Upstate Estate Law, P.C. Blog

The first installment of Greenville Estate Attorney A through Z is ADMINISTRATION, as in estate administration.

Estate administration is a multi-step process wherein a representative of a Decedent’s estate is appointed by the Probate Court, estate assets are collected, debts and expenses paid, necessary tax returns filed, and distributions to the proper estate beneficiaries made.

Estate administration in South Carolina is typically a nine month process, from the date of the appointment of the Personal Representative to the filing of the final accounting with the Probate Court. In contested matters, it can take much longer. There are also multiple variations of estate administration, depending on whether there is a Last Will and Testament or not, and depending on whether there is a contest, and depending on the size of the estate.

There are different types of proceedings that can arise from estate administration. For example, a surviving spouse may initiate proceedings to claim an elective share against the estate.  Arguing beneficiaries may initiate proceedings to construe a Last Will and Testament, because they cannot agree on the meaning of a certain term or phrase. A beneficiary may initiate proceedings to remove the current representative of the estate. A creditor may initiate proceedings to be paid by the estate.

Estate administration can be as varied as the lives of each Decedent. It truly can be stated that no two estate administrations are exactly alike.

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

One question that can come up when administering an estate is whether a caregiver can be entitled to be compensated from an estate for services rendered to the Decedent before death. Often what happens is a family member or significant other serves as a caregiver believing that he or she will be compensated via a bequest from the Decedent’s estate. After the Decedent passes away, the caregiver discovers that there was in fact no bequest made to them.  In that case, is there a right to recover for caregiving services from the estate?

Yes, there is such a right, but it is pretty narrowly drawn. The Courts of South Carolina have dealt with this issue.  The right to recover is through a contract right called quantum meruit, or unjust enrichment. The South Carolina Supreme Court defined this right generally in Myrtle Beach Hospital, Inc. v. City of Mrytle Beach, when it said that quantum meruit requires “1) a benefit conferred by the plaintiff upon the defendant; 2) the realization of that benefit by the defendant; and 3) retention of the benefit by the defendant under circumstances that make it inequitable for him to retain it without paying its value.” 341 S.C. 1, 8-9 (2000).

This seems pretty encouraging for our hypothetical caregiver. But not so fast. The Supreme Court further required in Sauner v. Public Service Authority of South Carolina, that the services must be given non-gratuitously. 354 S.C. 397, 409 (2003). Now here is the problem for our caregiver. Most of the time a caregiver provides care because of some familial blood relation or love and affection.  Thus, the caregiver acts gratuitously, not expecting any compensation for their work.

This was the case in Church v. McGee, et al, where the Court of Appeals recently held that a caregiver could not receive compensation from an estate because the caregiver’s own testimony supported the finding that the caregiver did not expect compensation for the services.

It is likely the Circuit Court would have held differently had there been a written contract in place between the caregiver and the Decedent regarding monetary compensation to be paid from the estate.  This raises an interesting question as well. Can you agree via contract to make a bequest to a certain person? Is such a contract enforceable? Stay tuned for a future post……..        

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

This question comes up alot, and most of the time I cringe when I hear it. I hate to see an inheritance needlessly get eaten up by attorney’s fees, and the removal of the personal representative is one of those proceedings that can lead to unnecessary attorneys fees. I find that most of the time this question arises due to a lack of understanding of the administration of an estate (some people erroneously believe that being appointed as personal representative means they are then entitled to the entire estate), or through a lack of effective communication between the personal representative of the estate and one or more of the estate beneficiaries.

Be that as it may, there are situations that call for the removal of the estate beneficiary, and not surprisingly, S.C. statute lays out the parameters. South Carolina Code Section 62-3-611 (b) says “cause for removal exists when removal would be in the best interests of the estate, or if it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, or has mismanaged the estate or failed to perform any duty pertaining to the office.” There you go. You can seek the removal of the personal representative by showing that the personal representative lied to the court on the Application for Appointment (in regard to the identity of estate beneficiaries), offering a knowingly fraudulent Last Will for probate, willfully misrepresenting the value of estate assets, paying invalid claims, commingling estate assets with personal assets, or failure to abide by the time limits imposed on the submission of inventories and accountings.

Absent one of the above circumstances, it will be nearly impossible to have the personal representative involuntarily removed. Particularly when a Last Will nominates a personal representative, there will be great judicial deference to this choice, as again recently stated by the South Carolina Court of Appeals in the case of Church v. McGee et al, “[T]here is a strong deference shown to the personal representative chosen by the testator.” Blackmon, 366 S.C. at 251 “The Courts have ever been reluctant to take management of an estate from those to whom it has been confided by the testator, for to that extent the intention expressed in his will would be defeated.” Id. (quoting Smith v. Heyward, 115 S.C. 145, 164, 105 S.E. 275, 282 (1920). “The power to remove a personal representative should be exercised with great caution, and not at all, unless it is made to appear to be necessary for the protection of the estate, to prevent loss or injury to it from misappropriation, maladministration, or fraud.” Id. quoting Smith, 115 S.C. at 164-65, 105 S.E. 282.

If you believe you are a beneficiary of an estate that is not being appropriately administered, you should consult with an attorney before embarking on a path that may cause needless stress and anxiety.  Sometimes a phone call or letter to the attorney representing the estate will lead to clarification of what is going on with the estate, and when inventories and acountings can be expected to be received.           

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

What do you do if you find yourself a widow(er) and come to find out that your spouse did not mention you in his/her Last Will?

To answer the question, you need to first determine whether the Will was executed before your date of marriage or after. If it was executed before your marriage, you are termed an omitted spouse, and pursuant to S.C. Code Section 62-2-301, you are entitled to receive your intestate share in the estate, notwithstanding that the Last Will says otherwise. (Click here to determine what your intestate share would be.)

If you are an omitted spouse, you must file a written claim with the Probate Court and to the personal representative within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires. You will not be considered an omitted spouse if, however, the will appears to have intentionally omitted you, or your spouse has otherwise provided for you through other assets, such as life insurance, joint bank accounts, etc.

If you are not an omitted spouse under the law, you have the right to elect to receive a one third share of the probate estate, notwithstanding that the will says otherwise. (S.C. Code 62-2-201). The probate estate is defined to include all assets passing by will plus by intestacy, less funeral and administration expenses, and claims. (S.C. Code 62-2-202).

For elective share purposes, the probate estate will also include assets held in a revocable trust. Seifert v. Southern Nat. Bank of South Carolina, 305 S.C. 353 (1991). This is so because grantors of revocable trusts tend to remain in control of their assets, often serving as the trustee and beneficiary during their lifetimes, with full power to revoke the trust or otherwise direct where the assets will go. Such arrangments are considered illusory (for elective share purposes only) and will not be protected from the surviving spouse’s right of election.

To make a claim for elective share, the surviving spouse, his attorney in fact (or a court in the case of a protected person) must, during the surviving spouse’s lifetime, file a written petition for elective share with the Probate Court and the personal representative, within eight months after the date of death or six months after the probate of the Last Will, whichever period last expires.

Now that we have gone over some of the basics of the omitted spouse and the right of election, tune in next time for a discussion of what some unscrupulous people will do to be able to claim an elective share in an estate, and why sometimes it works.      

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

If you have a Last Will prepared, you will probably wonder what per stirpes means. The term is from Latin and means literally per branch. What it means is that each branch of a Decedent’s family takes an equal share, regardless of the number of family members in each branch. This term simply tells us attorneys how to divide up an interest in your estate in case the person you named as a beneficiary died before you, leaving surviving children.

The term is best defined by an example. Suppose that Click here to finish this post.