In this article, you will learn about key risks to your legacy which an estate planning attorney can help protect you against during the estate planning process in South Carolina. These include:
- How Medicaid and other creditors might try to lay claim on your assets in South Carolina.
- The eventual need for probate and what assets can or cannot be sold during that process.
- How to ensure a partner is protected even if you are not legally married in South Carolina.
What Is The Statute Of Limitations For Creditors To Make A Claim Against Your Estate In South Carolina?
When you die and your loved ones go to probate court and file the probate for the distribution of your assets, the court publishes a notice in the newspapers. From the date of that notice, creditors have eight months to file a claim against the estate.
How Long Does Medicaid Have To File A Claim Against An Estate In South Carolina?
In South Carolina, Medicaid is treated like any other creditor. Medicaid would have eight months after publication of the notice of death to file a claim against the estate.
The best way to avoid your legacy being vulnerable to such claims is to have a trust set up. Assets in a trust do not go through the probate process and thus there is no 8-month waiting period creditors can seize upon, nor any way for Medicaid to try and reclaim part or all of your assets.
Can An Estate Be Settled Without Probate In South Carolina?
Unfortunately, while it is technically possible, in the vast majority of cases without a trust set up, an estate will need to go through the formal process of probate to be settled.
In the extremely rare case where the deceased has zero assets and no land or other wealth or property; then, of course, no probate is needed. If the decedent has no land but under $25,000 worth of other assets, a small estate can be filed in probate, which is usually over within just two or three months.
If there is land owned by the decedent involved, however, or other significant assets, a full probate procedure must be taken. The only way to avoid the hassle and vulnerabilities of such a procedure is by setting up a trust beforehand with the help of your South Carolina estate planning attorney.
If the land and other assets are in the trust, then, and only then, will there be no probate for the decedent.
Can A Home Be Sold During The Probate Process In South Carolina?
If the decedent did not leave a will, then their house (and other property) cannot be sold during the probate process. At the end of probate, a deed of distribution will be issued to the heirs-at-law and then they can sell the home.
If there is a will, then the answer depends on whether that will gives the power to the personal representative of the estate to sell real property. If that power is given, then he or she can sell the property at any point during the probate.
If that power is not given, then the personal representative will have to petition the probate court and go to a hearing if they want to sell the property before the end of the probate.
This system is meant to protect creditors: if the judge gives permission to sell, then the proceeds of the sale have to be placed in the probate estate bank account and cannot be used until at least the 8-month waiting period for creditors to request payments has passed.
How Can I Set Up My Estate Planning Documents To Protect My Unmarried Partner In South Carolina?
There is really no difference in setting up your estate plan for married under-law people or those who have a commitment to each other without going through a marriage license.
Each one should designate the other in their estate planning documents as their partner, significant other, or a term to denote that they are more than a friend, and are in a long-term committed relationship with each other. If that is done, their estate plan can be upheld by law against any attacks.
Such details, as well as other protections for your legacy against or during the probate process, are best established sooner rather than later, and should always be done with the guidance and help of an experienced South Carolina estate planning attorney.
For more information on Estate Planning & Elder Law Issues In SC, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling
(864) 271-7940 today.