FALL 2005 MEDLIN
I. Do We Deliver the Will?
A. § 62-2-901: anyone w/ will in possession must deliver to probate judge w/in 30 days of knowledge of D’s death.
1. after 30 days probate judge publishes notice of will delivery
2. innocent failure to deliver is misdemeanor, intentional failure 5K and up to 1 yr prison
II. Do We Probate the Will? (Do we ask judge if will is valid?)
A. No reqt to probate, but if you want to prove you got possession under will, it needs to be declared valid
1. § 62-3-102: to prove transfer of prop or name PR, judge has to say will is valid
2. § 62-3-901: if there is to be no admin, devisees can est title by a brobated will
3. duty to probate will only arises when Pr is appted, so even if named PR, if never appted, no duty
III. Do We Administer the Estate?
A. No duty to admin the estate until PR is appted, so why would we probate?
1. §§ 3-103 and 104: to admin estate, msut have PR. Must have PR before creditor claims are presented, so creditors have interest in admining the estate
2. benes want fast admin b/c it can cut off creditors
3. if we admin estate and give prop to devisees/ distributes, it protects later purchasers
4. in SC, probate costs are low, so no real monetary incentive not to probate
B. Why Would We Choose Not to Probate?
1. § 62-3-912: private agreement among benes/heirs can redistribute prop how they want to, but has gift tax consequences
2. § 62-3-1101 and 1102: Family Settlement Agreements; allows families to compromise when there is a dispute about the validity or impact of a will. Ct has power to change will.
IV. How We Go About Administering the Estate; Determine What Ct Has SMJ and Where Ct Has Venue
1. § 62-1-302, Probate Jur: probate ct has exclusive jur over:
a. Determining whether will is valid, construing will, determining intestacy heirs
b. Appting conservator to take care of minor’s prop (family ct appts person who has custody of minor)
c. Intervivos and testamentary trusts
d. Wrongful death and survival actions (concurrently w/ circuit ct) to the extent of approving settlements
2. § 62-1-302(c), Removal:
a. either party can remove to cir ct to trial for:
1) Formal probate of wills and formal PR appt
2) Construction of wills
3) Actions to try title
5) Where party has right ot jury trial and amt in controversy of 5K
b. When removed, only issue removed goes to cir ct, creates diff appellate process, may lose knowledge of probate judges over probate matters
c. File motion to remove 10 days after responsive pleadings are over
3. § 62-1-304: SCRP applies unless inconsistent w/ SCPC
4. § 62-1-306(a): right to jury trial to determine validity of will
5. § 62-1-308, Appeals:
1. § 62-3-201 and 1-303: if SC citizen, cty where D domiciled at death
a. If non-SC citizen, where he owned prop
1) if there is a dispute, first cty that has venue
2. § 62-3-108, SOL:
a. Determination that will is valid or apptmt of PR:
1) To contest informally probated will, 8 mths of probate or 1 yr from D’s death
2) Overriding time 10 years from D’s death. After 10 years, will is conclusively invalid and D is intestate
a) If will found valid w/in 10 years, it can be construed after 10 years
b) Exceptions to 10 year limit:
i. If action is timely commenced, but suspended b/c not sure if D is dead, can restart after 10 years when D is determined dead
ii. 3 yr SOL when conservator determines D to have died
1. § 62-3-106: any actions must conform to 1-401
a. § 62-1-401: if you are on notice, you are bound by probate ct even if you
, anyone demanding notice, and any PR’s whose apptment hasn’t been terminated
1. to anyone demanding it and any Pr who hasn’t been terminated before hearing
2. after will is determined valid give notice to devisees heirs and info to contest according to 1-401
D. After Application, Judge Determines Whether Will is Valid or Whether to Appt PR
1. Judge has discretion to determine validity
a. § 62-3-303: determines if application is complete, applicant has made oath/affirm of truth, ct has venue, ct has the will, any notice has been given, and there aren’t multiple inconsistent wills
1) If will has signatures, attestation, judge can determine valid; under 3-305 doesn’t have to approve if ct doesn’t want to
b. § 62-3-302: if approves, ct will issue written statement of informal probate; this is conclusive unless overturned by a formal probate challenge
2. Judge has discretion to appt PR similar to determining will validit
VII. Formal Probate
A. Why Would We Want to Initiate Formal Proceeding?
1. want to get it over with, so start w/ formal to get a conclusive order
2. to prevent/block any other probate proceeding
3. to confirm an earlier informal probate
4. to contest/overturn an earlier informal probate(if we think D was really intestate, only way to have earlier will declared invalid and get order of intestacy is through formal)
5. only way to probate a lost will is through formal
B. What Happens When Formal Probate Commenced?