How do I start probate if I am named as executor in a friend’s will? – South Carolina

Short Answer

File the original will and an application for probate and appointment with the South Carolina Probate Court in the county where the friend lived at death. Being named in the will gives an executor priority, but the court must appoint that person as personal representative before the person can administer the estate. Because the will names a co-executor, both nominees have equal priority, and if both are appointed, they generally must participate unless the will allows otherwise or one appointed corepresentative delegates specified duties in a writing filed with the court.

Understanding the Problem

How can a person named as executor begin probate in South Carolina when a will also names the decedent’s sibling as co-executor? The immediate issue is filing the will in the correct Probate Court and obtaining authority to act. The timing matters because the will must be delivered promptly, while duties involving the house, belongings, insurance, and creditor claims generally begin after the court issues the appointment.

Apply the Law

South Carolina calls a court-appointed executor a “personal representative.” A nomination in a will creates priority for appointment, but it does not provide immediate authority to sell property, access accounts, pay claims, or distribute belongings. The original will and appointment papers generally go to the Probate Court in the county where the decedent was domiciled at death.

Key Requirements

File the original will promptly: A person holding the will must deliver it to the proper Probate Court within 30 days after receiving actual notice or knowledge of the death.
Request probate and appointment: The applicant must provide information about the decedent, heirs, beneficiaries, will, existing appointments, and the applicant’s priority. South Carolina courts commonly use Form 300ES, Application for Informal Probate of Will and Informal Appointment of Personal Representative.
Address the co-executor nomination: If both nominees receive appointments, they generally must agree on estate decisions. If only one wishes to serve, the other may need to file a written renunciation or receive the statutory notice given to a person with an equal right to appointment.
Qualify before acting: The nominee must accept the position and satisfy any bond requirement before receiving appointment documents. A personal representative named in the will generally is not required to file a bond unless the will expressly requires one, although the court or an eligible interested person may require it in some circumstances.
Identify probate property: The personal representative must distinguish assets controlled by the estate from assets passing directly by deed, joint ownership, beneficiary designation, or contract.

What the Statutes Say

S.C. Code § 62-2-901 (Delivery and Filing of a Will) – Requires delivery of the will within 30 days after actual notice or knowledge of the death.
S.C. Code § 62-3-201 (Probate Venue) – Places the initial proceeding in the county where the decedent was domiciled, subject to a separate rule for nonresidents.
S.C. Code § 62-3-203 (Priority for Appointment) – Gives priority to qualified people nominated in a probated will.
S.C. Code § 62-3-301 (Application Requirements) – Lists the information required for informal probate and appointment.
S.C. Code § 62-3-717 (Corepresentatives) – Generally requires all appointed corepresentatives to agree unless the will or a filed delegation provides otherwise.
S.C. Code § 62-3-706 (Inventory and Appraisement) – Requires an inventory of probate property within 90 days after appointment.

Analysis

Apply the Rule to the Facts: The named executor should submit the original will to the Probate Court for the county where the friend lived and apply for appointment. Because the sibling is also nominated, the filing must address whether both will serve or whether one will decline. After appointment, the personal representative must determine how the house, belongings, and insurance policies are titled before placing them on the probate inventory or using them to pay claims.

Process & Timing

Who files: One or both nominated executors. Where: The Probate Court in the South Carolina county where the decedent was domiciled. What: The original will, a certified death certificate if required by local procedure, Form 300ES, and the court’s acceptance, bond, and supporting documents. When: Deliver the original will within 30 days after actual notice or knowledge of the death.
Obtain appointment: The court reviews the will, venue, family and beneficiary information, priority, and qualification papers. If one nominee applies without a waiver from the other person holding equal priority, the applicant generally must provide notice allowing 30 days for an objection, competing application, or nomination. Contests or disagreements may require a formal proceeding and hearing.
Secure and identify property: After appointment, the personal representative should safeguard the house and belongings, collect account and title records, check insurance beneficiary designations, and separate probate from nonprobate assets. A policy payable to a named beneficiary usually passes outside probate, while a policy payable to the estate may become a probate asset.
File the inventory: Within 90 days after appointment, the personal representative must file an inventory and appraisement, commonly Form 350ES, listing probate assets at fair market value as of the date of death and identifying liens or other encumbrances. Household items may be grouped reasonably, but valuable items may require separate descriptions or appraisals.
Handle creditor claims: After appointment, the personal representative must publish notice once a week for three successive weeks. Claims arising before death generally must be presented by the earlier of one year after death or eight months after the first publication, and a creditor receiving written notice may have a shorter deadline. The representative should verify and classify medical bills and other claims before paying them, especially if the estate may not have enough liquid assets to pay every claim.
Decide whether the house must be sold: A house does not automatically have to be sold. The decision depends on the will, title, available cash, liens, valid claims, and beneficiary rights. Unless the will authorizes a sale, the personal representative generally must use an authorized court procedure before selling estate real property. More detail appears in this discussion of when a South Carolina estate may need to sell a house.

Exceptions & Pitfalls

Acting before appointment: A nomination in the will does not authorize a person to withdraw funds, distribute belongings, sign a listing agreement, or sell the house on behalf of the estate.
Co-executor disagreements: If both nominees qualify, both generally must approve estate actions. A written delegation may permit one to perform specified duties, but it must be signed and filed with the court.
Incorrect inventory treatment: Jointly owned property and assets with valid beneficiary designations may pass outside probate. Title and policy documents, not assumptions, determine whether an asset belongs on the probate inventory.
Premature creditor payments: Paying one unsecured creditor too early can create personal exposure if that payment harms a creditor with higher priority. Medical bills should be reviewed through the claims process rather than paid automatically.
Unauthorized property sales: Unless the will grants sale authority, selling estate real property usually requires statutory court authorization. Selling tangible personal property with an aggregate value of $10,000 or more also may require a prior court order.
Failure to preserve the house: The personal representative should maintain appropriate insurance, secure the property, prevent waste, and keep records of estate expenses while the sale or distribution decision remains pending.
Tax questions: If estate or individual tax filing issues arise, the personal representative should consult a tax attorney or CPA rather than relying on general probate information.

Conclusion

A person named as executor starts South Carolina probate by filing the original will and an application for appointment in the Probate Court for the county where the decedent lived. The co-executor nomination must also be addressed because jointly appointed representatives ordinarily must act together. The single next step is to deliver the original will to that Probate Court within 30 days after receiving actual notice or knowledge of the death and request the court’s current opening forms.

Talk to a Probate Attorney

If you’re dealing with a co-executor appointment, significant creditor claims, or uncertainty about an estate’s house and other assets, our firm has experienced attorneys who can help you understand the probate filing requirements, authority limits, and upcoming deadlines.

Disclaimer: This article provides general information about South Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed South Carolina attorney.