfer. Therefore, having a valid and updated last will and testament is of primary importance. Once officially accepted by the Court, the terms of the will control who receives the assets of the estate.
If a person dies without a valid last will and testament, the heirs of the estate are determined by South Carolina law. This is called an intestate estate. Many problems are often encountered in the administration of an intestate estate because the family relationships are not ideal to accept and handle the required division of the assets.
The value of having a valid will cannot be underestimated. In addition to identifying the desired beneficiaries of an estate, a will nominates the person who will serve as the personal representative of the estate and further authorizes that person to perform certain administrative functions without having to seek court approval.
If you do not have an updated will, consider taking steps to get one. You may already have a will, but you may not have reviewed it lately. Your intentions or your family situation may be different today than when you executed your will. A person named in your will may have passed away. You may have subsequently married or divorced. You may have new children, grandchildren, or stepchildren. Your thoughts as to who your beneficiaries should be may have changed as well. Any of these factors could indicate that changes in your will or estate plan may need to be considered. Note that in most cases, writing on your will or striking through a name or provision in your will to change a term of the will does not effectively and legally make the change you may intend.
To learn about options you may have to make it easier on your family after you pass away, a consultation with an attorney or professional estate planner is recommended. Your family will be grateful for the help you can provide ahead of time.
