Probate Court: The Basics of the Probate Process for Executors and Personal Representatives.
Guest: Irvin G. Condon, Probate Judge, Charleston County Probate Court, Charleston, South Carolina
Probate Court is the entity empowered by state law to oversee the discharge of estates, and the marshaling and safeguarding of estate assets. In this episode of Estate Talks, Podcast for Executors from Executorium.com, we sit down with Charleston County Probate Court Judge Irvin G. Condon to provide a general overview of what an executor might expect from the probate court.
State Probate law can differ significantly from state to state. We strongly recommend consulting with an attorney when dealing with probate or estate settlement/estate administration.
What is presented must not be construed as legal advice, and all executors and personal representatives are strongly encouraged to retain an estate attorney.
What follows is general probate information, based on the Uniform Probate Code.
This segment of Executorium’s Estate Talks Podcast was broadcast on Thursday, September 5, 2024.
Subscribe to Executorium’s YouTube Channel featuring Estate Talks, HERE.
The following transcript has been edited for readability.
EX: Good Afternoon welcome to Estate Talks I’m George Compton the Publisher of Executorium.com. Today our guest is Judge Irvin G. Condon, Charleston County Probate Court, Charleston, South Carolina.
What is Probate?
Let’s get right to it Judge Condon – What is probate?
JC: Good afternoon from Charleston County in South Carolina. Probate is the orderly transfer of assets from someone who’s passed away, a decedent, to the next generation/to who they want to leave it to. Generally, it’s through a Last Will and Testament. It can be other through other non-probate transfers such as a trust, or other non-probate transfers such joint account with right of survivorship, life insurance
When we think of probate, we think of probating a will, or if a person has died without a will it’s called an “intestacy”. Most states have a version of what we call the Uniform Probate Code and if they don’t have that, they have laws that are similar to the Uniform Probate Code. Under those state laws, they provide a method for the orderly transfer.
The person who is in charge of the estate is called the Executor (if it’s a male) or executrix (if it’s a female). The more current term is, “A Personal Representative” or “PR”. So in a state after a person has passed, we wait and get the death certificate and then we’ll start the probate process. The probate process, if it’s a small estate, can, probated in one day, be open and closed generally 30 days after a person has passed.
I should step back and say, generally, there are three ways to probate an estate: 1. The summary proceeding – which I just described. 2. The second way would be what we call, “Normal Administration”, where we go through a number of different forms, and the hallmark there is giving notice to individuals. We give notice to individuals called interested persons. Interested persons include those who are named in the will, they’re called devisees. Those who would take notice if there was not a will, called heirs. Then we also give notice to third-party creditors – we do that by publishing generally in a newspaper in general of general circulation in the county where the person passed. We give that notice generally once a week for three consecutive weeks. Some states have that creditor’s period expire four months from that first publication, some states are six, and some are eight months. It just depends on your state.
Again, the three ways are the summary proceeding, the normal administration, which I just described, and then lastly a contested case, or, under the probate code – “Part Five Contested Case”. Generally, we have notice and hearing each step of the way and under those closely supervised by the court. This may occur when you have a will contest.
I would state that nationally we have fewer and fewer will contests. When I started 30 years ago in our county, we probably had four or five that would be filed. One or two would actually go to a jury trial. Currently, that is not the case.
EX: Why is that?
JC: Good question. Generally, this generation’s not waiting until mom or dad or the grandparents pass. They try to get the money earlier, and so we have disputes under Powers of Attorney, a very useful estate planning tool, but also very dangerous if it gets in the wrong person’s hands. Battles over joint accounts, over trust matters, and so, a lot of non-probate battles prior to someone passing away.
Uniform Probate Code
EX: I just want to pedal back a second to the uniform probate code because we have listeners from many jurisdictions across the United States. I just want to clear up any mystery. The code or statutes in any individual state are of course, state law they’re public access. They may be read by the executor, they should be read by the executor. They number anywhere from what, 5 to 10 pages, something like that, and that’s a guess, but even if it’s 20 pages, the amount of time it takes to read compared to how much time you will actually spend as an executor, depending on the size of the estate, is not much. You’re not you’re not going to law school executor, but it’s worth a read, then to of course relay any questions you have on to an estate attorney.
It’s time well spent in my in my estimation.
JC: Yeah good point there, and I would add that each state adopts a version of the Uniform Probate Code – they may not be exactly correct. About 30 states have some type of version of the Uniform Probate Code. The other states that do not, have laws that are similar to The Uniform Probate Code. You’ll see similar laws throughout the United States.
EX: Similar but not necessarily identical. I often see recommendations from one executor to another or from someone out of state or a relative who understands the law a certain way in Wisconsin, and it may or may not be the same in New Jersey, so you Executors and Personal Representatives have to be careful with the source of information. Recognize that there are variances between statutes state to state.
JC: I would also add it’s very important that you consult an attorney in your state where the probate is taking place. I’m talking generally today about probate law, but it’s very important to engage an attorney, someone that does estate administration/probate law in your state, because each state is different. I can speak generally to what is under the Uniform Probate Code, but even in our state, we have differences. Some states say for the elective share, the share that the spouse would take, our state is one-third of the probate estate. Other states may be 50%. So, there are differences even on the states that have the Uniform Probate Code.
If we’re talking about executors, the new term is “personal representative” or “PR”, and they have certain responsibilities. You know typical probate after a loved one has passed – you have to get the death certificate/proof of death. A death certificate signifies that you have a body; a corner or the hospital or hospice has signed off on it. If you don’t have a body, if a person dies by an accident, then you can have declared deceased in the Probate or Surrogate’s Court. In that procedure, you come in and testify that there was an accident, so and so … this is what happened…
In Charleston, we have the harbor and we have rocks out there called the Jetties, and we’ve had a sailor that perished and they couldn’t find his body. We had two boys who drowned at a beach – they found one body, not the other. So they came in and took testimony. Also, if a person is missing for a period of time and can’t be located, after that period of time, depending on which state you’re in. Some states it’s five years, some states it’s seven years, you can come in and have that person declared deceased to start the probate. Then you’ll start it with an order rather than with a death certificate. Or you do the order and you send it to your health and environmental control agency, and they’ll issue a death certificate based on a court order.
Starting Probate
For a will, it should be delivered to the court – most states is within 30 days. When you want to start the probate, you start it with the death certificate, the will, there will be certain forms to fill out. Probate practice generally is form driven so check with your local court, your local state and see what forms they use.
Your local court may also have workshops. If you go to our website charlestoncounty.org, you can see at our website the different seminars we have. We’ve got some recorded if you want to see in South Carolina how probate takes place.
So, 30 days: you want to make sure that will’s delivered to the court. Generally, people do it within a week or two weeks. Come down, and we know it is very tough, you got the grieving process, and we’ve got to get ourselves in the right position to be able to help you with the probate. That’s where a lawyer, CPA or someone else, can come in and help you take some of that tough area of having to deal with the probate.
Probate courts are very friendly – they are the People’s Court. We touch all citizens in some way during their lifetime, and most courts are set up with estate clerks that will help you from beginning to end. They will also have workshops and then actual videos that will show you the probate process.
So, it starts with a death certificate, a will, an application. And after you’re appointed, within 30 days you’re to give notice to what we call “interested persons” and those are defined as people under a will, devisees, or those who would take if there’s not a will, called heirs, or the creditors I mentioned, by the newspaper publication.
Then generally most courts have a time period when you file what’s called an “inventory and appraisement” of what the person owned, and that’s within 90 days. On that inventory generally you just have to report what the probate assets are. Probate assets are those that are controlled by the will, or if there is no will by the “intestacy statute.” Generally, you do not have to list the non-probate assets, such as life insurance or joint account.
You file that “inventory and appraisement” and then you wait a period of time. Generally, most states have a creditors period tied to that first publication of the creditor’s notice. Some states, like I said, are four, some are six, some are eight months.
So after that time period elapses, then you would file what we call “closing documents.” This is all done informally. When you file those closing documents, you’ll also send a little notice that says you have a right to demand a hearing.
Closing documents generally include the accounting where you will detail everything you did as executor/personal representative, a proposal for distribution if you have distributed assets. You may include a deed of distribution which shows who you are deeding the property to as the personal representative, giving up power to that property.
Probate Overview
It’s an informal process – it just takes a little bit of time, but I say it takes time. The assets during the probate generally are not tied up. Depending on what powers are given to you under the will, you can do certain things with those assets. So don’t think that someone dies that you can’t sell the property. Even if you don’t have a will, it’s an intestate estate, you can petition to Probate Court to sell real estate. As far as personal property – some states have cut offs. Generally it’s if it’s over $5,000, but first you look to the will and see what powers are granted there.
Even if you have assets all in your revocable trust, the attorney will have you do a will. Many times people pass away and they’ve later acquired a car or boat or another piece of real estate, and didn’t put it in their trust. So, this will is called a pour-over will. They may have to go through probate to get those probate assets back over into the trust.
As far as the personal representative – again your duty is to safeguard and marshal the assets and then give notice to everyone, interested persons: heirs, devisees, and creditors. Then file an inventory, and then eventually distribute the assets, but only after you give notice to everyone of their right to demand a hearing. Rarely do we have those demands for hearing, but it does occur.
When I talk about the probate process, again those three ways: a summary or small estate, normal administration, or contested. You can start in one – start with a summary then realize, “oh I’ve got real estate,” so I’ve got to go to normal administration. And then a will contest may occur, and you end up in the contested arena. So just keep in mind probate codes around the country are very flexible – they’re form-driven. Your local courts are very helpful and they’ve got generally workshops that will help you, with self-help videos.
But nothing takes the place of hiring an attorney and getting that peace of mind making sure that it’s done right. If you’re looking to select an attorney there’s many ways: talk to friends and family. There’s a service called Martindale-Hubble [Now: Martindale-Avvo]. Just Google Martindale (one word) and you can locate attorneys in any state. You can see their academic credentials, you can see their areas of practice, and then you can see a peer rating, “A” being the highest. That’s one way that I would say select an attorney, after talking to friends and family, look at martindale.com.
The probate process, depending on which state you’re in, may take four, six, eight, nine months, a year. Even after you complete the probate, you’ll get what’s called a “certificate of discharge” closing the estate. If you later find additional assets, maybe you find a stock certificate you didn’t realize that was in the estate, you can petition to, or file an application to reopen the estate, and that’s called subsequent administration. It does not reopen the creditor’s claim period but it does open the estate so that you can move those assets.
I always advise people to look at their state unclaimed assets websites, generally by different state treasurers. Because many times we find assets there, and those need to be probated.
But anyway, talk to your local court. They’re there to help you. Again, the probate court is the people’s Court, many of them deal with adoptions, many deal with (like our court) we deal with marriage licenses, guardianship and conservatorship. We have a drug court, a mental health court, a veterans court. So, we are there to help, and we will touch every citizen at some point in their life.
But you can never discount the help of an attorney, particularly on the estate planning side, and then also on the probate side. They can give you that peace of mind that it is done right, and they can take away that emotional part of it. I know the first estate I probated was my dad’s when I was in law school, and a local attorney helped me through that process. I know it can be difficult dealing with the loss of a loved one, so that’s where an attorney can help you in that regard.
EX: That’s poignant and that’s what a lot of people experience. It’s an experience like no other, and often you’re very new to the environment, and the Rules of Engagement, or the rules of the road, or any of the rules whatsoever.
What about Mediation?
I wanted to ask about contested wills and bring in the possibility of mediation. Executorium is fond of bringing this into the light because we think it’s if voluntary it saves a lot of heartache, and potentially legal fees. But often the court will say, “you know, you all need to sit in a room with a neutral and see if you can work this out before it gets too Squirrely. That’s not a legal term. But you know that. I think mediation is a is something that every executor should know about as an off-ramp off the Litigation Super Highway. We don’t we don’t want that. I’m glad to hear you say it’s becoming less frequent.
JC: I would agree mediation can be very helpful. It can help keep the family relationships together. My pastor always says he’s never done a funeral where the hearse has a U-Haul with stuff behind it. So, we want to you know preserve those relationships and that’s where mediation can help.
But Courts are there to resolve disputes if they do occur, and we are there to help. But mediation can lessen the expense for the parties, and then also gives them some control as to who gets what/when. So, I’d always recommend mediation.
How do Probate Bonds Work?
And as far as a personal representative, if you’re concerned about who’s serving as personal representative, you can demand a bond. A bond is an insurance policy that requires the personal representative to post [a bond]. It’s generally calculated just on the personal estate; does not include the real estate. Most courts will set the bond – if there’s $100,000 in cash, it’ll be one and a half times that value. Then the individual PR (personal Representative) has to go to an insurance company, get that bond. The insurance company does a background check on the individual. It is an additional expense to the estate, but it is another safeguard if you’re concerned as an heir, or as devisee, of who’s serving as personal representative.
EX: Or if the court has concerns, I suppose, they can just mandate the need for a bond at their own discretion. Correct?
JC: That is correct.
EX: And the scenario where say, a bond might be invoked – and the mechanics of a bond for those of us not familiar… The executor takes the estate bank account and flies off to a non-extradition territory, leaving the heirs holding the bag, or the “bill for the will” so to speak… What does the bond then do?
JC: The bond – then the insurance company would have to pay up back to the estate. And so, the devisees and heirs are protected. And then the insurance company would have to track down, and go after the PR [Personal Representative] for what they have paid out. It’s basically an insurance policy for the heirs and devisees for the takers.
I would also mention, most courts [if] there’s a dispute as to who should be the executor, the personal representative, we many times appoint a neutral person. The term used is generally “Special Administrator” and they are limited by the court order as to what they can do. Generally, they marshal and safeguard the assets, and then preserve those while there’s any litigation that is pending. And so, they can step in, and if family members are disputing each other, they can act as that neutral.
EX: With a normal or summary estate most Executors, most heirs will never see the inside of a courtroom, or meet a judge? Most of the probate procedures will be, as you say, handled by through the forms, and the registrars, and the front lines of the Probate Court, the clerks, and Clerk’s assistants. Is that accurate?
JC: That is generally accurate. Yes, our summary proceedings and also our normal proceedings are form-driven, and done informally, which means done by an application or by paperwork, and there’s no need to come to the court.
Electronic Filing
Our court actually now has electronic filing. So, they can be anywhere in the world and file electronically and do the probate. The one catch there is that we do need the original will and so we’re not totally paperless. Most state laws require a will to be in writing. So, until that changes, we will have some paper. But other than that, our county (Charleston County, South Carolina) is set up where instead of having to drive downtown to the courthouse, you can go to any of our 12 or 13 public libraries and probate it from there. Or you can, if you’ve got the equipment at home (a scanner), you can do it all from home.
Deadlines and Extensions
EX: Okay, just a word about the importance of deadlines, and are there possibilities of extensions? The importance in order of payment to those three categories, of recipients of estate funds, assets?
JC: Yeah, a couple of good points there. There are deadlines. If you get behind, check with your court. Check with your state law, check with your attorney. You can file for an extension. Generally, most courts want in in writing, and they do have a form that the person can ask for an extension. Most courts are being supervised essentially by their court administrations, and so initially they may give you an extension of three or six months, and then ask you to ask for another extension when that time period expires. Courts are there to help.
I would say it’s very important, if you do have a will, to probate that timely. Most states have a statute of limitations. If a will is not probated within 10 years, it’s as if a person died without a will. So many times we have heirs or devises living on property; they’re paying the taxes. [They] don’t believe that they need to probate the will, but they do. Because once that 10 years is up, then it’s as if the person died without a will. So it’s very important.
We have the Center for Heirs Property located in Charleston, and they serve the entire Southeast. So, they can assist [in] most of the southeast states and I think they’re even spreading out west and to the Northeast to help heirs make sure that they get clear title to their property.
EX: That’s good to know. That’s a good resource. We’re going to post that on Executorium.
JC: If we can ever help you my email address is irvcondon@charlestoncounty.org. We’re here, and my assistant Jamie Robinson is also able to help and anybody anyone at our court can.
I’d also point out that there’s a National College of Probate Judges. Hopefully the judges in your state are members of that. We get together and try to help each other improve each of our courts, whether it’s technology, whether it’s the law, just to serve our citizens better.
EX: That is certainly wonderful to hear – thank you for the offer of those resources. It’s in complete alignment with what Executorium.com is here to do and it’s, “let’s make this a little easier.”
It’s a tough job, under tough circumstances, and you know most judges and courts and their representatives and clerks and registrars, the front lines, understand that, so don’t be intimidated. It may be new, but it is for most people, [when] going into that space. That’s a known fact, so ask questions, feel comfortable. If I could just restate the judge’s recommendation about having an estate attorney – because then you’ve got a person watching your back as a resource for yourself and or and or the estate, that’s often so very important.
Judge Irving G Condon
Judge Irving G Condon was elected Charleston County Probate Judge in November 1994 and has been reelected to seven terms since. (I think I have that math correct Judge.) Judge Condon offers free workshops to the public on the estate administration process on the first Monday of each month.
Judge Condon is past president of the National College of Probate Judges, he’s also a member of the Charleston County Bar Association, The South Carolina Bar, The American Bar Association, the South Carolina Association of Probate Judges, The National College of Probate Judges, and many more organizations that I think fuels his knowledge and passion for the law, and handling probate in a most human manner. We are appreciative that he is here with us today to give us a view of that environment, and that space, so executors can see what’s ahead, and understand it, and be more comfortable with it.
Judge one last thought for executors before we end?
JC: Yes. I would say again we’re sorry for your loss. We know it’s difficult when you lose a loved one. I’ve lost both my parents and a brother to cancer, so it can be difficult. The courts are there to help you.
Remember you’ve got professionals – you can hire an attorney who can assist you too, and it’s money that’s very well spent.
Again, call me or email me if I can ever be of any assistance to anyone or any organization.
Thank you for having me here today Mr Compton, I appreciate the work you’re doing trying to help others in a difficult time.
EX: We appreciate it. We were there, so we try to lead with that in mind. We appreciate the situation an executor finds themselves in. It can be a little solitary – it doesn’t have to be. So, between Executorium and the Charleston County Probate Court, and your local Probate Court, you will move forward, and you’ll get through it executors and personal representatives.
Thank you Judge Condon and the Charleston County Probate Court.
Thank you for watching Estate Talks.
Judge Irvin G. Condon
Disclaimer: The opinions of Executorium’s Estate Talks hosts and Estate Talks guests are not necessarily the opinion of Executorium.com LLC, its principals, or its employees.
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